This document discusses conservation restrictions in conservation subdivisions. It emphasizes that a conservation analysis is important to ensure preserved open space has real conservation value and is not just leftover land. The analysis should identify primary and secondary conservation areas like wetlands, habitats, farmland and cultural features to protect before subdivision design. It also discusses how to involve relevant boards, create an acceptable plan, and properly establish a conservation restriction to protect the land in perpetuity.

1. Conservation Restrictions in
Conservation Subdivisions
Joel Russell and Robert Levite
June 2012

2. Conservation Subdivisions
• Purpose: to preserve important open space while
allowing compatible development; also called Clustering,
OSRD, NRPZ, flexible development, etc.
• Statutory framework: Ch 40A, Sec. 9; Home Rule
Amendment; Ch. 184, Sec. 31-33; Subdivision Control
Law (Ch. 41)
• Why a CR? Why not note on plan or deed restriction?
• Relationship to OSRP, trail networks, town master plan,
CPA, APR program, self-help grants, etc.
• Importance of Conservation Analysis

3. - Conservation analysis ensures
that a mandated conservation
restriction achieves its purpose.
- It should be done in cooperation
with the land trust that will be the
prospective grantee of the
restriction.

4. Example - Step 1: Map Existing
Conditions

5. Step 2: Identify Site Constraints
(primary conservation areas)

6. Step 3: Identify Natural and Cultural
Features (secondary conservation areas)

7. MATURE BEECH STAND
- Need to protect trees and
root systems from damage
WOOD LOT
- Provides visual buffer
from adjacent offsite
development
PRIME AGRICULTURAL SOILS
- Preserve for agricultural
use
STONE WALL
- Visual and cultural
resource

8. ROLLING LANDFORM
-Contrasts with flat agricultural fields and
wetlands
-Grading should reflect rolling character
STREAM CORRIDOR
-Provides visual interest and ecological
benefits
-Protect riparian buffer
HISTORIC MILL RUINS
-Has educational value as a point of
interest along public trail and road.
ROAD VIEWSHED
-Preserve rural road edge (i.e. landform,
vegetation, shoulder)
-Opportunity for natural screening
(existing/new) of new structures from road

9. Look at Context of Town Open Space Planning and
Linkages

10. Step 4: Conservation Findings
(before doing a development plan)
• Preserve prime agricultural
land and beech stand
• Preserve stone walls
• Preserve historic mill ruins
• Preserve “Unbuildable Land”
(10.5 acres of floodplain,
wetlands, stream, steep slopes)
• Provide visual buffer from
road

11. Potential Conservation Restriction Plan

12. Without conservation analysis: fragmented
open space serves no conservation purpose

13. Same plan showing wetlands and buffers

14. “Leftover” open space

15. Case example: 100-acre Site in
Dutchess County, New York

16. Conservation Analysis: Slopes

17. Conservation Analysis: Soils

18. Conservation Analysis: Water Resources

19. Natural Features and Conservation Findings
• Do not develop on
steep slopes
• Protect views of
hillside
• Minimize disturbance
of water resources
• Protect the best
farmland
• Maintain intact tract
of wildlife habitat
• Provide visual buffer
from road

20. Acceptable Plan

21. Unacceptable Plan

22. Conservation Analysis – Summing Up
• Conservation Analysis puts the community in the driver’s seat to
ensure that preserved land has conservation value and is not just
“leftover land.”
• Should be done before any subdivision design occurs and before
the formal approval process begins.
• Ties in the community’s comprehensive plan and open space and
recreation plan
• Informs decisions on uses, management, and ownership of open
space land , establishing the basic terms of the conservation
restriction
• Should not be confused with minimum open space or density
calculation.

23. GETTING BOARDS
TOGETHER
 Townwide discussion on communication between
boards
 Required: Plg., ConsComm; Should include
Open Space, BoH, CPA; Ag Comm.
 Key: local and/or regional land trust
 Consider town bylaw for active cooperation on
how and under what circumstances open space
connected to OSRD/NRPZ to be preserved; Joint
board discussions
 Ensure Plg. Bd. has ability to standardize all
conditions and standards

24. Initial Concerns and Issues
 Adequate Plg Bd. Record – Historical; useful
to other boards (ConsComm; Assess.; BOH;
written record
 Plg Bd hiring of experts to ensure quality of
conservation analysis and relationship to other
protected lands within the town
 Complete survey of property and land to be
protected; markers at all angles
 Resolve public access issues early on

25. Additional Concerns and Issues
Plg. Bd. to ensure what is supposed to happen,
happens; bond; road hold-back; other conditions
Plg. Bd. order that open space area/buffer not be
part of staging area during construction
Include periodic review and a final walkthru of
devp. before releasing bond or road hold back,
etc.

26. Responsibilities
- Funding from developer to cover initial
monitoring/stewardship; baseline documentation
report (BDR); Photos and GPS coordinates
- Respons. of each party: process for funding to
cover annual stewardship, monitoring, repair;
- Required membership for homeowners assn;
- yearly fee for maintenance; automatic lien provisions
- Consider town ordinance that preserves the
continuity of homeowners assn.

27. Cons. Restr. Concerns
 CR devp. )Plg. Bd, ConsComm, Open Space, local land trust, Ag.
Comm.; use state model
 Who holds CR/ fee: town, land trust, homeowners assoc., other
non-profit;
 Deadline for recording CR: sooner, not later
 Make CR condition of approval; CR recorded and referenced on
definitive plan
 Include CR provision for back-up CR holder
 Baseline Documentation Report (BDR); use photos and GPS
coordinates

28. Additional Considerations
 Plg. Bd. determination on detention and
retention ponds, swales re: maintenance,
repair, replacement (POTW)
 Memorialize decisions on permanent signage
for access, for public usage, if any; for
abutters; banned activities
 Consider town bylaws/regulations involving
protected property – allows for better commun.
between entity doing enforcement and local
police