Wesley Hills City Zoning Code
ARTICLE XII
Average Density
§ 230-66 Purpose.
It is the purpose of this section to enable, where appropriate, flexibility of design and development of land in such a manner as to preserve its natural and scenic qualities, protect areas of meaningful ecological value, reduce flood hazards, facilitate the adequate and economical provision of streets and utilities, minimize negative environmental impacts, improve the aesthetic quality of new residential developments, encourage the conservation of energy, increase recreational opportunities, and otherwise promote the planned and environmentally desirable use of land by permitting the Board of Trustees to authorize the Planning Board, simultaneously with the approval of subdivision plats, to modify otherwise applicable provisions of this chapter in accordance with the standards, conditions and limitations as set forth herein and in § 7-738 of the Village Law.
§ 230-67 Applicability.
The use of this average density procedure shall be limited to lands within the R-50 and R-35 One-Family Residence Districts only.
§ 230-68 Approval.
The Board of Trustees, by resolution, may authorize the Planning Board to use this procedure on specific properties, either at the request of a property owner or upon a mandate by the Planning Board pursuant to § 7-738 of the Village Law and rules and regulations adopted by the Planning Board for determining the selection of such properties.
§ 230-69 Development standards and controls.
Except as modified by the Planning Board pursuant to the authority hereby conferred, all regulations normally applicable to residential uses in the zoning district in which the property is located shall continue to apply. In addition, the following requirements are hereby established specifically for average density developments:
A.
Permitted uses. The permitted uses within an average density development shall be the same as permitted in the zoning district in which the property is located.
B.
Density. The number of dwelling units permitted in an average density development shall in no case exceed the number which could be subdivided into lots conforming to all normally applicable requirements of this chapter, Chapter 193, Subdivision of Land, and other related land use and development controls. The basis for this determination by the Planning Board shall be a sketch layout of a conventional subdivision prepared and submitted by the applicant, which layout shall include topographic information and such other data as may be required by the Planning Board to assist in making its determination.
§ 230-70 Common lands and facilities.
Average density developments shall result in the permanent preservation of open space lands having meaningful scenic, ecological, environmental, flood-control, recreational or similar characteristics and shall be at such location and with such access as may be determined appropriate by the Planning Board for the purpose of satisfying the objectives of this section.
A.
Conserved land areas, and any common facilities located thereon, shall be owned and maintained by the property owner or, in the case of multiple owners, by a property owners' association established in accordance with the following requirements:
(1)
The property owners' association shall be a legal entity (including but not limited to a not-for-profit membership corporation) created by a trust agreement or certificate of incorporation, approved as to form and sufficiency by the Village Attorney, and designed to assure the permanent preservation and protection of the common lands and any improvements thereon for their intended purpose.
(2)
The property owners' association shall be made responsible for the continued future maintenance, ownership and use of all such common lands and facilities. The association must annually provide the Village Clerk with the names and addresses of all officers and directors and must notify the Village Clerk of any changes within 30 days.
(3)
The property owners' association shall not be permitted to be dissolved and shall not dispose of any common land or any improvements thereon or thereunder, by sale or otherwise, except to an organization established to own and maintain such common land and improvements as hereinabove referred to and subject to the same restrictions on maintenance and use as the first such legal entity, as well as to approval by the Planning Board as set forth above.
(4)
The property owners' association shall be subject to an agreement with the Village of Wesley Hills providing that in the event it, or any successor organization, shall at any time after approval of the development fail to maintain the common land or any improvements thereon in reasonable order or condition in accordance with the approved plan, the Village of Wesley Hills may serve written notice upon such legal entity or successor organization, or upon the property owners within the development, setting forth the manner in which the association has failed to maintain the common land or any improvements thereon and said notice shall include a demand that such deficiencies be corrected within a designated time frame. If the deficiencies are not corrected within the designated time frame, the Village of Wesley Hills, in order to preserve the taxable values of the property within the development and to prevent the common land and improvements thereon from becoming a public nuisance, may enter upon and take possession of said common land and improvements and maintain the same until such time as the Village Board shall determine that the property owners' association is ready and able to maintain the common land and improvements in proper condition. Said entry and maintenance shall not vest in the public any rights to use the common land or improvements except when the same is voluntarily dedicated to the public by the property owners' association and the offer of dedication is accepted by the Board of Trustees. The decision of the Village with respect to the action described in this subsection shall constitute a final administrative decision subject to review in accordance with the provisions of Article 78 of the Civil Practice Law and Rules. The cost to the Village of any such maintenance shall be assessed against the properties within the average density development, and in the event of the failure or refusal of any property owner to pay any such charges when due, the unpaid amount thereof shall become a lien against that person's property and, together with interest from the due date thereof, shall be included in the annual tax levy of the Village upon such property for each such fiscal year, and the amount so levied shall be collected in the same manner as other Village taxes.
(5)
The property owners' association agreement shall require that every property owner within the average density development shall automatically be and become a member of the association and shall be subject to a charge for a proportionate share of expenses of the association's activities, including but not limited to the maintenance and operation of the common land and improvements thereon. The charge shall be a lien upon the residential property in the event it remains unpaid by the property owner for a period of more than 60 days after the assessment thereof by the governing body of the property owners' association. The obligation of each property owner to pay a proportionate share of the association's expenses may be enforced by an action in the name of the association or by the Village as provided in Subsection A(4) of this section, or in the name of both.
(6)
The property owners' association must annually provide the Village Clerk with the names and addresses of all officers and directors of the association and shall notify the Village Clerk of any changes within 30 days.
B.
In general, common open space land areas shall be preserved in their natural state and their use shall be limited to appropriate conservation and passive recreation purposes. A portion of such common open space, not to exceed 10% of the gross land area of the average density development, may be reserved and designated for active recreation purposes, provided the size, shape, access and location of such area(s) is approved by the Planning Board. Within a designated active recreation area, there may be located swimming pools, ball fields, facilities for court games, clubhouses, playground equipment, and so forth, provided the use of all such facilities shall be limited to the residents of the average density development and their guests, and further provided that such facilities shall be subject to site plan approval by the Planning Board.
C.
The permanent preservation of common open space lands and facilities for their intended purpose shall further be legally assured to the satisfaction of the Board of Trustees and the Village Attorney by the filing of appropriate covenants, deed restrictions, easements, or other forms of agreements. The permitted uses within such areas shall be limited to those specifically approved by the Planning Board and shown on the subdivision plat, plus uses customarily incidental and accessory thereto. Subsequent to the approval of the subdivision plat, the uses permitted within privately owned common land areas may be modified only upon approval by the Planning Board, and only upon application by the entity owning such common land area. In each such case, a public hearing shall be held with the same notice as required by law for final subdivision plats. Such modification may permit a use in the same general category of uses previously approved or may allow a change in the location of a particular use from one portion of the common land area to another.
D.
Dedication of the common land areas, including any common facilities or improvements thereon, to the common use of all property owners within an average density development shall be recorded directly on the subdivision plat or by reference on the subdivision plat to a declaration of covenants, conditions and restrictions in a separate document recorded or to be recorded at or about the time of the filing of the approved subdivision plat. Such declaration of covenants, conditions and restrictions shall permanently grant to each property owner in common with all other property owners within such average density development an easement in and to the common land areas and the common facilities thereon and of the use thereof.
E.
As an alternative to the ownership of the conserved land areas by the property owner(s), and subject to approval by the Board of Trustees, such areas may be conveyed to a recognized conservation organization dedicated to the preservation and maintenance of open space, provided such organization has indicated in writing its agreement to permanently maintain such lands for the purposes intended, provided such organization has shown the ability and resources to maintain such lands, and further provided such organization is acceptable to the Board of Trustees.
F.
As another alternative, all or a portion of the conserved land areas may be dedicated to the Village of Wesley Hills, provided the Board of Trustees has voted to accept such offer.
§ 230-71 Application procedure.
Board of Trustees authorization. The Planning Board shall refer any proposal for the use of average density to the Board of Trustees for authorization to use this procedure. The Board of Trustees shall report its approval or disapproval of such authorization to the Planning Board within 45 days of the receipt of such referral.