NY Town L § 64-E (2021)
2021 New York Laws TWN - Town Article 4 - Town Boards 64-E - Peconic Bay Region Community Preservation Funds.

§ 64-e. Peconic Bay region community preservation funds. 1. As used in this  section,  the  following  words and terms shall have the following meanings:  (a) "Peconic Bay region" means the towns of East  Hampton,  Riverhead, Shelter Island, Southampton and Southold.  (b)  "Community  preservation"  shall  mean  and  include  any  of the purposes outlined in subdivision four of this section.  (c) "Board" means the advisory board required pursuant to  subdivision five of this section.  (d)  "Fund"  means the community preservation fund created pursuant to subdivision two of this section.  (e)  "Water  quality  improvement  project"  means:   (1)   wastewater treatment  improvement  projects;  (2)  non-point  source  abatement and control program projects developed pursuant to section eleven-b  of  the soil and water conservation districts law, title 14 of article 17 of the environmental  conservation  law,  section  1455b of the federal coastal zone management act, or article forty-two  of  the  executive  law;  (3) aquatic habitat restoration projects; (4) pollution prevention projects; (5)  the  construction  of public water mains and connections to provide drinking water to inhabitants  whose  drinking  water  supply  has  been contaminated  by  toxic  chemicals  as defined in section 37-0301 of the environmental conservation  law,  hazardous  substances  as  defined  in section  40-0105  of  the  environmental  conservation  law  or emerging contaminants as defined in section eleven hundred twelve of  the  public health  law;  and  (6) the operation of the Peconic Bay National Estuary Program, as designated by the  United  States  Environmental  Protection Agency;  and  (6)  a septic system replacement loan program, pursuant to section sixty-four-ee of the town law. Such projects shall have as their purpose the improvement of  existing  water  quality  to  meet  existing specific  water  quality  standards. Projects which have as a purpose to permit or accommodate new growth  shall  not  be  included  within  this definition.  (f)  "Wastewater  treatment  improvement  project" means the planning, design, construction, acquisition, enlargement, extension, or alteration of a wastewater treatment facility, including alternative systems  to  a sewage   treatment   plant  or  traditional  septic  system,  to  treat, neutralize, stabilize, eliminate or partially eliminate sewage or reduce pollutants in treatment facility effluent, including permanent or  pilot demonstration wastewater treatment projects, or equipment or furnishings thereof. Stormwater collecting systems and vessel pumpout stations shall also  be  included  within  the  definition  of a wastewater improvement project.  (g) "Aquatic habitat restoration project" means the planning,  design, construction,  management,  maintenance, reconstruction, revitalization, or rejuvenation activities intended to improve waters of  the  state  of ecological  significance or any part thereof, including, but not limited to ponds, bogs, wetlands, bays, sounds, streams, rivers,  or  lakes  and shorelines   thereof,   to   support  a  spawning,  nursery,  wintering, migratory, nesting, breeding, feeding, or foraging environment for  fish and wildlife and other biota.  (h)   "Pollution  prevention  project"  means  the  planning,  design, construction, improvement, maintenance  or  acquisition  of  facilities, production  processes,  equipment  or  buildings  owned  or  operated by municipalities for the reduction, avoidance, or elimination of  the  use of toxic or hazardous substances or the generation of such substances or pollutants  so  as  to reduce risks to public health or the environment, including  changes  in  production  processes  or  raw  materials;  such projects  shall  not  include  incineration, transfer from one medium of  release or discharge to another medium,  off-site  or  out-of-production recycling, end-of-pipe treatment or pollution control.  (i)  "Stormwater  collecting system" means systems of conduits and all other  construction,  devices,  and  appliances   appurtenant   thereto, designed  and  used  to  collect and carry stormwater and surface water, street wash, and other wash and drainage waters to a  point  source  for discharge.  (j) "Vessel pumpout station" means a project for the planning, design, acquisition or construction of a permanent or portable device capable of removing human sewage from a marine holding tank.   2.  The town board of any town in the Peconic Bay region is authorized to establish by local law a community preservation fund pursuant to  the provisions  of this section. Deposits into the fund may include revenues of the local government from whatever source and  shall  include,  at  a minimum,  all  revenues  from  a  tax  imposed upon the transfer of real property interests in such town pursuant to article thirty-one-D of  the tax  law.  The fund shall also be authorized to accept gifts of any such interests in land or of funds. Interest accrued by monies deposited into the fund shall be credited  to  the  fund.  In  no  event  shall  monies deposited  in  the  fund  be  transferred  to any other account. Nothing contained in this section shall be construed to prevent the financing in whole or in part, pursuant to the local finance law, of any  acquisition or  water  quality  improvement  project  authorized  pursuant  to  this section. Monies from the fund may be utilized to repay any  indebtedness or  obligations  incurred  pursuant  to the local finance law consistent with effectuating the purposes of this section. Where a town finances an acquisition or water quality improvement project, in whole, or in  part, pursuant  to  the  local  finance  law,  the resolution authorizing such indebtedness shall be accompanied by a report from the  town  supervisor demonstrating  how  said  indebtedness  will be repaid by the fund. Said report shall include an estimate  of  projected  revenues  of  the  fund during  the  period  of  indebtedness.  The report shall also provide an accounting of all other indebtedness incurred against  the  fund  to  be repaid  for  the  same  period.  The  town  board shall make findings by resolution  that  there  will  be  sufficient  revenue  to  repay   such indebtedness  in  its  entirety  from  the  fund before authorizing such indebtedness.   3. The purposes of the fund shall be exclusively, (a) to  implement  a plan  for  the  preservation  of community character as required by this section, (b) to acquire interests or rights in  real  property  for  the preservation  of  community character within the town including villages therein in accordance with such plan and  in  cooperation  with  willing sellers,  (c)  to establish a bank pursuant to a transfer of development rights program consistent with section two hundred sixty-one-a  of  this chapter,  (d)  to  provide a management and stewardship program for such interests and rights consistent with subdivisions  nine  and  nine-a  of this  section  and  in  accordance  with  such plan designed to preserve community character; provided that not more than ten percent of the fund shall be utilized for the management and stewardship program, and (e) to implement water quality improvement projects in accordance with  a  plan to preserve community character. A maximum of twenty (20) percent of the fund may be utilized for the implementation of water quality improvement projects;  provided  that where such water quality improvement funds are utilized for the operation of the Peconic Bay National Estuary  Program, the  use  of  such funds shall only be utilized to match federal, state, county, or other public or private funds on a dollar for  dollar  basis, not  to  exceed  ten  (10) percent of the annual amount appropriated for water  quality  improvement  projects.  If  the  implementation  of  the  community  preservation  project  plan,  adopted  by  a  town  board, as provided in subdivision six of this section,  has  been  completed,  and funds   are   no  longer  needed  for  the  purposes  outlined  in  this subdivision,  then  any remaining monies in the fund shall be applied to reduce any bonded indebtedness or obligations incurred to effectuate the purposes of this section.   3-a.  Preliminary  and  incidental  costs  in  connection   with   the acquisition  of  interests  or  rights  in  real  property,  pursuant to subdivision three of this section, shall be deemed part of the  cost  of the  acquisition  for  which  they  were incurred. Such expenditures may include  any  administrative  or  other  expenditures  directly  arising therefrom.   No  expenditure  shall  be  charged  to  the  fund,  unless authorized by law. A full accounting of such costs for each  acquisition of land shall be provided to the town board.   4.  Preservation  of  community character shall involve one or more of the  following:  (a)  establishment  of  parks,  nature  preserves,   or recreation areas; (b) preservation of open space, including agricultural lands provided, however, that farm buildings and structures used for the marketing  of farm products produced on such agricultural lands shall be permitted; (c) preservation of lands of exceptional  scenic  value;  (d) preservation  of  fresh  and  saltwater  marshes  or other wetlands; (e) preservation of aquifer recharge areas; (f) preservation of  undeveloped beachlands  or  shoreline including those at significant risk of coastal flooding due  to  projected  sea  level  rise  and  future  storms;  (g) establishment  of wildlife refuges for the purpose of maintaining native animal species diversity, including the protection of habitat  essential to   the  recovery  of  rare,  threatened  or  endangered  species;  (h) preservation of pine barrens consisting of such biota as pitch pine, and scrub oak; (i) preservation of unique or  threatened  ecological  areas; (j)  preservation  of  rivers and river areas in a natural, free-flowing condition; (k) preservation of forested land; (l) preservation of public access to lands for public use including stream  rights  and  waterways; (m)  preservation  of  historic  places and properties listed on the New York  state  register  of  historic  places  and/or  protected  under  a municipal  historic  preservation  ordinance or law; (n) preservation of lands necessary to protect fisheries and water dependent uses  essential to  maintain  and  enhance maritime heritage; and (o) undertaking any of the aforementioned in furtherance of the establishment of  a  greenbelt. Preservation  of  community  character shall also include the protection and improvement of the quality of all water resources.   5. The town board of any town in the  Peconic  Bay  region  which  has established a community preservation fund shall create an advisory board to review and make recommendations on proposed acquisitions of interests in real property or water quality improvement projects using monies from the  fund.  Such board shall consist of five or seven legal residents of the municipality who shall serve without compensation. No member of  the local  legislative  body  shall  serve  on  the board. A majority of the members  of  the  board  shall   have   demonstrated   experience   with conservation   and   land   preservation  activities  or  water  quality improvement activities, or historic preservation activities.  The  board shall act in an advisory capacity to the town board. At least one member of the board shall be an active farmer.   6.  The  town  board  of  any town in the Peconic Bay region which has established a community preservation fund shall, by local law,  adopt  a community  preservation project plan. This plan shall list every project which the town plans to undertake pursuant to the community preservation fund. It shall include every parcel which is necessary to be acquired in the town in order  to  protect  community  character.  Such  plan  shall  provide for a detailed evaluation of all available land use alternatives to  protect  community  character, including but not limited to: (a) fee simple  acquisition,   (b)   zoning   regulations,   including   density reductions,  cluster development, and site plan and design requirements, (c) transfer of development rights,  (d)  the  purchase  of  development rights, and (e) scenic and conservation easements. Said evaluation shall be  as  specific as practicable as to each parcel selected for inclusion in the plan. The plan shall establish the priorities  for  preservation, and  shall include the preservation of farmland as its highest priority. Said plan shall also list every water quality improvement project  which the  town plans to undertake pursuant to the community preservation fund and shall state how such project would improve existing  water  quality. Projects  which have as their purpose the accommodation of new growth as opposed to the remediation  of  water  quality  shall  not  qualify  for funding  under  this section. Funds from the community preservation fund may only be expended for projects which have been included in said plan. Said plan shall be updated not less than once every five years,  but  in no  event  until at least three years after the adoption of the original plan. A copy of the  plan  shall  be  filed  with  the  commissioner  of environmental  conservation, the commissioner of agriculture and markets and the commissioner of the office of  parks,  recreation  and  historic preservation.  Said  plan  shall be completed at least sixty days before the submission of the  mandatory  referendum  required  by  section  one thousand  four  hundred  forty-nine-bb of the tax law. As part of, or in addition, to said community preservation fund project  plan,  each  town board  may also adopt a management and stewardship plan for interests or rights in real property acquired pursuant to  this  section.  No  monies from  the  fund shall be expended for management and stewardship, except as  approved  in  said  plan.  Said  plan  may  provide  management  and stewardship  projects  for up to a three year period and shall provide a description and estimated cost for each  project.  Said  plan  shall  be approved  and  adopted by local law and may be updated from time to time at the discretion of the town board.  Only  management  and  stewardship projects  permitted pursuant to subdivision nine-a of this section shall be eligible to be included in the plan.   7. The town board of any town in the  Peconic  Bay  region  which  has established a community preservation fund pursuant to this section shall study and consider establishing a transfer of development rights program to  protect  community  character as provided for by section two hundred sixty-one-a of this chapter. All provisions of such section two  hundred sixty-one-a  shall  be  complied with. If at any time during the life of the community preservation fund a transfer of development rights program is  established,  the  town  may  utilize  monies  from  the   community preservation  fund  in  order  to  create and fund a central bank of the transfer of development rights program. If at any time during  the  life of  the  community  preservation  fund, a transfer of development rights program is repealed by the town, all monies from the central bank  shall be returned to the community preservation fund.   8.  No interests or rights in real property shall be acquired pursuant to this section until a public hearing is held as  required  by  section two hundred forty-seven of the general municipal law; provided, however, that  nothing  herein  shall prevent the town board from entering into a conditional purchase agreement before a  public  hearing  is  held.  Any resolution  of a town board approving an acquisition of land pursuant to this section, shall find that acquisition was the best  alternative  for the protection of community character of all the reasonable alternatives available to the town.    9.  Lands  acquired pursuant to this section shall be administered and managed in a manner which (a) allows  public  use  and  enjoyment  in  a manner  compatible  with  the  natural,  scenic, historic and open space character of such lands; (b) preserves the native  biological  diversity of  such  lands;  (c) with regard to open spaces, limits improvements to enhancing access for passive use of such lands such  as  nature  trails, boardwalks,  bicycle  paths,  and peripheral parking areas provided that such improvements do not degrade the ecological value  of  the  land  or threaten  essential  wildlife  habitat;  and  (d) preserves historic and cultural  property  consistent  with  accepted  standards  for  historic preservation  and  permits  adaptive  reuse  of  such properties that is consistent with the historic character of the property, while maximizing public use to the maximum extent practicable. In furthering the purposes of this section, the town may enter into  agreements  with  corporations organized  under  the  not-for-profit corporation law and engage in land trust activities to manage  lands  including  less  than  fee  interests acquired  pursuant  to the provisions of this section, provided that any such agreement shall contain a provision  that  such  corporation  shall keep  the  lands  accessible to the public unless such corporation shall demonstrate to the satisfaction of the town  that  public  accessibility would  be  detrimental  to the lands or any natural resources associated therewith.   9-a. (a) Except for interests or rights in real property acquired  for historic  preservation  purposes,  management  and  stewardship projects shall be only expended for (1) projects which promote the protection  or enhancement  of  the natural, scenic, and open space character for which the interests or rights in real property were acquired, or (2) accessory uses related to the purpose for which the interests or  rights  in  real property were acquired consistent with subdivision nine of this section, or  (3)  restoration  of  acquired  real  property  to its natural state including the demolition of existing buildings and structures.  (b) In the case of interests or rights in real property  acquired  for historic  preservation  purposes,  funds  may  be  expended only for the restoration and rehabilitation of buildings  and  structures  consistent with accepted standards for historic preservation.  (c)  Expenses  related  to  the customary operation and maintenance of acquired interests or rights in real property  shall  not  be  permitted from the fund.  (d) Any project funded pursuant to this subdivision must have a useful life of five years or more under section 11.00 of the local finance law.  (e)  Any  expenditure  from  the  fund  for  a purpose other than that permitted, herein, shall be deemed to be prohibited.   10. Rights or interests in real property  acquired  with  monies  from such  fund  shall  not be sold, leased, exchanged, donated, or otherwise disposed of or used for  other  than  the  purposes  permitted  by  this section  without  the  express  authority  of an act of the legislature, which shall provide  for  the  substitution  of  other  lands  of  equal environmental  value  and  fair  market  value and reasonably equivalent usefulness and location to those to be discontinued,  sold  or  disposed of, and such other requirements as shall be approved by the legislature. Nothing  in  this  section  shall  preclude  a  town, by local law, from establishing additional restrictions to the alienation of lands acquired pursuant to this section. This subdivision shall not apply to  the  sale of development rights by a town acquired pursuant to this section, where said  sale  is  made  by a central bank created by a town, pursuant to a transfer of development rights program established by a town pursuant to section two hundred sixty-one-a of this chapter, provided,  however  (a) that  the  lands  from which said development rights were acquired shall  remain preserved in perpetuity by a permanent conservation  easement  or other  instrument  that  similarly  preserves  the  community  character referenced in subdivision four of this section,  and  (b)  the  proceeds from  such  sale  shall be deposited in the community preservation fund. Nothing in this section shall preclude a town from utilizing development rights acquired with monies from the fund from being utilized to provide community housing, provided that such development rights have  not  been expressly  extinguished at the time of acquisition. The lands from which said  development  rights  were  acquired  shall  remain  preserved   in perpetuity by a permanent conservation easement or other instrument that similarly  preserves  the  community character referenced in subdivision four of this section.  Where  such  development  rights  are  sold,  the proceeds from such sale shall be deposited in the community preservation fund. For purposes of this subdivision, "community housing" shall mean a primary  residential  property  where the purchase price limit shall not exceed  one  hundred  fifty  percent  of  the  purchase   price   limits established  by  the state of New York mortgage agency low interest rate loan program in non-target categories for the county.   11. Notwithstanding any provision of law to the  contrary,  towns  may enter  into  intermunicipal agreements pursuant to article five-G of the general municipal law for the following purposes: (a) to jointly acquire interests or rights in real property, consistent with  the  purposes  of this section, where the acquisition of such interests or rights promotes a  regional  public benefit for two or more towns pursuant to a regional plan,  (b) to establish an office or  department  among  all  five  towns  to render  legal  opinions  and interpretations to facilitate the efficient and consistent administration of each fund created under this section,  (c) to provide for an independent financial audit of each town's fund,  (d) to hire employees necessary to implement the  provisions  of  this section.   12.  Each  town  shall annually commission an independent audit of the fund. The audit shall be conducted by an  independent  certified  public accountant  or  an  independent  public  accountant. Said audit shall be performed by a certified public  accountant  or  an  independent  public accountant  other  than  the one that performs the general audit of each town's finances. Such audit shall be an  examination  of  the  fund  and shall  determine  whether the fund has been administered consistent with the provisions of this section and all other  applicable  provisions  of state  law. Said audit shall be initiated within sixty days of the close of the fiscal year of each  town  and  shall  be  completed  within  one hundred twenty days of the close of the fiscal year. A copy of the audit shall be submitted annually to the state comptroller and the town clerk. A  copy of the audit shall be made available to the public within thirty days of its completion. A notice of the completion of the audit shall be published in the official newspaper  of  the  town  and  posted  on  the official  sign  board of the town within ten days of its filing with the town clerk. Said audit and notice shall also be posted on  the  internet site for the town. The cost of the audit may be a charge to the fund.   13. The cost of employees and independent contractors to implement the provisions  of  this section, may only be paid for by the fund where the duties  and  responsibilities  of   said   employees   and   independent contractors  are  directly  dedicated  to implementing the provisions of this section. Where such employees and independent contractors  are  not exclusively dedicated to implementing the provisions of this section, no more  than  the  cost  of the actual time expended directly dedicated to implementing the provisions of this section may be charged.  Such  costs shall  be  expressly  identified in the town budget and any plan adopted  pursuant to this section before funds for such costs may be expended. In addition, such costs must be documented by  a  time  accounting  system, subject  to audit. Costs relating to the activities of elected officials implementing  the  purposes  of  this section may not be a charge to the fund.