Cluster development (also referred to as cluster zoning, average density development, or open space development) can be implemented through a variety of techniques, including floating zones, special use permits, and subdivision review. The "Cluster Development, Residential" provision of the Town of Clinton is a supplemental regulation to the town's zoning law. Essentially, the clustering regulation grants the Planning Board the authority to modify the town's zoning and subdivision provisions as they apply to specific plats of land. Clinton's Zoning Law defines a cluster development as, "A development pattern in which uses are grouped (clustered) through a density transfer within a particular development, rather than spread evenly throughout a parcel as in conventional lot-by-lot development, in order to achieve the purposes stated herein.

The enabling authority for cluster development in New York State is Town Law § 278, Village Law §7-738, and General City Law §37. All three authorizations are very similar, permitting the municipal governing body to allow the planning board to require that a subdivision be clustered or to approve a clustered plat at the developer's request. Town Law §278 may be used for clustering of any type of development, however Village law §7-738 is applicable only to lands zoned for residential purposes. General City Law §37 allows the planning board to "make any reasonable change" in the zoning regulations. The Town of Clinton's cluster development regulation is limited to residential developments.

1. Better protection of natural and scenic resources identified in the Master Plan and zoning law than would be provided by the conventional subdivision plan;
2. Compatibility with surrounding land uses and the Town's traditional land use patterns in which small hamlets contrast with open space and farmlands;
3. Provision of adequate buffers for adjoining properties;
4. Contribution to town-wide open space planning by creating a system of permanently preserved open spaces, both within large parcels of land and among such parcels throughout the Town, and by providing linkages between existing open space areas and, where appropriate, linkages to hamlet areas;
5. Provision of a broader range of housing options and potentially lower housing prices by reducing the length of roadways and other critical infrastructure costs;
6. Preservation of land suitable for agriculture, particularly where development involves or borders active agricultural land or land with prime or important agricultural soils; and
7. Greater flexibility and creativity in the design of residential subdivisions, provided that the overall density of the development is no greater than what is normally allowed in the district.

Town Law §278 provides that the purpose of cluster development is to "enable and encourage flexibility of design and development of land in such a manner as to preserve the natural and scenic qualities of opens lands. The Town of Clinton has incorporated many of the recognized environmental and economic accomplishments into its stated purposes, including preservation of natural and scenic resources, agricultural lands, lowered site development costs, and increased flexibility in development design.

1. Preservation of contiguous prime or statewide important agricultural soils, as defined in Article 8;
2. Maintenance of active agricultural land;
3. Protection of the ground or surface water, wetlands, steep slopes, floodplains or unique areas of natural, scenic, or historical significance;
4. Mitigation of significant environmental impacts identified through application of the State Environmental Quality Review Act (SEQRA) requirements;
5. Preservation of open space views identified as important to the Town;
6. Reduction in the amount of new roads or driveways obtaining access from existing roads;
7. Reduction in the amount of new road that may be required to be dedicated to the Town;
8. Protection of Critical Environmental Areas designated by the Town Board;
9. Accomplishment of specific goals set forth in the Town's Master Plan.

"The local law or ordinance exercising a community's cluster development authority can delegate broad or narrow authority to the planning board to cluster development. It can be limited to one project at a time, to one zoning district, to a certain area within the community, to parcels with particular natural resource characteristics such as wetlands or steep slopes, or to accomplish certain stated purposes."

This section of the provision incorporates several of the requisite elements of a cluster development, including the following:

• A local government taking advantage of the authorization must specify the lands to which the clustering provisions apply.
• The overall density of the cluster development on the tract must not be greater than would otherwise be allowed by applicable laws and regulations. Therefore, the developer must submit a conventional subdivision plan, so that the planning board may determine the density that would be allowed without clustering.
• All of the requirements of subdivision approval must be met as the cluster development is reviewed and approved. These include compliance with the provisions of the master plan and the environmental review procedures imposed by state and local law.

1. Where the cluster development results in the creation of individual lots for the development of single-family detached dwellings, the minimum lot area per dwelling unit that may be created within a cluster development shall be one-half (1/2) acre.
2. All dwelling units within a cluster development shall be owner occupied units. Wherever common property is approved as part of the cluster proposal, a homeowner's association agreement will be established under New York State law.
3. While attached or detached dwelling units are permissible within a cluster development, no individual structure shall contain more than four (4) attached dwelling units in the C, AR5, and AR3 districts, or more than six (6) attached dwelling units in the MR1, CR1, RH, and H districts.
4. Common driveway access may be provided to the extent practical by the Planning Board. A pedestrian circulation and/or trail system shall be designated and installed sufficient for the needs of residents.
5. Maximum structure height within a cluster development shall be restricted to thirty-five (35) feet.
6. Minimum separation distance between individual residential structures within a cluster development shall be fifty (50) feet in the C, AR3, and AR5 districts, and twenty-five (25) feet in the MR1, CR1, RH, and H districts.
7. The minimum front yard setback from the centerline of a public roadway shall be no less than the normally applicable setback requirements in the district in which the property is located. Any other area and bulk regulations shall be determined by the Planning Board in the site plan review process.

"The local law or ordinance can grant the planning board authority to alter all of the dimensional requirements of the zoning ordinance to accomplish its objectives or to alter only certain of those requirements, such as the required lot size. The uses permitted by the zoning ordinance may not, however, be changed under this authority."

1. Water supply and sewage disposal facilities shall be designed by a licensed engineer for any such residential cluster development in accordance with the requirements of the Town of Clinton and the Dutchess County Health Department. Underground facilities may be located in areas to be set aside as permanent open space.
2. Common open space totaling not less than sixty percent (60%) of the total cluster development site in the C and AR5 districts, or forty percent (40%) of the total cluster development site in the AR3, MR1, CR1, RH, and H districts, shall be provided in perpetuity as part of the cluster development. A plan for maintenance or landscaping of the common open space shall be reviewed and approved by the Planning Board. No portion of this minimum required open space shall be utilized for roads, driveways, utility structures, or similar features.
3. Open space land may be owned in common by a homeowner's association, held in private ownership subject to a permanent conservation easement or dedicated to the Town if such agreement is approved by the Town Board. If owned by a homeowner's association, the common open space land shall be protected by conservation easement from future subdivision and development. The Planning Board shall assure that proper provision has been made for ownership and maintenance of open space land, roadways, and other improvements. Ownership shall be structured in such a manner that real property taxing authorities may satisfy property tax claims against the open space lands by proceeding against all individual owners in the homeowner's association and the dwelling they each own. Ongoing maintenance standards shall be established, enforceable by the Town against an owner of open space land as a condition of subdivision approval, to assure that the open space land does not detract from the character of the neighborhood. Maintenance standards may include the obligation to mow open fields in order to maintain their scenic character or agricultural potential.
4. A perpetual conservation easement ­ leaving the open space land forever wild or limiting the use of such land to agricultural, managed forest land, passive recreational or open space use, or to the residential use specified as part of the plan and prohibiting institutional, industrial, or commercial use of such open space, pursuant to Section 347 of the General Municipal Law and/or Sections 49-0301 through 49-0311 of the Environmental Conservation Law ­ may be granted to the Town, with the approval of the Town Board or to a qualified not-for-profit conservation organization acceptable to the Planning Board. Such conservation easement shall be reviewed and approved by the Planning Board and shall be required as a condition of plat approval under the Town's Subdivision Regulations. The conservation easement shall not be amendable to permit commercial, industrial, institutional, or further residential development and shall be recorded in the Dutchess County Clerk's office simultaneously with the filing of an approved cluster subdivision plat.
5. The open space shall be shown on the plat map and shall be labeled in a manner to indicate that such land is not to be further subdivided for building lots and is permanently reserved for open space purposes. Residential structures and buildings accessory to non-commercial recreation, conservation, or agriculture may be erected on this land, subject to the cluster development plan and Section 7.9, Site Plans.

Because one of the major aims of clustering is to create and preserve open space, treatment of these areas is important. §281 of the Town Law and Village Law § 7-738 both provide that the planning board, as condition of plat approval, 'may establish such conditions on the ownership, use, and maintenance of such lands as it deems necessary to assure the preservation of such lands for their intended purposes.' However this language has been held not to authorize a planning board to compel the conveyance of this open space to the Town.

There are several alternatives available to local government in its treatment of open space under cluster development law:

• A conservation easement may be established by the developer in order to protect open space land from future subdivision and development. A conservation easement is an interest in the property that is conveyed to the local government.
• A homeowners association may be established in order to manage the open space land.
• A municipal park district may be created in order to hold and maintain open space land if the land is municipally owned.

1. If the Planning Board determined that a residential cluster development is to be considered or shall be required for a given parcel, based on the purposes and objectives of this section, any partial subdivision which does not develop the maximum allowable number of lots on this parcel shall only be approved in accordance with an overall cluster plan for the entire parcel that meets all the requirements of this section.
2. Before any such partial subdivision is approved, the applicant shall demonstrate to the satisfaction of the Planning Board that the overall cluster plan is physically possible, that it is the best layout for achieving the purposes of this section, and that it will indeed be followed in any subsequent development phase or by any subsequent owner.
3. In order to guarantee the long-term intention to carry out the overall cluster plan for the entire property, the applicant shall accomplish either a or b below, or both:
4. Indicate all future property lines, roads, and other major improvements for the cluster plan on the map to be filed for the partial subdivision.
5. Permanently protect through conservation easement the designated open space for the entire property.

1. On the least fertile soils for agricultural uses and in a manner which maximizes the usable area remaining for such agricultural uses;
2. Within any woodland contained in the parcel, or along the far edges of the open fields (to reduce impact upon agriculture, to provide summer shade and shelter from winter wind, and to enable new construction to be visually absorbed by natural landscape features);
3. To permanently protect significant natural or cultural features identified on the site;
4. So as to minimize the number of driveways with access to existing roads;
5. In such a manner that the common boundary between the new house lots and any active farmland is minimized in length (to reduce potential conflict situations);
6. In a location least likely to block or interrupt scenic vistas, as seen from the public roadway(s) or other public vantage points;
7. In locations where the greatest number of units could be designed to take maximum advantage of solar heating opportunities; and
8. To meet other criteria listed under Section 7.9 Site Plans.