In my previous column, I discussed how the Overlay Law gives a developer a significant density bonus, a.k.a. more units or building square footage, in exchange for constructing or paying for a town infrastructure improvement, like the Navajo Fields’ sewer offer.
But that’s not the law’s only density bonus. There are hidden density bonuses that don’t provide any benefit to the town but benefit developers because they allow a density that far exceeds the allowed density in the town’s regular multi-family zone.
Unlike traditional multi-family developments where density is generally expressed as the number of units per acre, density in an overlay district is represented only by a little understood decimal, an FAR, or “floor area ratio.” The FAR is arrived at by dividing the total square footage of the proposed new building/s by the total square footage of the parcel.
As a reference point, the town’s R-3 multi-family zone allows 9-12 units/acre or an FAR of 0.20 to 0.23. By comparison, the Overlay Law sets a maximum FAR of 0.55 ─ more than double the FAR permitted in a standard multi-family development. There are no FAR guidelines in the zoning code for commercial developments.
The hidden density bonuses in the Overlay Law include:
Including the square footage of wetlands and wetland buffers in the parcel’s total lot size.
Not including all buildings when calculating square footage.
Counting only some, not all, square footage in the buildings.
When calculating the FAR for all multi-family zones except the highly specialized zone for nursing homes, the zoning code requires that the square footage of wetlands and wetland buffers be subtracted from the total square footage of the lot. (The square footage of wetlands and wetland buffers is routinely subtracted from lot size for single family developments before a unit lot count is established.) And although the Overlay Law says that the Planning Board should be “guided by” the town’s multi-family zone when reviewing residential projects in an overlay zone, in practice, the board has not subtracted wetlands and wetland buffers.
Depending on the parcel, the wetlands subtraction can make a difference – a significant difference.
The 44,794 square feet of wetlands and wetland buffer on the Underhill Farms site was not included in the calculation of total lot size.
Wetlands and wetland buffer account for 38% of the Navajo Fields site.
Approximately six of the 10 acres proposed for the 150 unit development on the Barger Street/Route 6 parcel are wetlands and wetland buffer ─ and the town’s planning director acknowledged that because of the wetlands the site could not be developed under the town’s multi-family zone.
The wetland/wetland buffer subtraction was never discussed in 2021 when the Overlay Law was being discussed. It’s not clear whether the omission was intentional or an oversight. But, in 2023, during the Planning Board’s review of the Underhill Farms site plan, the Conservation Board recommended the subtraction. The board ignored the recommendation.
The FAR concept is designed to take into account the overall mass, a.k.a. square footage, of the building, not how the interior space is used. But the zoning code has two different definitions when it comes to deciding what interior spaces to count – and the Overlay Law doesn’t say which definition should be used. One definition includes the square footage for ALL the interior space while the second definition, “floor area, usable,” excludes certain square footage, e.g., corridors, storage, attics, community amenities and garages.
Which definition, and which parts of the definition are used, makes a difference.
The Underhill Farms FAR used the “floor area, usable” definition but was selective when it came to deciding which spaces to include in the FAR calculation: While the definition very clearly excludes garage and community amenity space, the FAR included the community space but excluded the garage space.
The Navajo Fields plan excludes a stand-alone 5,500 square foot clubhouse.
The Barger Street/Route 6 plan includes interior garage space and multiple rooms for community amenities.
The square footage of “storage space” appears to be excluded for residential structures but included for commercial structures. Why the difference?
How the FAR was to be calculated was never discussed in 2021 when the Overlay Law was being discussed. Nor was there any discussion of how the 0.55 maximum FAR was arrived at or whether 0.55 was an appropriate FAR for Yorktown. (The final Underhill Farms FAR of 0.50 was agreed to after a Planning Board closed door executive session and a memo from the board’s attorney that addressed how to resolve conflicting provisions in the law which “create an ambiguity.”)
It's not unusual for new laws to need tweaking once they’re implemented. Think the Solar Law and the Battery Storage Law. The Overlay Law is no exception. Since the law was adopted in 2021, three very different development plans, on three very different sites, have highlighted ambiguities, confusion and omissions in the law and related provisions in the zoning code.
Town Board members now have two choices: Ignore the Overlay Law’s problems and stubbornly stick with the status quo and its generous density bonuses for developers – or – acknowledge that the law needs fixing.
Board members should be asking: Should the Overlay Law benefit developers or town residents?
Susan Siegel is a member of the Yorktown Town Board.
