§ 58-58. R-CD residential conservation district.
The R-CD residential conservation district is established to allow uses that are similar in nature to other residential (R) districts in the town. The R-CD district provides a means of protecting conservation lands, especially those areas that contain primary and secondary conservation lands. Following are the regulations for conservation subdivisions and other land uses in the R-CD district:
(1)
Permitted uses.
a.
Single-family dwellings.
b.
Agricultural uses. Structures housing poultry or livestock (other than horses) and waste removed from any structure shall be located no closer than 150 feet from any property line except that structures housing horses shall be located no closer than 60 feet from any property line. Corrals for bovine and equine animals are exempt from these setbacks.
c.
Horse farm and academy. Structures housing horses shall be located no closer than 60 feet from any property line. Waste removed from any such structure shall be located no closer than 150 feet from any property line.
d.
Family care home for up to six clients, provided such home is not located within a one-half-mile radius from an existing family care home.
e.
Essential services, classes I and IV.
f.
Customary home occupations in accordance with section 58-7.
g.
Day care centers, small group.
h.
Habitat preserve or other similar conservation use.
i.
Conventional subdivisions, provided that a minimum of ten percent of the gross area, exclusive of any required minimum buffers along thoroughfares, of the subdivision consists of common open space. The ten percent open space requirement shall not apply in conventional subdivisions where each of the resultant lots has an area that equals or exceeds five acres. Any further subdivision of the tract into lots less than five acres in size shall require ten percent open space. Any such open space areas as herein provided, shall consist of principally viewsheds from the road, where applicable. Where a viewshed is not appropriate, open space shall consist of primary and/or secondary conservation lands, to the extent that they are found on the tract in question and shall be subject to the provisions of subsections (3)g—i and (4)h. of this section.
(2)
Conditional uses. The following uses may be permitted by the town council in accordance with section 58-271; provided, however, that no such uses shall be allowed within a conservation subdivision. The council shall address review criteria for each use which is contained in section 58-271. The council shall addess any additional review criteria for these land uses as may be contained in section 58-88:
a.
Churches, synagogues and other places of worship.
b.
Public and private schools serving all grades, including preschool facilities.
c.
Golf courses (except on conservation lands), parks, playgrounds and community recreational centers.
d.
Country clubs.
e.
Emergency governmental service facilities, including police, fire and rescue.
f.
Cemeteries.
g.
Essential services, classes II and III.
h.
Telecommunication towers.
i.
Public libraries.
j.
Amateur radio towers. An amateur radio tower may also be located on a lot that contains another principal use or structure. In no instance, however, shall the amateur radio tower be located in the front yard of a lot containing another principal structure.
k.
Government or town facility.
l.
Land application of biosolids.
m.
Conservation subdivisions.
n.
Agritourism.
(3)
Standards for developments not located within a conservation subdivision.
a.
Minimum lot area:
1.
Single-family dwellings: 40,000 square feet, except five acres on an easement lot not located within a conservation easement. However, an easement lot may be a minimum of 40,000 square feet when created within a conservation easement of at least 25 acres that is dedicated to a conservation organization.
2.
Cemeteries and essential services, class III: Five acres.
3.
Churches: Three acres.
4.
Public and private schools: Ten acres.
5.
Horse farms or academies: Five acres.
6.
Agricultural uses: A minimum of 40,000 square feet; provided, however, that a minimum of five acres shall be required for any agricultural use containing one or more livestock animals having a mature adult weight of 250 pounds or greater. Notwithstanding this requirement, lots whose agricultural use consists exclusively of one horse shall be required to have a minimum of 40,000 square feet of contiguous fenced land area designed to accommodate the horse. Such lots containing two horses shall be required to have a minimum of 80,000 square feet of contiguous fenced land area designed to accommodate the two horses.
7.
Essential services, classes I and IV: None.
8.
Planned residential development: 35 acres.
9.
Libraries: Three acres.
10.
Lots containing amateur radio towers: 40,000 square feet.
11.
All other uses: 40,000 square feet.
12.
Government or town facilities.
b.
Minimum front yard setback (except as provided in article IV of this chapter):
1.
Essential services, class III: 300 feet.
2.
Telephone repeater stations, transmitting facilities and public utility stations: 200 feet.
3.
Single-family dwellings and mobile homes: 50 feet.
4.
Essential services, class IV: Ten feet.
5.
Lots containing amateur radio towers: 1.5 times the height of the tower.
6.
Essential services, class I: None.
7.
All other uses: 75 feet.
c.
Minimum lot width:
1.
Essential services, classes I and IV: None.
2.
All other uses: 120 feet, measured at the front yard setback.
d.
Minimum side yard setback: (Side yard setback shall be increased by ten feet on the side yard facing a street on all corner lots.)
1.
Single-family dwellings and mobile homes: 15 feet, provided that if a buffer is provided at the side of the lot pursuant to subsection 46-76(d), the side yard setback shall be measured from the nearest edge of the buffer area.
2.
Churches, schools, governmental facilities, libraries, government or town facility, telephone repeater stations: 50 feet.
3.
Essential services, class III: 100 feet.
4.
Telephone repeater stations, transmitting facilities and public utility substations: 75 feet.
5.
Essential services, class IV: Ten feet.
6.
Lots containing amateur radio towers: 1.5 times the height of the tower.
7.
Essential services, class I: None.
8.
All other uses: 15 feet.
e.
Minimum rear yard setback:
1.
Single-family dwellings and mobile homes: 40 feet; provided that if a buffer is provided at the rear of the lot pursuant to subsection 46-76(d), the rear yard setback shall be measured from the nearest edge of the buffer area.
2.
All essential services, class III: 100 feet.
3.
Telephone repeater stations, transmitting facilities and public utility substations: 75 feet.
4.
Essential services, class IV: Ten feet.
5.
Lots containing amateur radio towers: 1.5 times the height of the tower.
6.
All other uses: 40 feet.
f.
Maximum building height (except as permitted in section 58-15):
1.
Essential services, class IV: Ten feet.
2.
Lots containing amateur radio towers: 100 feet.
3.
All other uses: 35 feet.
g.
Permitted uses of open space. No use or development shall be allowed on the required open space except as follows:
1.
Conservation of open land in its natural state (for example, forestlands, fields or meadows).
2.
Pastureland.
3.
Forestry, in keeping with established best management practices for selective harvesting and sustained-yield forestry.
h.
Permanent protection of open space. The required open space shall be subject to a conservation easement that will be held by the homeowners' association. Any homeowners' association that is a holder of a conservation easement as provided in subsection (4)h. of this section, shall be subject to and comply with all applicable requirements for homeowners' associations as set forth in state statutes. In addition, the following criteria shall be met:
1.
The applicant for subdivision approval shall provide the town a description of the organization of the proposed association, including its bylaws, and all documents governing ownership, maintenance, and use restrictions for common facilities.
2.
The proposed homeowners' association shall be established by the subdivision applicant and shall be operating (with financial underwriting by the applicant, if necessary) before the sale of any dwelling units in the development.
3.
Membership in the homeowners' association shall be mandatory for all purchasers of lots within the subdivision and their successors in title.
4.
The homeowners' association bylaws shall confer legal authority on the association to place a lien on the real property of any member who falls delinquent in his dues. Such dues shall be paid with the accrued interest before the lien may be lifted.
5.
The homeowners' association shall annually provide to the town a listing of the names, addresses and telephone numbers of all their officers and board members.
6.
Any proposed changes to the conservation easement that substantively affect the usage, location or maintenance of conservation land within the conservation subdivision must first be consented to and approved by 100 percent of the town council and 100 percent of all homeowners.
i.
Maintenance plans and maintenance agreement:
1.
The cost and responsibility of maintaining required open space shall be borne by the fee simple owner of the required conservation lands, or by another party as specified in an executed, binding and enforceable maintenance agreement, who is a holder of the conservation easement.
2.
The applicant must submit, with an application for preliminary plat approval, a maintenance agreement that obligates either the property owner of the open space, or other specified party as provided above, to implement the maintenance plan.
3.
The maintenance plan shall be submitted with an application for preliminary plat approval of the subdivision, and shall be in accordance with the following requirements:
i.
The maintenance plan shall specify ownership of required open space;
ii.
The maintenance plan shall establish a regular operation and maintenance program appropriate to the uses to be undertaken on the subject open space, pursuant to subsection (4)g.2. of this section;
iii.
The maintenance plan shall specify required insurance and all maintenance and operating costs, and shall define the means for funding the maintenance plan on an on-going basis. Such funding plan shall include the means for funding long-term capital improvements as well as regular yearly operating and maintenance costs;
iv.
The property owner or other specified party as provided above, shall be required to escrow or bond sufficient funds for the maintenance and operation costs of the open space for two years. The amount of such escrow or bond shall be equal to 1.25 times the biannual estimated maintenance and operational costs, and shall be in a form as provided in subsection 46-45(b):
v.
Any changes to the maintenance plan shall be approved by the town council;
vi.
In the event that open space and associated common facilities are not maintained in accordance with the approved maintenance plan, the town may recover the escrow or bond funds to be used for such maintenance and any development permits and approvals may be revoked or suspended; and
vii.
The property owner of the open space and, if utilized, any other maintaining party by agreement, shall execute a release and indemnity of the town, in a form satisfactory to the town, for any claims or damages arising from the maintenance agreement and maintenance plan or performance thereof.
(4)
Standards for developments located in conservation subdivisions.
a.
Ownership. When land of a conservation subdivision is held in multiple ownerships, it shall be planned and developed as a single entity for purposes of this chapter.
b.
Conservation lands disturbance. The proposed design of the conservation subdivision shall minimize disturbance of primary conservation and required secondary conservation lands.
c.
Density standards. The actual number of lots suitable for the placement of a principal residential structure may be limited by on-site features as determined by submission and analysis of a yield plan as contained in subsection 46-42(d)(2).
d.
Minimum required conservation land. No lot suitable for the placement of a principal residential structure shall be platted to include within its dimensions any conservation lands as herein required. Conservation land on the tract containing the conservation subdivision shall be calculated as follows:
1.
Tracts containing primary conservation lands. All primary conservation lands within the tract shall be retained as conservation land. Half of all remaining secondary conservation lands, where they exist, shall be retained as conservation land in the order of priority as described below:
i.
Tier A (high priority).
A.
Viewshed from the road.
B.
Forestlands.
ii.
Tier B (medium priority).
A.
Farmlands.
B.
Historic site.
iii.
Tier C (lowest priority).
A.
Steep slopes.
B.
Rock formations.
C.
Lands adjacent to parks.
iv.
At a minimum, 50 percent of the gross acreage of the tract will be required to be retained as conservation land. When a subdivision lies on both sides of a major or minor thoroughfare, all attempts should be made to have 50 percent of each side's gross acreage designated as conservation land. The town may allow flexibility on the distribution of conservation land in unique cases where an alternative purpose is served. Conservation land in excess of the 50 percent minimum, while not required by this chapter, may be set aside at the property owner's discretion.
2.
Tracts not containing primary conservation lands. At a minimum, 50 percent of the gross area of the tract shall be retained as secondary conservation land if there are no primary conservation lands on the tract. The priority order for retaining secondary conservation lands shall be as described in subsection (4)d.1. of this section.
e.
Dimensional standards.
1.
Minimum lot sizes: One of the primary differences between conventional subdivisions and conservation subdivisions is that although the overall allowable density levels between the two are the same, conservation subdivisions allow much smaller lot sizes. Accordingly, lots containing single-family dwellings may have a minimum area of 12,000 square feet. Easement lots are not permitted in a conservation subdivision.
2.
Minimum lot width at building line: 80 feet.
3.
Minimum street frontage: 30 feet.
4.
Yard regulations: Variations in the principal building position and orientation on the lot are encouraged, but shall observe the following minimum standards:
i.
Front yard: 20 feet.
ii.
Rear yard: 30 feet.
iii.
Side yard: 30 feet separation for principal buildings on adjacent lots, with no side yard less than five feet. The streetside side yard on a corner lot (i.e., the lot fronting a street that is not the "front yard") shall be at least 15 feet.
Notwithstanding the provisions of this subsection, all principal dwelling units within a conservation subdivision shall be set back at least 100 feet from all external road rights-of-way (i.e., rights-of-way of roads that are external to the proposed subdivision), as depicted on the most current version of the local thoroughfare plan. In addition, all principal dwelling units shall otherwise be set back a minimum of 50 feet from the external boundaries of the conservation subdivision.
5.
Maximum building height: 35 feet.
6.
Garages with front loading bays shall be recessed a minimum of two feet from the front facade of the house and visually designed to form a secondary building volume.
f.
Design standards. Lot lines shall not encroach upon the designated conservation lands. A minimum of 95 percent of building lots within the subdivision must share at least one lot line with another lot in the subdivision.
g.
Conservation land uses. Except as provided herein, most types of structural development are not allowed on primary conservation lands and required secondary conservation lands.
1.
Principal uses permitted outside of primary and required secondary conservation lands. Single-family dwellings.
2.
Principal uses permitted on primary and required secondary conservation lands. No use or development shall be allowed on primary and required secondary conservation lands except as follows:
i.
Conservation of open land in its natural state (e.g., forestlands, fields or meadows).
ii.
Agricultural uses, including raising crops or livestock, nurseries and associated buildings, excluding residences, provided that such buildings are specifically needed to support an active, viable agricultural or horticultural operation, and are architecturally compatible with the neighborhood setting. Specifically excluded, but not limited to, are commercial livestock operations involving swine, poultry and mink.
iii.
Pastureland.
iv.
Horse farms or academies.
v.
Forestry, in keeping with established best management practices for selective harvesting and sustained yield forestry.
vi.
Neighborhood uses such as village greens, commons, picnic areas, community gardens, trails and similar low-impact, passive recreational uses.
vii.
Noncommercial recreational areas, such as playing fields, playgrounds, courts and bikeways, provided such areas do not consume more than half of the minimum required conservation land or five acres, whichever is less. Parking facilities for the same shall also be permitted, and they shall generally be gravel-surfaced, unlighted, properly drained, provide safe ingress and egress, and contain no more than ten parking spaces. Notwithstanding the above, golf courses, their parking areas, and associated structures, shall not be allowed on any required conservation lands.
viii.
Water supply and sewage disposal systems and stormwater detention areas designed, landscaped and available for use as an integral part of the conservation area.
ix.
Easements for drainage, access, sewer or water lines or other public purposes.
x.
Underground utility rights-of-way. Above ground utility and street rights-of-way may traverse conservation lands but street rights-of-way shall not count toward the minimum required conservation land. Fifty percent of the utility rights-of-way may be counted toward the minimum required conservation land.
h.
Permanent conservation land protection through conservation easements.
1.
Subject to the provisions of subsections (4)h.2. and (4)h.3. of this section, conservation lands required pursuant to subsection (4)d. of this section may be retained by the applicant or may be conveyed to another party, but must be and remain subject to a conservation easement. Nothing herein shall restrict the legislative zoning authority of the town council.
2.
Required conservation land shall be subject to a conservation easement that specifies the range of uses allowable pursuant to subsection (4)g.2. of this section, and which are enforceable in accordance with all applicable laws of the state. There shall be at least two holders of every easement, except as provided in subsection (4)h.3. of this section. The holders of the conservation easement shall be the state or appropriate department or agency thereof, or one or more conservation organizations, in any combination of two or more, except as provided in subsection (4)h.3. of this section. Enforcement of the terms of the conservation easement shall be in accordance with applicable state law. The proposed preliminary plat shall indicate that required conservation lands are subject to a conservation easement being conveyed to specific entities pursuant to this section.
3.
Upon demonstration by the applicant that efforts to comply with subsection (4)h.2. of this section have been exhausted and pursued in good faith, but have failed to result in the execution of a valid conservation easement by two qualified holders, the applicant shall enter into either:
i.
A conservation easement to be held by the state or appropriate department or agency thereof;
ii.
Held by a conservation organization approved by the town council, if the state will not agree to be the conservation easement holder;
iii.
Held by a homeowners' association, subject to subsection (4)h.4. of this section; or
iv.
Other appropriate easement holder approved within the discretion of the town council.
To the extent possible, any combination of two or more of the above listed easement holder, is preferable.
4.
Any homeowners' association that is a holder of a conservation easement as provided in subsection (4)h.3. of this section, shall be subject to and comply with all applicable requirements for homeowners' associations as set forth in state statutes. In addition, the following criteria shall be met:
i.
The applicant for conservation subdivision approval shall provide the town a description of the organization of the proposed association, including its bylaws, and all documents governing ownership, maintenance and use restrictions for common facilities;
ii.
The proposed homeowners' association shall be established by the conservation subdivision applicant and shall be operating (with financial underwriting by the applicant, if necessary) before the sale of any dwelling units in the development;
iii.
Membership in the homeowners' association shall be mandatory for all purchasers of lots within the conservation subdivision and their successors in title;
iv.
The homeowners' association bylaws shall confer legal authority on the association to place a lien on the real property of any member who falls delinquent in his dues. Such dues shall be paid with the accrued interest before the lien may be lifted;
v.
The homeowners' association shall annually provide to the town a listing of the names, addresses and telephone numbers of all their officers and board members;
vi.
Any proposed changes to the conservation easement that substantively affect the usage, location or maintenance of conservation land within the conservation subdivision must first be consented to and approved by the town council.
i.
Maintenance plans and maintenance agreement.
1.
The cost and responsibility of maintaining the required conservation lands and associated common facilities shall be borne by the fee simple owner of the required conservation lands, or by another party as specified in an executed, binding and enforceable maintenance agreement, who is a holder of the conservation easement.
2.
The applicant must submit, with an application for preliminary plat approval, a maintenance agreement that obligates either the property owner of the conservation lands, or other specified party as provided above, to implement the maintenance plan.
3.
The maintenance plan shall be submitted with an application for preliminary plat approval of a conservation subdivision, and shall be in accordance with the following requirements:
i.
The maintenance plan shall specify ownership of required conservation lands.
ii.
The maintenance plan shall establish a regular operation and maintenance program appropriate to the uses to be undertaken on the subject conservation lands, pursuant to subsection (4)g.2. of this section.
iii.
The maintenance plan shall specify required insurance and all maintenance and operating costs, and shall define the means for funding the maintenance plan on an on-going basis. Such funding plan shall include the means for funding long-term capital improvements as well as regular yearly operating and maintenance costs.
iv.
The property owner or other specified party as provided above, shall be required to escrow or bond sufficient funds for the maintenance and operation costs of the conservation lands for two years. The amount of such escrow or bond shall be equal to 1.25 times the biannual estimated maintenance and operational costs, and shall be in a form as provided in subsection 46-45(b).
v.
Any changes to the maintenance plan shall be approved by the town council.
vi.
In the event that conservation lands and associated common facilities are not maintained in accordance with the approved maintenance plan, the town may recover the escrow or bond funds to be used for such maintenance and any development permits and approvals may be revoked or suspended.
vii.
The property owner of the conservation lands and, if utilized, any other maintaining party by agreement, shall execute a release and indemnity of the town, in a form satisfactory to the town, for any claims or damages arising from the maintenance agreement and maintenance plan or performance thereof.
(Ord. No. 87-04-08, § 5.7, 4-8-1987; Ord. No. O-2004-07, 6-14-2004; Ord. No. O-2004-09, 7-12-2004; Ord. No. O-2004-13, 7-12-2004; Ord. No. O-2004-26, 11-18-2004; Ord. No. O-2007-04, 4-9-2007; Ord. No. O-2009-07, 7-13-2009; Ord. No. O-2010-07, 4-12-2010; Ord. No. O-2011-06, 4-11-2011; Ord. No. O-2013-11, 8-12-2013; Ord. No. O-2014-04, 3-10-2014; Ord. No. O-2014-20, 12-8-2014; Ord. No. O-2016-03, 4-11-2016; Ord. No. O-2017-04, 2-13-2017; Ord. No. O-2019-01, 2-11-2019)