DRRC 09-24-09 Meeting AgendaMEMORANDUM
COUNTY of FREDERICK
Department of Planning and Development
540/665-5651
To: Development Review and Regulations Committee
From: Candice E. Perkins, AICP, Senior Planner C4
Subject: September Meeting and Agenda
Date: September 14, 2009
FAX: 540/665-6395
The Frederick County Development Review and Regulations Committee (DRRC) will be meeting on
Thursday, September 24, 2009 at 7:00 p.m. in the first floor conference room (purple room) of the
County Administration Building, 107 North Kent Street, Winchester, Virginia. The DRRC will
discuss the following agenda items:
AGENDA
1. Transfer of Development Rights (TDR) Ordinance. Discussion on revisions to Chapter
165 — Zoning, for the addition of a Transfer of Development Rights Ordinance in accordance
with the recently adopted Rural Areas Study.
Please contact this office if you will not be able to attend the meeting. Thank you.
Access to this building is limited during the evening hours. Therefore, it will be necessary to enter
the building through the rear door of the four-story wing. I would encourage Committee members
and interested citizens to park in the County parking lot located behind the new addition or in the
joint Judicial Center parking lot and follow the sidewalk to the back door of the four-story wing.
CEP/bad
Attachments
107 North Kent Street, Suite 202 . Winchester, Virginia 22601-5000
Item #1 TRANSFER OF DEVELOPMENT RIGHTS ORDINANCE
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 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. Definitions that correspond to the TDR Ordinance have also been included.
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.
The outline of the draft ordinance is a follows:
ARTICLE III
Transfer of Development Rights (TDR) Program
Part 301— Establishment and 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.
Following the DRRC review of these amendments, staff will forward them to the Planning
Commission and Board of Supervisors for their consideration.
Attachments: 1. Draft Ordinance.
TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - September 14, 2009
ARTICLE III
Transfer of Development Rights (TDR) Program
Part 301— Establishment and Purpose.
§165-301.01. Purpose.
Pursuant to the authority granted by § 15.2-2316.2 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 scenic resources.
The TDR program is intended to supplement land 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 evaluated 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 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
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.
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TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - September 14, 2009
B. Each transferor shall have the right to sever all or a portion of the rights to develop from 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.
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.
2) 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:
1) Designated in the Comprehensive Policy Plan as Rural Area;
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TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - September 14, 2009
2) Designated on the Zoning Maps of Frederick County as being zoned RA (Rural 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, or have twenty (20) contiguous acres under
common ownership; 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
environmentally sensitive areas.
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TRANSFER OF DEVELOPMENT RIGHTS CTDR) DRAFT ORDINANCE - September 14, 2009
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 Plan.
D. A receiving property may accept development rights from one or more sending properties, up to a
maximum density specified in Table 1 in §165-302.03.
§165-302.03. 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;
2. 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), wetlands, floodplains,
and steep slopes.
B. 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. Properties with over 100 acres shall retain
two development rights.
C. For the purposes of calculating the amount of development rights a sending property can transfer,
the square footage or acreage of land contained within a sending property shall be determined by a
survey, less than 30 days old, 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
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TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - September 14, 2009
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
Zoning District
o.MaximumDensity
Size
Denso in
Dwelling r. Transfers
In Acres
Dwelling
per Acre
RA
20 Acres
1 Unit Per 5 Acres
Maximum Density allowed in the
(Rural Areas)
RP District within the UDA
1 Unit Per Acre in Designated Rural Community
Centers served by Community Septic Systems
RP
<10
10
15
(Residential Performance)
10-100
5.5
8
>100
4
6
R4
(Residential Planned
>100
4
6
Communtiy)
TND
(Traditional Neighborhood
>20
8
24
Development)
§165-302.04. TDR Sending Property 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
through a rural preservation subdivision that creates a permanent preservation tract, 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. The limitations in this section shall be included in a deed covenant applicable to the sending
property.
§165-302.05. Sending Site Certification.
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TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - September 14, 2009
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 sub„ittal 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.
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 all letters of intent issue, 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
owner. An application for a transfer of development rights to issue a transfer of development rights
LETTER OF INTENT shall 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 plat, less than 30 days old, 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 adopted by the Board
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.
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TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - September 14, 2009
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;
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.
§165-302.06. 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 shall notify
the transferor or 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;
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TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - September 14, 2009
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 Procedures.
§165-303.01. Transfer Process.
Development rights shall be transferred using the following process:
A. Following approval of the sending property determination application 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 person(s) 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.
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 CERTIFICATE issued in the name of the applicant and a
copy of a signed option to purchase those TDR sending property development rights;
2) A TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE issued in the name of another person or
persons and a signed option of purchase those TDR sending property development rights; or
3) A TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE issued in the name of the applicant or
another person(s) 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 TDR certificate issued in the
applicant's name 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.
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TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - September 14, 2009
Development rights shall be extinguished when the final plat for the receiving property subdivision
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.
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 record 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.
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TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - September 14, 2009
ARTICLE I
GENERAL PROVISIONS, AMENDMENTS, AND CONDITIONAL USE PERMITS
Part 101— General Provisions
165-101.02 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 are 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.
TRANSFEROR — The person or legal entity, including a person or legal entity that owns property in a
sending area, who conveys development rights.
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TRANSFER OF DEVELOPMENT RIGHTS (TDR) DRAFT ORDINANCE - September 14, 2009
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 DEVELOPMENT RIGHTS (TDR) CERTIFICATE- A letter issued by 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.
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