Henrietta City Zoning Code
ARTICLE IXB
Incentive Zoning
§ 295-34.8 Purpose and intent.
A.
Purpose. Generally, the purpose of incentive zoning is to provide a means to protect open space, historic resources, and working agricultural lands, and provide for additional community benefits and amenities to the Town in exchange for certain incentives to property owners and prospective developers of projects within designated areas of the Town. Incentive zoning is meant to encourage the long-term conservation and preservation of high-quality farmland, natural and cultural resources, and open space in Henrietta, particularly in the mostly rural southern half of the Town. Incentives are also intended to encourage economic revitalization and provision of essential services to neighborhoods throughout the community. The following incentive categories are established under this article and available in exchange for specific community amenities as identified, herein. These include:
(1)
The open space incentive category. The purpose of the open space Incentive Category is to encourage future residential subdivision in the Rural Residential District to be creatively designed so that new homes are located in the landscape in a way that protects open space, valuable resources, and the rural character of Henrietta.
(2)
The commercial revitalization incentive category. The Commercial Revitalization Incentive Category encourages the redevelopment of formerly developed commercial parcels to help revitalize business areas and bring properties back on local tax rolls. The purpose is to encourage reuse, redevelopment, and the revitalization of vacant, dormant, and especially dilapidated commercial buildings in the Town.
(3)
The neighborhood upgrade incentive category. The Neighborhood Upgrade Incentive Category encourages upgrades to infrastructure where needed in adjacent residential neighborhoods when being developed anyway as part of an applicant's development. This may include extension of utilities and public services, referred to as "drag-along infrastructure." The purpose is to improve visual and functional transition between new nonresidential development and adjacent residential neighborhoods.
(4)
The historic properties incentive category. The purpose of the Historic Properties Incentive Category is to encourage the reuse, maintenance and preservation of cultural resources in the community such as historic buildings, structures and sites, including archeologically sensitive locations. This includes cultural resources in the hamlets of East Henrietta and West Henrietta.
B.
Legislative intent. Preservation of open space, agriculture, and cultural resources as well as encouragement of economic revitalization, is a benefit to the public. The intent of incentive zoning is to offer incentives to developers to encourage the preparation of project plans in a manner that would provide greater community benefit to the Town and environment although it might not be the most cost-efficient approach for the developer. The Town Board finds that establishing incentive zoning provides benefits to both the developer and Town residents by encouraging the following:
(1)
Preserving open space and our agricultural heritage that are two of the most important goals identified by Town residents in surveys conducted as part of the Town's Comprehensive Land Use Planning process. Encouraging developers to preserve large portions of otherwise buildable land, especially in the Rural Residential Zoning District, helps achieve those goals.
(2)
Expanding parkland to provide more recreational opportunities for residents. The Town has limited parklands and interconnecting trails and land is costly to obtain so if quality parkland can be acquired through use of incentives, doing so provides significant public benefit to the Town. It is important that the Town Board consider the location of potential parkland, relative to other Town parks, as well as the nature and characteristics of the land itself. Obtaining land that has little use as a park does not provide a substantial community benefit because it also takes that land off the tax rolls.
(3)
Reusing long dormant and vacant buildings may increase the cost of a development project over building new structures on new sites, but it has significant community benefit in that it removes what is often an eyesore from the Town's perspective, and improves the Town's tax rolls. It may also preserve the undeveloped greenfield site and open space that might have otherwise been developed.
(4)
Encouraging development projects to extend sidewalks, cycling amenities, and pedestrian trails beyond the immediate project area provides an important community benefit. As many of the roads in Henrietta were built without consideration for cyclists and pedestrians, it becomes expensive for the Town to add those amenities later. The Town, as part of its active transportation plan and consistent with complete street policies, encourages all new developments to have sufficient sidewalks and cycling lanes or trails as part of their development and to extend those sidewalks and trails into the surrounding neighborhoods where these amenities do not exist. These extensions would be a significant community benefit and are worth incentivizing in order to create connected networks of pedestrian trails and facilities.
(5)
Bringing public utilities to older neighborhoods and homes that do not currently have access to certain utilities and for which it would be too costly to provide through a municipal bond creates substantial benefit to underserved areas. This is sometimes referred to as "drag along infrastructure." This is especially important where neighboring homes do not currently have access to public water. Access to public water for the few remaining houses in Town not served by public water is a significant community benefit and will also benefit local farming and promote sustainable agriculture.
(6)
Similarly, as development increases, permeable surfaces decrease which has the potential to limit where septic systems and leach fields can be built. As such, as many older homes, especially those that were once farmhouses, are now surrounded by large neighborhoods, it makes it difficult for them to be able to repair or replace their septic systems. The opportunity to connect to available public sanitary sewers is a benefit to the community. When considering this incentive, the Town Board will need to determine whether the new infrastructure provides benefit to homes outside of a new development, and whether that infrastructure is an important public benefit.
(7)
Realizing long-term benefits of implementing incentive zoning through use of conservation easements that include:
(a)
A beneficial and permanent way to preserve private lands of value to the community without the need to acquire such property;
(b)
Possible income tax and estate tax benefits for landowners; and/or
(c)
A relatively inexpensive way to achieve community open space, farmland protection, provision of parks and recreation opportunities, and hazard mitigation, such as from flooding.
§ 295-34.9 Definitions.
The following terms as used in this article are defined as specified below:
Certain material and substantial benefits accruing to the community in Henrietta, all as more specifically enumerated herein. Such shall only qualify as amenities if they are in addition what is otherwise necessary for the subject proposed project, including what would otherwise be required pursuant to other provisions local law, state law, federal law or other applicable law or regulations.
Net acreage of lands available for development which remains after subtracting constrained acreage (and thus not necessarily the total area of a property itself), used to determine unit count or density.
A development design technique allowed under NYS Town Law § 278 that concentrates buildings and structures on a limited area of a parcel to allow the remaining parcel area to be permanently left as open space. By law, this is density neutral (the density of housing allowed shall equal the density allowed on the buildable acreage for a conventional subdivision according to the area requirements of the zoning district in which the parcel is located), but permits development that is not in alignment with other bulk and area requirements, such as reduced lots sizes. Cluster subdivisions are not eligible for density Incentives/bonuses under this article.
For purposes of this article, a land use, not otherwise allowed, that accompanies or supplements a nearby land use development, and is otherwise consistent therewith as assessed by and in the sole discretion of the Town Board in accordance with this article, such as a convenience store in combination with a housing development or multifamily complex.
A permanent restriction on the use of land, created in accordance with law, for the purposes of conservation of open space, agricultural land, and/or other natural, cultural, historic, and scenic resources. In the Town of Henrietta, conservation easements may be classified as including, but not limited to:
"Natural" conservation easement for environmentally sensitive lands. This includes areas set aside as undisturbed natural open space areas such as greenway corridors and wildlife habitats that may consist of wetlands, floodways, floodplains and steep slopes greater than 15%. These areas are to remain permanently undeveloped with no structures, and no trees shall be removed except for forestry or public health and safety reasons per grantee/Town/owner permission. Minimally invasive nature trails may be allowed.
"Maintained" conservation easement for undeveloped open space. This includes public or private areas set aside as open space areas, such as greenway corridors, and lawn and gardens areas, so periodic maintenance may occur, such as keeping open fields free from successional vegetative growth. These areas are permanently undeveloped with no permanent structures, and, after establishment of the easement, no trees shall be removed except for forestry or public health and safety reasons per grantee/Town/owner permission. Minor, nonpermanent structures such as gazebos may be permitted.
"Parkland" conservation easement. This includes publicly-owned areas with some nonpermanent types of structures that may be allowed for public access and enjoyment as parkland for passive recreation and nature education such as gazebos, displays, boardwalks, trails, parking, and signage. Parkland may also be given in dedication or secured otherwise.
"Agricultural" conservation easement. This includes lands set aside for farm uses and allowed agricultural structures.
"Historic" conservation easement. This includes lands and/or structures set aside for purposes of cultural and/or historic preservation.
Lands to be conserved or preserved, comprised of an area or portion of a cluster or conservation subdivision, that is set aside from development through a conservation easement or other means approved by the Town Board because it contains preserved open space and/or valuable resources.
A pattern of subdivision development that places housing units on those buildable portions of a property most suitable for development, while leaving substantial buildable portions as undeveloped open space. Conservation subdivisions may exceed density limitations by way of incentive zoning.
As used in cluster and conservation subdivisions, land this is unbuildable, consisting of: slopes greater than 15% which persist across at least 2,000 square feet of land; NY State and federally designated wetlands; federal, state and locally designated historic buildings, structures, and sites; and FEMA mapped 100-year floodplains.
Any subdivision, not including a clustered or conservation subdivision, that satisfies the bulk, dimensional and area requirements of the Zoning Law, including, for example, minimum lot sizes and setbacks.
Defined areas of the Town, such as a specific zoning district(s), portions or combinations thereof, in which incentive zoning is permitted. Incentive zones in the Town of Henrietta are limited to: Rural Residential Incentive Zone; Commercial Revitalization Incentive Zone; Neighborhood Upgrade Incentive Zone; and Historic Properties Incentive Zone.
The system by which specific Incentives or Bonuses are granted via an incentive zoning permit, pursuant to this article, on condition that specific physical, social, or cultural amenities would take effect and become beneficial or advantageous to the community in exchange, all as allowed under NYS Town Law § 261-b.
Adjustments to the permissible density, area, height, open space, use, or other provisions of the Zoning Ordinance or local laws as authorized by the Town Board pursuant to these incentive zoning regulations.
An area of undeveloped or minimally developed land that is valued for material natural, environmentally sensitive and/or historic/cultural resources and/or wildlife habitat, for material agricultural and forest production, for material active and passive recreation, and/or for providing other material public benefits that accrue by leaving the land materially undeveloped. Open space may include parkland, play areas, walkways, trails, informational and interpretive centers or similar facilities for active or passive use, and may be private, public, or a combination thereof, however, generally, open space is not occupied by significant: structures, paved parking areas, paved roadways, or similar improvements.
Open space that has been preserved by some legally enforceable means such as through a conservation easement, or designation as parkland, or other means approved by the Town Board. Public access to preserved open space is not required to be considered a public benefit, such as historic farmsteads that are privately owned or scenic resources.
An area of land(s) comprised of material historic, cultural and/or agricultural resources, including, for example, active farms and structures, historic structures, scenic resources, etc.
§ 295-34.10 Incentive zones.
The following incentive zones are hereby established in the Town.
A.
Rural Residential Incentive Zone. The Rural Residential Incentive Zone is coterminous with the Rural Residential Zoning District as designated on the Official Zoning Map of the Town of Henrietta.
B.
Commercial Revitalization Incentive Zone. The Commercial Revitalization Incentive Zone is coterminous with all Commercial B-1 or B-2 zoning districts as designated on the Official Zoning Map of the Town of Henrietta.
C.
Neighborhood Upgrade Incentive Zone. The Neighborhood Upgrade Incentive Zone is Town-wide and thus applies to all zoning districts.
D.
Historic Properties Incentive Zone. The Historic Properties Incentive Zone is Town-wide and thus applies to all zoning districts.
E.
Waterfront Revitalization Incentive Zone. The Waterfront Revitalization Incentive Zone is coterminous with the Waterfront Revitalization Area as defined in the Town’s adopted Local Waterfront Revitalization Plan.
[Added 10-3-2024 by L.L. No. 10-2024]
§ 295-34.11 Incentives (bonuses).
The following incentives, or any combination of these (unless otherwise prohibited herein), may be granted at the sole discretion of the Town Board via the issuance of an incentive zoning permit for a specific site within relevant qualifying incentive zones, in exchange for sufficient qualifying amenities, all in accordance with this Incentive Zoning Article.
A.
Rural Residential Incentives Zone incentives. The following incentives shall be available on lands in the Rural Residential Incentive Zone in exchange for Rural Residential Zone amenities:
(1)
Increased incentive for single-family dwellings density via a conservation subdivision (i.e., the "open space amenity," formerly known as the "open space incentive"). This incentive shall be comprised of increased density for single-family dwelling lots/units, but only in exchange for the amenity resulting in the preservation of open space or valuable resources through a conservation subdivision (and never in conjunction with a cluster subdivision), pursuant to provisions set forth at § 295-34.16 of this article.
(a)
May only be achieved through the conservation subdivision development technique as permitted under this article.
(2)
Increased multiple-family dwelling density incentive. A density bonus for an increase of multifamily housing units, but permitted only in exchange amenity comprising the development of housing for seniors of low or moderate income.
(3)
Complementary uses incentive. Complementary low-impact rural neighborhood uses not normally allowed in the Rural Residential Zone, only so long as the proposal does not create a potentially significant adverse impact to the physical or aesthetic character of the neighborhood or otherwise. Complementary uses which may be permitted as an incentive include the following, the hours of operation of which may be limited by the Town Board:
(a)
Small grocery or convenience store (no fuel sales and maximum 5,000 square feet);
(b)
Small- to medium-size family/casual-style restaurant (no drive-through and maximum 6,000 square feet);
(c)
Small- to medium-size agricultural supply/hardware store (maximum 12,000 square feet);
(d)
Local farm product sales stand;
(e)
Farmers market; and
(f)
Other uses that the Town Board may find appropriate given the intent and purpose of this article, in its sole discretion.
B.
Commercial Revitalization Incentive Zone incentives. The following incentive shall be available on lands in the Commercial Revitalization Incentive Zone in exchange for Commercial Revitalization Zone amenities:
(1)
Waiver, reduction, adjustment or otherwise relief of area, dimensional and/or design requirements [including, but not limited to, and for purposes of example only, setbacks, height, density, parking (as supported by a parking study), and quantity of signs], as follows:
(a)
For a conventional (non-mixed-use) commercial project, provided it is consistent and in harmony with neighborhood visual character and scale, permitted uses, architectural design and building style; or
(2)
Complementary uses incentive. Complementary uses not normally allowed in a Commercial B-1 or B-2 zoning district or in a Mixed-Use Redevelopment Area or Mixed-Use Redevelopment Corridor overlay district as identified as “S+”, indicating they are “Allowed with Distinct Special Use Permit as Incentive for Revitalization,” on Appendix A under Town Code § 295-43.3, whether being developed as part of an overlay district or developed as part of the underlying commercial district.
[Added 8-21-2024 by L.L. No. 5-2024]
C.
Neighborhood Upgrade Incentive Zone incentives. The following Incentives shall be available on lands in the Neighborhood Upgrade Incentive Zone in exchange for Commercial Revitalization Zone amenities:
(1)
Waiver, reduction, adjustment or otherwise relief of area, dimensional and/or design requirements [including, but not limited to, and for purposes of example only, setbacks, height, density, parking (as supported by a parking study), and quantity of signs], as follows:
(a)
For a conventional (non-mixed-use) commercial project, provided it is consistent and in harmony with neighborhood visual character and scale, permitted uses, architectural design and building style; or
D.
Historic Properties Incentive Zone incentives. The following incentives shall be available on lands in the Historic Properties Incentive Zone in exchange for Historic Properties Incentive Zone amenities:
(1)
Waiver, reduction, adjustment or otherwise relief of area, dimensional and/or design requirements (including, but not limited to, and for purposes of example only, setbacks, height, density, parking), as well as other related requirements such as driveway pavement requirements, meeting the requirements at § 295-39, Historic sites, etc., for historic properties.
(2)
Complementary uses incentive. Complementary, low-impact neighborhood uses not normally allowed in the subject zoning district, only so long as the proposed use does not create a potentially significant adverse impact to the physical or aesthetic character of the neighborhood or otherwise. Such complementary use(s) must primarily involve the use/adaptive reuse of the subject historic structure in order to qualify. Complementary uses which may be permitted as an incentive include the following, the hours of operation of which may be limited by the Town Board:
[Added 12-14-2022 by L.L. No. 23-2022]
(a)
Two-family dwellings;
(b)
Multifamily dwellings, with a density no greater than six units per acre;
(c)
Small grocery or convenience store (no fuel sales and maximum 5,000 square feet);
(d)
Small retail store (maximum 6,000 square feet);
(e)
Other uses that the Town Board may find appropriate given the intent and purpose of this article, in its sole discretion.
E.
Waterfront Revitalization Zone Incentives. The following incentives shall be available on lands in the Waterfront Revitalization Zone in exchange for Waterfront Revitalization Incentive Zone Amenities:
[Added 10-3-2024 by L.L. No. 10-2024]
(1)
Waiver, reduction, adjustment or otherwise relief of area, dimensional and/or design requirements (including, but not limited to, and for purposes of example only, setbacks, height, density, parking), as well as other related requirements such as driveway pavement requirements.
(2)
Complementary uses incentive. Complementary, low-impact neighborhood uses not normally allowed in the subject zoning district, only so long as the proposed use does not create a potentially significant adverse impact to the physical or aesthetic character of the neighborhood or otherwise. Such complementary use(s) must primarily involve the use/adaptive reuse of the subject historic structure in order to qualify. Complementary uses which may be permitted as an incentive include the following, the hours of operation of which may be limited by the Town Board:
(a)
Two-family dwellings.
(b)
Multifamily dwellings with a density no greater than 10 units per acre.
(c)
Small grocery stores (maximum 10,000 square feet).
(d)
Small retail store (maximum 10,000 square feet);
(e)
Waterfront restaurants.
(f)
Waterfront businesses such as small marinas, fish tackle, and the like.
(g)
Other uses that the Town Board may find appropriate given the intent and purpose of this article, in its sole discretion.
§ 295-34.12 Amenities (benefits).
The following amenities may be offered to the Town in exchange for a requested incentive/bonus by a project developer either on- or off-site of the subject property, or in some combination of on- and off-site locations as agreed upon by the owner/applicant and Town Board, all as more specifically set forth herein. Amenities may be provided in the same incentive zone as the incentive, and, unless otherwise limited, in other incentive zones, or in areas outside of incentive zones (such as but not limited to areas along the Genesee River waterfront, along the Erie Canal, or within an existing park or other public property).
A.
Rural Residential Incentive Zone amenities. The following amenities shall be available in exchange for Rural Residential Incentive Zone incentives:
(1)
Permanent preservation of open space and/or valuable resources (including agricultural lands) via a conservation subdivision (i.e., the "open space amenity").
(a)
A conservation subdivision shall be designed to permanently protect either large contiguous areas of otherwise buildable open space and/or valuable resources on a site by utilizing smaller building lots than would otherwise be allowed on the remaining buildable acreage of the lands.
(b)
Methods for determining site design and lands to be preserved shall be consistent with the Rural Development Design Guidelines.
(c)
This conservation subdivision amenity must include sufficient open space and/or valuable resources to justify the corresponding benefit, as determined in the sole discretion of the Town Board.
[Amended 9-28-2022 by L.L. No. 16-2022]
(d)
Lands protected hereunder shall be protected via permanent conservation easements.
(2)
Permanent preservation of environmentally sensitive resources through a conservation easement that are not or will not otherwise be required to be protected/mitigated via existing laws, such as the State Environmental Quality Review Act.
(3)
Maintenance, enhancement, and/or protection of valuable resources that are not or will not otherwise be required to be protected/mitigated via existing laws, such as via the State Environmental Quality Review Act.
(4)
Development of housing for seniors of low or moderate income.
(a)
Seniors are typically those persons aged 62 and older, or the age otherwise required to qualify for HUD subsidies for senior persons.
(5)
Creation, maintenance, and/or enhancement of public parkland, trails, and/or recreational facilities.
(6)
Any of the Historic Properties Incentive Zone amenities listed at § 295-34.12D.
[Added 9-28-2022 by L.L. No. 16-2022]
B.
Commercial Revitalization Incentive Zone amenities. The following amenities shall be available in exchange for Commercial Revitalization Incentive Zone incentives:
(1)
Reuse and/or revitalization of long vacant, dormant, and/or dilapidated buildings and/or plazas. The determination of whether a building qualifies under this amenity is within the sole discretion of the Town Board.
[Amended 8-21-2024 by L.L. No. 5-2024]
(2)
Maintenance, enhancement, and/or protection of valuable resources that are not or will not otherwise be required to be protected/mitigated via existing laws, such as the State Environmental Quality Review Act.
(3)
Development of affordable housing for seniors or affordable housing for persons of low or moderate income.
[Amended 8-21-2024 by L.L. No. 5-2024]
(4)
Water, sewer, high speed internet, other public utility improvements, including "dragalong infrastructure," but only including those improvements that are not otherwise necessitated by the subject development, only where made available to lands not otherwise a part of the proposed development, and only where deemed by the Town Board as beneficial and appropriate to the character of the area.
(5)
Public roadway infrastructure, pedestrian safety improvements for pedestrians and/or bicyclists, including sidewalks, and streetscaping (e.g., street trees, pedestrian amenities, signage), but only where not otherwise strictly necessitated by the subject development.
(6)
Any of the Historic Properties Incentive Zone amenities listed at § 295-34.12D.
[Added 9-28-2022 by L.L. No. 16-2022]
C.
Neighborhood Upgrade Incentive Zone amenities. The following amenities shall be available in exchange for Neighborhood Upgrade Incentive Zone incentives:
(1)
Water, sewer, high speed internet, other public utility improvements, including "drag-along infrastructure," but only including those improvements that are not otherwise necessitated by the subject development, only where made available to lands not otherwise a part of the proposed development, and only where deemed by the Town Board as beneficial and appropriate to the character of the area.
(2)
Public roadway infrastructure, pedestrian safety improvements for pedestrians and/or bicyclists, including sidewalks, and streetscaping (e.g., street trees, pedestrian amenities, signage), but only where not otherwise strictly necessitated by the subject development.
(3)
Creation of public parks, pocket parks (i.e., use of small vacant parcels), or community meeting areas.
(4)
Green infrastructure and other stormwater management improvements which exceed the requirements of the proposed development itself, for example, permeable parking lots or stormwater management facilities that alleviate stormwater issues for offsite lands not a part of the proposal.
(5)
Substantial landscaping and buffer areas to improve neighborhood aesthetics such as visual screening, tree planting, berms, attractive fencing, and sound barriers separating commercial/industrial uses from residential uses which materially exceed, quantitatively or qualitatively, the minimum buffers otherwise required by Code.
(6)
Any of the Historic Properties Incentive Zone amenities listed at § 295-34.12D.
[Added 9-28-2022 by L.L. No. 16-2022]
D.
Historic Properties Incentive Zone amenities. The following amenities shall be available in exchange for Historic Properties Incentive Zone incentives:
(1)
Preservation, stabilization, rehabilitation and improvements of historic buildings, structures, and sites, including through adaptive reuse or other means, including archeologically sensitive locations, which may be a part of the proposed project itself.
(2)
Nomination and designation of cultural resources to local, state, and national registers of historic places, which may be a part of the proposed project itself.
(3)
Historic displays or signage, which may be a part of the proposed project itself.
(4)
Donation of historic resources, including structures, buildings and/or lands.
E.
Waterfront Revitalization Zone Amenities. The following amenities shall be available in exchange for Waterfront Revitalization Incentive Zone incentives:
[Added 10-3-2024 by L.L. No. 10-2024]
(1)
Revitalization, managed development, and other improvements to the waterfront areas, as defined in the Town's Local Waterfront Revitalization Plan.
(2)
Improved access to the waterfront, including allowing for new public roads, better separation of commercial and residential traffic, waterfront trails, pedestrian or mixed-modal trails to reach the waterfront, additional public parking, and other such transportation improvements.
(3)
Public parks, whether passive or active, or similar public amenities.
(4)
Stabilization of the shoreline in conjunction with all applicable laws and regulations, including, but not limited to those defined in the Town's Local Waterfront Revitalization Plan.
§ 295-34.13 Procedures for incentive zoning, application requirements.
A.
Applicants shall request incentive zoning as early in the development process as is possible, either prior to any other associated applications, or in concert with other related applications such as for site plan, subdivision or special use permit.
B.
Applicants are encouraged to bring before the Town Board a concept plan for informal discussion and nonbinding input by the Town Board prior to making a formal incentive zoning application for input thereon.
C.
Applications shall be submitted to the Director of Engineering for consideration by the Town Board. A narrative containing the following information shall be included as part of an incentive zoning application:
(1)
A description of the incentive(s) requested from the Town.
(2)
A description of the amenity offered to the Town.
(3)
A current estimate of the general cost to the developer and market value of the proposed amenity to the Town.
(4)
An explanation as to how the incentive and amenity helps to implement the Town's land use goals and policies, such as those expressed in the Comprehensive Plan, the Agricultural Development and Farmland Protection Plan, and/or the Active Transportation Plan, the Rural Development Design Guidelines (where applicable) and this article.
(5)
A statement that the amenity would not otherwise result from the project without the granting of the incentive, whether legally impossible or otherwise not feasible.
D.
Where an incentive zoning proposal requires other associated approvals from the Planning Board, the applicant shall also submit to the Planning Board the incentive zoning application for review and recommendation to the Town Board, including, where practicable, any applications also required to be heard by the Planning Board. The Planning Board shall, within 45 days from receipt of a complete incentive zoning application (which time period may be extended upon mutual agreement with the Town Board), make a referral to the Town Board providing its input on the incentive zoning application, including, for example: An evaluation of the adequacy amenity given the incentive, and an assessment of how the incentive(s) and amenities(s) fit the site/project and how they relate to adjacent uses and structures.
E.
As soon as reasonably practicable after receipt of the Planning Board's referral, the Town Board shall hold a public hearing on at least 10 days' notice on the incentive proposal.
F.
Approval of an incentive zoning application shall be a prerequisite to any approval (including preliminary) of any other associated applications, including, for example, site plan approval, special use permit approval and subdivision approval.
G.
All applicable requirements of the SEQRA shall be complied with. For cases involving incentive zoning, the Town Board shall act as the Lead Agency for SEQRA purposes.
H.
Should the incentive zoning application be denied, the applicant may elect to proceed with the project proposal without incentives and, if needed, shall modify the related applications accordingly.
I.
An incentive zoning permit shall be issued if the Town Board approves the incentive zoning application. No subsequent permit or approval by any official, board or agency of the Town shall alter or contradict any condition or requirement imposed by the Town Board.
J.
All legal, engineering, and other expenses in connection with the matters herein provided shall be borne by such applicant, developer, or other owner of such subdivision, all in accordance with the Town's laws and rules relating to the reimbursement of professional fees.
§ 295-34.14 Criteria for the consideration of incentive zoning applications.
A.
Criteria for consideration by the Town Board.
(1)
The Town Board must be able to find that the requested incentive and proposed amenity provide sufficient and material public benefit to the Town of Henrietta community. In making this determination the Town Board shall consider the following factors:
(a)
Whether and how the proposal is consistent with and supports the Town's land use goals and policies, such as those expressed in the Comprehensive Plan, the Agricultural Development and Farmland Protection Plan, and/or the Active Transportation Plan, the Rural Development Design Guidelines (where applicable) and this article.
(b)
The location of the incentive in relation the location of the amenity.
(c)
Potential adverse impacts on the community and public relative to the proposal, including consideration of information received and assessed through public hearings, public information meetings, and the SEQRA process. This shall also take into consideration the anticipated effectiveness of measures designed to avoid, reduce, and mitigate potentially adverse impacts of the proposed development on neighborhood character and visual environment in the vicinity of the proposal through the use of buffers, natural screening by vegetation and topography, and any proposed landscaping which complements the prevailing landscape.
(2)
Incentives shall be granted only when the amenities benefit the community located external and separate from the proposed development.
(3)
Community amenities must be offered to the Town in addition to, and not as a substitute for, any other improvements or items otherwise required for the proposed project itself and/or pursuant to other provisions of the Zoning Law, site plan, special use permit, and subdivision regulations and/or any other laws, rules or regulations, including and provisions SEQRA or other applicable local, state or federal laws that now exist or as they may be amended from time to time.
(4)
In determining the adequacy of the amenity offered, the value/cost of the incentive (e.g., the increase in density for residential projects) shall be generally and approximately proportionate to the value/cost of the amenity, all as decided in the sole discretion of the Town Board. In determining the relative value/cost of the Incentive and value/cost of the amenity, the Town Board may utilize the services of experts, consultants and other third parties. The Town Board shall use its discretion, acknowledging the potential difficulty in quantifying value/cost in dollars and cents for some types of amenities that are difficult to quantify monetarily such as, but not limited to, assigning value for protecting certain resources that contribute to community character like scenic and historic resources.
(5)
Amenities shall be implemented in favor of the Town on a schedule to be approved by the Town Board, which may include, but is not limited to, a date certain, prior to issuance of the building permit, prior to issuance of the C/O, or a combination thereof. Such timely provision of amenities shall be a condition of approval.
(6)
In no case shall the Town Board be compelled to approve any aspect of an incentive zoning application. An approval rests with the Town Board in its sole and absolute discretion. Relief for denial of an incentive zoning application shall be to proceed with an application pursuant to the otherwise applicable regulations of the Town, without incentive zoning.
(7)
The Town Board may impose conditions upon its approval as it may deem appropriate.
(8)
The amenities set forth in this article are not intended to be listed in any order of importance or priority. Nothing herein shall prevent the Town Board from adopting and, from time to time, establishing a new or prioritized list of amenities.
B.
Additional criteria to be considered for conservation subdivisions.
(1)
Both the lands to be developed and the lands to be conserved must be located within the Rural Residential Incentive Zone, but do not need to be contiguous. These lands are preferred to be in the same general vicinity so that the benefit of conservation can be realized by residents in the vicinity of the development. Where not contiguous or in the vicinity, the Town Board must find that the general benefit of the lands conserved is so great that it outweighs the impact of the greater distance from the lands to be developed.
(2)
The Board shall consider (but not as a sole determinant) whether the proposal will be served by public water and sanitary sewer, and will not accelerate development pressure, or to what extent it may further fragment farmland on nearby agricultural areas especially within state-certified Agricultural Districts.
(3)
If prime farmland in a state-certified Agricultural District is to be developed, the applicant shall be required to protect an equal or greater amount of prime farmland through an agricultural conservation easement or other approved means.
(4)
Nothing contained in this section shall prohibit open space created pursuant to this section from being conveyed to the Town for recreational use upon acceptance of the Town Board, or from being conveyed to a recognized conservation organization or other entity (e.g., school district or educational institution) upon approval of the Town Board.
(5)
Typically, the conservation subdivision incentive is accomplished by execution of a conservation easement, through conveyance, or by donation of the conservation lands to the Town as parkland. Any conservation easement placed on the conservation lands will be held by both the Town of Henrietta and by an authorized conservation organization designee approved by the Town Board such as the Genesee Land Trust, the Henrietta Foundation, or others.
(6)
Land for which a conservation easement has been conveyed to the Town or other authorized designee pursuant to this section shall be assessed for real property tax purposes with full regard to the restriction of the use of the land by reason of said easement. Land for which an increase in density has been permitted shall be assessed for real property tax purposes with full consideration of the density at which it may be or has been developed.
§ 295-34.15 Cash payment in-lieu-of amenity.
If the Town Board finds that no suitable community benefit or amenity suitable can reasonably be provided, the Town Board may accept instead a cash payment in-lieu-of the provision of the benefit or amenity consistent with New York State Town Law. These funds shall be placed in a trust fund to be used by the Town Board exclusively for amenities specified prior to the acceptance of the funds. Cash payments shall be made prior to the issuance of a building permit. Cash payments in-lieu-of amenities are not to be used to pay for general and ordinary Town expenses, or for any other purposes unrelated to the amenities so specified.
§ 295-34.16 Additional procedures and requirements specific to conservation subdivisions/the open space amenity option (formerly known as the "open space incentive option").
These additional requirements will apply to incentive zoning applications which seek to develop a conservation subdivision.
A.
Applications.
(1)
In addition to those requirements for incentive zoning applications generally, where a conservation subdivision is sought the following shall be provided: a concept map at a scale of one inch equals 100 feet, depicting the subject property, proposed uses, buildings, utilities, incentives, benefits and all other relevant aspects of the proposal shall also be submitted.
(2)
All applications for a conservation subdivision shall also adhere to the submission requirements set forth within the Town of Henrietta Subdivision Regulations.
(3)
Procedure for review of a conservation subdivision applications under this article shall follow the procedures set forth under § 295-60, Cluster subdivision (NYS Town Law § 278) and this article as modified herein, except where there is any conflict with this article, this article shall control.
(4)
A pre-application meeting with Town staff is required.
(a)
In order to save the applicant and the Town time and expense, prior to submission of an application for a conservation subdivision, the applicant shall present a general description of the project to the Town Supervisor and the Director of Engineering and Planning at a pre-application meeting. The applicant shall provide an existing conditions analysis and concept plan and provide a description of how the project meets the purpose of this article, the Rural Development Design Guidelines, including a narrative sufficient for understanding the proposal. The Director of Engineering and Planning will direct the applicant to proceed to a meeting with the Planning Board or may recommend revisions to the concept plan prior to meeting with the Planning Board.
(b)
The purpose of this meeting is to discuss and clarify the purpose and goals of the conservation subdivision approach, review the approval process and expected timetables, ensure that the project sponsor has access to the Town's Rural Development Design Guidelines, and review the general project description.
(c)
Following completion of concept plan review of a subdivision application being considered for an open space incentive, the applicant shall proceed with the submission of a preliminary subdivision plan, incorporating the recommendations of the Planning Board. Final lot count and layout shall be determined after the fulfillment of all the requirements for a subdivision approval.
(5)
The applicant shall submit the following information in addition to all requirements for submission of a concept plan per the Town of Henrietta's Subdivision Regulations.
(a)
Conceptual site analysis and proposed development concept plans: These shall be developed per the four-step process outlined in the Rural Development Design Guidelines. Two drawings shall be prepared: a summary plan identifying existing natural and cultural resources, along with a concept plan showing proposed streets, lots, and conservation lands.
(b)
Determination of unit (lot) count: The applicant shall include a table demonstrating the total unit count according to either the following Table 1: With central water and central sewer or Table 2: whether prime farmland is present on the property, or without central water, or without sewer, on which the proposed conservation subdivision is located and the amount of open space protected. Note: All numerical fractions shall be rounded down to the nearest whole number.
(c)
Procedures for determining a residential density bonus, unit count and additional incentives must be based on buildable acreage.
(d)
Determination of allowed development density. The maximum permitted development density shall be based on a calculation of total site area remaining after the subtraction of constrained lands based upon the below tables:
Table 1 Unit Count Calculation in the Rural Residential District | ||
|---|---|---|
With Public Water and Public Sewer and Not Prime Farmland | ||
Percentage of Preserved Open Space | Allowed Dwelling Units per Buildable Acre | Minimum Lot Area in Acres |
Less than 50% - No Incentive | NA | 2.00 acres |
50+ % | 0.60 | 0.50 acres |
65+ % | 0.70 | 0.25 acres |
Table 2 Unit Count Calculation in the Rural Residential District | ||
|---|---|---|
In Prime Farmland or Without Public Water or Without Public Sewer | ||
Percentage of Preserved Open Space | Allowed Dwelling Units per Buildable Acre | Minimum Lot Area in Acres |
Less than 50% - No Incentive | NA | 5.00 acres |
50+ % | 0.30 | 1.00 acres |
65+ % | 0.35 | 0.50 acres |
(e)
Example Unit Count Calculations:
[1]
Unit count example: Using Table 1 with 50% open space provided. Using the open space amenity option, the allowed number of units is increased based on the amount of open space protected. For example:
[2]
Unit count example: Using Table 2 with 65% open space provided. Using the open space incentive option, the allowed number of units is increased based on the amount of open space protected. For example:
(f)
The above unit count calculation tables shall apply regardless of the district/location of the preserved open space or valuable resources.
B.
Eligibility and criteria for approval in addition to incentive zoning requirements generally. Parcels may be eligible for the open space amenity, provided that the following criteria have been addressed to the Town Board's satisfaction:
(1)
Selection of open space area. As outlined in the Rural Development Design Guidelines, the identification and designated conservation of natural, cultural and scenic resources shall be the starting point for the design of subdivisions utilizing the open space amenity. Protection of agricultural lands/soils and significant landscape features as outlined in the Rural Development Design Guidelines shall be considered first and foremost for conservation parcel designation. Additional lands or site features that contribute to the site's unique character may also be included in the conservation area.
(2)
Land designated for conservation shall be subject to the approval of the Town Board in its sole and complete discretion as to whether and to what extent the land is appropriate for conservation.
(3)
The applicant, Town staff and the Planning Board shall use the Rural Development Design Guidelines to identify appropriate open space or conservation lands. The Town Board shall make its decision based upon consideration of the Rural Development Design Guidelines and the Town's desire to:
(a)
Protect existing farms and agricultural lands suitable for agriculture.
(b)
Protect land for recreational uses, including trails.
(c)
Protect valuable resources and environmentally sensitive lands.
(d)
Protect lands unsuitable for development.
(e)
Provide connections of larger tracts of land that have the potential to create networks of open space.
(f)
Protect and enhance the rural character of the area.
C.
Designated conservation lands.
(1)
Lands designated for conservation under a conservation subdivision shall be held in private ownership unless such lands are found to be of significant Town-wide benefit. For conservation lands that will be primarily associated with an individual lot, the conservation land ownership should be tied to that lot. For conservation lands which will primarily benefit the owners of lots in a development, those lands should be held by a homeowners' association or similar entity. Conservation lands and easements may also be held by a land trust or similar entity as otherwise identified in this article. The applicant shall provide documentation for review and approval by the Town Board of the proposed ownership and management entity of the conservation lands. Conservation lands held in private ownership shall be described in a conservation easement and recorded by the Town on the official Zoning Map of the Town and recorded by the County Clerk.
(2)
Town Board shall approve ownership of conservation lands. The Planning Board shall refer the preliminary subdivision plat to the Town Board for a determination on the acceptability of the proposed conservation lands in terms of proposed ownership. The Town Board may consider but shall not be obligated to accept ownership of any proposed conservation lands, either in fee simple or by conservation easement.
D.
Additional unit count bonuses.
(1)
Applicants under this section who provide the community with certain amenities as a result or part of new conservation subdivisions may receive an additional density bonus beyond what is allowed in the applicable zoning district and through the above open space incentives, all as set forth below. If additional bonuses are sought, the applicant shall include a table calculating desired bonuses according to the following calculations:
(a)
Public access to conservation areas. Where the public is granted access to conservation areas or there is a linking of open space or trail corridors through the site with existing/proposed trails or open space networks, the development may be awarded a unit count bonus of up to an additional 10% of the units permitted according to the applicable table above. To qualify for the full 10%, the general public must have regular opportunity for access to and use of at least 33% of the conservation lands for active/pedestrian purposes.
(b)
Protection of historically significant resources from development. Where a development protects historically significant buildings and their setting (e.g., a historic farmhouse and barn complex and surrounding open space), the development may be awarded a unit count bonus of up to an additional 10% of the units permitted according to the applicable table above. Historical significance, which will be established pursuant to the findings of the Town Historian, will inform the extent of the bonus.
(c)
Protection of significant agricultural resources from development. Where a development protects and preserves agricultural uses/farms, the development may be awarded a unit count bonus of up to an additional 10% of the units permitted according to the applicable table above. To qualify for the full 10%, a minimum of 25 acres of farmland shall be protected.
(d)
The Town Board reserves the right to award a unit count bonus of up to an additional 5% of the units permitted according to the applicable table above based on the provision of additional amenities provided by the project applicant that meet the purpose and legislative intent of this article and the Rural Development Design Guidelines.
(2)
In no situation may the additional bonus hereunder increase the number of units allowed greater than an additional 20% of the units permitted according to the applicable table above.
(a)
For example, if an applicant was entitled to 50 lots with central water and sewer available, after calculation of open space incentives pursuant to the above table, the maximum number of lots that could be allowed including additional incentives would be 60, due to an additional 10 lots, which 20% of 50. All numerical fractions shall be rounded down to the nearest whole number.
E.
Limited allowance for adjustments to lot sizes for conservation subdivisions. Lot sizes of lots in a conservation subdivision may be permitted to be smaller than the minimum lot area in the tables set forth above where lands that would otherwise comprise the yards of such lots are instead designated as common lands for the benefit of the subdivision, such as homeowners association lands. In this case, the following procedure shall be follows:
(1)
The applicant shall submit a compliant map depicting the conservation subdivision designed in a manner complies with the lot areas in the tables set forth above, thus demonstrating that the conservation subdivision proposed meets the lot minimums provided in the tables above, but for the set aside as common lands of lands that would otherwise comprise the yards of said lots. When determining incentives/amenities and making calculations for such purposes, such calculations shall be made based upon this compliant map.
(2)
The applicant shall also submit a modified map of the conservation subdivision showing the actual proposed project, with the smaller lots sizes and the lands that would otherwise comprise yards of the lots set aside and aggregated as common/HOA lands. These additional lands set aside as aggregated common/HOA lands shall not count towards satisfying open space requirements or otherwise as counting toward amenities.
(3)
When ceding a portion of the yard, it is essential that the new property lines are not drawn in such a manner as to create an improper setback unless granted a specific area variance by the Zoning Board of Appeals for that particular parcel and approved as part of the Town Board's approval for the open space amenity.
F.
Conditions to ensure protection of lands. To ensure the enforcement of the provisions of this article, the Town Board as a condition to granting subdivision approval may require the applicant, developer or other owner of such subdivided property to make, execute, deliver or file such instrument or instruments as the Planning Board or Town Board shall determine to be reasonably necessary to protect and preserve and to limit or restrict the use of such open space in accordance with the spirit and Intent of this article.
§ 295-34.17 Conservation subdivision vs. cluster subdivisions.
A.
Open space and other valuable resources may be permanently preserved through conservation easements in exchange for a cluster subdivision as permitted through NYS Town Law § 278, and as also set forth at Town Code § 245-8, Cluster development.
B.
No density increase pursuant to this article is offered in conjunction with cluster subdivisions. A cluster subdivision development shall initially result in clustering a permitted number of building lots or dwelling units based on available buildable acreage which does not exceed the number of lots or units which could be permitted, in the Town Board's judgment, under a conventional subdivision if the same land were subdivided into lots conforming to the minimum lot size and density requirements of the zoning ordinance and conforming to all other applicable requirements. A cluster subdivision is intended to be density neutral and does not provide for a density bonus.
C.
A developer can choose between a cluster subdivision or a conservation subdivision, but not both.
D.
In the Rural Residential District, open space set aside as part of cluster subdivision shall be permanently preserved, including as either a conservation easement or publicly deeded.
§ 295-34.18 Additional requirements for development of cluster or conservation subdivision in the rural residential district, including rural development design guidelines.
A.
In designing a cluster or conservation subdivision within the Rural Residential Zoning District, the applicant shall be consistent with the Town of Henrietta Rural Development Design Guidelines document available from the Town. The applicant shall comply with the following in addition to this requirement:
(1)
Public access shall not be required if the open space is held privately, for example, by a private landowner or private nature conservancy.
(2)
The required amount of open space in either a cluster or conservation subdivision shall always be calculated based upon buildable acreage.
(3)
Generally, designated open space in either a cluster or conservation subdivision must comprise lands that are buildable acres. However, constrained acreage may be designated as preserved open space, in whole or in part, but only upon the sole discretion of the Town Board as to whether it otherwise satisfies the open space and/or valuable resources definitions and said lands are considered to be of unique local importance, character, or exceptionally high quality. However, again, constrained acreage cannot be used towards calculating incentives, such as density increases [except in the case of § 295-34.16D(1)(b)].
[Amended 9-28-2022 by L.L. No. 16-2022]
(6)
Proposed site improvements shall be located, designed, and constructed so as to avoid or minimize the loss or degradation of healthy woodland areas as open space, to the maximum extent possible. Healthy woodlands along roadways, property lines, streams, swales, stone fences, and hedgerows shall be preserved as buffers and visual screening.
(7)
Disturbance or removal of woodlands occupying environmentally sensitive areas or stabilizing steep slopes shall be undertaken only when specifically approved by the Town Board or authorized designee, and only upon a determination that such will be performed on a selective basis to minimize adverse impacts.
(8)
Subdivision development and access is encouraged along primary and secondary roadway corridors rather than low-volume rural roadways, reasonably near public water and sewer, and with conservation parcels or open space areas concentrated along the back of development parcels that can connect to adjacent open spaces and conservation lands.