The Town of Perinton, population 45,695 (2009), lies just east of Rochester in upstate New York. For years, the Town has actively protected its rural character through a conservation easement program designed to preserve agricultural land, forests, environmentally-sensitive areas and other open space; as of 1994, conservation easements protected 4,423 acres in Perinton, or 20 percent of the total land area of the Town. The Town also promotes the clustering of new development to maximize the preservation of open space.
In the early 1990s, the Town was looking for a way to save a particular 56-acre parcel for recreation by transferring development rights to a non-contiguous site. The Town considered using its existing clustering ordinance. An advisory opinion from the Attorney General of the State of New York stated that the enabling legislation for cluster subdivisions did not specifically limit density transfers to single parcels or contiguous parcels. Nevertheless, the Town waited for the passage of New York State’s Town Law 261-b which specifically granted Towns in New York State the power to use TDR. In 1993, Perinton adopted an Open Space Preservation ordinance based on Town Law 261-b and immediately used it to preserve the 56-acre recreational site.
Perinton’s Open Space Preservation ordinance allows density adjustments for the purpose of preserving natural features, preventing soil erosion and creating open space/recreational areas. Under this ordinance, sending sites are rezoned to a designation of Open Space Preservation and land use controls for that sending site are established by an approved open space preservation plan. The receiving site is also rezoned and can be granted adjustments for density, area and open space; however the density permitted on both sending and receiving sites as a result of TDR cannot exceed the total density which would be allowed to both these sites under conventional zoning.
An applicant for a rezoning to Open Space Preservation must submit two sets of concept plans. One set shows how the sending and receiving sites would be developed under baseline zoning and conventional procedures. The second set of plans shows the open space preservation proposed for the sending site and the development proposed for the receiving site incorporating the zoning code exceptions requested by the applicant.
The Town Planning Board and Conservation Board review the application and file a report and recommendations to the Town Board. Following a hearing, the Town Board may grant the rezoning if it finds that the proposal promotes community goals and will not cause significant environmental damage. In adopting the rezoning, the Town Board may attach whatever conditions it finds necessary to protect the public health, safety and welfare. After the open space preservation zoning is approved, the applicant can submit the necessary subdivision and/or site plan applications to the Planning Board.
The Perinton Open Space Preservation Ordinance has a one-to-one transfer ratio; the extra amount of development on the receiving site cannot exceed the amount of development transferred from the sending site. Nevertheless, sending site owners can still be motivated to transfer density because of sending site constraints such as lack of public utilities and facilities, access difficulties and high site improvement costs.
For example, the 56-acre parcel discussed above would have been very expensive to develop due to the steepness of the terrain and the amount of work needed to serve the site with roads, sewers and other infrastructure. The owner of that site found it more cost-effective to develop the receiving site at a higher density than attempt to develop both the sending and receiving sites at the densities allowed under conventional zoning.
The Perinton Town Board approved this transfer request as the first use of its Open Space Preservation ordinance. In the process, development rights for 76 dwelling units were transferred to a receiving site. On the receiving site, an additional 24 acres were preserved as open space. In return, the 56-acre sending site was rezoned to Open Space Preservation and deeded to the Town for use as recreational open space. Between the sending and receiving sites, a grand total of 80 acres were preserved as open space. The sending site has been linked to the Town’s public trail system; at this time, the trail system serves approximately one-third of the community.
In 1994, Scott Copp, Director of Perinton’s Building Department, stated that the Town’s 1993 TDR program had only been used once. In 2001, Mr. Copp reported that the Open Space Preservation ordinance had not been changed and that there were no new TDR program applications.