Overlay District: Zoning Changes

In 2011, the Town of Evans Town Board approved a zoning overlay district that changed the zoning of the sold parcel from Community Facility to General Business. EGSIII wrote letters and attended all meetings on the overlay district. In 2012, Evans had a new supervisor. The town agreed that a "mapping error" occurred. The sold parcel's zoning was changed back to community facility.

CHAPTER 4: OPEN SPACE CONSERVATION TOOLS

On page 39 of the Local Open Space Planning Guide describes Deed Restrictions/Restrictive Covenants that can be used to protect parkland.

It has long been the practice of developers of residential properties to voluntarily restrict the use of a portion of the property in order to provide an amenity such as open space through deed covenants, restrictions and easements. For example, the deed that a lot owner receives may also convey ownership in common with other lot owners to a common area. This easement usually provides that the common area may not be developed except for specified purposes relating to open space and recreation. Typically the individual lot owner has a right to bring a legal action against others who seek to develop the property for more intensive uses. Even earlier than the now widespread use of easements to preserve open space in land developments, individual landowners often imposed deed restrictions when selling a portion of their property, to ensure that subsequent owners would not use it for objectionable purposes.

Many deeds, for example, contain restrictions against establishing gambling houses, keeping of livestock, cutting of mature trees, etc. Unfortunately, these private deed restrictions and easements often become unenforceable when circumstances change, or individual property owners are unaware of their abilities to preclude certain uses.

NOTE: There is no parking fee at Lake Erie Beach Park due to free and open deed restriction. Both Evans Town Park and the North Evans Pool have parking or use fees.

Deed Restrictions/Restrictive Covenants

It has long been the practice of developers of

residential properties to voluntarily restrict the use

of a portion of the property in order to provide an

amenity such as open space through deed covenants,

restrictions and easements. For example, the deed

that a lot owner receives may also convey ownership

in common with other lot owners to a common

area. This easement usually provides that the common

area may not be developed except for specified

purposes relating to open space and recreation. Typically

the individual lot owner has a right to bring a

legal action against others who seek to develop the

property for more intensive uses. Even earlier than

the now widespread use of easements to preserve

open space in land developments, individual landowners

often imposed deed restrictions when selling

a portion of their property, to ensure that subsequent

owners would not use it for objectionable purposes.

Many deeds, for example, contain restrictions

against establishing gambling houses, keeping of

livestock, cutting of mature trees, etc. Unfortunately,

these private deed restrictions and easements often

become unenforceable when circumstances change,

or individual property owners are unaware of their

abilities to preclude certain uses.

On page 41 of the Local Open Space Planning Guide describes the complete opposite action take by the Town of Evans. Describes is the use of overlay districts to create parkland.

Many zoning techniques are available to conserve open space. Some examples are:

• Overlay Zoning. The overlay zoning technique is a modification of the system of conventionally - mapped zoning districts. An overlay zone applies a common set of standards to a designated area that may cut across several different conventional or underlying zoning districts. When planning to protect open space, a zoning ordinance can be amended to place an overlay zone on an area that is determined to be unsuitable for development. Development in an overlay zoning district can only occur at the density which is authorized by the zoning regulations for the underlying zoning district and without impairing the sensitive environmental features in the area, if that is the stated purpose of the overlay district. In addition to protecting a limited environmentally sensitive area, overlay zoning also can protect larger areas that may encompass several standard zoning districts, in whole or in part.

The boundaries of the overlay district do not have to coincide with the boundaries of the standard underlying zoning districts.