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Home My WebLink AboutTransfer of Devel. Rights 1987 cke :.: · ~i,~'~- '.l~ Loan Materials for PAS Subscribers TRANSFER OF DEVELOPHENT EIGHTS CONTENTS Rohan, Patrick J. "5~_ar~--~rrl-n~er of Air Rights", Zoning ~ use Controls. 1984. pp~ Bozung, Linda J. "Transfer Development Rights: Compensation For Owners Of Restricted Property", Zoning and Planning Law Report. June 1983. pp. 129-135. Queale, William Jr. "Transfer of Development Credits (TDC): A New Form of Cluster Zoning", New Jersey Federation of Planning Officials Planning Information Report 1976. pp- 520-529. Raymond, George M. "Structuring the Implementation of Transferable Development Rights", Urban Land. July/August 19~1. pp. 19-25. (7/84) Regulations contained herein are provided as a source of ideas and illustrations They a~e not offered as rnodels. Since state laws vary substantially on these matters, you should work with your local attorney in drafting your regulations. VoL 6, No. 6 ~T'RA3/$FER DEVELOPMENT RIGH'F~ COMPENSATION FO~ O~ OF ~~D Committee of the ~meHcan 8ar A~tion. th~ taking ~e ~ in~ona~ ~n~ a~ ~r~ in C~ijorn~. · B~r~fitn et a TDR Prig-am e, Obstac~s ~o lmplemem~fion latr~duclinn Holmesvflle wishes to ~tnl. a number of iu d~- p~ and ceuld ~ ~ f~l ~r for ~ ~t~- ~doa of ~: ~ro~ ~. Ci~ plnnn~ to pr~e ~e p~e ~cul~ l~d s~ouud~g Ho~ville. Many ~ ~e w~ ~n~ genc~tion f~c~, a su~t~ ~on ~onomy ~ decadent u~n ~e ~, i~ ~ co~i~e~d a v~uable r~ur~ not only pr~ucdve capaci~ but ~ for im v~ue space. M~kc~ pre.utes, howev~, ~caten ~ ~e h~- mnc~ ~d ~c agricultu~l r~urc~. ~cre~d devel- opmem from surrounding mumcipalitiea is erm~ach- lag upon Holmesviile, and land prices are rapidly escalating as a result. One plam~ing commi,tginn mem- ber suggests the possibility of pmservLqg rJze historic and agricultural rmourcm through imptemeur, auon of a t~amfer development fighm program. Tramfer development rights (TDR) c. aa b~ used to save hi~tori¢ structures from demolition, prevent urbanization of farmland, and preserve unique ronmenml areas. By providing "fair compensation," the rights offer a community a compromise acquisition of the resource under the eminent domain power and regulation oi the resource under the police power. The transfer development rights concept facffi- tales government in£erventioa in the market when C Zoning ~nd Planning Law Report is published eleven times g~r)'ear by Clark ~anlman Cnmpany. Ltd. 435 H,~qmn Street, New York, NY 100 la... Subscription: ST'/for eleven ~ssues. © 1983 by Clark goarflman Company, Ltd. ISgN 016 I-fl 113 by the individual owner of those resottreeq when de- velopment is precluded. Few programs seem to offer so much for so litfl=: the communhT,retaim the critical x~o~ th~ property owner receives compensation, and the local government beats zesponsibility only for initial implemcntation of the pro,mn. The Basic Concept :'~ Th~ pur~ of a tr~n¢~'~r d~velopment righ~ pro- Ip-am is to provide compensation to landown~r~ who are ~canomically harmed by ~astricrlve dcn.sity re- q~nts. The cornerstone of the program, is die r~:ognition that ,th~ right to develop property'is a yaluable comm~xiity distinc~ ,from th~ land iLseii. A TDR ordinance' p~rmits ovn~rs of land in the re- st~ ar~ to sever the d~velopmant rights fl-ong their ~propea~X--.calledi'donor sim' and sell throe fights to the owners b'f~and.pameh in.other specified are~ .~all~l "recOver sit~s.' "rh~ gain from such a sale . ,[uncf,~lls as.compe~ation m assuage t~¢ ~com~mic lc~ ~ b'y.d~:*res~ctio~. - , .TJ~e ]a~dow~-t that pm'chases the s~vered dgbts ab~e,,.b~ vL-me or, be TDR ordb~mce, to ~ez~se the aet~end~nt .~upon.lthwnumber of d~velopm~nt rights th~ ~i~ht~'..~n~er is ~ san/-tloo.d abridgement of the zoning, la,~. ~,This ability to augment tim-existing ac-,kqgf c/~,a~s an ]n~ntiv, e for a developer to pur- ch~--ngh,~, so,as to mcrease'.the return on tim r~ceiver s~m ,l~Ol~ct Jhi'ongh the coo.m-ucUon ot addiuonal .~,~4per~:a~re.,or mcrea.~i'.floor area per structure. ~',ln'l~dditiun tO~oltenng~commumt~as the comprorms~ pr~'~n e *'~es~th~t:idop~on o~ a restncnve orchn:~c~. Wlfile;comj~e~'~on ~s not.~const~tul~onally required · e oRiinali~e,-~ reason~h!e, advances a public put- pose*:.~nd'~l~!the owzier some re,ssonable bene- ficL~".~bz~t{~s~c~ po~fi,caU~, impossible to impose such~a ~'e~lauon' m the f~ce of a ~ublic perceptmn tl~at th~,.mpa~an md~idual prnpert7 owners ~s too g~ear..: B~pr0~dibg comp~,ns~atmn, a TDR program can le~'n~hig'~i~pict' a~ci ff~cilitate initial passage of the ordinance. ~Onc~ an~o~ ,, i~/plemented, transfer dcvel- o''~'' ''a ~t rl~t~,ii~,y dido' ' ge challenges to the str~an'bl~,i~ they se~v;.~to l~ss~n the amount o~ 6--i~kial l~ ~x~pe~encot~l~{ ~e !~ndown~r. In those lurisdicuo~ ,wla~e ~valid~uon. not compensauon. the, .al?propHarC!remedy for a loss Ot all reasonable be~.ql~iul u~ (Va the groun,tls that an exercise of the · ,4 ,-'~olice power cannot b~ transmuted mtn ~ ~ Ti~o~, 24 C~. 3d 2~6, 598 P.2d 25, 137 C~. Rp~;'-~ 3~2 (1979)), ~ ~v~gon ~medy ~ not ~ted by a coun ~ ~e ~f~ g~ l~ve the o~er wi~ some v~ue for the p~. ~ ~ ju~ictio~ whe~ cou~ view ~e ~h~ ~d em~c~ dom~ powe~ ~ e~t~g on a coo~uum ~ ~- quire com~fion wh~ ~1 ~nefici~ ~ ~ d~ . t~[er ~velopment dgh~ c~ provi~ ~at combu- stion. (It ~ould ~ nord ~t ~1 ~efici~ ~e ~Idom ~oy~ by ~ re, la,on ~ ~ sima~ For i~t~e, a ~tb~-'s~ct~ c~ s~ll ~ ~d for r~ideu~ or'com~erc~l }u~. ~ P~nn di~d in~, ~d ~and,c~ stffi-~ ~d for - ag~cult~ p~. ) Op~ Coaffigom I~ Implemeemgoa A [~ar ~el0Pment ~ ~heme will [unc~on - m~: effectively ~ ~o elemen~ ~e print: a 'pre- ~able" p~cel or s~tu~ m ~e ~ the donor ~d an ~ea sublet to s~cient growth pr~ure to ~e ~ ~e'r~eiyer si~. '~ later element ~ ~e more cH~c~., ~e ~tet ~e ~cipamd co~u~ ~o~h (in~ a ~g ~ea) or ~e higher the land v~u~ (m an urb~.~)~ ~e ~a~r ~e ~ount r~ourc~ (do~r si~) ~at can ~ pr~. A strong real ~m~ m~ket ~ the r~eivet ~ea crea:~ the ~centive n~ for ,.develo~ to w~t to area of ~e's~ct~' ou~'lhe:~'purch~ of ~osfcr developmeht ggh~: he ~ ~c~ elcmen~ re- quired for a suC~ ~ro~ ~11 o~en be prc~nt when the donor and ~i~ ~e adjacent to one eco~mic pre~ure ~at..~eam~ pr~ation of addiUonal ~nefi~ ~ ~a~ ~mv~ion of com- . mu~. ~i~ can,~ :to m~e purch~ of" the dgha ~cono~i~.'~ '"" ~tdv~tag,o~. ~i~ or floor area ratios can tg areas as to make the available in/~reaS~ x an additional ernments may quires process, gov- acquire rights, through reductions in ~c humb~.t of purchases and approva s If possible, .tr~ of the rights x.houl3 not bc sublect tO an a~prOvalp~Bccm addltmnal to that required for.~e project itselL There must also tm ~sufficicnt restrictions on thc devclopability o[ the donor site m induce thc land- owner to sell the rights. Regulations that preclude 130 .eith~g destruction of an h/sWr/c rite or co~.~ttucdon dn a~ air/ca/mrs/or ~n~omen~y '-~, . '~ ~ m ~n~ ~v~t of ~ d~ mom ~ p~ble ~ ~opmem of a proj~ or re~nfion ~ ol ~e land for s~dve p~. ~e ~b~ ol a m~ado~. ~e ~v~e.~ ~ ~ may ~d m off:r ~fio~ fi~s ~ ~ donor si~ l~do~r to f~her com~ for ~ 1o~ velop. For tint.ce, ~di~ might h~w~c/r~cmre were ~ for ~id~n~ pu~. Minimal Govermn~nt lavolvemeat Nee~ary There ts little need for extensive government in- volvement in a development right~ program. Si~. the rights are equivalent to a commodity, negotiarlons can mkn place a~d the rights cola b~ conveyed among pr/vote parries without gov~'nment sui~r~ion. If growth pressure and crRica/resoumes exist to su~t an extent as to mal~e sale of the fights a viab|¢ economic trar~action for both parti~, government intervention will b~ necassg~ only to c~rrecfly d~tarmine the transfer values and density increase~ Not necessarily an easy. t~sk, this valuation r'~lU~'ea as..~asmen~ of the number of landmarks or farl~ mb¢ p~r~ed, the los~ cf d=velopmear potential at thes~ donor sites, the capacity and location of the r¢ceivh;g sites, the demand for new -~onsll'uction, nx/q:J_qg z~rd~g, and tho amount that each right will allow the owner of the r~¢ei,'er site to exe.~d the existing regulations. These facto~ must cnalc~c.e to produce not only .a price that will be worth more to the s~ller than retenraon of the development potential, but also a densi~ or r]o~r area increase that will I~ worth more to tl~ buyer the combined cut of tl~ r/gh~ the tran~cdo~ the additional comtrm:fion. Some jumd/ctions have chosen to' ~ume more than iu~t this initial gm,ac&t ar.~-~meat ami value- assign/~g role, and ar¢ involved in pureha~ ami .sale of the right~. The? have cre~t~:l ba~k.~ or egchanges in order to imtially stimulate the program, to mainta/n a market in ~e righm dnring a slow economic ~rioc~ or to provide capital for loanS. Author~ to Adopt TDR Pr~ram Enabling legislation L~ not always required pr/or to utilization of trar~fer development right~. PUD and cluster development ordinance'% which allow devel- opers to concentrate units in excess of conventional zoning requirements if open spac~ ureas are provid~l in the project, share characterbtica sufficiently similar to TDR prograw~ to allow the latter to b~ enconl- passed within the~e ordinances. Similarly, bonus d~n- sity measures are comparable to TDR schemes in that both grant the developer the right to augn'lent the 131 or--ce ~ ret~ i~ ~come ho~Mg, a~fio~ o~er ~enifi~. ~ s~t~ ~t do no~ have ~lowmg such pr~ coupled wi~ ~ law nicipaliti~ to zo~ for ~e 9ub~ zoning C~ Law AddrL-,~ TDR Few caaes address thn leg~ ~i ~fer meat righ~ In facL ~e m~t ~: of ~ c~ continue m ~ Fred F. Fresh lnvecting C~. v. Ci,~ o/New York, 39 N.Y.2d 557, 350 N,~-~ 38i, 385 N.Y.S.2d 5 (1976) ~ ~e~ Ce~ Co. v. Ci~ al Ne~ York, 438 U~. 1~, 98 $. 2646, 57 L. Ed. 2d 631 (197~). ~e ~ ~ ~ . the p~adon of h~wdc s~ra~ ~d ~ ~ · e function of ~fer ~velopme~t d~ only Frerxh ~tly a~m ~ ~ oi a mheme. ~e Frer~fi c~ ~ ~ a ~I of ~c- tio~ plac~ u~n p~ ~ ~ Tudor ~:~y comple~ in New York Ci~ ~ ~t~g~om riveiy precl~ed co~tion oa ~ ~ md quir~ th* owne~ ~o m~ ~ f*r ~y ~, In ~mm for ~e r~l~g ~* ~ value, ~e city allow~ tim o~ '~o ~'~ ~ opment ~tential from ~e ~thng pm~ ~ m~mum all~ble fi~r ~ tg ~ ~ by mn Commission ephorS, C~ming ~at ~e ~cnt ~v~ · e o'~ taught ~o g~ commandos ~ou~ ~fion of ~e le~ ~idon ~ by ~li~ tionai exe<i~ o~ ~ ~lice ~ couid never com~ble ~ing bu~ ~mad, ~ a d~ pr~ lotion ~at cma 5e reme~ oMy ~tou~ of (no~ com~fion for} d~e regUlzdon~ ~ then wen~ on ro direc~y addt~ ~ r~c~cm, ~ting ~t ~am~ it eff~gvely d~llow~ ~y ~ce ~ well), k w~ unco~fi~do~ ~ a~ iav~id exerc~ of the ~h~ ~wer un~r the d~ cla~. ~ addition, 5~e abil/~' to ~r~fer ch~ meat fighu ~d nor ~e~oram ~¢ i~ c~ ~ benefic~ u~ became ~:ir attempted ~ver~ce from the due to ~e ~c~ de~fi~ ~t w~ ~ ~d ~ have adhered ~ ~e ~g~de~i~ w~ch were ob/emiv~ ~at o~ ~w ~y ap~ ~. ~ ~ l~gg enou~ .to ~o~ a ~et for:~e ~mi but for a ~ell~rde~'dh~ufioh o~ de~i~ ~oughout · ~ co~uni~. O~ of ~ ~st e~i~e: m~ for r~ssmnce t~a ~er ~velo~t nghm progr~ ~ ·rough a c~m~r~i~ p(~ of gommu~ ~uca- velopment d~a~d'~dtco~tenfl~ preven= ~c- educa wa c~ ~p co.e~r~ su~l ~plemen~- Case Studies:, Priservalioe o! Farmland or Ecologically Seng-~live r~.d . Montgomery countT.: Maryland la 1980 M~n~erlt County, Maryland, adopted a him preser~li~niprogram utilizing transfer devel- opmen~ dgh~sf ~ Yprograra was designed to reduc~ the TDR scheme, la~downers ~ossc~s or~ rib, hi fo~ each five ac~s less ~ -umber on the pro~. (0~ r~id~e development ~mn~ ~ ~c A~c~tu~ R~e. ~ough pared ~at only 9,~ w~l act~y r~m for a~uz T,~ ~gh~ in ~e receiv~g ~, cb~. m~ '~y'Co~C~o a~ona ~ ~r ~me f~er~ tO Nevenhel~. the hbl~h~ al NiW'~ Yo~'N~ ~grk monthly ex.pt m Sub~ariplion rate: ST/for.eleven i~ues. ISSN Ol$l-Slti. Copyri~lv. ~ t'9~ll by Clark ~arcLm~t Company, Lid. . rfghL~ rem~rved. Pdnted /a U.S.A. t~.ir ~_ TI~ ~trt ~mtd most ~n~-med v~o~t fi~ p~, ~ N~ York ~ ~d n~ ~ ~ven~ ~p~ of ~ ~t~tive ~ ~c ~ m which ~= ~o~ ~ ~m~nt co~d ~ ~v~ ~d ~ ~,~ fo~ of ~lopmmt ~gh~ ~e ~ g~ ~o~ such ~ ~ og ~ ~;ning ~ le~ in ~ site ~d would ~ to l~n ~o~mic ~u~on ca~ ~ ~;~lc ~ or~r to '~ ~c~ eo~- l~ B~ ~ lot ~ U.~ Sup~m= r=m~ h~ nol ~n ~ ~d a ~ble Comply. ~ Co~ ~ s~. h~, ~t cven ~ ~ ab~ to b~d a~ve ~ ~ w~ ;o~ly p~lu~ ~ o~ f~ ~eE~ ~ 1~ ~ a~ d~lopmem fi~m ~ w~ of ~ t~y ~ ~ ~j~ ~m~mfionj but it wouid ct~y 1~ w~mv~ ~ufion w~ cff<~ by · ~ ~cfio~ ~d wo~d ~ fa=w~d ~to ~e ~alys~ of the ~pact of ~ ~ Du[o~ v. Momgome~ Cou~ No. 569~ (Ck. Ct.. Montgome~ 1/20/83), ~e co~'s d;~ion not ~ to i~ d~ion ~t ~= a~cul~ pr~r- ration pro~ at ~ ~ ~6mdonM, bu~ ~ did ~ ~at ~= ~u had 'a re~biy sil- ent ~.~ ~e C~omia Co~ ~t Ap~s in ~ptos Se~e Corp. v. Cou~ o/S~ta Czuz, 138 C~. App. 3d 484. 188 C~. Rpm 191 (1982), wh~e not ~fly co~n~ wiffi a ~.nier development fi~a pm~, s~{ed ~t ~e ~ of "come.airy demitie~" would mitigat~ tim resa'ktive eff~t o! a. reguhdom .... ap~ ~t ~r ~vtiopme~t g~ c= ~ ~ de~t a chMlen~ ~ ~ or--ce ~at d~m~i~h~ v~u: of ~= subject ~el. ~ a ~ cf ~¢ ~onom~ wo~ of ~e ~velcpm¢~t ~r~tud~ ~e have $i~fic~t v~ wh~ ~ld ~d ~ :~, M~ ci~er de~i~ or fl~r ~ea u~ a r~ei~g ~i~. Problems in Impleme-fitr~ n ~R ~im the appa~n~ ~p~atur ~ ~h~ a co~uM~ co~i~fing a ~a~fe~ figh~ <hem= ~o~d ~ogn~ ~t a numar o~cl~ may ~r ~pl~en;afioa of ~ prC-~ gr~. ~iti~ comm~i~ ~d !~er ~ ~e major problem: ~R p~am~ ~Idom g~ ~a~ aoc=pt~ or sup~ Even wh~n e~g ordinanc~ ~gy r~ ~velopme:; ~tead~ a site, ~ ~m~;o~ ~nefit of ~a ~gh~ frequently igno~d. ~d ~e <h~m~ ~ view~ ~g ~e ~onomic ~pact oi ~a r~cdo~. Con- fmion may play · major pa~ m ~ for ~ concept i~lf ~ oRen ~cuh to unde~:~d. Mor~ver, ~ou~ m~y ju~o~ have merited pco~, ~e~ ~ sfig o~y a H=it~ numar · at have ex~en~ a~ ~ie~. ';/khcat the co--pt ~ ~whii~. When pubi~c reluctance ~ finally ovemom: and a p~ ~ im71e~en~d a ~mmuMW, proble~ may the~ ~ 6ec~ o~m ~e h~i~t to ~ ~he f~t tc, p~:;icigate the prog~ may i~gu~ ~om i ~ew~ 91 ~ansfer/. Smbili~ of the ~ Ger~ral skepticism concevaing the ~vmane~Cy · e zoning rmrrictions may explain thi~ h~kanc'y. In many instances, the donor site landowner v,'iil aot to sell the development potent~f embodied in rights ~au_~ he L'~licves that l~litical ~ressure eventually force the ¢ommual~' ec a~andon abe pro- ga'~rn and allow development of dono: aze~. .'!'2ac receiver site landowner may Li.kew:~e haa~e a lac~ o-~ faith in Lhe :enaci~ of the local govemrnent to co~- tinue ~he ?'DR ~:o~am and may for~ee ~ha~ i [uiure easing of existing zaning wii[ Fermit adCit~a~l CO~o sm~tion in ~e t~eiver ~s~ Puwh~e ~f :be ~gkts wouid then :~ nei~er <enom~cM n~c In order lo alhy the fea~ of prope~y z,~ne~, Mcipalifi~ m~ ~ able to coavinc~ zhe~ of ~te~i~ and stability of ~= ove~l! ?~ or pro~de devalued through gove~ rettactioa o~ the TDR scheme. Although h ~ esabl~hed iaw C~ en~o~ea~ ~ ~d ~wdc s~cm~ bm w~h w alle~ate ~e ~ ~onomic bu~en on th~ m~h~ics of ~e p~ ~ ~el~ ~vado~ ~ Well ~ vhJble succ~ Whe~ a midgat~ a ~bie due p~ ~ola~on or come.aries [[ a ~ ~ found, it consol ~ development. ~o~ Sove~ant a~ lion to e~fion of t~ l~d ~d ~ cap~i~ of ~'~ei~ag ~ ~ deyelopment l~t ~m ~e dbn0r ~, pu.b~¢ .~ucafion Pr~ m~ who ~how~ m a+~, 19/3:ac~on, ~at d~m- to~ en/or~m~t ~ a ~mngo~tn~e ca~ dela~ Apda5 ~ ~ ~t, a ~ at{o~:~ who an~o~d a public u~ to shut'?off,~e Io~ge'~ el~e ~wer w~ not immune fr0m:~ag~ ~en~tt v. City SI/dell, 697 F.2d. 657 {5~ C~. puny pu~mng to au~e'~E~ to ~mice to ~e Ioongei T~on~')~ter, ~r paving he lot ~d receding ~ ~c~y ~:g the o~r sued the c~ and ~e ~&b~e~tb i<ov~ d~ag~ for the delay in obtm~ {he ~t ~d for te~m- with m~cient authofi~tS~ ~'~ hanes in an unco~titUi~h~l ~'~ ~ato~ m~:r, ment ~at it should not ~b I~eld h~,[~ un~r a ~eo~ of respondent *Upertc. r, ~e oo~m'ed ~ at Monell v. Department o! Social Services, 436 U.S. 658, 694 (1978), permits municipal damag~ liability when government policy is executed by adminis~five offi- ' cers whose "ac~ may fairly be sa/d to reprcs~l o/~c/al policy. 7 T/aa building inspector was such aa ot~cer. He had been vested with olftdal ~ower to pm upon occupancy permit a~plication.% and it wa~ "pr~:i.~ly within this framewgrk that [h~] act~i to deny plaintiff his comtitutional right" 697 F.2d, at 65[. The city attorney was held liable beean.~ he was not acting a~ a prosecutor, legislative counsel, or le~datar. The .com't thus upheld a jury verdict of $20,000 dnmages against the city and $1,000 against the attorney. In another i'ecent m-~, the apparent .~lective en- forcement of.a Z6oing=and building 6od~ was held not to' deny equal grofecfiom Hem, a nut~ry owner was directed to remove a wailer and ashade house because he '/ud not. have the required ~building permit and--:"_ county approval. The court said,that-testimony by a neighboring auto.man that. be' had obtained 'no permit for his. S. hade house, and did not know of any- one Who had, d, id not demonstrat~ s~l~tive and dis- criminating enforc/ment o[ the zoning laws. The plain~dff 'f~ifledl ~0 sfiow that othem nlmilarly simaled, i.e.. nursery owiiers-wh0 had not,obtained permits for a n~iler or sba'de.house, would::fiot'.likewise be en- joined. Meris~m. Valley Nw, sery~, lnc; v.. Metropoli- tan Dad~ CountY, 42S So. 2d 726 (Re. App. 1983). Federal Daw Preempt~ Local ~ Regnla~o~ Th~ Supreme Court of Colorado held that a county board's d~n/al of a ~rmit to allow drilling was void [~cat/Se it conllicted with the p~ of fedm-~l mioing law. The plaimi~ who held rnin;ng clnlmn on federal land in EJ Paso County, had received red,tgi approval'to conduct limimd test dri11ing for the pur- pose of obtaining mineral samples.' They applied to the c~unty for a special u~ pemfit authorizing thc propose, drilling operadon.~ but the cOuaty board denied the application after finding that drilliag was inconsistent with long-range plan~ ,and incompatible with ~d~ting uses on surrounding pwpertie~ In m- versing the cduhty board and the trial court, the state supreme court ~tated that the preemption doctrine is gener'~lly applicable in two situations. The~ first is where ~ederal legislation either explicitly or implicitly reflect~ an hate~t 'to occupy an enth'e field. Second, even where Congress has not preempted the entixe field, a state or local law is void to the extent that it stands as an obstacle to the execution of th~ full pu~ and objectives of Congre.~. The court ruled that although federal mining law permire ~ome local control, the den/al of the permi~ created an obstacle to the accomplishment of federul legislation, 30 U.S.C~A. § 22, Which provides that "all valuable 135 "Zc.~':g ~he_~_e: ~--~_~f=-r of Deve_l _c~n~: .Rights ~ 9:00- 10:30 a.m., ~. 26, R~ ~ TDB~ MUST BE MARK~T~ i~' of ~e TDR pra~s~ may ve~ well de.nd u~n ~e ~e:~ :~ whi~ &e development rights ~e made m~ke~ab!e in fact. ~ef~ ~nsifle~tion of the t~hni~] a~ admini~five imp~men~ ~ie~bili~, ~ well ~ ~e ~ea~on, ~f ~nditioni that ~aee m~ket dcm:nd ~or the Ngh~. ~is e~on ~hould ~ssibili~' of ~reating m eff~ve ~ wor~ble devclopmen~ A d~cu~ion of ~e-F~nc~ ~e would M in.replete of ~he tone if encouragement eont~ned in the I~ o&e~v~e neg:l~ve decision. ~e cou~ ~ it! aw~enea genui~ ~th fvhich ~e- e~mpied probiem~ of i~.d~k l~d-use re~iation were being addressed by r~nt in=ovg~v~ 9re~. ~h:t [ngenui~' fu~her puzsucd wRl in aH likelih~d ~chiev~'~h~ g~ ~4thout p!acin~ an im~ssible or unsuimble dividuai property owner, the public fi~c. or :he gene~ t~payer. ~ese effo~s ~e eitided to ~d ~i undoub~y ~iv~ ev~ eno ~u~gement. ~ ~=k ~ d~cult bu~ not ~eyond e~d ~ essen~ bu~ ~e me~s mus~ nev~rJaeiess ~o~ to ~n- s~m~o~ st~dx.TM With thin enc<:ur'z:ement_ ~:~m the N~v York Court oI ~e h~e~ ~d p~ne~ ~ ~n~nue to ~lore ~=~ ~ ~e ~e ~R p~ co~o~ to s~tuto~ ~d ~tution~ s~. C. V.i_RLi,TION$ ON TH.Er TDR THEM~ .TtLMNSFER OF DEVELOPM'EN'r CREDITS %TDC): A NEW FORM OF CLUSTER ZONLNG W'ILLD, M QLrE?~LE, IR. N.J. FEDERATION OF'PLANNING OFFICL~LS PLANNING INFORMATION REPORT (1976) Initially, the RepOrt of the Blueprint Commission 1 drew Wida a~ent'i~ to the incre:'~ingly ~.erious need to preserve farmland. The ~n~ibutio~a ~f New Jersey agriculture to food production k~ sign~ca.nt. The employment it c~er~ ~ well as the aestheSc calm it pr~,,4des are aho interwove,u mn- siderations in au urbanized area such ~ New Jersey. The 2"ms/er ~ E~ 15. Id. at 13. 1 ~,_ '1.-.na,~o~ of the Blurprin: C,,rnrnir:io. on the. Future of N~ ]er~e.~ AF.c-~- ture. N.J. Depat{men{ of Ag-nculrure. A?~. 1972. £ C Vari~',ioru on eh¢ TDR Them~ 521 Is:u~:, ~d ~e Ame~n ~s~tute ~ P~ne~ ~ve outlin~ p~ble~, ~nte~ to ~po~ni~es, ~d offer~'su~es~ns ~or ~nd ~p<e prese~6n, a4~ proper ~ uee re~omMps in ~e p~ss. Bluep~nt and ~ conc.~pt: ~ we~ ~ o~er ~cles ~nt~n a ~mmon th~m~. 9f an in~erest in' prescans a~cuhu~ land and ot~er ~ f6r one '0"r ~0~e ~ese~afion pro~ums. ~ TDC con~p~ ~ yet. Over.~e ~' f~ ye~s. seve~ o~ our muni~p~ties have ~en ~n- that ha8 ~ndr~ach~d upon environment~ly cfilic~ are=. ment at a ~te *~d in a l~ation ~tent ~ r~o~ ~ Su~ ~ ~e~ dgemma in ~97~74 in Cbc;re.eld ~d HilN~gh. ~up~ of o~s;:d~:ed the problems at len~ and ~te~ate',pmp0~i.to pre~en'e ~Nnd and cfi~ ~e= '~h~e:~ ~dNg ,~e:~nppb~uni~ for re=nnable development in ~n~='~ ~on~5:~en~.,,0f.:intere~f may ~ ~e ~t that ~e:e solu~on~ were ~Sed ~d mmider~ prior to ~e M~nt s~-~'ed, m-~' '~e, but ~5~ v~on: :~l~d io ~ ~ ~ng ~d ~nin~ nee~ of e~ tox~. : THE BASIC CONCEFT Working within the e.~dsting planning ~d ~n~g sUm~es, ~T~sfer of D~e~opme~t Credi~ (~ ~n~pt ~ ~n~iv~ ~ ~'~e~ou o~ clu~te~ ~n~g~ p~nned'u~t- devel-o meut ~e ~c~ ~ ~t tradmon~ cl~ter or PUD pro~s~ begins with one tact: and ~ seq~n~y subdi~ded into ma~or p~ ~ns~$ of public~ 9~n comma pmpe~, ap~ments, t~ho~e:, or sin$1e f~fly hom~ 2. B. 'Budd Chavooshian. AIP, PP, Thom.as Non'nan. IZsqui~e. D'c. Cem'~e NieS~nd, Transfer of Development Righta: A Neu; Cane.~'pt ~ r.,nd Use Man- agrm..~l, i~]et 492-A, Rutger~ Uuivermih.., June 19~, .[Repfint~ July, ~epdnted m t~e Federation Pl~ning l~ormatiou Repo~. VoL VllI, No. 4. winter 1~. : B. Budd ~av~sh~, AlP, PP. Dr. ~orge H. Nt~d. ~d ~u~ Nor- man~[G~owti.Managemenl. Program . . . A Propo:ed New Ap~r~eh fo ~cal Ciolle~e. Rutgen Unive~ity. June 3. 1974. P~ ~ohn J; Costonis. De~{op~nt Big~tz Tra~fer. Desc~p~ O ~,:~s fo~..a C~ique, Volu~ III Ma~g~nt O Contral of Growth. ~e Jesse C. hose, The r~n.,fe~ of Dextrin1 a~hts: .4 Pr~ of an lng :~a~c~t. ~eal ~a~ulc ~'/audi. VoL 3, No. 4. ~pnng · Tf~er of,Deerlop~m Righta ~ibiio.~raphy. ~i~ston of lnfo~a~an ~ seth.~ b~li~ve Se~'~cts Age~. State House. Trentun. N.J. govem~r Cto be re~s~ Feb~'.'M~ch. $22 baaic conee?t, however, remains the same: namely, one ~ f:~gmented in:o non~nO~o~ p~pe~i~s se~-ing ~erent fun~an~ ~ed by ~erent indi~d~s or co~tion~. ~e que~oa ~ed ~ubzequendy answered by the TDC approach w~, "If you ~n end up ~ p~e~ ~ent~ in a Iogic~ ~esfgn. why ~'t you s~ out fragmented p~celsT' ~e ~C con.pt h~ become more e~il)' ~i~ned ~ a ~mmuni~-~d~ Cluster ~ning c~n~pt. ~ i~ a clu~ter ~n~ng pro~ the ~C app~ch ~so requir~ ~e appli~ne to holder of ~ op~on, or hold~ of a ~nt~t of ~e. ~:~ ~e ~ren~ he~een thfl con~p~ ~d the~mnder of Devel~me~t ~h~ . ~D~). Under ~ the developmen~ figh~ =n-be sold sep~tely ~he l~& Under TDC ~th the l~d and the ~e&~ rem~ in~ un~ app~v~ of ~e development pm~ by ~e m~i~p~i~, ~e pmcfi~ now ~ ~e ~di~o~ cluster development pm~. CONSIDE~NG USE OF THIS CONCE~ ~ ~ ~ter ~ning. P~. average lot ~es ~ ~ndus~.~e~, o~er ~g ~ncep~, ~e TDC ~ncept may not ~ ~le ~mmu~'. It ~, h~ever, a me~ to broaden ~e ~tet ~pt p~de a m~hle impa~ on pre~e~ng a~ ~, men~ly ~ ~d or gene~ng o~n s~. Preened ~ under ~C ~n~pt appe~ to p~sent th~ op~ni~ to ~semble ~j~ ~t~ to a~tu~ u~e or to precede m~jor ~e~ ~ag ~oms ~ would no~]y reset by ~ ~am~om of ~ne ~nc~ ~ ~ s~n ~ r~i~ng impels ~m ~e n~ ~ U~ ~'s de~i~on md u~e of ~e tern 'p~n~ d~eiopmen~ ~umg o~i~n~s'to ~ ~opted ~ther 'subs~y ~ns~tent ~d ~e pi~ e!emen~ of ~e mmt~ p~ or d~i~ed to ~te ~ ' · p~ element' PB.ESERMIN C A GPdCTjLTURE Ther~ are duifferent approaches to be considered in uahng the T'DC ~n- mi~d ~ ~ for a ~ mi~t be e~I~hed ~ ~ ~s or ~r. k ~ ~ made ~n m a~l~ u~e (a~ge for m a~r~ ~e mi~t ~ ~ ~m~ ~ lO ac~ to ~it ~nvenient ~ubdi~ion ot cr~ i~d and ~x~nges of land for ~ng ~en a m~iden~ ~ indufl~, req~ng a ~a~er lot s~ o~er to pre~e ~e ~im~ pu~se ~d act ~ve ~e~ of 1~. ~ingIe-~y 1o~ ~ the name of key favor when ~e~g ~ a~cul~r~ d~et ~ ~htes to ~e qhes~on of ~e m'~tzip~i~ t~ng p~ ,: Va,-ta~l~. on the TDR Tb. er~ c-,mnen.'.~tion. The TDC a~pmach provides ~or ~e development v~ue o~ · e ~d to be re~ived, it's j~t ~t ~e bu~d~ ~ er~t~ els~he~.. For e~ple, a d~eloper who o~s ~ ~t q~es for development ~ pu~h~e x ~ or a~c~ ~ e~ewhe~, re~ive · e numar of u~ geuented by ~e ~ge of &e ~g ~e num~r'cf uniU generated by ~e a~e~ge of &e ~. ~n~nt ~ ~' app~v~, the ~ would ei~er.~ de'ted to ~e for p~lic ~u~se or'h~ve ~ de~ ~s~on p~ on ~e.p~ tu' ~:d~d:te~thcticn. the developer could re-sell the p~ to the ~ ~ to the x~ue he r~ives for ~able ~cfion sit~ yeW dose to a d~ou of ~e s~ve ~ue'the f~ ~ befc~'~ve,~e fight to develop it. By ~ei~ng merit v~ue.'~ur the I~'~- the residue, a~ v~lue is l~er whi~ ~,~_~esresu~t of the mumo~ ~9pm~ of the pm~, ~e ~e ,~.-~p6er,~resen~ cl~t=r zoning p~j~. ~%~pt ,~ ~so ~e ~ in a m~ ~mmuniW ~thout ~uld.~t~ ~here la the ~mmumW. not just m "',:~ '~::", · ; PRESEH~G OPEN SPACE AND ,B~on~ ~e p~s~ of ~lm~ p~se~on ~ the a~b~ of ~e TDC~n~gt to p~se~e en~nmen~y c~a~ ~e~ ~n~-Us~,~,the I DC ~n~pt ~d ipply to the implementlaon 'recr~aaon',p~' or ~ '~nse~tion pha' ~ delineated under the M~ter Pl~n of ~ ~w. By ha~ng prese~aon of these ~e~ = ~ ~jor ~li~,in~e ~C~p~ach, it ii implant ~at the communi~ oud~e the '~1~ savor, delineate desi~ated ~e~ in ia M~ter Na~,~fou~=~ inv~nto~ prepped by the Environment~ Commissiom Adop~on of ~:Mastar Plan ~&or N~ would remove arb'i~ness when t~nsidefing ~a mea~ of ~pting l~n~ offered for BEN~.~ifS TO ~n~ DEVELOPER, PBOPEHTT OWNER, .~d~D PU~L,IQ. AT-LA~GZ L public purpose £~r which some clevelopmeut credit~ might be graatecl velol:u~le Ianck With th~ a~pmar, h. the pm,t~er~ can assume · ,~lue for clevelopment which, without this c~ncept, would be minim-t due to either the ~ el' impr~wments or t~ l~hib{titm of clevelcrpment tm tl~ae The i--DC ~pprc~ch '~ho ott'ers fle~b~ ~ ~e ~er of a ~g p~. ~e~ m:~e =mmpiW ~ ~tea~ sene~, not J~ ~e ~- ,~pt ~ ~ s~.~ ~ but p~e~e ~ ~u~g ~d, l~d ~ dedi~ed, it rem~na oa the ~ ;oies~ed at ~ v~ue. · .~5~ND~G TO MO~ f=IL ~ ~t ~e ~C ~nc=pt ~es ~e ~ten~ for d~e~ment ~ d~g '6u ~ ~g lot ~ &a ~ ~ D~n~g · e ~ct~z{ 0f~e~f~¢iving lot. It e.a ~o~ a mixture of ho~ing ~i~]~t s!~ffi~y '~duc~s the tmo~vemeat ~sR ~r the ~. ~'l~ ~de~ly on i ~ umt ~ From ~ m,~ ,i,. ., .:f., :,..< i ,. -- . ' , hq~e.~er. ~ it ~, ~ ~ a p~r ~ of ho~ng uniU a ~, ha~e,~lt~d~-i,m~ior ste~ f~ the di~ction o~ aensible, io~ -~ p~i}~ ~de ;op~nidez for 'l~t ~st' ho~iu~ to m~u~ a ~t~g loc off~ ~ater ~uni6~ to y~de r~rea6o~ ALTeRNATiVES LN TI~ PROVI~ONS The ~C ~n~t mvolv~ mc~ ~d~ ~t ~ ~e ~ ~g :et.~e ia ~ ~. Most hu~ &~ ~ ~, ~ ~e m~in~ re~i~n~ 1o~ under some v~ment m~. ~e major · p~te. , ~ public, p~. m~: .. . ~.~e~:. . t . ~'~-~' ~ ,,: -~'L'. ~: ' ,.;~ ,.~ ,,~:'.-,~- ~ven~. , . , ~ ~ ~:;~'i' ~ ~'., '.~T ..... . ..... . . .'.~,.~'.;,~ . ~ ..,, ~ ,' , ' ~_ x~ ~=' ~:P~i' ~om ~--~' =~'~ p~e'[~ ~ · . %~";',.,. 9' i' . B.e-'~.s~nzble u~,, of the Nnd, uI~nate p~gub, t~ou, ~ ~ ~, u~i~ sem~ ~. job ogivar, ~ co~id~o~ ~ u~, but t~ v~g um~ per '~ss= ~: m~g ~ ~ps, ste~ slo~, ~d ~te~ ~e~ to ~ averse de~i~ not exc~d~g ~ ~ ~r ~-~. For one ~ ~e 1~ ~ ~ ~e denh~ ~d ~ For ~ple, a de~ ~ ~e ~ m~g ~or ~e ~ 1o~. Wi~ m;~ one ~ ~d o~er ~te ~en~ due ~ LN D USTiTIAL POSSIbleS 1 deve!opmeu~ In Cheste~eld, ~ough, the p~c~ou l~d w~ offered addi~ou~ s~mulus by ~lo~=g p~-~e ~d de~t~ ~m~ ~d in exch~ge ciismct. The ~bility to use Lhe TDC c~ucept in ~junction dev~lopm~n~ m~y, however, have limited for ~g ~e TDC ~n~pt ~yo~d iU re~ide~ ~ppli~cu. ~e~ parceI reSe~ng~,s~b~i~sion ~pproval might be identified b7 * pre~ 1o~ ~d~ ~:~C. mn~pc One of the principal objectives or both urban and envi- ronmental planning is to achieve a balance between development and open space. The ideal is [o preserve ecoloGJselly or scenically valuable areas and to develop only lands that are les~ attractive or sensitive Cluster- inG development would help do this. but by and large the planning laws of the 50 states still favor lot-by-lot development, allowing clustering only et the permitted Jo[-by4o[ density. Actual clustered development is rare. primarily due to local resistance. Furthermore, since clustering occurs on one property al a lime. natural features of extensive ecologically significant areas that ax[and over large areas in diverse ownership cannot be preserved. Two techniques for achieving large-scale clustering in- clude the outright public acquisition of development rights for the preservation of desired land uses. a rnethcd which is generally much too costly, and the' concept of transferable development rights (TDR), which has not yet proven workable. TDR allows the transfer of development potential, or more specifically, dens~ty, to parcels of land which may or may not be contiguous or under the same ownership. This article suggests a way to balance development and open space Py comOining these two approaches in a Irame- work that respects the traditional principles and tech- niques o~ land use regulation. The TDR Concep! Clustering concentrates the development potential of an entire tract in single ownership on only a portion of it. and thereby helps preserve significant natural fea- tures and undeveloped areas. Conceptually, however. the clustered development of one tract of land in single ownership ia the same as clustering on two adjoining. separately, owned tracts. To illustrate, aseurne that a tOO-acre tract zoned for one house per gross.acre will -a¢comrnodate 100 houses clustered on 50 acres, with the remaining acreage being left undeveloped. Now picture two adjoining, separately owned 50-acre par- cels: these could be developed in the same manner it the development rights of one were transferred or to the other and the owr~er cf the parcel from which the rights were transferred (the "sending" parcel) anteed that (he tract would remain undevelopeo. The outcorne would be the same as if one owner bought the other's parcel before applying for development ap= proval. The principal difference between a prior sa~a and a transfer of deveioprnent rights is that, under TDR. the owner of the "sendingI' parcel can remain in possession and continue'its existing use. This is partic- ularly important when the objective is to preserve agri- culture or a historic structure and its serving. While the transfer of development rights among contig- uous parcels in separate ownership can be equated · with clustering. TDR among non-contiguous parce!s raises at least three major conceptual problems: · Greater densities exert Greater pressures cn their im- mediate surroundings_ Where the "receiving" parcel adioins a "sending" one, the open space neutralizes the increased pressure. Where these parcels are sev- eral miles apart, the open space which Js preserved would not relieve the effect on the imrnediate neigh- bors of the "receiving" parcel The preservation may benefit all iocal residenls, but the cost--in terms of lowered environmental quality---eeems to fail only on the immediate neJghl2ors. (if it were argued th~,t. :ha increased densities do not have negative i,-npaccs, [hen Ihe question becomes why the "receiving" are~ were not so zoned [o begin with.) · All owners of parcels in "receiving" areas rn~s~ have the opportunity to develop at the higher perrnitteQ density wr~enever they choose to do so. Gtherwise. - Development Rights - .: owners or lands interspersed among TDR-benefitted parcels will probably insist that they have equal rights, which the courts will uphctd. · Happenstance eschanges of development rights be- tween private parties will not assure the preservation of the most important lands nor ensure compliance with general plans. What will be preserved in this manner may be a random scattering of unrelated par- cels which, lar from benefiting the community, will burden it'with costly maintenance and security re- sponsib!lities, : . The problem of greater density could be overcome if. TDR among non-contiguous parcels' was confined to a contiguous district. [specifically designated as a TDR district by'the local go~/erning body. following ~'indings that;(1) no,pdbtic systems would be overloaded by full developmen![ o1' the entire district f'ol!owing the transfer et developmefft rights among parcels within it; and (2) !fie 'resultant prese~:~tion,of 0p~n ~pace would ben- alit'ail prdpertla~ i~'.th~;distr[~L Air pa~'¢els or portions of parcets~ v~ithin the dlstrict~would be designated as ei- ther ';send[Dg';.~r '{receiving~ones when the district is created.'T:b~'Oulciisut~ect~th~ claSSification to public su.'~ervisio'n ~nd. ullimaleiy, the scrutiny et the courts. ExceSSwe al. aha!ties et any part al the district could be prm, ented!.~y approDna'.ely lim~tmcj the maximum per- m~iled cen. sity m any 'rece~wng" area. To overcome the other two problems----the right of owners in,?.re,ceivin,g" areas4o,,take advantsge et the bce ~. ~electin~ preservation areas~--tne rm.n.mpality tie [o, "sending" parcels. Implementing a Development Right', Bank Under this system, the market value of the development permission granted or taken away must be compen- sated by the developer in development zones and by the municipality in presentation zones. Thus. in a qe- valopment zone. if [he basic density bermitted is live dwellings per acre whereas that achievable, and a~ plied ~'or. under TDR is 10. the developer would pay an amount equal to the increase in the market value of its land due to its extra five-unit per acre development po- tential. The incresse~in n~arket value would be estab- lished by appraisal of the,particular property a_t the time el the transaction, as is' routinety~done by.devel- opera and also by public~ganci~e i,n eminent domain proceedings~:The uSe:of~appr, aisals p~'mits sensitive distinctions in values according.to .the type cf land in-. volved (such as subsoil conditions Or topography) or its location and Su~;roun~idg~.~and all0~s yalu~ to fluc- tuate with the market. ' In preservati,or! zones, the:own.er's 10ss will be, ap- praised SS: the value of the ant .re development potential permitled u~der ~oning or4if ~hs .municipality permits certain uses ~ol[owing acquisition o,J'~d~el~pment rights (agricultural g~jf c~4t~n~!~i~Urts, etc;), the same value Less the resid~a yalue 0~,the a~d )'or those Uses_ SinCe ~eS[dua~l~e ~,~ny~pe~li~ce ~wil! be m ted Dy the,scarCity offPotantiaiusers, the municipal- ity should be pea'mitred t,.o acquire development righls on y by hegel at gn:.lt this'ca~tn0t-be.acc0mpJished lhe municipality Would tlaye~ a~i~ tl'i~ {~!!:~ee a,~d as' sa me the resP~3nsib~ ~ ~'l~}~cli'd~iiu~ ~rl a l~ase or sale basra, of the pa~Ce[S~!nvq~y~ ~.! '~ , There ~s a part.al preceoent ~or a.aevempment ncln.s bank: in most ststes munlclealities have l~e right to ac- cept payments Irom !and su=dlVlO~rs m '.~eu et dec ca- tion of open spa=o. Tne~e ~Ayments"may be used cr.y to provide recreational fa¢~[itie'~ whi~:h must be made available lo the residents of th, e particular aubd'ivision. 20 urban land/july/august 81 exclusively or aJong with other residents of the corn- C 3 This concept is incorporated into the proposed TDR system through the finding by the local governing body that the open space would benefit properties throughout the TOR district. The deposits in the bank would permit the municipality to acquire the rights or fee of "sending" parcels pur- suant to a preservation plan incorporating public prior- ities. I1' there ere any funds in the bank, owners of "sending" parcels would undoubtedly attempt to com- pel the municipality to purchase their properties or their development rights. If there is no plan for the or- derly acquisition of preservation areas, and should such otters of sale exceed the funds available, the/m? nicipality would have to proceed on a first come. first served basJ~. The municipality should be required to segregate funds from each separate TDR district and to preserve "send- ing'' parcels ss follows; · First, use the funds tO protect the "sending" parcels in the same TD..~cl,district. · After ail such parcels in the district are protected, sbi~t the funds from the specific TDR district account in(o a discretionary account for the acquisition of "sending" parcels in any other TDR district, on re- quest by their owners or in accordance with the local preservation plan. a When all "sending"~percels in all TDR districts are ~:~ -% protected, make any further TDR proceeds available ~.~ either for the acquisition of additional open space or for other measures to mitigate the impact of higher densities in the development zones. The TDR-genereted funds tn the development r[ghLs bank could be supplemented by funds from other source~.-~philanthropy; local, county, or state bond is- sues or direct appropriations; federal sources; etc. Use of the development rights bank would help the municipaJibf achieve balanced dove;opm, ant by (1) enabling it to resort to eminent domain, if needed; (2) directing the use of alt proceeds from intensified development toward planned preservation to neutralize its impact; and (3) enaioling the m?nicipality to res~3ond promptly to development pressures and acquit~- [ands that otherwise would be lost forever. Taxation o! Land and Fiscal Considerations The taxation of land under TDR should presence no usual problems, tn both "receiving" and "sending" areas, land would be taxed in [he traditional manner to. reflect its potential under the basic zoning. In "receiv- ing'' areas, the tax would-De increased to reflecz the higher development potential only fo~lowing ils chase. Similarly, in "sending" areas, !ollcwing chase of development rights, the fa,( would be to reflect U~e residual value of the land. If acquireo out- right by the municipality, the properb,' wou~d b,a rs- . moved tram [he tax rolls, it shouJa be noted tho,' such diminutions in local revenues would generally ~ pensated by the prior increase in tax revenuee ;rom lands developed to a higher density. irt the form advocated. TDR would not ~osa any fiscal Ihreat lo the locality No funds would be o~liga[ad or disburSed except from proceeds of saie~ o~ rights. The extra costs of expanding the infrastructure in [he d~- velopment zones would be compensated by the savings in capital and maintenance costs of avaidi,'~g iht;recrim- inate urDan sprawl. The heaw/dependence of special districLs and schools upon lhe property tax mandates tha~ a t~ansfer o~ velopment rights within a single municipaii~-! bu',; across district boundaries be eccompsni?d by tn aqua- table adiustment in tax revenues. This requirement could be satisfied by sharing of the extra TDR-gener- ated tax revenue in "receiving" areas among ali dis- tricts which lose revenues from TDR (i.e. "sending" parcels are either removed frcm ir~e tax rolls transit services, shopping, etc.), the prices paid by de- ye)opera would be relatively higll. Since the municipal- ih/would purchase righLs Jn agricultural or environmentally sensitive areaS (floodplains, wetlands, steep elobee, etc.), the prices it would pay would be lower, reflecting their remoteness, relative difllculty o! development, and lack of infrastructure. Thus, the pro- coeds from the sale o! development rights for a given number of un/ts in "receiving" areas would probably - enable the municipality to prevent the development of a considerably larger number Of units in the "sending" arose. Aa the "re,ceiving' area fills cbt. and as services . therein intensify, land values Ihere are bound to esca- late at s much Steeper rate than those Jn remdte, un- , ...serviced arees, so that. as time goes :cfi. the'diffe~;anfial b~ee~:ths two '.~ilt probably incr~as{~' to the munici- ,paiity's,,advantage[ . , · -, Ag~C~'ltUi~el Lands: A Special Case Since agricu!ture is an industry, it is i~porlaht to make a clear dietincfi0n between p[eservlr!g land thai is highly suitable fo~ agriculture---in orde/"to~reserve for all fired its,:~r~d~;fivity'p(~.n~ia/---;~:nd pre,.~rving Ihs agri'CEltur~l'~,~.cti~'i'(i~.on'the:l~.nd. O'nly i! this iS done open; .: 'l-'e, Wh~. t~e put~hc~pufT~osa~o/;preeerv ng agr cu tuts ]and~ay nOt,'y~it~:~e'unive~lly a~;cepted,}it should not be too di.~fiCui! Io rest ~t on a solid .'egal ;ounco;~on. Ece~ !~oug~ .".."e Umted' States iota) aqnc[,l'.ur~i d~.chcn e~c'e~ds~its eeeds;.~r, terre,=[onal food "-[slribu- l~:n :eos'f',e3s~pon' so~h~et:c:;ted--.~and. I~erofo~e. vuln,~rdole-:-:proce'ssi~g, psc~a, glng marke!:nq, an't a nee;J 15 a~':~.~t:p'r"~s~'e~ti~e 6po~rtunth/for acmev- lng greater, rer,',]toqal,,. ~ ~ s~lf~.',,,tctenc.. . , )'. ri'food prcouct on n ¢~se the~,~ystem~ wer§-,ever f~lntiamentally d~s- cial in states that use more agricultural products than their lands can produce, such as NeW York. New Jer- sey. and New England. No system short of acquisition of development rights can guarantee the permanent availability of agricultural lands for food production_ While TDR can make a major contribution to the pres- etvation el: agricultural lands, it should not ~ saddled with any direct responsibility for the preservation or en- couragement of agricultural activities on the land. Giveri the narrowness of its statutory base. it could not discharge any' such responsibility in any event. Fortu- nately, there are other means of achieving these types of obiectives, includ..ing d_eferral of inheritance taxes. agricultural:.districting combined with,various forms cf ta.z st,ibsidiss, atc...whic]3 need not. De.disc~JSSed here. The locality may'not be able to find anyone ~0-;farm, the pres~rved:land~; ,~ince a~m~.micipallty can hardly be ex. pected to establish'pUtiliC'tarms~:.the preserved areas. may become merely ~','facan~'/areas deV,0 d of develop- ment potential. Some of these may,be capable of being integrated'ioto.tl~e'~ local "b'~-?,JL~jioh~f'ctp~.n spac~ sys- tem. but chances ~re that m~$t will siml~1ybe'come un- attractive sh,rplus lands· W'~iie oven .'nihi~c,l maintenance of such ,are*4s.woul~l ~mposs some tfr~an- cial bu~ieq 'on the locality, tr]~s may no{ be a net cost if pt'eservati~f:l ~s ..halanc'ed by'~igher",~.xes ~rl .'ro:R~,~-~" areas T,h.o release of these c-oemin-~i,! useless a.".~ cml- out ~he ~evenT:~l-~l nee~Jor,:{ne~Em;ah emergaftcy Development Rights · That the municipality is prepared to provide whatever infrastructure and services may be required Jn the "receiving" areas to assure that the resulting environ- ment will be acceptable. These finc~ings can only be made in urbanizing suburbs and rural communities. In built-up communities, and particularly those where the general effect of existing high densities would blur the potential relief from any preservation, a T[DR system cannot achieve much more than the merger of adjoining Tots in separate owner- ship--whether or not separated by a street--for the purpose of more creative distribution of their aggregate development potential. In some instances (e.g. New York City's Grand Central Terminal or its currently pro- posed East Side Historic District). it may be possible to designate a limited TDR district carefully balancing preservation and development. Would TDR DO _a Communltywida Basis Be Upheld? The TDR system described above seems to fa[l well within currently accepted principles of public regula- tion of the use of private land. The system starts with a zoning plan drawn in accordance with accepted stan- dards. Superimposed thereon is an overlay permitting a specd~ed intensification of development in some areas and a balancing reduction in other areas. Properties in "receiving" areas would benefit by the reduction in de.- velooment potential elsewhere, as well as by the avail- ab~h~ of nearby open spaces. Since the resulting drastic reduction in value o! "sending" parcels would constitute a taking of property rights under the under- lying zoning, the municipality could only acquire the property with adequate compensation, determined in the customary manner. Since the intensification of de- velopment is only justified by the simultaneous reduc- tion of c~evelopment potential elsewhere, it would be permitted to occur only upon payment of an amount equal to the increase in the value of the affected lands, Both the "sending" and "receiving" areas wou!d be delineated in accordance with a comprehensive preser- vation and development plan, preferably supposed ~'~ regional plans identifying any continuity oi presort-erich areas across municipal boundaries and showing adequate provision is being made in various pad:s of the region for [omseeabJe development needs. cally the needs for Iow- and moderate-income housing. The proposed system also seems to answer ~ne vexing question of why the higher density de~me~ appropriate in the "receiving" aress should no[ be granted i~ the first place. Also. no ownem in "receiving" areas would be pieced in the position of being unable tc tak~ ad- vantage of [he higher densities on surrounding proper- ties since the privilege to develop to the highe, ~ens[ty level would be availa.b~e to all, at will and on terms. Effectiveness of TDR If a municipality wanted fo purchase key 0resewation areas entirely with TOR-generated reven~as, i'~ might not have the money at (he proper time if oaveiopmen~ pressures end the subsequent purch~.~e of qeve[op- merit rights failed to materiaJize. S~oradic acquisitio~ could aisc make adjoining lands in sending areas ceedin~ly desirable and generate irresistible pressures for development. This may be a valid criticism, but without TDR, none of the preservation areas would ~ protected What ~hie quite likely scan_ariD points to, however, is the n~ed ~or "priming the pump" of the development rights bank so that the municipality can act in anticipation oF develcp- mont. This could be done by establishing a state volving fund to be made available to meet Ioca~ emergencies and to be replenished out of the proceeds of sales of development rights by the localities or by the issuance of county or local bonds. In "receiving" areas reflecting the presence of suppoS- ing infrastructure (sewers, water, adequate highways. would be impractical without these additional public facilities and services. Comprehensive Zoning. The zoning plan wo~ld reflect the comprehensi'~e community plan. The key to the ac- oeptability o! the "FOR concept lies inlhe nature of the proposed basic zoning pattern, before the aOplicat(on o! the TDR overlay. The zoning pattern must be fair and a~31e to witl~tand legal challenges by disaffected property owners. This zoning pattern would be used to establish the value o! development rights of the lands to be presenmd as well as the basic level of..develo~ meflt in "receiving" areas:for ownei's who choose not to,purchase addi!ionat dght~. If.basiC densities in ~praservation areas were sat af artifi- .orally iow levels ,to.minimize acquisition costs---supedi- ¢,ially an attractive idea.--iL would jeopardize the entire ' sy~tem.~ The law does not permit ~preservation through 'dep~ri'v~,ti~n o! propert~ rights without jusFcompensa- fi0n~ CRvne'm are:entitled to reasonable use of their land~.~ardlee~t' th~.v~lidity of any public objectives tOtthe ¢~ ~t~'aty. fA growing Cegio~s. with intense devel- Op .ment:pre'.~su[es~'this.might necessitate Ibarmitting uno6mfor~'ably,hfcgli'~a-4iC'densi~ieslon ?sehcNng" par~ esl~ While,wh'~;t.~Eml[tittit~a r~a~dn~ible use varies with~,th~na[tura' ai3d,t~¢~tion~;of'~ q~nd. ali that the b.a~'b. ZO~ling ra~:~..§Eons ~s~:s~db~ei~opi~en! potential that will~me~, t the tester i'ba:s0nab!ehe~S. Whenever increas- ing develooment pressures ford~, t.ke locality lo raise p~rrritted densities m p'rase~at[or~ areas, the s~me preesu~ ,woul,d~pri~at:fle: it ~o:~Jhc~'e~a~e thee density in Ro~io,'lal,.'F;amewor, k. ,'Entire;mentally sensitive I'.nos, meier o~en ,sl~ace .systems.,an~l. a(]r:cu~tural lands .~el- dom, i~top at.h~uRti:tpal boundartes. Legally. it should heip~the.~nunlcrpaiit~ t6'be a~ie to,point to the con- ~or .m, an'c~, of its pr~dervatlon.pred wttha rog!oriel p~an thee:rs ~it~m'~ on ad 6tiling IbEaiit?s also. A regional plan' cai-i ~als~ pro ~c't lanai: needs for development of r, ll kinds, and assure that those needs can be oomfortably satisfied withi~ the overall zoning pattern of all munici- palities in the region. This will overcome any suspicion that a particular municipality's preservation objectives are merely a screen for an underlying exclusionary pol- icy. To make legally ~ceg~ble policies that depre~ housing oppo~unffias in a given municipali~ below [ho~ required ~ enable it to meet its COnStitutional r~ sponsibili~, the regional plan Would hays to be suffi- ciently binding to a~re t~ sub.usnr zoning changes in other munici~alifiea~do not dost[by the r~ gi0nal housing ~I~Ce. t such'~inding;reg~onal plans ~nn0t, ~ legislated., the~. each municipali~;s ~R plan well as fo~ its share of ~e regiona~ ho~ing n~ds. M~nic~pa/F~.dings~: In..astabli;h~ng a c0m~a.i~ide ~R sys~ th~ geverfiing body of ~he municipali~ ~ . should ~ req~ire~ to make well~ocume~d ~ndi~gs that mould ans~ p~t~ial ~al o~e~iO~ ~e~ should inc ude at least. '. the fallowing:... _ · ~hat the reduction:'of'db~lo~e'~t~in ;'sending" are~ would balance ~ ex~a't~'in~re~d ~ensi- ti~ in "receivingV~re~; ' · That.the~e~elfipm~n~t'the hi~'r'~ensity of the recewmg" areas WOUld, be'Grossly excessive and r~ suit in impYoOe~ lead ~ if ~t'~comoe~sA~e Dy the · That the co~ bt priding Opem~dg, a~d maintain- Development Rights or when their assessed value is reduced following ac- quisition of development rights). The tax sharing would include any district that contains "sending" parcels even if it also contains "receiving" ones. Immediately upon completion of the transaction in whic~ the value of a "receiving" parcel is increased, the corresponding increase in the assessecl value oF the land should be shown separately on the tax roils, in Future years, the two portions oF the assessment can fluctuate separately. For example, should the munici- pality change the zoning to permit even greater densi- ties. the land value generated by this additional · . development potential would be added only to that part OF the assessment ascribable to the basic zoning. The value oF any improvement on the land should be cred- ited to the district in which the land is located and which will have to provide all the necessary services. IS a Cornmunitywlde TDR District Feasible? To be justified ~nEer the zoning law, an increase in permitted densify must be coupled with a public bene- fit that tends specifically to neutralize its impact. In no way can the zomng statute be interpreted to mean that density bonuses are a lawful device for achieving any and ell public benefits. For example, using [hem lo at- tain housing for Iow-income Families, es has be~n done in a Few communities, does not seem appropriate· Con- sider two adjacent land zones with identical proposals of l0 dwelling un~ts per acre· One offers to include some Iow-income units in exchange For a bonus in- creasing the Oens~ty to 15 dwellings per acre· The re- sulting development will. of course, exert grealer pressure on adjoining areas. IF that degree oF pressure is tolerable, on what grounds is the first development denied the same opportunity?' If the authority for TDR encompassed the entire com- munity, intensified developments could .be properly en- couraged st a distance from "sending" areas. The compensating benefit must therefore neutralize the tm- pact of greater densities on a communitywide scale. A proposed planning framework to accomplish this in a way that probably would satisfy all legal requirements follows. Comprehensive Plan, The selection ol areas to be pre- served cannot be arbitrary. A suspicion that it was fluenced by some homeowner's desire to preserve his view could vitiate the most elaborateiy conceiveo scheme. Similarly. the selection ot "receiving" area~ should nol be subject to charges of favoritism or heed- lessness of the external impact of the development. 'Municipal help to enable a developer to meet the cost of providing Iow-income rather than market-rate units can be offered more appropriately in the form ol t~x in- centives or public improvements for which the daYei- oper is normally responsible. This places the burden on the entire community, which is where it belongs_ The best way to allay such fears and suspicions is Ihrough [he development of a comprehensive p!an which would include (a} a eemmunitywide ~and preser- vation system [or open space, recreation. &nd environ- mentally sensitive areas, and~ po,~sibly, ais~ agriculturat lands and oPficially designated landmarks; and {~) the "receiving" areas, together with a determination of the environmental appropriateness of their devel.~pment et higher densities. Preferably, the open spaces should located where [hey would directly relieve the impact of the higher densities. But even where that is impossible, the reduction in overall development potential resulting from the preservation of sending areas would [a~',~ to neutralize the impact of the higher dee=siN., clev~io~- mant. This would be particuiarly true if the reduction in development potential equalled or exceeded the extra density permitted in the "receiving" areas. The comprehensive plan also would be the proper piece to specify TOFI-genera~,ed needs for addidona~ in- frastructure (wider highways, traffic signals,m,..,~"-" and other facilities and services.~ince the higher ~e~sity 22 urban land/}ul¥/auoust 81 TDR NO. 2 Planning Advisory Service. American Planning Association 1313 E. 60~h St. Chicago, IL 60637 'Ref'erence- PaCke t , Loan Materials for PAS Subscribers TRA~SFER OF DEVELOPStENT RIGHTS PROVISIONS CONTENTS Montgomery County, ~aryland (Maryland-National Capital Park and Planning Commission). Albuquerque, New Mexico. Town of Eden, New York. Bucks County, Pennsylvania. New Britain Township Zoning Ordinance. Norfolk, Virginia. (5/85) ReguJatioes contained herein ere provided as a source of ideas and Jllusfrations. They are not offered as models. Since sJafe laws Ya~ subslanliail¥ on lhese mailers, you should work wilh your local a~o~ney Jn dialling your reguJaJio~s. Plan, development. A plan submitted as part of an application for the reclassification of la~d into certain zones. Plan, general. A plan for the physical development of the M~iland- Washington Regional District in Montgomery County. Plan, master. A comprehensive plan of a~y portion of the general pla~ which may consist of maps~ data and other descriptive matter~ as a guide for the physical development of the dist:iat or any portion thereof, including eny amendments~ extensions or additions thereto adopted by the commission, i~dica=ing the ge~leral locations for major roads~ parks or other public open spaces~ public building sites~ routes for public ~ti!ities, zoning districts or other s~m~lar information. Plan, project. A plan sub~uitted as a part of an application for the use of the optional me,hod of development in eny of ~he central business district zones. Plan, sector. A comprehensive plan for a portion of a m~star plan ~ea, showing in detail such plara%i~g features as type, density gild intensity of land uses~ pedestrian traffic featuras~ public facilities (parking structures, public open space~ rapid t~nsit station, commenity service provisions and the like), and relation- ship of the various uses planned to transportation, services end_amenities within the area of the sector plan and, where appropriata~ to other areas. The sector plan may include maps, graphics and text, and is designated as the sector plen for the area which it encompasses. It may be adopted either as a part of a new area master plen or as ~_~ a~endment to an existimg mmster pla~. Plm~, site. A detailed plan required in certain zones as the basis for the issuance of building permits. Planning board. The coanty planning board of the }~ry!and-National Capital Park and Planning Co,~nission, Primary Agricultural Processing. Processing of an agricultur~] product which does not cause a change in the ua~urai form of the product. Private club. An incorporated or unincorporated association for civic, social, cultural, religious, literary, political, recre- ational or like activities, operated for the benefit.of its members and not open to the general public. Projection. property or beyond the building lime. The distance by which a sign extends over public 21 Revised 12/80 Receiving area. Aa area ~mg~aca~.~ a~ approved aud adopted General, Master,"$ec~or or ~unc~tou~ plan appropriate for devalopmen~ beyond its base density through ~he transfer of development rights. Recreational vehicle. A vehicular portable unit, moun=ed on wheels for use On h/ghways and streets, propelled or dra~n on its own or o=hez motor power; of such a siz~ and ~eight as requ/-re special h/Ehway move_men= perm/Ce when drawn by a motorized vehlcle;.pr~m~r/ly designed and constructed to provide ~emporary liFJ-nE quarters for recreational, camping, or' travel use; and of a body~%r/dt~ of no more than eight fee~ (8') and a body lanE=h of ne m~re =hen thirty-two feet (32') when./faa=ory equipped for the road. ReEional shoppiug center. A shoup/nE cen~er comprised of a m~i~um of fifty acre~ of ground and a minimum of fifty separaEe StOres. ' 2la Revised 12/80 Research institution. A ~oncommercial agency for scientific research or technical development including offices, libraries, laboratories, tasting facilities and equipment incidental to such research or development. Rmsiden{ial Mobile Homm Option Area. An area of land having an average residential density not in excess of ~wo dwellzng units or mobile homes per acre which is principally single- family residential in character and is located in one of the twenty rural communities identified in the Rmsolu~ion ~o Grant Sectional Map Amendments F-925 and F-926 or is recommended as suitable for mobile home use on an approved and adopted b~ster Plan or Sector Plan. Riding stable. See "Stable, riding." Rifle, pistol, skeet or trap shooting range, private. A rifle, pistol, skeet or trap shooting range operated by an individual and used exclusively by such individual and his guests. ~R'~fle, pistol, skeet or trap shooting range, public. A rifle, pistol, skeet or trap shooting range open to the general public either on a commercial or noncommercial basis, or such range operated and used by a private club. Road. Includes street, highway, avenue, lane, marginal access street, sea-vice drive, alley, bridge, viaduct or any se=~ment thereof. Roadside Farm Market. A permanent structure designed, arranged, or used for the d~splay and retail sale of agricultural or other farm products. Roof line. Tha~ part of the roof or parapet which covers the major area of the building. Sanitariu~ or sanatorium. See "Hospital." Sanitary fill. Any premises used primarily for disposal by abandonment, discarding, dumping, reduction, burial, incineration or any other means, a~d for whatever purpose, of garbage, ~rash, refuse, dead animals, waate material of any kind, junk, discarded machinery, vehicles or parts thereof, but not sewage or animal waste. ScienTific society headquarters. The administrative headquarters of scientific societies or associs~ions, however designated, not organized for profit. Secondary Agricul~urai Processing. Processing of an agricultural product which does cause a change in the natural fo.--n~ of the product. 22 Revised 12/80 Swimming pool, private. A swimming pool owned by members of not more than ten families and used by no one other than members of such families and their guests. Telephone office or communications center. A building owned and wholly occupied by a telephone or communications company regulated by the public services commission containing primarily electromechan_ical or electronic switching equipment, including such accessory uses aa testing, assignment and repair service, operator facilities and supervisors' offices; provided, that all equipment shall be completely enclosed within the building. Thmater, indoor. A building designed or used primarily for the commercial exhibition of motion pictures to the genhral public. Theater, legitimate. A legitimate theater shall include only those .- areas, buildings o'r structures designed and used for plays, acts, dramas or histrioruics by actors and actresses performing upon a stage, and shall not include the showing or exhibition of motion' ' pictures; provided, that any such legitimate theater may exhibit mo~t~om pictures if such exhibition is held without charge or if a charge is made, the proceeds shall be donated to charity. Theater, outdoor. An outdoor theater shall include only those areas, buildings or structures, designed and used for the commercial outdoor exhibition of motion pictures to passengers in. parked motor vehicles. Townhouse. One of a group of two or more attached dwelling units divided from each other by party walls and each having separate front and rear or front and side entrances from the outside. Tourist'home. A dwelling in which, for compensation, lodging or lodging and meals are provided or offered to not more than twelve transient guests. A tourist home shall not be deemed a home occupation. Trailer (including automobile trailer and trailer coach). Any vehicle or structure, except a device exclusively used upon stationary rails or tracks, mounted on wheels for use on highways amd streets; propelled or drawn on its own or other motor power; and designed and constructed to provide living or sleeping quarters for one or more persons or for the conduct of a business, profession, trade or occupation or for use as a selling or advertising de~ce. A trailer shall not be considered an accessory building except w~en used for construction offices or real estate sales in accordance with the definition of accessory uses. Trailer coach park. Any lot, parcel or tract of land, toge=her with open spaces required by this chapter, used, designed, maintained or held out to accommodate one or more trailers, including all buildings, structures, tents, vehicles, accessories, appurtenances used or in~ended as equipment of such trailer coach park, whether or not a charge is made for use of the park and its facilities. A ~railer coach park does not include automobile or trailer sales lots, on which unoccupied trailers are parked for inspection and sale. 25 Revised 2/83 Sending Area. i~n area desigmzced on an approved and adopted General, Master, Sector or Functicnai plan as a sending area appropriate for the conveyance of transferable developmemt rights frsm the area. Service organization. Any nonprofit orgar~zation the services of which are devoted entirely to the betternant or improvement of the community in wP~ch it is located, including Lions, Kiwanis, Rotary, Optim/sts, Civicans and lika organizations. Sewage treatment plant. A structure for the proceeeing cf sewage to render it fi~ for discharge into a s=ree=. Shelter, fall out or emergency. A structure or por~ion of a structure intended to provide pro~ec=icn Ce humam life during periods of danger from nuclear fail out, enemy action, storms or like emergencies. Sign. (See "Bil!bcard.") Any structure, part thereof or device attached therego or painted or represented thereon or any material or thing, illum~nated or otherwise, which displays or includes any numeral, le=ter, word, model, banner= emblem: insignia, device, trademark or other representation used as, or in nature of, an annouRee~en=~ advertisement, direction or designation of any person, place, commod~ty~ product, service, busiaes$, profession, enterprise or indusE?/ which is located upon any iand~ or any bui!dlr~, in or upon a window, or indoors, ia such a manner as attract attention from outside the building~ Revised 2/83 59-A-6.1 USE D ! V ! S I 0 N - A - 6 S PERNITTED I,q ANY ZONE Transfer of Development for Agricultural Preservation.. In order to preserve agriculture, the base density of a property, in any residential zone within a ~eceiving area,, may be in- creased~ subject to Planning Board approval and in conformance with an approved and adopted General, Master, Sector or Func- tional Plan by one dwelling unit, for each development right received from a property designated a sending area. (a) A development right shall be transferred by means of an ~ easement, in a recor~able form approved 5y the Planning Board. The easement s~all limit the future construction of one-family dwellings om a property in :he PDT zone to the total number of developmemt rights established by' the zoning of the property minus all development, mights previ- ously transferred im accordance with this-section, the- number of development rights to be transferred by the instant t~ansaction, and the number of existing one-family detached dwellings on the property. (b) Thm transfer of development right shall he r. eoorded among the land records .of Montgomery County$ Maryland. (e) The base density cf a property in a receiving area may mot be 'increased beyond the density recommended by the Land Use Plan of an approved and adopted General, Master, Sec- tor,~ oK-. Functional Plan by the transfer of development '¥~g~f3'~?" '~:~" (d) A property developed with the transfer of development rights shall conform to the requirements of Chapter ~bA of ~he Mmntgomery County Code requiring M_FDU's. The applic- ability of Chapter. 25A and the M~DU density increase pro- vided by Sectio~ ~-C-1.6 shall be calculated a~ter ~he base density of a property has been increased by a trans- fer 'of development rights. The density increase provided by Section 59-C-1.6 may be made without the eoquistion of additional development rights. (e) A request to utilize development rights on a property within a-receiving area shall be in the form of a prelimi- · nary subdivision plan submitted in .accordance with the Subdivision Regulamians. (f) Such a preliminary plan must include at least 2/3 of the number of development rights permitted to be transferred to the property under ~he provisions of the appropriate General, Master, Sector or Functional Plan. However, upon a finding by the Planning Board that for env'ircnmental reasons it would be desirable to permit a lower density, the 2/3 requirement may be waived. Revised 2/83 Trailer coach space. A section of ground wit,kin a =railer coach park designated as the location for only one automobile amd oas =railer and having not less than the m/D/mum dimensions and areas required under the provisions of this chapter. Transfer of development rights. The conveyaace of development rights by deed, easement, or other legal instrumen~ authorized by !scsi law to another parcel of land and the recordation of tha: conveyance among the land records of Montgomery County~ M~-land. Transient lodgim~ facility. A building or group of buildings containing three or more guest rooms, including but not limited to such establishments as hotels, apartment hotels, motels, inns, courts and lodges where lodging is provided for compensation bu~ exciudlr~_= a fra=ern/ty or sorority house, school' or college dorm/tory as deflned herein. Transient visitor. A person residing in the county for any one period of time not exceeding six months. station which is not located within a central business district, which has been designated as a transit station development area by an approved and adopted master plan or sector plan. Trucking terminal. A tract of land used for the loading or unloading of trucks and the tempora~! storage of goods and commodities being transported in in:erstate and/or intrasta=e shipment. A tracking term/ual may include loading and u~loading platforms, warehouse facilities for temporary storage of goods in transit reservoir parking for trucks and truck trailers waitipg =o be loaded or unloaded and related business offices. Other uses such as eating facilities for employees, truck fueling and repair facilities and sleeping quarters for truck drivers may be permitted as accesso~] uses only. Eating and drinking establisP~ents, automobile filli~ stations, automobile repair and service facilities, and hotels/ motels ope~ to serve the general public may not be interpreted or construed as being accessory uses to a trucking tarminzl as herein defknad. Use. The principal purpose for which a lot or the main building .thereon is designed, arranged or intended and for which it is or may be used, occupied or maintained. Use, accessory. A use of a buildi~4 lot, or port,on thereof which is customarily incidental and sukordip~te to the p~_ncipal use of the main Building or lot. Such use shall include any strut=uts or trailer used temporarily for construction administration or rea! estate sales purposes in conjunction with and during the period of construction on, development of~ or sales wit,kin ~ha same site or subdivision. Revised 2/83 59-C-1.382 59-C-1.39 59-C-I,4 59-C-]., conventionally constructed !j,~ homes% Concentrated development of mobile homes or the development of mobile hames on i~aivily~l, par¢~.~,.£.n excess of five (5) acres wduld be ~nconszetent wil~ the purpose of this zone. Parcels in excess of five acres' would only be appropriate for developmen~ in the ~MH-2O0 zone if such use is recommended on an approved and adopted Master or Sector Plan or other form of ccmprehensive study approved or otherwise deemed sufficient hy the District Council. Reclassification. Map amendment applications of re-zoning to the RMV-200 zone are limited to parcels of 5 acres or less in size unless such_ parcels are reobmmended for the R/4H-200 zone in an - approved and adopted Master or Sector Plan or other form of comprehensive study approved or otherwise deeme~ sufficient by the District Council. SPECIAL RESULA/IONS -- RE-2C, RE-2, RE-l, R-200, R-150, R-90 and R-60 Zonee Any property in the RE-2C, RE-2, RE-l, R-200, R-!50, R-90 and R-60 Zones that is located in a receiving area designated in an approved and adopted General, Master, Sector or Functional Plan may be developed at an ~ increased density by the transfer of development rights in accordance with Sections 59-A-6.1 and 59-C-11. Development at such increased density, as permitted by this section~ shall conform to the development standards of the zone permitting a density nearest to the designated TDR density, but no higher than ' tha~ specifimd in the Land Use Plan of the approved and adopted General, Master, Sector or Functional Plan, as interpreted by the Planning Board, and the development standards shall be limited to those of the Residential, One-Family Zones. DE?'iSITY COI TROL 2EVELOP?,DIT PURPOSE AND D~SCRIPTION ~ne purpose of this me~hod of development is to encourage subdivisions which will allow home buyers a choice of lot eizes according to their needs; to preserve open space, tree cover, scenic vistas, and outstanding natural topography; to provide recreational areas; and Co prevent soil erosion. This purpose is acc¢omplished by permitting variations in lot size without an increase in ~he overall density of developmen~ within a subdivision. 64b Revised 2/83 59-A-6.2 Site plan shall be submitted amd apercve~ in accordance with the provisions of Division 59-D-3. ~ze Planning Board shall approve a request to .utilize development rights if the request: (i) is in confor~ance with the General Plan and the appropriate Master, Sector and Functional Plans; (ii) is in accordance with =he previsions cf this Chapter; and (iii) is in accordance with the Subdivlsicn Regnlat'ions~ (i) Prior to the approval of a final record plat f~r' a sub- division using transferred development rights, an easement shall be conveyed to the Montgome.--y County GovermmenC in the form required by 59-A-6.l(a) limiting the future e~n- structien of dwellings on a property in the RDT zone by the number of development rights received. ~is emsemen~ shall he- recorded among ~he land records of Montgomery County, Maryland, prior to the recordation of a final record plat for any portion of the receiving property. (j) A final record plat for a subdivision using transferred development rights shall contaSn e statement setting forth the development proposed, the zoning classification of the property, tbs number of development rights used, and a notation of the recordation reference of the conveyance required by Section 59-A-6.1(b). Historic Site-Density Transfer. ~ere any tract of land classified in more than one residential zone contains a site, $~ructure, or area of historic slgnificanee suitable for preservation, the planning board is authorized to permit the transfer of dwellin~ units from one zone to another in excess 'of the number of dwelling units otherwise permitted within the zone to which the dwelling units are ~ransferred~ for the purpose of preserving the historic site, str~cture or area; provided, that all of the following requirements are me~: (a) The site, structure or area to be preserved is deemed by the planning board to be of such histcricsl value as to warrant preservation. The planning board shall base their determination of historic significance upon an assessment of the age and condition of the structure; historic events involving the site, structure or area; personages involved in the history ef the site, structure or area% and the historic unipueness of the site, structure or area. The 44 Revised 2/83 %~NSPORTA%!CI:, CCI.£-~NZCA%iON AND ~%!LITIES =~-_:'~¢ r..,~p associated with farm SE Hiecxrlc power transmission and distribution lines, o-:erhaad, carrying more than 69,000 volts SE Elactrlc power transmission and distribution lines, overhead, carrying 69,000 volts or less P Electric power transmission and distribution lines, underground P ~elistops, associated with farm SE ~ar~ng of motor vehicles, off-street, in connection %~th any use permitted " ~ ~Ipellnas, above ground SE Pipelines, undergrodnd P Public utility buildings and structures SE ~ ~ Radio and television broadcasting stations and towers SE Railroad tracks P Telephone and telegraph lines p COMt~RC LkL SERVICES ~--Antique shops Bla=ksnithing Farm machinery; sales, storage or services Farm supply; sales, storage or services Home occupations Ambulance or rescue ~quads, publicly supported A~imal boarding places Animal cemeteries Cemeteries Child care residences for net more than 8 children SE SE SE SE SE P SE SE SE P 166b Revised 2/83 5.c-C-!O 59-C-10, ! AGRI C U'LTrJRAL -KE S !DE.%-f I~L CLUSTER ;=.AL ZOFE l;o use shall be allowed excepu as indicated in' the following table. Permitted uses. Uses designated by the letter "P" shall be permitted on any lot in the zones ~md~c=~_o: subject to all applicable regulations. Special exception uses. Uses designated by the letters "SE" may be authorized as special exceptions.~ in accordance with the provisions c{ article G. Parma Prim~ry agricultural processing Roadside farm markets Gramerlas Abattoir Secondary agricultural processing Vineyards rayside stands, for sale of fa.-=- products1 Wimeries 0zher uses related to agricu!tara P SE SE P SE Dwellings, one-family detached Farm tenant houses ~ Farm tenant mobile home, one omly Farm tenon= mobile home, more than one but less than 4 Guest houses, as accessory uses Mobile home, double wide2 SE P 1 2 Must be at least 20 feet from stree= right-of-way and provide a~ leas= 3 off-street parking spaces. Provided that s~ch a d~elling has minimum dimensions of 24 feat. by 40 feet, a gable' roof, and is permanently affixed to a founda=io= sup- porting the load-bearing framework of ~he mobile home and a fsuuda~ion wall enclosing its eutlre perimeter, in compliance with ~he provisions of Chap=er 8 of this Code. Such a mobile home shali have its ~heels~ axles, transpor=ation light and removable towing apparatus ram~ved~ 166a Revised 2/83 59-C-!0 RESDURCE PROTECTION ~2~D 5XTRACTION 'Fish hatcheries P Fores=fy P Game or poultry hataheries Horticultural nurseries and commercial greenhouses Milk plant P Rock or stone quarries Sand, gravel, or clay pits, or mx:faction of 5 other natural materials SE MISCELLANEOUS Accessory buildings and uses Signs, in accorda~c~ with Article F P Wildlife or gmme preserve, regulated shooting ground li6ansed by the Maryland Wildlife Administration, and other 'conservation areas P RURAL CLUSTER ZONE 59<-10,2 PURPOSE CLAUSE, 59-C-10,3 The purpose of this zone is to provide designated areas in the County for a compatible mixture of agricultural uses and low density residential development to promote agriculture, and to protect see-~i¢ and evmironmentally sensitive areas, DEVELOPMENT STANDARDS The following requirements shall apply in all cases except as specified in Section 10,39 and 10,41 Net Lot Area. No main building hereafter erected, toge~hsr with its accessory buildings, shall be located on a lot having a net area of less tha~ five acres, excspt am pe-~mit=ad in Section 59-C-10.39. 166d Rev. 12/80 % 2hi'ld or elderly'day care faci!iuies for non more :ham 4 individuals P and cr places of worship P -~uca%ional institutions, private SE Eleazosynary and philanthropic institutions SE Fire stations, publicly supported . Ecspice care facilities SE ~spitals, veterinary SE Housizg or related facilities for sidery ~r P~dicapped persons Si 5ursinE and care homes .SE Offices, professional, for a resident of the dwelling P Pablialy owned or publicly operated uses P Sa~itariums '' SE CULTUI~%L, Eh~TA/~.N~T AND P~CR~ATIONAL Boathouses, private1 p Golf and country hlubs SE tun=ina and fishing cabins Karma!s, Non-commercial Private clubs and service organizations SE Riding stables p F~ding stables, commercial SE Pills, p/stol and skeet shooting rangas~ outdoor SE S~..-~ pools, commumity SE g=f,-~,~ng pools, private P As accessory uses, serving a principal use located on the same trac~ of laud. 166c Revised 2/83 % 5~-C-10.32 SF-C-IO.Z3 59-C-10.34 59-C-10.35 59-C-10.36 5 9-C-10.37 59-C-10.38 5a_C_l n X~ 02, Not more than ten percent of = a= of the ~l'ot cay he covered by buildings, including. accessory buildings. Yard, front. Each lot shall have a front building line at least fifty feet from end parallel to the front lot line or a pToposed front street line, if such has been established within the loT, or such additional setback as indicated as a scenic setback in a Master Plan, to provide a front yard. Yard, side. Each lot shal~ have two' aide yards, each of which shall he at least t~enty feet in width except that the width of a side yard which abuts a public street.~.shall he calculated in Yard, rear. Each lot shall have a rear ~ard at least ~h~rty- five feet {n depth. L~t wldzh at fron~ building llne. Each lot shall have a width of at least three hundred feet measured aldng the front build- ing line. Lot =idth at front street line. Each. lot shall have a width at least three hundred feet measured along the front street line. _Building height limit. No building shall exceed a height of fifE? feet except that there shall he ~o height limit for agricultural buildings. .. F O~ ~[ _ CLI!STE gEV.LO, .-;E:,T OPTIOH (a) Purpose. The purpose of the cluster method of development is to provide greater flexibility in achieving a compatible mixture of agricultural and residential uses and to protect ·scenic and environmentally sensitive areas withou~ jeopardizing farming or other agricultural use on a portion of the property or on adjacent or ~earhy properties. Intent. At least 60 percent of the property shell be reserved for common open spaoe or for the following uses allowed in Section 59-C-10.1: Agricultural: Cultural, Entertelnment and Recreational; Transportation, Communication and Utilities; professional office for a resident of the dwellingf private educational institutions; or Miscellaneous uses, except tha~ the following uses shall not be permitted: abattoir, secondary agricultural processing, air strip, helistop, radio and television broadcasting stations and towers, and outdoor rifle, pistol and skeet shooting ranges. No more than 40 percent shall be used for residential cluster development, 166e Revised 2/83 except that.~he planning board may approve a greater per:ion of the property to be used for residential purposes if indicated on a development plan approved in conform_ante wi~h the guidelines as stated below: (c) Guidelines. The~e guidelines are in addi:ion to those provided in Section 50-39 of the subdivision regulations. (2) (3) ~ne cluster development plan must locage and arrange the residential development sc as to protect, to =he m~xi_uum extant reasonable, that porgion of the tract appropriate for farming. The cluster development plan must indica:e an: arrange~ merit'of residential develepmen= so as to reduce as much as possible any nuisance, jeopardy or conflict between the residential and the agricultural uses both within the tract and in relation te adjoining or nearby tracts and to demonstrate the compatibility of the proposed cluster plan with existing development. The cluster development plan must be so laid out, and protected during construction, as to remain as harmonious as possible with the natural environmmnt~ minimizing as much as possible the clearing of ~reas, grading of earth, disturbing of s:reams, and other similar dislocations of the na~urai environment. The cluster development plan must show how scenic vistas are being preserved or enhanced, and reflect an arrangement which has considered gha visuai i~act of the residential development on such vistas.- (5) The planning board may refuse to approve the cluster method or a plan of cluster development if in its judgement: (a) Significant agricultural, farming or similar ac:ivity would be jeopardized unduly through development under ~he.c!uster method. (h) The natural integrity of environmentally sensitive areas would be ~hreatenad due to the clue:er developmen:~ or (c) Significant scmni~ vistas would be !omc, oblitara=ad or substantially diminished value due to the cluster developman:o 166f Rev. 12/80 (d) Dev~lopmen~ standards. The density 'under the cluster development option shall not excee~ 1 unit per 5 acres. Net Lot Area. )lo main building hereafter erect- ed, together with its accessory buildings, shall he located cn a lot having a net area of less than 40,000 square feet. LoG coverage, percentage of.. .Not more than ~en percent of the net area of the lot may be 'covered by buildings, including accessory buildings. Yard, front. Each lot shall have a fro~t build- ing line at least fifty feet ~rom and parallel to the frout lot line or a. proposed frout street line, if such has 'been' established within the lot, or such additional setback as indicated as a scenic setbahk in a Master Plan, to provide a front yard. Yard, side. Each lot shall have two side yards, the sum of which shall be thirty-five feet; each of which shall be at least seventeen feet in width except that the width Of a side yard which abuts a public street 'shall be calculated in the same manner as a front yard. Yard, rear. Each lot shall have a rear yard at least thirty-five feet in depth. Lot width at front building line; Each lot shall have a width of at least one hundred twenty- five feet measured along the front building line.. Lot width at front street line. Each lot shall have a width of at least twenty-five feet measured along the front street line. Building height limit. No building shall exceed a height of fifty feet except that there shall be no height limit for agricultural buildings. (e) Special Exception Use. The following additional standards and requirements shall apply to appli- cations for special exception use in the open space area developed pursuant to the Cluster Development Option as set forth in Section 59-C-10.39. (1) Particular attention-shall be given to the purpose, intent, and guidelines for the Cluster De- velopment Option as specified in Section 59-C-10.39. The Board of Appeals shall determine tha~ the use will not adversely affect, jeopardize, impair, or 166g Revised 2/83 · ig-C-!.q, a. $9 C-10.41 diminish (£) significant agricultural, .farmin~ or similar activity on the pronerty or adjacent proper- ties; (ii) the natural integrity of environmentally sensitive areas; and (iii) significant scenic risc'as. (2) Special exception uses within ~h= open space area shall have access on an ar=oriel road or road of higher classification. EXE?PTEa (3) Special exception, uses shall not adjoin land classified in the Rural Density Transfer Zone and shall not adjoin land that ia primarily agricu!~ rural im use, provided, ho~ever, that Agricu!%urai and Transportation, Communication and Utilities uses may be allowed unless specifically prohibited in paragraph (b). (A) Buildings in connection with special excep- tion uses may be located in =he open space area of the c'luster development only if such Iocaticn will achieve greater compatibility with adjacan~ proper~ ties and any residential uses of the c!us~er development, assure more sensitive attention to environmemtal concerns, and maintain che open space character of the entire cluster. Such buildings shall ncc he allowed in the open space area of a previously recorded subdivision wi:hour resubdivision. LOTS PAPCELS Lots created for children in accordance with the Maryland Agri- cultural Land Preservation Program shall be exempt from these reMulations. The following lots shall be exempt from the area and dimen- sional requirements 6f Section C-i0.3 but shall meet ~ke requirements of the zone applicable to them prior to ~heir classification in the Rural Cluster Zone. A r~corded lot created by subdivision if the record pla~ was approved for recordation by the Planning Moard prior to the approval date of the mcat recent See=io~a! Map ~endment that included the lot. (b) A lot created by deed executed on or before the approval date of the moss recant Sectional' Map ~nendmen~ Chat included the lot. (c) A record lot having an area of less than five acres created after the approval date of the most recent Sectional Map z%nendment tha~ included the lot, by raplat~ing two or more lots; provided that the resultin~ o~mber of lots is not greater than the number which ware rep~atred. 166h Revised 2/83 A lot crea~'.for~'~:~for a .one-family residence by a child, or the spouse of a ~hild, ef the property provided ~aid property ~er can e~abli~h that he had legal title on or before the approval d~e of the recent Sectional Map ~endment that included the lot, and provided ~hat this provision shall apply to only one such lot for each ohild of the property 166h(i) Revi s~ed ZI83 '/ 59 C-i1 RURAL DENSITY TRANSFER 70NE 59-C-11.1 LAND USES AGRICULTURAL No use shall be allowed except as indicated in the following table. Permitted u~es. Uses designated by the latter shall be permitted on any lot in the zones ~_ndica=ad~ subject to all applicable ragulatioms. Special exception uses. Uses designated by the letters "SE" may be authorized as special excap=ions~ in accordance with the provisions of article G. Primary agricultural process/~g Roadside farm m~rkats Granaries Abattoir Secondary agricultural processing Vineyards Wayside stands, for sale of farm products1 Other uses related to agriculture ~N~fFACTUR~;G AND LNDUSTRL~ Sawmills Fuel production as agricultural by-product Wineries P P ? P SE SE P P SE SE SE 1Must be a~ least 20 feet from street right-of-way and provide at least 3 off-straet parking spaces. 166i Rev. 12/80 RESIDENT,_-AL Dwei!im~s, one-family detached P Fa.-= tenant houses P Far=- tenant mobile home, one only P Farm tenant mobile home, more than one but lass than 4 SE Guest houses, as accessory uses .P Mobile homes, double wide1 P TRANSPORTATION, COM}fUNICATION AND UTILITIES Airstrip, associated with farm SE Electric power transmission and distribution lines, overhead, carrying more than 69,000 volts SE Electric power transmission and distribution lines, ~~ overhead, carrying 69,000 volts or less P ElecEric power Cransmission and distribution lines, underground P Helistops, associaced with farms SE P~rking of motor vehicles, off-street, in connection with any use permitted P Pipelines, above ground SE · Pipelines, underground P Public utility buildings and structures SE Radio and television broadcasting stations and towers SE Railroad tracks P Telephone and telegraph lines P COM~d~RCIAL Antique shops Blacksmithlng Farm machinery; sales, storage or services Farm'supply; sales, storage or services · Home occupations SE SE SE SE .SE C C I Provided tha~ such a dwelling has minimum dimensions of 24 feet by A0 feet, a gable roof, and is permanently affixed to a foundation supporting the load-bearing framework of the mobile home and a foundation wall enclosing its entire perimeter, in compliance with the provisions of Chapter 8 of this Code. ~uch a mobile borne shall have its wheels, axles, transportation light and removable towing apparatus removed. 1663 Revised 2/83 SERVICES _~bulance or rescue squads, publicly supported gn~_~_ boarding places Animal cemeteries Cemeteries Child care residences for not Gore than 8 children Child er elderly day care facilities for no~ more tham 4 individuals Churches, memorial gardens, convents, mo~astaries, and/or places of worship Eleemosynary and philanthropic institutions Fire stations, publicly supported Group Residenital Facilities for not more ~ham 8 developmentally disabled persons Group Resfdential Facilities for housing exceptional persons Hospice care facilities Hospitals, veterina~ Offices; professional, residential, for a resident of the dwelling Publicly owned or publicly operated uses Sanitariums CULTURAL, Eh~ERT~52fENT J2~ REC~LEATIONAL Boathouse, private1 Humtimg and fishing cabins Ken~els, non-commercial Private clubs amd service orgamiza~ions Riding stables l~iding stables~ commercial Rifle, pistol amd skeet shooting ranges, outdoor Swimming pools, privage SE SE P SE P SE P SE ? SE SE P of land. serving a principal use located on the same !66k Revised 2/83 RESOURCE PRODUCTiCN ~_,-'"~ EXT~CTION Fish hatcheries or poultry hatcheries 5or~icu~urai nurseries and commercial ~reenhouses }~Ik plants Rock or stone quarries Sand, gravel or clay pits, or extraction of o=her MISCELLANEOUS Accessory buildimgs and uses Signs~ in accordance with article F Wildlife or game preserve, regulated shooting ground licensed by the Maryland Wildlife Adm/nistration, an~ other conservation areas P P P P P SE SE P 59-C-11,2 PL SE CLAUSE 59-C-.U.,3 The purpose of this zone is to promote agriculture as the primary, land use in sections of the county designated in =he C~zara! Plan. by providing lares areas of generally con- tiguous properties suicable for agricultural and related uses and perm-ttttn~ the transfer of development rights from properties in this zone to proper=ies in designated receiv- ing areas. D5%~LOg~ STANDARDS I%,-e followin~ requirements shall apply in all cases except as specified in Sect/on C-11.5. 59-C-11,31 Density- No more than one one-family twenty-five acres shall be permitted. for permitted transferable density). dwelling unit p~r (See Section C-1!.~ 1661 Revised 2/83 59-C-11.32 59-C-11.33 59-C-11.34 59-C-11.35 Net Lot Area. No main building hereafter erected, together with its accessory b~ildiugs, shall be located on a lot having a nat area of less ~ha~ 40,000 square fast. of the net area of the lot may he covered by buildings~ including ~caessory buildings. Yard, front. Each lot shall have a fran~ bui!d~g a~ !east fifty fee~ from =-nd parallel to the front lot line or a proposed front s~reet line, if such has been established within the lot, or such additional.setback as indicated as a scenic setback in a }~star Pla~, %o provide a front yard. Yard', side. Each lot shall have two side yards, ~he sum of which shall be at least thirty-five fe~; each side yard shall be at least 17 feet. The width of a side yard which a~uts a public stree~ shall be calculated im t_he saz~e ma~ner as a fron~ yard. £ --% 55-C-1!.~6~ Yard, rear. Each lot shall have a rear yard a= lamer thirty-five fast in depth. 59-C-11.37 Lot width at fron: building line. Each lot shall have a width of at leas= one-h~dred t-wenuy-fiva feet measured along the front building line. 59-C-11.38 Lot width at front street line. Each lot shall have a width of at least twangy-five fao: measured along the front stree~ line. 59-C-11.39 Building height limit. No building shall exceed a heigh~ of fifty feet axcap~ ~at t_here shall be no hsight limit for agricultural buildings. 59-C-11,4 TRANSFER OF DENSITY, .OPTION. In accordance with Section 59-A-6.1 and i~ confo~a~ce with an approved and adopted General, Master, gec~or~ or' Functional Plan, residential density may be ~rmmsfarred a~' :he ra~a of one development right per five acres less one developman~ right for each existing dwelling unit, frc~n the Rural Density Transfer Zone to a duly designated receiving zone, pursuanu ~o Section 59-C-!.39. 59-C-11,5 ~.X~.MPT._D LOTS AND PARCELS 59-C-i1.$i Lots created for children in accordance with the Maryland Agricultural Land Presa~'-vation Program shall be exempt from these regulaticns. 166m Rev. 12/8~ $9-C-!1.32 /he folicwin§ lots shall be exempt from :he area and dizen- sicna! requirezents of Section C-11.3 be= shall meet the rac_ulr~nen=s of the zone appliczb!e to thez prior to their class!fica=ion ia tka ?.ural Density Transfer Zone. (a) A recorde~ lot created by subdivision if the record plat was approved for reGordation by the Planning Board prior to January 6, 198t. (k) A lot created by deed executed on or before January 6, (c) A record lot having an area of less ~han five acres created after January 6, 195t~ by .replat:ing two~ or more lots; provided that the resulting number of lots is no=greater than the number whlch'~ere replatted. (d) A let created for use for a one-family residence by a child, or the spouse of a child, of the property e~ner, p~ovtded said property o~:er can establish that he had legal t/tie on or before January 6, 1981, and .preY/dad =hat rh/s provision shall apply, to only one ~uch let for. each child of the property owner. Amy lots created for use for one-family~ residence by children of the property owner shat1 not exceed the number of development rights for the property. 166n Revi~ed 2~53 (6) A ten-foot zone surrounding ~he wa:er service line :o buildings, free and dear of any sewer lines, systems or part thereof. (8) Slaging Schedule. The subdivider or his a~ent shall submit with ~e ,~ritten application a recording and construction schedule which shall indicate ~hose portions cf the area COvered by ~e preliminary plan for which record plats amd building permits will be s~ught and obtair~-d during each of the succeeding years, up to five years. (Mont. Co. Code 1965, sec. ! 04-23.) (h) A preliminary subd!vision plan for a property in a receiving area which proposes to increase ~he density of ~he property by a utilization of development rights ~I indicate, in addition to the number of lets permitted by ~he base density, the number of development rights to be conveyed to the receivir~ property, the total den~iry~ in dwellir~ ~its, of the proposed subdivision, the r~Jmber of moderate priced dwelling %~its to be provided in accordance with the provisions of Chapter U-A, and ~ne density recommended by the approved ~nd adopted General, Master, Sector or Func'donal Plan. (f;g0-[, Ord. i~9-23) (i) Such a preliminary subdivision plan mus~ include at least 2/3 of the number develo, ofnent rights Permitted to be transferred 'co the property under the provi~ons of :he appropriate General, Master, Sector or Functional Plan. (~g0=l, Ord. (}~ lZng n,/,mb'~r' of'.d~we~liri~ u~its/ pro'pos~d?~it~ins/uc~ a prelimL-~ry.~plan' unless lhe, plan.' ,s. an ,.addltlorl .~o ,an eY, J.s~irl~ .~cor~ed ,_qfbdlv;q,ow community water and sewerage system within :lie r.ec~ving ~.ea. Se~. 50-3§. Sam~-Approval Procedure. (a) Relerral of Plan. Two copies of the plan shall be referred forthwith to each or ally Oil the following agencie~ when such agency has a direct interest in the installatien or maintenance of utilities, roads or other public ~rvices which will _~rve ~/ne subdivision, for :heir review and recommendatio~ with respect ~o approval of the plan. (1) Washington suburban sanitary commission as to water and sewer service and storm drainage. (2) County department of transportation as to roads, streets, crosswalks, paths and storm drainage. (3) County department of environmental protection as to sanitation, wells, septic systems, water and sewers. (4) State highway administration as to right-of-way requirements and access on state roads. (5) Appropriate agencies of the federa/ government as to federal (6) Any municipality which has filed a request with the board for an opportunity to review subdivision or resubdivision plans within such municipality. (7) Board of education as to school site planning. permissive in the R-3 zone. U~s po(missive in the C-1 zone, except shopping center~. Such incidental commercial uses shall not exceed 15 percent of the R-D zone covered by' a given Sector Development Plan. Permissive Uses, when pursuant only to a Sector Development Plan, adopted by the Planning Commission. Uses permissive in the R-T zone, subjec~ to all controls of the R-T zone. Permissive Uses, in. areas not covered by an,adopted Sector Development PIan, but pursuant to a Site Development Plan and Landscaping Plan approved by the Planning Director. Uses permisaive in the R-T zone, ~ubject to ail controls of the R-T zone. D. Permissive Uses, in areas not covered by an adopted Sector Dev~lppm~ent Plan or more detailed plan. Uses permissive in the R-1 zone, subjecz to all controls of the R-1 zone. E. Conditional Uses: ' - 1. Uses cond tonal in the R-1 zone when fl~e area is not covered by an adopted Sector Development Plan. Uses conditional in the R-3 zone when the area is covered by an adopted Sec'~or Development Plan. Uses conditional in the C-1 zone on commercial locations approved by a Sector Development Plan. / -JOcen Space. S~x thousand or more square feet of open space per dwelling shall be preserved. Such requirement may be met by the following alternatives, the choice to be by the ]and Of the total 6,000 square feet, the following minimum amount of usable open space shall be on the lot with the drilling: 2GO square feet for each efficiency or on~-bedroom dwelling, 250 square feet for each ~.vo-bedroom dwelling0 and 300 square fe~ for each dwelling containing three or more bedroams. The land owner may afec[ to meet the requirement~ for open space in exce~e of that required on the dwel]ing's lot by delivering to the City payment in cash of an amount equal to the per square foot value of the dwelling site. See provJslons of Section 40. H of this ordinance. met on the dwelling'a lot by giving ;,he City a suitable legal instrument preserving detached open space in an amount equalling his dwelling's remaining obligation. See provisions of Section 40.H of this ordinance. G. Procedure, in addition to that specified in Section 44 of this ordinance, shall be as follows: An area may be zoned R-D with or without simultaneous approval of a Sector Development Plan. However, before the first building permit may be issued one of the following shall ~ake place: The Planning Commission, after a public hearing, shall make a recommendation to the City Council on each proposed Sector Development Plan. Following the race[pt of such recommendation, or 90 days after filing of a complete application, the Council shaJl consider and either ~pprave or deny the ~c=or D~velopment Plan. .C C 1. ~ aplz4icaticn for $U-3 shall include a proposed Sector Developrnen: Plan, the City Counc[t on each proposed SU-3 zone change and Se~c~ Deva[eprnent F-lan, application, the City Council shall consider and ei[her approve or deny ';he zone ch~ngs Procedure for Individual Premises Within ~h~- Tote[ Uti:eh Center. Ail uses and s~u~ures must have a Site Devalcpmen[ P!an and, if relevant, e Lzndscsping Plan, each approved the Planning Director. These shail he aporoved onty when the,,,' zre consistent with '~e Savor Development Plan. Open Space. [f the SU-3 zcne is macp~d in an area not designated by the master plan aa Established or RedeveJopin.c, B,o00 or more square feet ef open space per dwe[Hng.sh[[[ ~ p~ed. Such requlrem~t may be me[ by ~he fo{iowing alternatives, ~he choice [~ ~. by the land owner, Of the total 6,000 square feat, the rn~[mum amounts of usabJe open spec~, on the lot, shall be specified by th~ Savor Development Pian. met on [he dwelling Io~ by g[ving ~he City paymen'¢ in cash of an amount eoual to the per square foot value of the dwelling sita. Sma provisions of Se~ion 40.H of thie ordinance. met on the dwelling's lot by giving the CiW a suitable legal, in~rument preservinB detached open space in an amount equalling his dv~lling's remaining obligatJcn. See ~ovisJons of Se~on 40.H of this ordinan~. SECTION ~,3. H-1 HISTORIC OLD TOWN ZONE. -Th[s zone endeavors to preserve and oromota the educational, cultural, and sene~l welfare of the public through =he preservation a~d protac';[on of the traditional architecsural character of historic old Albuquerque. A~chitecturaJ S~'Ies: The City Council finds and declares ~hat the Spanish Colonial, Territorial, or Wes~ero Victorian architectural styles of building and s~'-ucturea erected prior to in the area now constituted at the State of New Mexlca comprise the t.~ditional charac~r of the H-1 Historic Oid Tow~ Zone. Permissive Uses: 1. Uses permi~ive in the R-2 zone. 2. Instituzicn: Church or other place of worship, including [ncldensei recreational and educational facilities. b. Club. c. Library. d. Museum. S1 Other Standard.: For mattera nbr covered under [his ordinance or other City ordinances, [he latest edition of "Ssandards for Recreational Vehicle Parka" sponsored by the Nadonal Fire Protec=[on Assn., :he Recreational Vehicle Insd~u~ ~nd =he Trailer Coa~ ~sn. shah apply. Detached Open Space Regulations. In the RA-1, R-D. and other =ones in areas designated by the mae:er plan as "Deveioping"or "Semi-Urban," required open space may be in par': on ro~ aeparate from the dwelling units for which the open space is r~quired: de,ached o~n s~- Such detached open space need nor ~ acceaaible to the residenm of the related dwelling uni~, but it will presage open apace wh{ch under the ~terms of :he maater plan is [mpo~ant to the whole communiW as well as ~e res~den~ of the reda=ed dwelling un[ts. The following regulations and policies apply to such deseched open space: The owner of the de[ached open space shall forfeit permanently [o :he City by deed or other aui:able legal,instrument the right to use or dew,lop:ouch lend other :hen aa specified in 4 of this subsection; if it is preferred by the [and owner, the City ahaJl accept the land in fee simple, provided :he other proviaions of this subaection are me~. ~uch deed or other legal inatrdment shall corr:ain apecif~cadons cor~iatenr with this subsection and shall be flied for record w/Th :he C~unty CJerk. The City may' refuse to accept the offered property intere~ on the ground that it ia not phyaicaJly suitable to meet the deflnldon of open space or the uses li~ed in 4 of :his sub~ecdon, thus negating that given .~'oposal for open apace provision. Det~phed open apace in an area designated by the mas~er plan aa "Developing" sham be in a. Jocation de, ignored for Iow'densi~y use or'open apace by a Sec:or Development Pron.,os other portion of,the master plan. T~e CiTy will refuse So accept [he o~fered pro~r:~y intzreat if, according to other plans, policies, and regulations, St must be dedicated for public right-of-way or floodway, 3, - The C~ty ahall ~naure that the detached open apace romaine in the uses [iatad below for as lee~ an long as the related residential development e~Js~s. When such reaidendal d~velopmeot no longer exists, :he C~ty may dispose of ira open soace rights, but only by trading its rights for open space rights of equal value on other land. 4. U~es shall be limited to uses aimilar to the foUowing, which are found by the C~, to be beneficial to the whole community as well as the reaidents of the dwelling units which caused the land :o be preserved for open apace: So and paasive outdoor recreation, b. Agriculture {outdoor) and pos'curing animals. c. Botanical parks open [o the general public. Lakes, waterways, flood water ~orage areas, and other public facili[[ea for handling flood wa~er. f. ~tructurea and facilities incidental to the above uses. if the ]and acquired under these proviaions is owned in fee simple by :he City, it may be Ieased to a private organization for recreational uses, but only if such uaes will be open to the general public. L 74 SEC. 40.J The City shah acquire and preserve open space in the §eneral vicinity of the rel=-ted 7. if the City receives cash in lieu of open space, The Ci~',r shall make every reasonable effort To uae the cash in lieu of [and to ~cquire and preaerve the amount of detached open space for which the related dwelling wu obligated. The City shah spend the money with all due speed To acquire the same ty~ea C c. ']'he amoune. of money the City agrees to accept sha~l be baaed on the square foot value of the dwelling size immediately after the site is platted into tots or the time of annexation and zoning, whichever comes la:er. ~-'he [and owner shall obtain appraisal. If the CiW ia nat satisfied with this ~ppraisal, the C;ty and land owner will presen~ their estimates of va[u~ t~ the Planning Comm{~ion ~ ~ at a public m~ting for a determination. ~e decision o~ ~he Plannin~ ~mm~ssio~ shall ~ final; provided, however, in no event will [be value ~ tes~ th~n :h~ late~ appraisal value upon ~{ch taxes have been ~sses~d 'by th~ Berna[~l~ ~unW ~sessor. This decision of the Planning ~mmission is not subie~ tc a~aJ. if the land owner is un;villing so ~c~pt the Planning ~mmissio~'s - decisicn, the tend ~ner w[[[ be required to provide the ~lt amouns of epe~ space instead of sub~d~ti~g ~sh. I. ~ea ~ghting Re~l~tions, Area [ight~ng, including p3rking ares ti~hting, shall be ~rmn~ed so that The Iocetion of the lighting fixture toc~ezber ',rich i-~ cut-~ff angle shall be such that it does not dir~-tly shine on any public righ= cf way or any other r~idenda! premises, or It shall not h~ve an off-site luminance greater than lC00 footlamberts; it shall not have an off-site luminance greater than 2~30 footiamberts measured from any p~[¥~te properW in a residential zone. J. Buffer Landscaping Regulations: zone a landscaping strip at least five feet wide shall be planted and maintained aa a noise and sight buffer on the non-residential premises; it .,hall abut the 1or line which, ia contiguous to the residential land. The landsc3ping strip shatl be planted with evergreen trees or shruUs which will grow at least eight feea high within eight years of pJanzin~. They shall be so plan',ed as to form a largely opaque screen. Trees o~ shrubs which die shall be replaced within six months of their death. 2. This landscaping strip shall not count toward a parking area redu~ion under the terms of A.4. f of this sec-.ion. 7B ~olic7 and ,L=tenc. 5.10.1.1 5.10.1.2 The ~'.mm levels of densi:y of development allUWed l= the . ~3 o~er pu~osas, to secur~ (1) a f~r 5al~cm be~e~ the p~llc ~=ar~s= =hrou~h su~ =h~ ~ ~e ~s= eaono~= ~d affi:!an= soci~!y, ~d ~ron~nt~-l~ so~ b~ca baleen developed 5~ce 59~aen ~evelo~e~ ~d ope:, !~dC~ou~ho~ =ha T~ ~ we[~ ~ the b~ca 5a~ae~ davelop~ ~ open l~d ~i=h~= the panic.ar diet.cfm raq~s ~cre~ad density ]~=s. '~ C, A ~d ~0 Dts:~cts, d~ re~ard to the ~r~ts~_of ~i~du~ -:: -- of ~dU~ 1~ ~ars ~ C, A ~d ~0 Dist.=ts. Acaor~!n~7, developer c~ pro.de asmur~ca of a c~rraspo=d~g reduc=ion of ~h~ d~si=7 of davei~p~n= ~ a C, A or ~0 Dis=~c:. The transfer of =he development rights sys:~m herein established (a) To preserve the natural and scen/c qu,qlf:!as of open land, of open lan~ and a~r~euitural pursu/ts. (~) (c) To prov~e for a creative and stage~ deve!opman: of l=-nd and an or~rly transit!ch of land from vacant to occupied uses (~) To fas:er ~evelap~ant in area~ 5est eui~e~ to specif!a uses ~;hile proxrid~nE economic return =o owners of proper:~ re- str~¢ted from further development. -L 5.!0.2 5.10.3 5.10.4 Tranafer of Deve!opman= Pck~hts. Transfer of Development .q!gh=s prove_des for incra~e~ densi~7 of ra~id~i~ ~avelop~n~ ~ :he ~, S~, an~ E~ ~he deve!op~n: ~-~=s ia acuo~lishad by axaau=ion of ~ Open Space Densi:y Pa=t, bo~h ~ harm. S=ar pro._dad. Authorization of Transfer of Deve!op~an~ P~ghts. I_n =ha m=~er a~.d =o =ha ~ro~da~ by ~he ~e ~le referred to ~ ~J~ic!e IIi ~d by ~h~ b~k rafmrra~ =D ~ A~ic!a IV of ~hiS Ordinate, =ha pro%~sious of =his 5.10, ~d other applic~le pro~sions of ~ha Ord~ca: 5.!0.3.1 Deve!op~n: ~Eh~s ~ eligible 1~ ~ C,<A ~r ~30 Dis:~c:s ~y Be :r~sfarrad ~o l~d ~ ~, SR, or ~. Dis~ric~s. - ~ 5.10.3.2 5.10.3.3 Undeveloped la~d in a C, A or APO District ~ith the area de~lop~nt, sh~! be eligible l~d from which davelop~n~ ~ay be ~r~sfa~ad. In cases where development rights have been previously trans- fers. ed from land in a C, k or APO Dis:r-lc:, deve!opman: ri~h~a ~ay be ~ra~sferred =o such !~-nd from other eligible land C, k or ~-?0 District, Procedure? 5.10.4.1 Deve!opman= righas in land ~n a C, A or APO Diatrieu ~zy be transferred to land f-n an -~%, S~, or ~ District pursu~n: :o =he following procedure: (a) P~, SE, or H~ Dis=~'let at ~ op=ion~ density ~luwed by =his Oral.ca '~ a ~r~sfar of davelopm~ rfgh:s, sh~i, s~=~ao~ly wi~ his applica~ion for a s~di~_sicu pla: or si:~ pl~, ~a applicarlon :o =ha PI~E Board for by s~ Boar4. With hi~ appliearlon for an Opt±ona~ Densigy Ps,it? ~he developer shall =ander to the Pl~nniug Beard a valid insistent granting :o =ha To~m an Open Space Easement ia eligible l~d ~ a C, A or ~0 Dis=~c:. ~a ins=~: sh~! be ~ the fo~ ~d contort ~ha =a~ ~d conditions pro~dad by Sec=ion 5.10.5 of =his Ordin~ca ~d sh~l cover ~ area of eligible i~d ~e=a~ad in accord~ca ~h Sections 5.10.3.2 ~d 5.10.6.2 of =his Ordinate. ~e de- %~!oper sh~l rupiah %o %he Pl~nim~ Board a car=if!ca%a of title by a d~y licensed a==o~ay ~d su~u other further Upon advice of aha To~-~ A=:oraey that =he Open Space Ease- =ions ~=ed ~ paragraph (a) ~ove are sufflctmn=, the Pl~ug Board, aa:~ in beh~f of =he To~n, A=:o~e7 for reaordin~ ~ :he Er!a C~ Clark's Off/cs. Upon f~ approv~ of the PI~E Board shall !ss~ dansi:y,'~d sh~! =r~= both a copy of E~e~: ~d ~e 0ption~ Densi=y ~e~: ~o ~ha To~ ~sessor. In cases where land i~' a C, A or .%PO 'D/air!-=: has previously been encumbered by The ~:' of ~:s ~y be =r~sfarrad =o su~ 1~ fr~m o:her l~d in a C, A or .~0 D~c= purs~: :o ~a follo~ procad~e: . Ca) The s~/d easement sh~ll be tez~na=ad upon uhe grmucing ~a T~ of a s~lar e~e~n: cove~g eq~v~: ocher !~d in a C, A or ~0 Dis~c: pursu~ :o ~ha pro~ions of =his (b) The owner proposing to receive such development rights tender to =ha Planning Board a v~id fnst~,~em: gr~g a C, A or ~0 Dts:~a:. ~e ~s=~an= sh~l be ~ ~he fo~ 5.10.5 of ~!s Ord~aa ~d sh~l ~over ~ aras of 5.10.6.1 of =h~ 0rd~n~aa. ~e-~er sh~l fu~fsh uo a::o~ey ~d $u~ o~her or fu~har e~denam or ~sur~ca of (¢) Upon advice of =he Town A~tornay that =he grant is valid and suffi.~an~, =he P!anutug Board sh~l accmpU ~ha ~- s:~-u:, sh~l execute ~ ~s:~nu =e~mat~g the Space E~a~n: ~ =he l~d from whi=~ davmlop~n~ were prm~o~ly =r~sferred, ~d sha~l =r~s~: both ~n=s =o =he T~ A::o~ey for record~g ~ =he Erie Co~:y ~erk's Off/ca, ~=h copies ~o =ha T~ .~sessor. _z.S- 'C 5.20.6 5.10.7 5.10.8 Area of Land Reo. uirad and %,'~ber of Units Fermicced. 5.10.~.1 ~e actual n~er 0f density li~s in ~ SR, ~nd HK Districts shall by reference =ha Bulk Re~ula=ions S.10.6.2 ;~sign~em,~ of Davelopmant R~o,~t$ for Transfer° La_nd in a C~ A or ~O Dis[ric~ shall %a assi~ed Davelopman~ Rights for purp~sam of ~r~n~far a~ follows: ~ (a) In a C District, one Dave!opmen= ~gh= for aa~m three ~ligib ia acres~ (%) In an A District, one Dave!opment Kight for each ~:~o eligible acres. (c) In an AgO Dis~.r-_.'et, one Development .~ight for each eligib !a acre. -~ Land for which an Open Space Easeman= has Bean conYayed to the To~ suant to ~his section shall be assessed for real property tax pur?oses with full re~ard =o ~he res=fiction of the use of ~he !~nd by reason of said eese=anC. Land for which an Option a! Density ?ami= has teen shell be assessed for real property tax purposes with full. regard to Im ~ha event tha~ prop~y for which a daYelop~ant easement has teen conveyed purs~an~ ~e this Ordinance or for whi~ an Optional Density men~ of ~his Ordinance, the relieving r~as shall apply: 5.10.8.1 If su~ a~an~an~ increases the z!lo~-abla density of l~d i~'~' nu~er of ~i~s alIcwad by nba ~nd~an~ plum the m~ner of C -46- $,10.8.3 5.!0.8.4 If much ar, endn,cnn decr,~.~;,sos the a]lc'-'able density of land in .,.~,~ SR or ~R Dls:ric~'s~ t~e 'o{~mer ~ay dovelop ac ~he densely previously allo=~d by .~ Optional. Density FarmJ~. If such ~.~ndman[ al~ar~ aha nmmber of tran~far~bla developm~ rights of l~d in a C, A or ~O District, such change uil% no: affec~ land already suBjeC~ ~o ~ Open Space Easement. If such amandmant removes land from a C, A or A~O District, ~ davalopmen~ shall 'take pleas on l~nd so removed and already . sufficient development rights to replace the rights conveyed from such land in accordance with the procedure met forth in Section 5.10.4.2. ? ~ -47- Bucks County, Pa. ~aw Rritain To~ship Zoninq Ordinance~ 1974. (C) Recreation Area: An area dssignaTed for a specific recreation use, including but not i~T. ited to tennis, swir~ing~ shuffle board~ playfield~ and tot lot. Such areas shall be maintained so as To avoid creating a hazard or nuisance? and shall perpetuate the proposed use~ Section $43 Open Space Designated planting and recreation facilities withfn the ' ' '-" the develooerJ A oar- open space areas shall be prcvmded formance bond or other securities may be required to cover costs cf installation in accordance with provisions of the subdivision ordinance: Section 5~ 0~ershio and Preservation of 0~en Space ;~ny of The following methods may be used to preserve, own~ or maintain open space: condominium, homeowners asso- ciaTion~ dedication in fee simp!e= or dedication of devel- opment rights. The following specific requirements are associated with each of the various methods. (a) Condominium: The open space may be controlled through the use of condominium a~reements. Such agreements shall be in conformance with Tke Unit Property Act of 1S63. .~! open space land shall be held as "common elemenT"~ Such land shall not be eligible for sale to another party e×capt rom ~ansfer to another method of ownership per- mitred under this section: and then only where there is no change in the open space ratio~ Ali plans required by this ordinance shall sho:~ qui~ed lot area, whether This land is to be con- veyed or not. (b) Homeow~ers Association: The open space may be held ~n co~on o~ership by a homeowners association. This method shall be subject tc all of %ha provi- sions for homeowners associations sez forth in Article VIZ of Act 2~7 Fee-s~ple dedication: The municipality may: but shall not be required to: accept any poPTicn or portions of the open space: provided: (i) such land is freely accessible to the public, (ii) there is no cost involved~ and (iii) the munici- pality agrees to and has access to maintain such lands. 83 (d) Dedication of development rights: The municipality or CounTy may accept, but shall not be required to · accept, title to the development rights or ease~ ments to any portion or portions of the open space. In suck cases, the. lan~ remains in the o~-~ership of the individual, condominium, or homeowners associa- tion while the d~velep~ent rights are held in pub- lic ownership. The County ·shall accept o~ne~skip only in acccrdancm with the provisions of Act $~2 and county plans. The ~unicipa~i~y may accept suck lands as it sees fit.. In eithe~ case,l~here shall .be.no cos~.~o County or mmnicipal.Lt~for acquisi- ~ion, gr maintenance. The. municip~!ity may require ~=~_ this method where it deems this ~he mOst-appropri- ate ~ay of maintainin~ land~{i~open space, par-' ticuiarly in sinE!e-f~-mily~!~&uste~de~elopmen~s. 8~ if any, to be supplanted by SPI zoning. (Ord. 26,750, 13 Feb 73) 450.3.3. Proposed Regulations. The appllcat]on shall incl'ude recommended regulations designed to promote the special purposes of the district! as set forth in the statement of intent; [n ~articuJar, such regulations may require submission of detailed site plans, building pians and ele- vations, and maps or plans indicating the relation of proposed development to surround- ing or otherwise affected property in terms of location, amount, character and continuJt¥ of open space; protection oF desirable principal views; C'onv~nience of access through and between buildings or in other locations where appropriate for public p~rposes end where such access will reduce pedestrian congestion on public streets; separation of pedestrian and vehicular traffic~ signs, lighting, mixture of proposed uses, and o~'her =~ matters as approl~'iate to determinations related to the special pubiic lr~ter~st o,~ f~e district and the objectives to be promoted. The r~gulations may require special approval of such plans by the Department of City Planning, the Planning Commission, City Council, or other officials ar agaric[es of the city, generally within the 5PI district er in designated portions ~f ,he d,s,rlc,: and generally far all development or for specified ciasses of development. Where such special approval is required, no building permit or certificate of occupancy shall be issued until after written approval, or for development other than in accord with approved plans. (Ord. 25,750, 13 Feb 73) 450.4. Actions by Planning Commission, City Council, on SPI Applications. On applications for SPI zoning amendments, actions by the Plann[ng Camm[s- sion and City Council shall be as provided in Sections 1002 and 1003 of Article X, Amendments. (Ord. 26,750, 13 Feb 73) 450.5. Transfer of Development Rights~ Use Permit. In SPI districts hereafter created, transfer of development rights between ad- joining lots in separate ownership may be permitted as foJJokvs: Approval oF such rangements shall be by separate use permit proceedings except where plan approval by City Council is required for other purposes, in which cases development rights transfer may be approved in the same action. Where two ar more lots in separate ownership in the same dlstric? adjoin [n contiguous street frontage without an intervening public street or alley; development on such lots may be permitted as though they werea parcel in single ownership. Such development shall not alter the effect of regulations cpp!icable in the district to the -8.2- (12Jun73) area under agrbement as a whole, but may alter the effect on individual lots within said area, provided, however, that at the edges of such area, the relation to adjoin- lng property shall be the same as where regulation is applied on a lot-by-lot basis. (Ord. 26,750, 13 Feb 73) 450.5.1. Application For Transfer of Development Rights. · ]he application For transfer of development rights shall include a plan dem- onstrating that the development as a whole conforms fo the regulations For the district in such a manner that llght, air¢ view, privacy, access, density or land use infensity~ height, bulk, off-street parking and other obiectives of public control are satisfied fo' an equivalent or higher degree than if regulated on a lot-by-lot basis. The plan shall also indicate that the effect on adjoining lots will be the same, or of lesser adverse ~:x-=- effect~ than if regulation within the area were on a lot-by-lot basis. - _ In addition, the application shall include an agreement binding the applicants anc~ their successors in tit/e, individually and collectively~ to maintain the pat'tern of development proposed in such a way as to conform with ~=ppllcable regulations. The right to enforce such agreement shall also be granted to the City. (Ord. 26,750, 13 Feb 73) 450.5.2. Findings Required. If City Council finds that the area involved is compact, regular and logical in relation to the Form of development proposed, that ~he proposed development as a whole conforms to the intent and requirements set forth above and in general provisions concerning use permits, and that the proposed agreement (which shall be sub[ec~' to ap- proval by the Legal Department) assures Future protection of the public interest and the achievement of publia ob]eatlves to the same or a higher degree than would applica- tion of regulations to the individual properties, the use permit may be issued. (Ord. 26,750, 13 Feb 73) 450.5.3. Recordlng. Notation concerning ['he use permit, indicating number and date, shall be made on the off[cial zoning map, showing the extent of the properties covered. A copy of the plan and agreement shall be filed in the office of the zoning administrator For Future guidance on administration and as a public record. The plan and agreement shall also be recorded with the Clerk of the Ccrporatlon Court of the City. (Ord. 26,750, ]3 Feb 73) 450.6. Variations from General Regular-ions; Use Permit. As part of general action when plans require epprova[ by City Council, or by. separate use permit proceedings, Council may authorize variations from regulations generally applying in an SPI district upon making findings: ( 12 Jun 73 ) COUNCILMEN Raymond W. Edw~ds Paul Stoutenburgh James A. Sehondebare 3-ean W. Cochran George L. Penny IV COUNCILMEN TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 TELEPHONE (516) 765-189! TO: Code Committee Membe'rs FRObh James A- Schondebare SUBJECT: Agenda for July 1, 1987, 7:00p.~. Old Business (a) Landmark Preservation Law - set for public hearing (b) Alarm System, Police Department - set for public hearing (c) Perm£ts for Carnivals, Bazaars and Outside Exhibitions - passed and on the books , ~ . ~- (d) Shellfish Permits for Seniors over 62 - p'5'g~'ed/&,,d/6u L~¢_boo[ca ~ (e) Amend Section 100-30A(2) - delete "commercial" - set fpr public.hearing (f) Trustees and Long Island Sound - clarification needed (g) Political Signs - discussion continued (h) Beach Passes and Vendor Regulations - set ~or public hearing (x) Crab traps - set for public hearing New Business: (a) TDR's attached. g£ ~0 ~'~ 0~ om ,.~© © 4O