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CEA 03-19-09 Meeting AgendaCOUNTY of FREDERICK Department of Planning and Development 540/665-5651 FAX: 540/665-6395 MEMORANDUM TO: Conservation Easement Authority FROM: Amber Powers, CEA Secretary #0 RE: March 19, 2009 meeting DATE: March 11, 2009 The Frederick County Conservation Easement Authority will be meeting on Thursday, March 19, 2009, at 8:00 a.m. in the Board of Supervisor's Executive Session Meeting Room in the County Administration Building, 107 North Kent Street, Winchester, Virginia. The Conservation Easement Authority will discuss the following agenda items: AGENDA 1. February 26, 2009 Minutes 2. Guest Speaker, Chris Price Discussion Regarding TDRs 3. Open Transfer of Development Rights Discussion 4. Other Please contact the Planning Department (665-5651) if you are unable to attend this meeting. Attachment: February 26, 2009 Minutes Current Virginia Transfer of Development Rights Legislation 107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000 DRAFT MEETING MINUTES OF THE FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY Held in the Executive Session Room of the Frederick County Administration Building at 107 North Kent Street in Winchester, Virginia on February 26, 2009 at 5:00 a.m. PRESENT: Diane Kearns, Chairman; Ritchie Wilkins, Vice -Chairman; Jim Lawrence, Treasurer; Robert Solenberger; John Gavitt; Todd Lodge; and Gene Fisher, Board of Supervisors Liaison. ABSENT: John Marker, and Cordell Watt, Planning Commission Liaison. STAFF PRESENT: Amber Powers, CEA Secretary; Eric Lawrence, Planning Director; and Bev Dellinger, Secretary III. PUBLIC MEETING: 1. Minutes. On motion by Mr. Solenberger and seconded by Mr. Jim Lawrence, the minutes of the January 15, 2009 meeting were approved as presented. 2. Rural Areas Study Update and 3. Transfer of Development Rights Discussion. Ms. Kearns turned the meeting over to Mr. Eric Lawrence. He stated that at last week's Rural Areas Subcommittee meeting, they did forward a recommendation and Mr. Lawrence wants to take this opportunity to let CEA members know what's going on. Mr. Lawrence handed out a sheet titled "Rural Area Subcommittee's Preliminary Thoughts"; these are actually the recommended thoughts and they are going to be presented to the Board of Supervisors on March 11"' for their direction. The Rural Area Subcommittee's Preliminary Thoughts is attached to and will become a permanent part of these minutes, Mr. Lawrence stated that the main reason he's here is at the bottom of the list — Transfer of Development Rights (TDRs). Mr. Lawrence briefly read over the Subcommittee's recommendations, making clarifications as necessary. Mr. Lawrence stated that he believes Transfer of Development Rights give people an alternative to subdividing their property to recover value out of it. Mr. Lawrence continued that he believes the Board is going to give staff directive to proceed with developing a Transfer of Development Rights ordinance, and as such, staff is already drafting ordinances. With the TDR, it's a very complex program but simply said, a landowner can sell his development rights and the developer could use them in designated areas in the Urban Development Area, so we would transfer housing from the rural community into the urban areas where the County has been trying to direct and accommodate development. To implement the ordinance, we have to clarify sending Frederick County Conservation Easement Authority -98- Minutes 9S - Minutes of February 26, 2009 areas and receiving areas. Part of the transfer process is when you sell your development rights, you need to put an easement on your property so no future development can occur. That's why Mr. Lawrence felt it important to talk with CEA members today to let you know that's out there because the intent of the CEA is to help conserve farm land and promote easements. The TDR is similar to the PDR, except the developer can purchase and transfer development rights as opposed to an outright property owner donation and extinguishing of rights. We have to figure out who is going to be the holding body for these easements, who's going to manage them. Quite simply, if we create a TDR Program, do we need an entity that is going to be responsible for the holding of the easements? One thought was that it is something the CEA ought to get involved in as an easement holding body for the County. Mr. Lawrence stated this is staff talking as he is trying to work through an ordinance; the CEA seemed like it might be an opportunity to expand the responsibility of this group. Ms. Kearns asked how Mr. Lawrence sees this group fitting into PDR discussions. Mr. Lawrence responded the development of the TDR Program is an ordinance write-up and staff is going to do that; it is anticipated that the Board is going to give staff direction to develop the TDR program. The Board might just direct staff to develop the ordinance or they might say use a group to develop the ordinance. Mr. Lawrence would envision that the CEA, at a minimum, could offer comments as to how you think the sending area ought to be identified and then offer suggestions as to how we would manage the easement. Is that something that CEA wants to be involved in? Mr. Lawrence further stated that once we've established an ordinance which identifies the sending area, it's an administrative exercise so there's no reason to bring farmers and landowners through any group to evaluate whether or not they qualify; the TDR ordinance will define a property's qualifications. Once the ordinance is adopted, the TDR process is not legislative but is an administrative process. Mr. Solenberger asked Mr. Lawrence who would do the buying. Mr. Lawrence replied that through TDRs, rather than come to the Board of Supervisors and seeks a rezoning; the developer could go to a farmer and buy his development rights. The developer by-passes rezoning and the way we would set up the TDR Program is, we identify a sending area, which is the qualifying farmland, and the receiving area, which the Rural Areas Subcommittee feels should be within the Urban Development Area, within areas that are planned for residential growth, within urban centers or within rural community centers. Mr. Gavitt commented that he's very excited about the TDR concept because it provides a source of sustainable funds in order to start saving rural lands and we don't have to depend upon diminishing federal grants nor do we have to depend upon voluntary conservation easements. Mr. Gavitt complimented Mr. Lawrence and staff and the Subcommittee through the open process that they had during this time. Mr. Lawrence noted that right now there is state legislation that's been proposed to enhance the TDR Program, which has been passed by the Senate and House, and what it does is allow for banking of development rights. In previous years a developer had to identify the property he was buying the development rights from, and in the same process he had to tell us where he was Frederick County Conservation Easement Authority _99 - Minutes 99 - Minutes of February 26, 2009 going to use them. The new legislation says a developer can bank rights so, theoretically, he can accumulate rights and then as appropriate, he can exercise them within County -designated receiving areas. Also, existing State laws don't say how the County should set up the density transfer. The belief was we could set up a local law that says if a farmer has 100 development rights, he can sell 200 development rights, sell two -far -one. The current legislation in Richmond that Mr. Lawrence believes will be signed by the Govemor, says you can't do that — it's a one- for-one exchange. Staff wanted flexibility, we didn't want the State to tell us it had to be a one- for-one exchange, but that's being changed. Senator Vogel worked closely with us and introduced legislation to maintain flexibility, but we weren't successful. Mr. Solenberger stated that we eliminate the County getting proffers. Mr. Lawrence stated that, indirectly, that's the incentive. There's an expense that's associated with rezoning. The belief is if you do a TDR, rather than go through the rezoning process, the developer can offer the farmer a little bit more for the development rights so there's an incentive for the developer to talk to the farmer and there's an incentive for the farmer because if he sells the development rights, he continues to own and farm the property. Ms. Kearns asked if this Committee would like to have some input as this develops, and if that's what we want to do, let's figure out how to make that happen. Ms. Kearns, personally, would need some time to think about what might make sense and then we need to have a discussion to figure out what the Committee would like to recommend. Then there's a whole education process. Ms. Kearns asked Mr. Jim Lawrence about this. Mr. Lawrence stated there's a possibility of sponsoring some TDR workshops; Mr. Chris Price has a lot of knowledge about the issues. Mr. Eric Lawrence stated we have a strong recommendation and we want to continue to get support for TDRs, but we have to quickly develop an ordinance. The idea is brainstorming and educating as quickly as we can and get an appropriate ordinance so anything that CEA can do, or Mr. Jim Lawrence's organization can do, to educate people to the benefits of the TDR Program is good. As we develop the ordinance, Mr. Lawrence needs to figure out who's going to hold the easement. Do we need to create a new entity, does the County outright hold it or is that something a CEA organization would hold. That's one of the reasons Mr. Lawrence came to the meeting today, to get everyone thinking about that. Right now, the CEA doesn't hold any easements; do you want to enhance your role and possibly be the receiving entity for easements. Mr. Gavitt asked if Mr. Lawrence sees these easements to be beyond giving up development rights. If it's just giving up development rights, Mr. Gavitt feels the CEA can hold them. Mr. Lawrence stated the initial vision he has is pretty simple — you're giving up the development rights, which means the farmer can continue to do everything he's always done on the property but he can't subdivide and he can't build houses. Do we need an entity to hold those easements or does the County Board of Supervisors do it. Mr. Lawrence believes that since the Supervisors established this group, this would be the first logical location for the holding. Ms. Kearns stated that to her, it's an obvious fit. Frederick County Conservation Easement Authority - 100 - Minutes of February 26, 2009 Mr. Gavitt stated it seems to him that we've got to get some level of education for the CEA on the TDR Program so that we can provide good input. Mr. Gavitt said that Patrick Felling estimated it would be about $3,000 to produce an educational program. Mr. Jim Lawrence stated they haven't defined what that $3,000 would cover and we would need input from Eric (Lawrence) and others. Mr. Jim Lawrence said that Chris Price could talk to this group about TDRs in general. Ms. Kearns said she would like to get this going as soon as possible. Mr. Eric Lawrence stated that he will be meeting Mr. Price later this morning and that they will be talking about TDRs. If Mr. Price is a good source because he dealt with TDRs in Pennsylvania, Mr. Lawrence can get that information from him, and request that Mr. Price attend a CEA meeting to assist with enhancing the CEAs understanding about TDRs. But Mr. Lawrence thinks there's a PR exercise that we could benefit from, whether it's Jim's (Lawrence) organization or Potomac Conservancy to start educating the public on the benefits of the TDR Program. Ms. Kearns stated the CEA needs to give input as soon as possible. The next CEA meeting is scheduled for March 26th, but Mr. Gavitt will be out of town that week. The group decided to change the meeting date to March 19, 2009 at 8:00 a.m. Mr. Eric Lawrence stated that he will ask Mr. Price to attend this meeting. 4. Other. Ms. Kearns stated there were two easements that came to the CEA at the last meeting. One was from Wendy Wright and family, off Middle Road. Justin Wright, the son, is handling that and he's very close to getting the application in. The other one was from Jonas Chamberlain in Gainesboro. Ms. Kearns talked to Potomac Conservancy and the Department of Forestry and they might be interested in holding that easement. Also, the DCR has a website showing VOF easements. There being no further business, the meeting adjourned at 8:50 a.m. Respectfully submitted, Diane Kearns, Chairman Amber Powers, Secretary Frederick County Conservation Easement Authority -101 - Minutes of February 26, 2009 February 2009, Version 02.20.09 Rural Area Subcommittee's Preliminary Thoughts At the RA Subcommittee meeting on November 20, 2008, the Subcommittee reviewed the materials to date, including the community meeting surveys and, based on this information, offered their Preliminary Thoughts on a potential resolution to their rural areas review charge: Category +' Subcommittee's Preliminary Thoughts Density Maintain 1 unit per 5 acres Rezoning No Private Health Systems Drainfield Reserve Area Increase from 50% to 7.00% Well Separation distance Require more details prior to recommendation Acceptable Health System approvals 4 Continue to allow General Approval systems; no longer allow Provisional nor Experimental system approvals Do not allow private, on-site residential discharge systems. Discharge Health Systems Discharge systems are aerobic systems that discharge effluent into dry or intermittent flow creek beds and drainage swales. Pump -and -Haul Allow with Board of Supervisors approval Off-site Drainfield Easements Continue to Allow Supported Concept. Requires more study. If State does not Operation & Maintenance Requirements implement a maintenance program by the State Code identified July 2009 deadline, the County should. Community Health Systems Supported concept for the Rural Community Centers. Requires more study. Rural Preservation Subdivision — Preservation Tract size Minimum lot size Maintain 2 acres Preservation Tract Size Increase from 40% to 60% Preservation Tract Clarify that it is counted toward overall density Implement a TDR program. Support for increasing transfer Transfer of Development Rights (TDRs) development densities in effort to encourage use of TDR program. TDR banking is presently not permitted, but has been included in the current General Assembly discussions. ITEM 2 and 3: Current Virginia Transfer of Development Rights Legislation § 15.2-2316.2. 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 order to conserve and promote the public health, safety, and general welfare, establish procedures, methods, and standards for the transfer of development rights within its jurisdiction. Any locality adopting or amending any such transfer of development rights ordinance shall give notice and hold a public hearing in accordance with § 152-2204 prior to approval by the governing body. B. Any proposed transfer of development rights shall only be initiated upon application by the property owners of both the sending and receiving properties. A locality may not require property owners to transfer development rights as a condition of the development of any property. C. Prior to any transfer of development rights, a locality shall adopt an ordinance based on findings of public benefit. Such ordinance shall provide for: 1. The issuance and recordation of the instruments necessary to sever development rights from the sending property and to affix development rights to the receiving property. These instruments shall be executed by the affected property owners and lienholders. The instruments shall identify the development rights being transferred, identification of the sending property and the receiving property; 2. The preservation of the character of the sending property and assurance that the prohibitions against the use and development of the sending property shall bind the landowner and every successor in interest to the landowner; 3. The severance of transferable development rights from the sending property and the transfer of development rights to a receiving property; 4. The purchase, sale, exchange, or other conveyance of transferable development rights prior to the rights being affixed to a receiving property; 5. A system for monitoring the severance, ownership, assignment, and transfer of transferable development rights; 6. A map or other description of areas designated as sending and receiving areas for the transfer of development rights between properties; 7. The identification of parcels, if any, within a receiving area that are inappropriate as receiving_ properties; 8. The ordinance shall include 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 property that may be conveyed in a transfer of development rights; 10. An assessment of the infrastructure in the receiving area that identifies the ability of the area to accept increases in density and its plans to provide necessary utility services within any designated receiving area; 11. The review of an application by the planning commission or its agent to determine whether the application complies with the provisions of the ordinance. The application shall be deemed approved upon the determination of compliance with the ordinance and upon recordation of the instrument transferring the development rights in the land records of the office of the circuit court clerk for the locality; and 12. Such other provisions as the locality deems necessary to aid in the implementation of the provisions of this article. D. The ordinance may provide for the allowance for residential density to be converted to an increase in the square feet of a commercial, industrial or other use on the receiving property. E. Development rights made transferable pursuant to this article shall be interests in real property and shall be considered as such for purposes of conveyance and taxation. Once an application has been approved and a deed of transferable development rights created pursuant to this article has been sold, conveyed, or otherwise transferred by the owner of the sending property, the transfer of development rights shall vest in the grantee and may be transferred to a successor in interest. Any transfer of the development rights to a different property in a receiving area shall be subject to review pursuant to the provisions of the ordinance adopted pursuant to provision 11 of subsection C. F. For the purposes of ad valorem real property taxation, the value of a transferable development right shall be deemed appurtenant to the sending property until the transferable development right is recorded as a distinct interest in real property with the appropriate tax assessor or the transferable development right is used at a receiving property and becomes appurtenant thereto. G. Approved transfers of development rights shall become effective upon the recording of the conveyance and the filing of a certified copy of such recording with the local governing body of the locality. H. Localities shall incorporate the map identified in provision 6 of subsection C into the comprehensive plan. L No amendment to the zoning map, nor any amendments to the text of the zoning ordinance with respect to the zoning district applicable thereto initiated by the governing body, which eliminate, or materially restrict, reduce, or modify the uses, or the density of use permitted in the zoning district applicable to any property to which development rights have been transferred, shall be effective with respect to such property unless there has been mistake, fraud, or a change in circumstances substantially affecting the public health, safety, or welfare. J. 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 ordinance to designate the same areas as eligible to receive density being transferred from sending areas in the county. K. Any county and an adjacent city may enter voluntarily into an agreement to permit the county to designate eligible receiving areas in the city if the governing body of the city has also amended its zoning ordinance to designate the same areas as eligible to receive density being transferred from sending areas in the county. The city council shall designate areas it deems suitable as receiving areas and shall designate the maximum increases in density in each such receiving area. However, if any such agreement contains any provision addressing any issue provided for in Chapter 32 (§ 15.2-3200 et seq.), 33 (§ 15.2-3300 et seq.), 36 (§ 15.2-3600 et seq.), 38 (§ 15.2-3800 et seq.), 39 (§ 15.2-3900 et seq.), or 41 (§ 15.2-4100 et seq.), the agreement shall be subject to the review and implementation process established by Chapter 34 (§ 15.2-3400 et seq.). 1. The terms and conditions of the density transfer agreement as provided in this subsection shall be determined by the affected localities and shall be approved by the governing body of each locality participating in the agreement, provided the governing body of each such locality first holds a public hearing, which shall be advertised once a 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 for an order affirming the proposed agreement. The circuit court shall be limited in its decision to either affirming or denying the agreement and shall have no authority, without the express approval of each local governing body, to amend or change the terms or conditions of the agreement, but shall have the authority to validate the agreement and give it full force and effect. The circuit court shall affirm the agreement unless the court finds either that the agreement is contrary to the best interests of the Conunonwealth or that it is not in the best interests of each of the parties thereto. 3. The agreement shall not become binding on the localities until affirmed by the court under this subsection. Once approved by the circuit court, the agreement shall also bind future local governing bodies of the localities. (2006, c. 573; 2007, cc, 363, 410.)