061-10Action:
03/10/10 Board Meeting - Approved to Forward to Public Hearing
with Changes to be Incorvorated.
BOARD OF SUPERVISORS: March 10, 2010 ❑APPROVED ❑DENIED
RESOLUT1oN
DIRECTING THE PLANNING COMMISSION TO HOLD A PUBLIC HEARING
REGARDING CHAPTER 165, ZONING
ARTICLE III TRANSFER OF DEVELOPMENT RIGHTS (TDR) PROGRAM
PART 301 ESTABLISHMENT AND PURPOSE
165- 301.01 PURPOSE,165- 301.02 APPLICABILITY, 165- 301.03 RIGHT TO
TRANSFER DEVELOPMENT RIGHTS; GENERAL PROVISIONS
PART 302 — SENDING AND RECEIVING PROPERTIES
165- 302.01 SENDING PROPERTIES, 165- 302.02 RECEIVING PROPERTIES,
165 - 302.03 CALCULATION OF DEVELOPMENT RIGHTS,165- 302.04 TDR
SENDING PROPERTY DEVELOPMENT LIMITATIONS, 165- 302.05 SENDING
SITE CERTIFICATION, 165- 302.06 INSTRUMENTS OF TRANSFER
PART 303 TRANSFER PROCESS AND DEVELOPMENT PROCEDURES
165 - 303.01 TRANSFER PROCESS,165- 303.02 DEVELOPMENT APPROVAL
PROCEDURES
ARTICLE I GENERAL PROVISIONS, AMENDMENTS, AND CONDITIONAL
USE PERMITS
PART 101 GENERAL PROVISIONS
165 - 101.02 DEFINITIONS &WORD USAGE
WHEREAS, the Frederick County Planning Department has been directed to prepare
modifications to Chapter 165, Zoning to establish a Transfer of Development Rights (TDR)
Program.
WHEREAS, The Development Review and Regulations Committee (DRRC) recommended
approval of this amendment on September 24, 2009; and
WHEREAS, the .Planning Commission discussed the draft ordinance on October 12, 2009
and recommended that a public hearing be held; and
WHEREAS, the Frederick County Board of Supervisors Ends that in the public necessity,
convenience, general welfare, and good zoning practice, directs the Frederick County
Planning Commission hold a public hearing regarding an amendment to Chapter 165, Zoning
to establish a Transfer of Development Rights (TDR) Program).
NOW, .THEREFORE, BE IT REQUESTED by the Frederick County Board of
Supervisors that the Frederick County Panning Commission shall hold a public hearing to
consider revisions to Chapter 165, Zoning to create a Transfer of Development Rights
(TDR) Program, and forward a recommendation to the Board of Supervisors.
Passed this 10th day of March, 2010 by the following recorded vote:
This resolution was approved by the following recorded vote:
Richard C. Shickle, Chairman Aye Gary A. Lofton Aye
Gary W. Dove Aye Bill M. Ewing Aye
Gene E. Fisher Absent Charles S. DeHaven, Jr. Aye
Christopher E. Collins Aye
A C ATTEST
John 'ley, Jr.
Fr Brick County Administrator
BOS Res. ��061 -10
COLTNiY ®f FR�I��RI��
�, ®�- t � Degartinent of P'lannitig atttl Developinet�t
� ® �,1�'� l� � JM 540/665 -565I
,�,H,. F��_ 540/665 -6395
�'o: Frederick County Board of Supervisors
Froth: Candice E. Perkins, AICP, Senior Planner l:�
Subject: Discussion— Transfer of Development Rights (TDR) Ordinance
Date: March 1, 2010
On April 22, 2009, the Board of Supervisors approved the Rural Areas Report and
Recommendation as a policy component of the Comprehensive Policy Plan. This report
contained recommendations from the Rural Areas Subcommittee, which was a group created by
the Board of Supervisors. The Subcommittee was charged with identifying growth and
development trends and related issues in the rural areas of the County, gathering ideas to address
those issues and forwarding a recommendation for resolution to the Board of Supervisors.
One of the recommendations contained within the report was to establish a Transfer of
Development Rights (TDR) Program. The Study stated that the sending properties should be
designated in an effort to discourage development and take into account environmental
constraints. Receiving properties were to be located in areas where residential development was
desired (UDA, Urban Centers, Rural Community Centers).
The draft TDR Ordinance was presented to the Board of Supervisors on December 9, 2009. At
that meeting, staff provided an overview of the ordinance and stated that prior to the meeting,
staff was made aware of the Model TDR Ordinance drafted. by the State Workgroup that
included density bonuses. Discussions during the Rural Areas Subcommittee meetings had
included the desire to include density bonuses; however, under the wording of the TDR language
in the Code of Virginia; it was believed that bonuses were not permitted. Staff has since revised
the draft TDR Ordinance to include bonuses based on where the density right is located. The
proposed density bonuses are as follows:
Maximum Density Allowed in Zoning Districts through Transfer of
Development Rights (TDR) Program
Sending Area #1 would be property located within designated Agricultural Districts; Sending
- Area #2 would be property located within areas generally associated with prime agricultural
soils; and Sending Area #3 encompasses the remainder of the sending area. A map has been
included with this package that shows the proposed sending areas.
107. North Kent Street, Suite 202 � Winchester, Virginia 22601 =5000
Frederick County Board of Supervisors
RE: TDR Ordinance
Page 2
March 1, 2010
The draft TDR Ordinance is being presented for discussion, staff is seeking comments and
direction from the Board of Supervisors on this Zoning Ordinance text amendment. The
TDR Ordinance that has been developed consists of three parts that will regulate the program,
including which properties qualify to transfer rights and which properties qualify to receive those
transferred rights. The ordinance lays out the increased density allowed on receiving properties
as well as the transfer process and the development process for the receiving property.
Defmitions that correspond to the TDR Ordinance have also been included. The TDR ordinance
contains various criteria and processes as outlined below:
Sending Properties
Sending properties have been identified as parcels located in the Rural Areas Zoning District,
outside of the UDA and the SWSA, twenty acres in size or greater, and subdividable in
accordance with Chapter 144 - Subdivision of Land (state road access, etc.). The ordinance.
contains a section on calculations to determine the number of rights a sending property may
transfer.
Receiving Properties
Receiving properties have been identified as parcels located within the UDA (designated for
residential land uses) or a designated and defined Rural Community Center, that the parcels be of
the correct zoning district (RA, RP, R4), served by public water and public sewer, be served by
state roads, not impact historical resources and be outside of the Airport Support Area.
Certification Process
Sending properties would be certified as outlined in § 165- 302.05. The certification process
would involve the applicant providing the County with outlined information (such as application,
title report, plats). The County would then provide the applicant with a certification letter
outlining how many density rights the property may transfer.
Transfer Process
Once a sending property has been certified (issued a LETTER OF INTENT and then a
TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE), it may transfer its density rights
to a receiving property or a receiving person. The receiving property must also be certified as
outlined in the draft ordinance. Density rights can be severed from a sending property and
transferred directly to a receiving property (thus extinguished), or they can be severed from a
sending property and held by a receiving person.
Receiving properties must complete the Master Development Plan and Subdivision Design Plan
process and meet all development regulations set forth by the RP (Residential Performance)
District. Development rights from a sending property shall be considered transferred to a
receiving property or a receiving person when the extinguishment document for the sending
property has been recorded.
- DRRC Discussion
The item was presented to the Development Review and Regulations Committee (DRRC) at
their meeting on September 24, 2009. The DRRC discussed the possibility of future
Frederick County Board of Supervisors
RE: TDR Ordinance
Page 3
March 1, 2010
development bonuses for areas containing natural or environmental resources such as karst
topography, as well as the need to remove natural resources from the density right calculations.
The DRRC felt that TDR's may not be used if environmental features are excluded because that
could lead to the property owner not getting full yield from the property. The DRRC also
wanted to ensure that people understood that family lot subdivisions would not be possible if the
property owner sold their rights. The DRRC then recommended that the draft TDR ordinance be
forwarded to the Planning Commission for further discussion.
Planniiz� Commission Discussion .
The Planning Commission discussed this item at their October 12, 2009 meeting.
Commissioners discussed. the proposed ordinance and who would provide final approval of
transfers. Staff explained that the Planning Department would oversee the program and it would
be an administrative process. It was also questioned what would happen if a sending property
was eventually included in the UDA; it was explained that the State Code states that once
development rights are sold through a TDR, the property cannot be developed. Commissioners
also asked about the use of proffers with the TDR Program and it was explained that the TDR
process avoids the expected proffers from the developer. The TDR Program would be an
incentive for the development community to look at, because not only do they avoid going
through the rezoning process, with its time and uncertainty, they do not have the proffer
expectation. Also discussed during the Commission discussion were transportation
.� improvements and .that under the TDR program, the County stands to lose some of the
transportation proffers, either in terms of construction or money, depending on the volume and
scale, or v�ith strategically located in -fill sites. They inquired about the extent to which that may
have been quantified for comparison, recognizing that in the rural areas, there is no opportunity
to receive transportation proffers. Staff replied that there is still an obligation through the current
process and ordinances to address transportation impacts immediately adjacent to the site;
however, the developer could avoid the cash per unit requirement. During the rural areas
discussions, the concern was raised that transportation impacts in the rural areas were not being
mitigated. So, with the consideration of the TDR Program, the idea that transportation impacts
could be somewhat mitigated, not from a dollars aspect, but if chose houses were transferred out
of the rural community, traffic congestion is slowed down that otherwise would show up on the
rural roads unsuitable for traffic. It was also expressed that there should be some type of TIA
required and some mechanism to force a developer to incorporate public trails and inter - parcel
connections.
Commissioners were also concerned that there is a possibility that development rights could be
given to properties with environmental features that would have previously rendered them
unsuitable for development. Concern was expressed about whether the typica120 -lot subdivision
might turn out to be much larger because the developer wouldn't be required to meet the impacts
of development. The profitability for the sending properties was raised and the fact that the
property owner would have to get surveyors or environmentalists involved. Staff stated that
there is an economic decision to be made if the TDR option is used and that a transferred right
�- may not be as valuable as a true build on your own, but the difference is that the owner gets to
keep his land and with it the viewshed or the agricultural opportunity. Some questions azose
about the possibility of a landowner who might not receive the true full value of the property. It
Frederick County Board of Supervisors
RE. TDR Ordinance
Page 4
March 1, 2010
was emphasized that .the TDR Program is a voluntary program; and it is a .private financial
transaction between property owners and they `will need to come to agreement an a price. There
was an additional comment made about the absence of TNDs (Traditional Neighborhood
Design). Mr. Lawrence stated that the TND component will be included after the TND
ordinance is adopted.
The attached document shows the proposed Ordinance which is presented for discussion. Areas
shown in bold underlined italics represent changes since the Board of Supervisors discussion
(see pages 1, 2, 4, 5 and 6 }. Staff is seeking comments and direction fram the Board of
Supervisors on this Zoning Ordinance text amendment; attached is a resolution directing the
item to public hearing should the Board deem it appropriate.
Attachments: 1. Draft TDR Ordinance
2. Draft TDR Map
3. Resolution
CEP/bad
TRANSFER OF DEVELOFNIENT RIGHTS (TI}R) DRAFT ORDINANCE — January 8, 2010
ARTICLE lil
Fransfer of Development Rights (TDR� Program
Part 3€31 — Establishment anti Purpose.
§165- 301.01. Purprsse.
Pursuant to the authority granted by §§ 15.2 - 2316.1 and 2316.2 of the Code of Virginia, there is
established a transfer of development rights (TDR} program, the purpose of which is to transfer
residential density from eligible sending areas to eligible receiving areas through a voluntary process for
permanently conserving agricultural and forestry uses of lands and preserving rural open spaces, and
natural and scenic resources. The TDR program is intended to supplement tand use regulations,
resource protection efforts and open space acquisition programs and encourage increased residential
density where it can best be accommodated with the least impacts on the natural environment and
public services by:
A. Providing an effective and predictable incentive process for property owners of rural and
agricultural land to preserve lands with a public benefit; and
B. Implementing the Comprehensive Policy Plan by directing residential land uses to the Urban
Development Area (UDA); and
C. Providing an efficient and streamlined administrative review system to ensure that transfers of
development rights to receiving areas are processed in a timely way and balanced with other county
goals and policies, and are adjusted to the specific conditions of each receiving area.
§165 - 301.02. Applicability.
The procedures and regulations in Article III of Chapter 165 shall apply to the transfer of development
rights from land qualifying as sending properties to land qualifying as receiving properties. Land utilizing
transferred development rights may be subdivided at an increased density above the base density
specified by Table 1 and Table 2 in §165- 302.03 in applicable receiving areas. All development utilizing
transferred development .rights shall conform to the guidelines contained in the Comprehensive Policy
Plan.
§165- 301.03. Right to Transfer Development Rights; General Provisions.
A. A development right shall be transferred only by means of documents, including a covenant to
which Frederick County is party and any appropriate releases, in a recordable form approved by the
Director of Planning and Development or his designee. The covenant shall limit the future
construction of dwellings on a sending property to the total number of development rights
established by the zoning of the property minus all development rights previously transferred in
accordance with this chapter, any development rights previously extinguished or limited as a result
of a recorded covenant against the property, the number of development rights to be transferred
by the proposed transaction, and the number of existing single- family detached dwellings on the
1
TRANSFER OF DEVELOPMENT RIGHTS [TDR) DRAFT QRDINANCE - january 8, 2010
sending property. If a sending property contains no dwelling units,' a development right equal to
that for one single - family dwelling must be maintained for the property; except that, for properties
larger than one hundred (100) acres, one development right equal to that for one single- family
dwelling must be maintained for each multiple of one hundred (100) acres, or fraction thereof,
contained within the sending property.
B. Each transferor shall have the right to sever all or a portion of the rights to develop frorn the parcel
in a sending district and to sell, trade, or barter all or a .portion of those rights to a transferee
consistent with the purposes of §165- 301.01 so lon4 as the conditions of §165- 30I.U3A are met
C. Any transfer of development rights pursuant to this Chapter authorizes only an increase in
maximum density and shall not alter or waive the development standards of the receiving district,
nor shall it allow a use otherwise prohibited in a receiving district.
D. Transfer of development rights shall not be available for the following:
1) Portions of lots owned by or subject to easements (including, but not limited to, easements of
roads, railroads, electrical transmission lines, gas or petroleum pipelines} in favor of
governmental agencies, utilities and nonprofit corporations.
Z) Land restricted from development by covenant, easement or deed restriction.
E. Any transfer of development rights shall be recorded among the land records of Frederick County,
Virginia.
F. Value of transferable development rights. The monetary value of transferred development rights is
completely determined between the seller and buyer.
Part 302 — Sending and Receiving Properties
§165- 302.01. Sending Properties.
A. For the purposes of this chapter, a sending property must be an entire tax parcel or lot qualified
under §165- 302.01B of this section. Sending areas may only be located within the rural areas
outside of the Urban Development Area (UDA) and the Sewer and Water Service Area (SWSA) zoned
RA (Rural Areas), as described in the Comprehensive Policy Plan, and the RA Zoning District of this
Chapter. A sending property shall be maintained in a condition that is consistent with the criteria in
this section under which the sending was qualified.
B. Qualification of a sending property shall demonstrate that the site contains a public benefit such
that the preservation of that benefit by transferring residential development rights to another site is
in the public interest, according to the following criteria:
�]
TRANSFER OF DEVELOPMENT RIGI -ITS (TDR) -DRAFT ORDINANCE - January 8, 2014
1_) Designated in the Comprehensive Policy Pian as Rural Area;
2) Designated on the Zoning Maps of Frederick County as being zoned RA (Kura( Areas) and be
located outside of the Urban Development Area (UDA) and the Sewer and Water Service Area
(SWSA);
3) Designated on the Sending Areas Map;
4) Comprised of at least twenty (20} acres in size; and
5) Qualified for subdivision in accordance with Chapter 144 of the Frederick County Code including,
but not limited to, meeting all state road and access requirements.
C. If a sending property has any outstanding code violations and /or unpaid taxes, the owner shall
resolve these violations, including any required abatement, restoration, or payment of penalties or
taxes, before the property may be qualified as a sending property in the transfer of development
rights program.
§165 - 302.02. Receiving Properties.
A. Except as provided in subsections B and C of this section, in order to be eligible as a receiving
,.� property, a property must be:
1) Located in one of the following zoning districts:
a. RP (Residential Performance} District;
b. R4 (Residential Planned Community) District; or
c. RA (Rural Areas) District; and
2) Designated on the Receiving Areas Map;
3) Served by public water and public sewer;
4) Served by state maintained roads;
5) Located within the Urban Development Area (UDA) or a designated and defined Rural
Community Center as identified in the Comprehensive Policy Plan; and
6) Identified in the Frederick County Comprehensive Policy Plan for residential land uses.
B, A property is not eligible as a receiving property if the transfer .of development rights to the
property would adversely impact regionally or locally significant historical resources or naturally
sensitive areas as specified in the Comprehensive Policy Plan.
3
' TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - January 8, 2010
C. A property is not eligible as a receiving property if the property is located within the airport support
area as identified by the Comprehensive Policy PEan.
D. A receiving property may accept development rights from one or more sending properties, up to a
maximum density specified in Table 1 crud Table 2 in §165- 302.03.
§165- 302.Q3. Calculation of development rights.
A. The number of residential development rights that a sending property is eligible to send to a
receiving property shall be determined by applying the sending property base density established in
subsection C of this section to the area of the sending property after deducting all the following:
1. Development rights previously transferred in accordance with this chapter;
Z. Development rights previously extinguished or limited as a result of a recorded
conservation easement or similar covenant against the property;
3. The number of existing single - family dwellings on the sending property;
4. The amount of any submerged land (i.e_; lakes, ponds, streams), floodplains, and steep
slopes as determined by Frederick County GIS Data.
B. If a sending property contains no dwelling units, a development right equal to that far one single -
family dwelling must be maintained for the property. Properties with over 100 acres shall be
required to retain the number of development rights required in accordance with Section 165 -
301.03A.
"°'" C. For the purposes of calculating the amount of development rights a sending property can transfer,
±he square footage or acreage of land contained within a sending property shalt be determined by a
valid recorded plat or survey, submitted by the applicant property owner and that has been
prepared and stamped by a land surveyor licensed in the Commonwealth of Virginia.
D. For the purposes of the transfer of development rights program only, sending sites zoned RA (Rural
Areas) shall have a base density of one dwelling unit per five acres for transfer purposes.
E. Any fractions of development rights that results from the calculations in subsection A of this section
shall not be included in the final determination of total development rights available for transfer.
F. Development rights from one sending property may be allocated to more than one receiving
property and one receiving property may accept development rights from more than one sending
property.
G. The determination of the number of residential development rights a sending property has available
for transfer to a receiving property shall be documented in a TDR LETTER OF INTENT to issue a
TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE issued by the Director of Planning and
Development or his designee, pursuant to the provisions of this Part 302.05 of Chapter 165, and
shall be considered a final determination, .not subject to revision. Such a determination shall be
4
TRANSFER OF DEVELOPI�lENT RIGHTS (TDR} DRAFT ORDINANCE - January 8; .2010
valid only for purposes of the transfer of development rights program and for no other purpose.
Any changes to the proposed sending property shall void any issued letters of intent.
H. A sending property transferee may extinguish TDR density rights, sever and hold TDR density rights,
sever and sell TDR density rights, or apply TDR rights to a receiving property in a receiving district in
order to obtain approval for development at a density greater than would otherwise be allowed on
the land in the receiving district, up to the maximum density or intensity outlined in the table below_
Table 1
Maximum Density Allowed in Zoning Districts through Transfer of
Development Rights (TDR) Program
I TDR density rights maybe converted to bonus density rights on a receiving property by an increase
in the residential density on the receiving property based on the conversion factors in the table
below:
Table 2
Maximum Density Allowed in Zoning Districts through Transfer of
Development Rights (TDR) Program
1 Allowable bonus densify remains subieci to the maximum density provisions outlined in Table
1 of §165- 302.03H.
5
TRANSFER OE DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE = January 8, 2010.
§165 - 302.04. TDR Sending Propec`iy Development Limitations.
A. Following the transfer of residential development rights, a sending property that has retained part
of their development rights may subsequently accommodate remaining residential dwelling units on
the sending property consistent with the requirements of the RA (Rural Areas) District and all
requirements of the Frederick County Code. A sending property that has retained part of their
development rights may also transfer the remainder of the eligible rights through the transfer of
development rights program.
B. On sending properties with environmental features as outlined in § 165- 302.Q3A, the development
ri hts shall be severed from the areas outside of the specified environmental features. /f
development rights are retained on the sending property future subdivision of the parcel cannot
occur on the areas where development rights have already been severed.
C. The limitations in this section shall be included in a deed covenant applicable to the sending
property_
§165 - 302.05. Sending Site Certification.
A. The Director of Planning and Development or his designee shall be responsible for determining that
a proposed sending property meets the qualifications of §165- 302.01. The Director of Planning and
Development or his designee shall render a determination or denial under this subsection within
sixty (60) days of the date of submittal of a completed sending property determination application.
If the determination is that a property meets the qualifications of §165 - 302.01, the Director of
Planning and Development or his designee shall issue the determination in the form of a LETTER OF
INTENT to issue a TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE. A LETTER OF INTENT issued
under this subsection shall be valid until the development rights are severed and extinguished
through the transfer process, or unless applicable zoning changes are approved that would affect
the sending property, or unless the property is developed.
B. Determinations of sending property qualifications under subsection A of this section are appealable
to the Board of Supervisors by filing a notice of appeal with the Director of Planning and
Development or his designee within thirty (30) days of the date of the determination.
C. The Director of Planning and Development shall be responsible for maintaining permanent records
of action taken pursuant to the transfer of development rights program under this Article III of
Chapter 165, including records of letters of intent issued, certificates issued, deed restrictions and
covenants known to be recorded, and development rights retired, otherwise extinguished, or
transferred to specific properties.
D. Responsibility for preparing a completed application for a determination that a proposed sending
property meets the qualifications of §165- 302.01 rests exclusively with the applicant /property
6
TRANSFER OF DEVELOPMENT RIGHTS [TDR) DRAFT ORDINANCE - January 8, 2010
owner. An application for a transfer of development rights to issue a transfer of development rights
LETTER OF INTENT shat) contain:
1} A certificate of title for the sending property prepared by an attorney admitted to
practice law in the Commonwealth of Virginia;
2) Five copies of a valid recorded plat or survey, of the proposed sending parcel and a legal
description of the sending property prepared by a land surveyor licensed in the
Commonwealth of Virginia;
3) A plan showing the existing and proposed dwelling units and any areas already subject
to a conservation easement or other similar encumbrance;
4) A completed density calculation worksheet for estimating the number of available
development rights;
5) The application fee as set forth in the Development Review Fees adapted by the Baard
of Supervisors; and
6) Such additional information required by the Director of Planning and Development or
his designee as necessary to determine the number of development rights that qualify
for transfer.
E. A transfer of development rights LETTER OF INTENT issued by the Director of Planning and
Development or his designee shall state the following information:
1) The name of the transferor;
2) The name of the transferee, if then known;
3) A legal description of the sending property on which the calculation of development rights is
based;
4) A statement of the size, in acres, of the sending property on which the calculation of
development rights is based;
5) A statement of the number of development rights, stated in terms of number of dwelling units,
eligible for transfer;
6) If only a portion of the total development rights are being transferred from the sending
property, a statement of the number of remaining development rights, stated in terms of
number of dwelling units, remaining on the sending property;
7) The date of issuance;
8) The signature of the Director of Planning and Development or his designee; and
9) A serial number assigned by the Director of Planning and Development or his designee.
F. No transfer of development rights under this ordinance shall be recognized by Frederick County as
valid unless the instrument of transfer contains the transfer of development rights certificate issued
under this section.
7
TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - January 8, 2010-
§165- 30L06. Instruments of Transfer.
_ A, An instrument of transfer of development rights shall be reviewed and approved as to the form and
legal sufficiency by the County Attorney and, upon such approval, the County Attorney shaft notify
the transferor ar his or her agent, who shall record the instrument with the Clerk of the Circuit Court
and shall provide a copy to the Commissioner of the Revenue. An instrument of transfer of
development rights shall conform to the requirements of this section and shall contain the
following:
1) The names of the transferor and the transferee;
2) A legal description and plat of the sending property prepared by a land surveyor licensed in the
Commonwealth of Virginia;
3) The transfer of development rights certificate described in §165- 302.03F;
4) A covenant indicating the number of development rights remaining on the sending property and
stating that the sending property may not be subdivided to or developed to a greater density
than permitted by the remaining development rights;
5) A covenant that the transferor grants and assigns to the transferee and the transferee's heirs,
assigns, and successors a specific number of development rights from the sending property to a
receiving property;
6) A covenant by which the transferor acknowledges that he has no further use or right of use with
respect to the development rights being transferred; and
7) A covenant that all provisions of the instrument of transfer of development rights shall run with
and bind the sending property and may be enforced by Frederick County.
B. An instrument of transfer of development rights shall be recorded prior to release of development
permits, including building permits, for the receiving property.
Part 303 — Transfer Process and Development Pracedures.
§165- 303.01. Transfer Process.
Development rights shall be transferred using the following process:
A. Following approval of the sending property determination application and issuance of the LETTER
OF INTENT as described in §165- 302.05, the Director of Planning and Development or his designee
shall issue the TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE, agreeing to issue a transfer of
development rights in exchange for the proposed sending property deed covenant to which
Frederick County is a party. If a sending property with a TRANSFER OF DEVELOPMENT RIGHTS
CERTIFICATE changes ownership, the letter of intent may be transferred to the new owner if
requested in writing to the Department of Planning and Development by the persons) that owned
the property when the letter of intent was issued, provided that the documents evidencing the
transfer of ownership are also provided to the Department of Planning and Development.
' TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT QRDINANCE — jarzuary S, 2010
B. In applying for receiving property or receiving person approval, the applicant shall provide the
Department of Planning and Development with one of the following:
1) A TRANSFER OF DEVELOPMENT RIGHTS CERTIFICA I E issued in the name of the applicant;
2) A TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE issued in the name of another person or
persons and a signed option to purchase those TDR sending property development rights; or
3) A TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE issued in the name of the applicant or
another persons} and a copy of a signed. option to purchase those TDR sending property
development rights.
C. The receiving property applicant or receiving person shall deliver the documentation outlined in
§ 165 - 303.016 for the number of TDR development rights being severed or transferred and the TDR
extinguishment document to the County.
D. Development rights from a sending property shall be considered transferred to a receiving property
or a receiving person when the extinguishment document for the sending property has been
recorded.
E. A development right shall be extinguished when the final plat for the receiving property subdivision
that that development right has been applied to has been recorded.
§165- 303.02. Development Approval Procedures.
A. A request to utilize transferred development rights on an eligible receiving property must be in the
form of a Master Development Plan and a Subdivision Design Plan submitted to the Department of
Planning and Development in accordance with the Zoning and Subdivision regulations contained in
Chapters 165 and 144 of the County Code.
B. All subdivisions for receiving properties zoned RA (Rural Areas) utilizing development rights shall be
subject to the same requirements as property zoned RP (Residential Performance) and shall not
qualify for the standards specified in §144 -31 of the Frederick County Code.
C. A final recorded plat for a subdivision using transferred development rights shall contain a
statement setting forth the development proposed, the zoning classification of the property, the
number of development rights used, and a notation of the recordation of the conveyance required
by § 165 - 302.06.
9
TRANSFER OF DEVELOPI�tENT RIGHTS (TDR} DRAFT ORDINANCE — January 8, 2010
ARTIeLE I
GENERAL Pfi�QV1510�1�5, AMENQMENTS, ANQ COI�DETiOftE�tL EJSE PEREU€tT5
Part IQS. — General Provisions
165 - 101.0 Definitions &word usage
As used in this ordinance, the following words and terms have the meanings specified herein:
DEVELOPMENT RIGHTS -the permitted density of development that is allowed on a sending property
under any zoning ordinance of the County on a date of transfer of such rights.
RECEIVING AREA —One or more areas identified in this Chapter and designated by the comprehensive
plan as an area authorized to receive development rights transferred -from a sending area.
RECEIVING PROPERTY - A lot or parcel of land within a receiving area and within which development
rights are increased pursuant to a transfer of development rights affixed to the property.
SENDING AREA -One or more areas identified in this Chapter and designated by the comprehensive plan
as an area from which development rights are authorized to be severed and transferred to a receiving
area.
SENDING PROPERTY - A lot or parcel of land in a sending area that is the subject of a transfer of
development rights, where the owner of the parcel is conveying development rights of the parcel, and
on which those rights so conveyed are extinguished and may not be used, by reason of the transfer of
development rights.
EXTINGUISHMENT OF DEVELOPMENT RIGHTS -The process by which development rights from a sending
property are severed from the sending property to a receiving property or person, pursuant to the
transfer of development rights program under Chapter 165 of the County Code.
TRANSFER OF DEVELOPMENT RIGHTS -The procedure prescribed by this ordinance whereby the owner
of a parcel in a sending area may convey development rights to the owner of a parcel in a receiving area
or to another person or entity, whereby the development rights so conveyed are severed or
extinguished on the sending property and may be exercised on the receiving parcel in addition to the
development rights already existing regarding that parcel or may be held by the receiving person or
entity.
TRANSFERABLE DEVELOPMENT RIGHTS -All or that portion of development rights that are transferred
or are transferable.
TRANSFEREE —The person or legal entity, including a person or legal entity that owns property in a
receiving area, who receives development rights.
` TRANSFER OF DEVELOPMENT RIGHTS [TDR) DRAFT ORDINANCE - January 8, 20.10
.TRANSFER OF DEVELOPMENT RIGHTS LETTER OF INTENT — A letter issued by the Director of Planning
and Development or his designee determining the number of residential development rights a sending
property has available for transfer to a receiving property or person_
TRANSFER OF flEVELOPMENT RIGHTS (TDR) CERTIFICATE - A letter issuedby the Director of Planning and
Development or his designee agreeing to sever a specified number of residential development rights
from a sending property in exchange for a restrictive deed covenant to which Frederick County is a party
. to on the sending property that restricts further development.
Sendinq Area #1
Designated Agricultural Districts
Density Transfer
1 TDR Density Right = 2 Dwelling Units
in the Sending Receiving Area
Sendinq Area #2
Limestone /Carbonate Bedrock Areas
Density Transfer
1 TDR Density Right = 1.5 Dwelling Units
in the Sending Receiving Area
Sendinq Area #3
Shale /Sandstone Area
Density Transfer
1 TDR Density Right = 1 Dwelling Units
in the Sending Receiving Area
Recieving Areas
-Urban Development Area
- Per §165- 302.02
- Rural Community Centers
19
Transfer of
Development Rights
Sending Areas &
Receiving Areas
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Note: Created January 12, 2010
Frederick County Dept of
0 1.5 3 6 Miles Planning &Development
107 N Kent St, Winchester, VA 22601
540 - 665 - 5651
www.fretl erickco u ntyva. gov /planning/