031-09ACt14DI1:
BOARD OF SiJPERVISORS: October l4, 2009 � APPROVED � DENTED
REQUEST THE INTRODUCTION OF LEGISLATION ENABLING
LOCALITIES TO ADOPT ORDINANCES WHICH ENABLE TRANSFER OF
DEVELOPMENT RIGHTS TDR) "SENDING" PROPERTIES TO TRANSFER
RIGHTS AT A RATE GREATER THAN THEIR UNDERLYING ZONING
PERNIITS
Whereas, the Frederick County Board of Supervisors adopted the Rural Areas Policy as a component of
the Comprehensive Policy Plan in April 2009, a component of the Policy which strives to promote
farmland preservation, recognize property rights, anal minimize the fiscal impacts and demands that
residential development in the rural areas places an the County's provision of public services; and
Whereas, the Frederick County Board of Supervisors, in striving to implement the findings of the Rural
Areas Policy is currently reviewing a draft ordinance which would establish a Transfer of Development
Rights {TDR} program in Frederick County; and
Whereas, Virginia Code 15.2 - 2316.2 enables a locality to establish a Transfer of Development Rights
program, but does not permit the locality to offer incentives to roral landowners such as bonus
residential lot densities that could be transferred from the "sending" area to the "receiving" area; and
Whereas, a Transfer of Development Rights program could be enhanced and made more attractive by
enabling the rural landowner of "sending" properties to transfer greater residential lot densities than
their underlying zoning would generally permit; and
Now, There, fore Be It Resolved, the Frederick County Board of Supervisors requests its State delegation
support in securing enhancements to the Virginia Code TDR enabling provisions sa as to permit
localities to establish local TDR ordinances which enable development rights severed from the sending
areas and attached to the receiving areas to be transferred at a rate of one dwelling unit per density right
or greater.
PDRes. #42 -Q9
This ordinance shall be in effect on the date of adoption.
Passed this 14th day of October 2009 by the following recorded voce:
Richard C. Shickle, Chairman
Aye
Gary A. Lofton
Aye
Gary W. Dove
Aye
Bill M. Ewing
Absent
Gene E. Fisher
Aye
Charles S. DeHaven, 3r.
Aye
Philip A. Lemieux
PDRes.�42 -09
BOS Res. ��031 -09
Aye
A COPY ATTEST
Johlz �. Kiley, Jr.
Fred��i�k County Administrator
actober 16, 2009
Senator Jiil Holtzman Voge[
117 East Piccadilly Street, Suite 100 -B
Winchester, Virginia 22601
Delegate Clifford L. Athey, Jr.
35 N. Royal Avenue
Front Royal, Virginia 22630
Delegate Beverly J. Sherwood
P, O. Box 201 �
Winchester, Virginia 22604
���N�� �� �D�����
���� �,1>±�ya ��.
County Administrator
5401665 -5666
�'ax 540/657 -0370
E -mail:
Briley @ co.frederick. va.us
RE: Retpuesi< for tntrocluciion of Transfer of oaeveioprner�t Rights � ®fie Amer���erai
Dear Senator Vogel, Delegate Athey, and Delegate Sherwood:
l write in regards to >= rederick County's efforts towards implementing a Transfer of
Development Rights (TDR} program, and what we have identified as a "missing" feature
of the State's TDR enabling legislation. This 'missing' feature is the ability to offer a rural
property owner density bonuses that could be transferred ( "sold "} as an incentive to
participate in the TDR program. We request the assistance of our State Delegation in
securing an amendment to Virginia Cade X16.2- 2316.2 B which would enable F rederick
County to enhance our TDR program, making such a program more attractive to our
rural property owners. !t is our expectation that incentivizing a TDR program may
indirectly discourage the development of the rural landscape.
The County would suggest an amendment to the Virginia Code such as:
§1.x_2- 2316.2 B
!n order to implement the provisions of this act, a locality steal! adopt an ordinance
that shall provide far:
10. the development rights severed Pram the sending areas aid attached t® tlpe
reeeearfn� areas shall be trar►s� erred �xt � rate a� ®��_ �Ir�elli�� �ar�it per_dea�sit�
;����at c�r,�reater;
n ��a ro roivin cv_nranc•
Qn October 1 �, 2009, the Board of Supervisors approved a Resolution seeking your assistance
in securing enabling legislation that would permit a TDR density bonus. Attached is their
resolution, as well as an overview on the County's efforts which have preceded our request for
your assistance.
107 North Kent Street V�Tinchester, Virginia 22601
Page 2
Senator Vogel, Delegate Athey, and Delegate Sherwood
RE: Request for Introduction of TDR Amendment
dctober 16, Zo69
Please contact me or Eric Lawrence, the County's Punning Director, with any questions.
I appreciate your assistance on this master.
Si�rreiy,
r ,�•- �
����,:
fir, . c
��'John R. Riley, Jr.
County Administrator
cc: Fredericl< County Board of Supervisors
Eric Lawrence, Planning Director
Attachments
..i �,
T ®; Board of Supervisors
��T�I�'I'�' olf �"D��XC�
Depart�re�at of �fax��ing a�� �e�elop�ent
5401 665 -5651
&`AX: 5�QI665 -6395
EitOM: Eric R. Lawrence, AICP, Planning Director
SUBJECT: Resolution Requesting Intraductiar� of Legislation Amending 15.2 -
23�.6.213 of the Virginia Code - "Transfer of Development Rights"
DATE: October 7, 2409
Over the past year, the County has studied the Rural Areas, adopted the Rural Areas
Policy, and drafted a Transfer of Development Rights (TDR} ordinance for incorporation
into the County's Zoning Ordinance. The TDR was deemed to be an excellent tool to
enable the preservation of the County's rural character while recognizing established
landowner rights in terms of permitted residentia! lot density. The TDR ordinance, once
adopted into the Zoning ordinance, would offer rural area property owners yet another
land use tool that could assist in capturing land values, without bring farmland, or
negatively impacting demand for County services in the rural areas. Over the next
month, staff will be presenting the drafted TDR ordinance to the Planning Commission
and Board of Supervisors as a discussion item.
Through the extensive investigations into TDR programs in effect around the country,
and an evaluation of its potential application in Frederick County, staff has identified a
key feature of a TDR program that is presently not enabled by the Virginia Cade.
That `missing' feature is the ability for a locality to establish a density bonus that a
landowner ( "sending property "} may sell above his property's permitted residential [ot
density. This density bonus opportunity would enable the locality to identify key
agricultural lands that may have a greater benefit to the community if protected, and
provide the landowner with additional marketable TDR "sending" or transfer rights.
Such a bonus would allow the County's TDR program to have two tiers of TDR- qualified
sending areas, based on the preservation value that the property may offer the County.
For example, the first tier could be rural land that, if developed, would place an added
burden on demand for County services. The second tier, to which a bonus transfer right
might apply, could be properties that, if developed, would not only place the added
107 forth Keaat Street, Suite 202 �Aidch�St�t', Virgaaaia 22001 -5000
Page 2
Niemorandurn to Board of Supervisors
5USJECT; Resolution Requesting Introduction of Legislation Amending 15.2 - 2315.2 B of the
Virginia Code- "Transfer of Development Rights"
October 7, X009
burden on County services, but would also negatively affect the synergy associated with
maintaining larger areas of adjacent productive agriculture! lands within the community,
or impact significant environmental or historical features.
The envisioned amendment to the Virginia Code would enhance and strengthen the
attractiveness of TDRs, and offer jurisdictions additional flexibility to craft a local
ordinance that enables a landowner to "sell" increased residential density through a
TDR program. Essentially, the request is an additional enticement for the landowner to
participate in TDRs, rather than develop their rural [and.
Attached is a draft Resolution far your consideration requesting our state delegation —
Senator Vogel, and Delegates Sherwood and Athey -- to sponsor legislation that would
offer additional flexibility to our TDR opportunity.
Background
Frederick County evaluated its rural area policies in 2008 (adapted policy in Spring 2009)
and identified TDRs as an excellent tool to assist farmers in their efforts to continue
farming while receiving value for their development rights. The policy envisions such a
program would offer benefits to both the farmer (sending area} and the developer
(receiving area). It further envisions a farmer being able to sell his permitted density
through a TDR Program; that creates an attractive incentive for the farmer to participate
in the TDR Program. Also the developer, who would ultimately construct the
transferred density in the Urban Development Areas (UDA }, Gould purchase the dwelling
rights rather than proceed through the more traditional conditional rezoning route. it is
our belief that a TDR Program Gould be, and should be, crafted to be attractive from
both the farmer's (i.e., landowner),. as well as the developer's perspectives. And if
successful, the new homes would be constructed in the UDA where public service
provision is more efficient and economical to provide for the locality.
During numerous public comment sessions regarding the development of the proper�sed
rural areas policy, which included TDRs, we received very favorable support from the
aver 100 citizens who participated in the sessions. TDRs are a tool suggested by the
study effort, and the citizens expressed enthusiasm that such a too! would be beneficial
to the community.
Page 3
Memorandum to Board of Supervisors
5@JB�i =��: Resolution Requesting lnfraduction ®'f Legislati ®n �rnen�ing 15.2- Z31 &.Z B of the
lfirginia ��ade- "transfer of i0eveiopment Rights"
October 7, 2009
!n 2009, HB2055 eliminated the opportunity for a locality to offer additional transfer
density incentives to a farmer /landowner through TL7Rs. The bill also enabled a locality
to establish a program for banking of TDRs, which was previously not permitted.
It has been noted that reducing a farmer's transfer densities doesn`t make sense, which
appears to explain why HB2055 was drafted to require that the sending and receiving
area rights be equal. However, staff suggests that the legislation be tweaked to
continue to enable greater densities to be transferred. Far example, only enabling a
farmer to transferor "sell" one half (%) of their development rights actually discourages
the use of TDRs. But legislation which would enable the farmer to transfer or "sel!"
increased density rights creates a significant incentive for the farmer to participate in a
TDR Program rather than develop their farm.
Staff would suggest an amendment to the Virginia Code such as:
zs.2- Z�16.z a
In order to implement the provisions of this act, a locality shall adopt an
ordinance that shall provide for:
1Q. The development rights severed from the sending areas ��ad �tr�a�ed
t® tF�e r�celvi� ar��5 sh��l �e tra�sfea-�-ed �t � �°�r�e �� �r�e d�eddla� �sralt
�>'e9° de',�.�I��l F°9�?6aB�' €9f' d%iE° °r�£'E" 1- B��e�r19 t- h�l�— dc� "c�rrrcr= r�"Tgr i�
- r.iffnri n iryn rvd-frr f�r�. -� in i-%i.3 nr�i„inry rs -arvc•
,
With this simple suggested change, a locality could consider a TDR ordinance enabling a
farmer /landowner to be able to sell /transfer more development rights than the by -right
permitted density would normally allow. This creates a significant incentive to
participate in a TDR Program. And, hopefully, furthers the agricultural economy,
viewshed preservation, and reduces the fiscal impacts that new home construction in
the rural areas places on the County.
Please find attached a draft resolution for your consideration. Please contact staff with
any questions.
Attachments: (1) Draft Resolution Requesting Introduction of Legislation Amending
15.2 - 2316.2 B of the Virginia Code - "Transfer of Development Rights"
(2) Code of Virginia 15.2 - 2316.2 - Transfer of Development Rights
ERL /bad
L1S > Code of Virginia > 15.2- 2316.1 Page 1 of 1
§ 15.2 - 2316.1. Definitions.
As used in this article, the term.:
"Development rights" means the pe�xnitted uses and density of development that are allowed on the send
under any zoning ordinance of a locality on a date prescribed by the ordinance. "Development rights" inc
"transferable development rights."
"Receiving area" means one or more areas identified by an ordinance and designated by the comprehens:
an area authorized to receive development rights transferred from a sending area.
"Receiving property" means a lot or parcel within a receiving area and within which development rights
increased pursuant to a transfer of development rights aff�ed to the property. Receiving praperty shall b
appropriate and suitable for development and shall be sufficient to accommodate the transferable develol
of the sending property. Development rights may be transferred betvaeen receiving properties, as otherwi
permitted in the ordinance.
"Sending area" means one or more areas identified by an ordinance and designated by the comprshensiv�
area from which development rights are authorized to be severed and transferred to a receiving area.
' "Sending property" means a lot or parcel within a sending area from which development rights are auiho
severed.
°'Severance of development rights" means the process by which development rights from a sending prop.
severed pursuant to this act.
"Transfer of development rights" means the process by which development rights from a sending proper
affixed to one or more receiving properties.
"Transferable develapment rights" means all or that portion of development rights that are transferred or
transferable.
(20(}6, c. �?3; 2007, cc. 3s3, 410; 2009, cc. 413, 73a..)
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§ 1 5.2- 2316.2. Localities may provide for transfer of development rights.
A. Pursuant to the provisions of this article, the governing body of any locality by ordinance may, in ord�
conserve and promote the public health, safety, and general welfare, establish procedures, methods, and ;
far the transfer of development rights within its jurisdiction. Any locality adopting or amending any sucl
development rights ordinance shall give notice and hold a public hearing in accordance with § i5.z -zzo4
approval by the governing body.
B. In order to implement the pravisions of this act, a locality shall adopt an ordinance that shall provide l
1. The issuance and recordation of the instruments necessary to sever development rights from the sendi�
to convey development rights to one or more parties, or to affix. development rights to one or more recei�
properties. These instnYments shall be executed by the property owners of the development rights being i
and any lien holders of such property owners. The instruments shall identify the development rights bein
and the sending properties or the receiving properties, as applicable;
2. Assurance that the prohibitions against the use and development of the sending property shall bind the
and every successar in interest to the landowner;
3. The severance of transferable development rights from the sending property;
4. The purchase, sale, exchange, or other conveyance of transferable development rights, after severance
to the rights being affixed to a receiving property;
5. A system for monitoring the severance, ownership, assignment, and transfer of transferable developrn�
6. A map or other description of areas designated as sending and receiving areas for the transfer of level
rights between properties;
7. The identification of parcels, if any, within a receiving area that are inappropriate as receiving propert
8. The permitted uses and the maximum increases in density in the receiving area;
9. The minimum acreage of a sending property and the minimum reduction in density of the sending pro:
maybe conveyed in severance or transfer of development rights;
10. The development rights severed from the sending areas to be equal to the development rights permit#
attached in the receiving areas;
11. An assessment of the infrastructure in the receiving area that identifies the ability of the area to acce�
in density and its plans to provide necessary utility services within any designated receiving area; and
12. The application to be deemed approved upon the determination of compliance with the ordinance by
the planning commission, ar other agent designated by the locality.
C. In order to implement the provisions of this act, a locality may provide in its ordinance far:
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Page 2 of 4
1. The purchase of all or part of such development rights, which shall retire the development rights so pU
2. The severance of development rights from existing zoned or subdivided properties as otherwise provic
subsection E;
3. The owner of such development rights to make application to the locality for a real estate tax abaterne:
period up to 25 years, to compensate the owner of such development rights for the fair market value of a
the development rights, which shall retire the number of development rights equal to the amount of the t�
abatement, and such abatement is transferable with the property;
4. The owner of a property to request designation by the locality of the owner's property as a "sending pr
_.. _ "receiving property ";
5. The allowance for residential density so be conversed to bonus density on the receiving property by (i)
in the residential density on she receiving property or (ii) an increase in she square fees of commercial, in
other uses on the receiving property, which upon conversion shall retire she development rights so conve
6. The receiving areas to include such urban development areas in the locality established pursuant to § �
7. The sending properties, subsequent to severance of development rights, to generate one or more farms
renewable energy, as defined in § 56 -57C, subiect to the provisions of the local zoning ordinance;
S. The sending properties, subsequent to severance of development rights, to produce agricultural produc
forestal products, as de %ned in § 15.2 -43oz;
9. The review of an application by the planning commission to determine whether the application compl:
provisions of the ordinance;
10. Such other provisions as the locality deems necessary to aid in the implementation of the provisions
and
11. Approval of an application upon the determination of compliance wish the ordinance by the agent of
planning commission.
D. The locality may, by ordinance, designate receiving areas or receiving properties, or add to, suppleme
amend its designations of receiving areas or receiving properties, so long as the development rights perry.
attached in the receiving areas are equal to the development rights permitted to be severed in the sending
E. Any proposed severance or transfex of development rights shall only be initiated upon application by �
owners of the sending properties, development rights, or receiving properties as otherwise provided here
F. A locality may not require property owners to sever or transfer development rights as a condition of tI'
development of any property.
G. The owner of a property may sever development rights from the sending property, pursuant to the pro
this act. An application to transfer development rights to one or rtrore receiving properties, far the purpo�
affixing such rights thereto, shall only be initiated upon application by the owner of such development ri
owners of the receiving properties.
H. Development rights severed pursuant to this article shall be interests in real property and shall be con:
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LZS > Code of Virginia > 15.2- 2316.2 Page 3 of 4
such for purposes of conveyance and taxation. Once a deed for transferable development rights, created l
this act, has been retarded in the Iand records of the office of the circuit court clerk for the locality to ref
transferable development rights sold, conveyed, or otherwise transferred by the owner of the sending prc
development rights shall vest in the grantee and may be transferred by such grantee to a successor in inte
Nothing herein shall be construed io prevent the owner of the sending property from recording a deed co
against the sending property severing the development rights on said property, with the owner of the sen�
property retaining ownership of the severed development rights. Any transfer of the development rights t
in a receiving area shall be in accordance with the provisions of the ordinance adapted pursuant to this ar
1. For the purposes of ad valorerrr real property taxation, the value of a transferable development right shy
deemed appurtenant to the sending property until the transferable development right is severed from and
a distinct interest in real property, or the transferable development right is used at a receiving property ar
appurtenant thereto.. Once a transferable development right is severed from the sending property, the assE
the fee interest in the sending property shall reflect any change in the fair market value that results from
of the owner of the fee interest to use such property for such uses terminated by the severance of the trap
development right. Upon severance from the sending praperry and recordation as a distinct interest in rep
the transferable development right shall be assessed at its fair market value on a separate real estate tax �
tine owner of said development right as taxable real estate in accordance with Article 1 {§ ss.l -3zDD et se
Chapter 32 of Title Sa.l. The development right shall be taxed as taxable real estate by the local jurisdici
the sending property is located, until such time as the development right becomes attached to a receiving
:vhieh time it shall be taxed as taxable real estate by the local jurisdiction where the receiving property i�
�. The owner of a sending property from which development rights are severed shall provide a copy of tf
insirurnent, showing the deed book and page number, or instrument ar GPIN, to the real estate tax assess
locality.
�. Localities, from time to time as the locality designates sending and receiving areas, shall incorporate t
identified in subdivision B 6 into the comprehensive plan.
L. No amendment to the zoning map, nor any amendments to the text of the zoning ordinance with respe
zoning district applicable thereto initiated by the governing body, which eliminate, or materially restrict,
downzone the uses, ar the density of uses permitted in the zoning district applicable to any property to w
development rights have been transferred, shall be effective with respect to such property unless there ha
mistake, fraud, or a material change in circumstances substantially affecting the public health, safety, or
M. A county adopting an ordinance pursuant to this article may designate eligible receiving areas in any
incorporated town within such county, if the governing body of the town has also amended its zoning orc
designate the same areas as eligible to receive density being transferred from sending areas in the county
development right shall be taxed as taxable real estate by the local jurisdiction where the sending proper(
until Such time as the development right becomes attached to a receiving property, at which time it shall
taxable real estate by the local jurisdiction where the receiving property is located.
N. Any county and an adjacent city may enter voluntarily into an agreement to permit the county to desi�
eligible receiving areas in the city if the governing body of the city has also amended its zoning ordinanc
designate the same areas as eligible to receive density being transferred from sending areas in the county
Council shall designate areas it deems suitable as receiving areas and shall designate the maximum incre�
density in each such receiving area, However, if any such agreement contains any provision addressing a
provided for in Chapter 32 (§ 15.2 -.200 et seq.), 33 (§ i5.2 -3300 et seq. }, 36 {§ 15.2 -3600 et seq.), 38 {� ,
seq., 39 (§ i5.2 -3900 et seq. }, or �1 (§ ts.2 -4100 et seq.), the agreement shall be subject to the review ar
implementation process established by Chapter 34 (§ 15.z -34DD et seq.). The development right shall be
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taxable real estate by the local jurisdiction where the sending property is located, until such time as the d
right becomes attached to a receiving property, at which time it shall be taxed as taxable real estate by th
jurisdiction where the receiving property is located.
1. The terms and conditions of the density transfer agreement as provided in this subsection shall be Bete
the affected IocaIities and shall be approved by the governing body of each Locality participating in the a;
provided the governing body of each such localiiy fzrst holds a public hearing, which shall be advertised
week for two successive weeks in a newspaper of general circulation in the locality.
2. The governing bodies shall petition a circuit court having jurisdiction in one or more of the localities f
affirming the proposed agreement. The circuit court shall be limited in its decision to either arming or
agreement and shall have no authority, without the express approval of each local governing body, to am
change the terms or conditions of the agreement, but shall have the authority to validate the agreement a3
full force and effect. The circuit court shall affirm the .agreement unless the court finds either that the age
contrary to the best interests of the Commonwealth or that it is not in the best interests of each of the par
3. The agreement shah not become binding on the localities until aff rmed by the court under this subset
approved by the circuit court, the agreement shall also bind future Local governing bodies of the localitie,
{2006, c. 5i3; 2047, cc. 363, � i0; 2009, cc. 413, 731.}
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