The Town of Smithtown, population 117,801 (2010), is located in the center of Long Island, about 40 miles east of Manhattan. In an effort to save wetlands and other environmentally-sensitive areas, the Town has encouraged transfers of density during the subdivision process. The practice began in 1981 in response to a 404-unit subdivision. Since then, the Town has transferred density in conjunction with three other subdivisions.
The original program does not have a written TDR code or procedures. Furthermore, since the process is not based on a transfer plan, there are no predetermined sending or receiving sites. Instead, if a developer proposes to subdivide a parcel with important environmental resources, the planning staff encourages the developer to reduce the density on that site in return for increased density on a more appropriate non-contiguous site owned by the same developer.
The transfer ratio in the original program is one-to-one: the density of the receiving site is only increased by the same number of units which the developer has agreed not to locate on the sending site. New York Town Law allows for density modifications as long as the overall density is not changed. And the Planning Board approves these proposed transfers as part of the subdivision approval process. The cooperation of the County Health Department is also needed since 90 percent of the Town is unsewered and the Health Department has density requirements in unsewered areas.
In 2010, Smithtown adopted a second program called transfer of density flow rights which is described in the following Process section.
The transfer of density flow rights (TDFR) program is set forth in Chap 323 of the Smithtown Town Code. This new program is designed to preserve natural ecology, protect groundwater, provide visual relief from urbanization and reduce sprawl by transferring development potential into the historic business districts (Kings Park, Smithtown and St. James) and facilitating pedestrian-friendly development, affordable housing and community character.
The new TDFR ordinance designates sending and receiving districts by map but also allows owners to propose sites outside of these districts based on criteria stated in the ordinance text. When the owner of a sending area property applies for a transfer, a yield plan is prepared to determine the number of 20,000 square foot lots that could be located on the site. On the one hand, the ordinance encourages transfers by allowing these hypothetical lots to be located on slopes greater than 15%, in floodplains, within 100 feet of surface water or wetlands and on lands with high water tables. However, the Town deducts density flow rights for hypothetical lots depicted on poorly drained soils, near wells or close to wetlands. The ordinance specifies that decisions for the purpose of calculating flow rights may not be acceptable for the approval of an actual subdivision. The flow right calculation must be approved by the Suffolk County Department of Health Services.
If the sending site owner elects to proceed, the Town Board approves the proposed deed restriction and it is recorded. This restricts the property for open space “…without the use of fertilizer…” in perpetuity. Sending area landowners may then sell the flow rights to private buyers or to the Town. The ordinance authorizes the Town to buy either flow rights or sending site land in fee after which the Town can either retain or resell the flow rights severed from the land acquired by the Town. The Town may base its offer to purchase the parcel or its flow rights based on an appraisal. When selling flow rights, the Town’s Density Flow Rights Bank establishes the sales price as the mean purchase price of the flow rights in the Bank.
Receiving areas are depicted by map but sites outside the receiving areas can be proposed by landowners and evaluated on the basis of criteria in the text of the code. For example, receiving sites cannot be environmentally sensitive land, property not served by public water and land within the contributing area of a well field or surface water. Per section 323-10(11), the total flow on each receiving site cannot exceed two times the flow that would otherwise be permitted if no flow rights were transferred; in other words, TDFR can allow up to a 100 percent increase in the development potential of a receiving site.
As of 2001, Smithtown’s original TDR program had transferred development rights as part of four separate subdivisions. In these four transactions, about 50 dwelling units were transferred and 25 acres saved. In one part of Smithtown, density from two land parcels was transferred to a nearby single-family residential subdivision. In another area, two parcels were preserved as open space. These parcels increased the size of an open space corridor which flanks the banks of the Northeast Branch of the Nissequogue River; this corridor preserves an environmentally sensitive area and offers passive recreation opportunities, including hiking on a segment of the Long Island Trail, a 24-mile trail which crosses Long Island from the Great South Bay to Long Island Sound.
The ordinance for the TDFR program requires the Town Planning Department to produce an annual report on the program’s activities. However the program was new when this profile was written (October 2011) and it is possible that the initial report had not yet been prepared.