Charles County Unincorporated
City Zoning Code
City Zoning Code
ARTICLE XVII
Transferable Development Rights TDRs in Designated Agricultural Land Preservation Districts
[Amended 12-7-1993 by Ord. No. 93-100; 11-21-1994 by Ord. No. 94-100; 8-26-1996 by Ord. No. 96-74]
§ 297-277 Introduction.
The purpose of this article is to encourage the protection of farmland and farming resources by allowing the transfer of development potential from a site in an agricultural area having a resource deserving protection to one in a residential receiving zone within a development area. Transfer of development rights (TDRs) will further the community interest by providing long-term protection of land in County- and state-designated Agricultural Land Preservation Districts. This article also supplements the Maryland Agricultural Land Preservation Foundation easement purchase program by providing an alternative to easement purchase by the state. This voluntary program furthers the objectives of the Comprehensive Plan.
§ 297-278 Definitions.
In addition to the definitions contained in Article III, Definitions, as used in this article, the following words shall have the meanings indicated:
AGRICULTURAL PRESERVATION ADVISORY BOARD OF CHARLES COUNTY
A five-member Board appointed by the County Commissioners with the duties and responsibilities as specified in the public local law and these regulations.
AGRICULTURAL LAND PRESERVATION DISTRICT
A recorded section of prime agricultural or forestry land that is voluntarily enrolled in the Maryland Agricultural Land Preservation District Program by the owner of the property with a recommendation of approval of such a petition for district establishment by the County Preservation Advisory Board, County Planning Commission and County Commissioners.
DEVELOPMENT OPTION
The portion of a development right which attaches to one acre of land in an Agricultural Land Preservation District. (Example: a one-hundred-acre parcel would have 100 development options.)
DEVELOPMENT RIGHT
The right that a landowner has to develop his or her property residentially. These rights may then be conveyed to increase the density of residential land use in designated receiving zones. Three development options constitute one development right.
INSTRUMENT OF TRANSFER
The form required by this section by which one or more development rights are transferred.
ORIGINAL INSTRUMENT OF TRANSFER
An instrument of transfer by which development rights are initially transferred from a designated sending area by the original transferor.
ORIGINAL TRANSFEROR
A person (transferor) who is the owner of the sending parcel from which the development rights are being transferred along with all persons who have a mortgage, deed of trust or other lien or encumbrance on the transferor parcel.
RECEIVING PARCEL or RECEIVING ZONE
A lot or parcel of land that has been designated as the development district in the Comprehensive Plan, is located in a zone in which the use of TDRs is authorized by this chapter (RL, RM, RH, CER, CRR, CMR, AUC, WC) and is located in a cluster development in the RL, RM or RH Zones, a duplex, touwnhouse, or multifamily development, or in a PRD, TOD or MX Zone as set forth in Article VII; or in the CER, CRR, CMR, AUC or WC Zones.
[Amended 10-25-1999 by Ord. No. 99-92; 3-1-1999 by Ord. No. 90-16; 7-25-2005 by Bill No. 2005-01; 4-13-2010 by Bill No. 2010-02; 9-21-2021 by Bill No. 2021-02]
SENDING PARCEL or SENDING ZONE
A parcel of land in an Agricultural Land Preservation District described in Chapter 215 of the County Code and which has been recorded in the County Courthouse from which development rights are transferred.
TRANSFER OF DEVELOPMENT RIGHT
An interest in real property that constitutes the right to develop and use the property under this chapter which is made severable from the parcel to which the interest is appurtenant and transferable to another parcel of land for development and use in accordance with this chapter.
TRANSFER
The transfer of development rights from a sending parcel to a receiving parcel is done by instrument(s) of transfer. A transfer can include any intermediate transfers to or among a transferee or directly from the transferor to a transferee. The word is used both as noun and a verb and, in the latter case, includes any tense of the verb.
TRANSFEREE
A person to whom development rights are transferred and all persons who have any lien, security interest or other interest with respect to development rights held by the transferee.
TRANSFEROR
A person who transfers development rights from an Agricultural Land Preservation District along with all persons who have any lien, security interest or other interest with respect to development rights held by the transferor.
§ 297-279 TDR sending areas; properties assigned transferable development rights.
A.
Properties assigned TDRs. TDR sending areas are all those properties that are enrolled in the Maryland Agricultural Land Preservation Program and have been recorded in the Charles County Land Records. Every parcel of land located in a sending area has a specific number of TDRs based on the allocation standards in the following subsection. These TDRs may be used to obtain approval for development on other lands located in a TDR receiving area, identified in § 297-284 below, at a density greater than would otherwise be allowed on those lands.
B.
Allocation formula.
(1)
The number of transferable development rights attached to a particular property located in a TDR sending area shall be equal to one development right per three acres.
(2)
One development option shall be allocated per acre of land in an Agricultural Preservation District and three development options shall equal one development right, except that three development options shall be subtracted for each residence located on a parcel in an Agricultural Preservation District which exists prior to the effective date of this chapter or is built on the property after the effective date of this chapter. However, where there is no existing dwelling unit on the Agricultural Land Preservation District property, the owner has the option of using three development options for future use for construction of a primary farm residence, but those development options will be subtracted prior to the development rights becoming certified. The total number of certified development rights will be indicated on the certificate of development rights. Construction of a residence must conform to all the requirements of Subsection C below.
(3)
No development options or rights shall be granted on land which previously has been subjected to recorded restrictive development covenants or indentures which preclude the subdivision and/or residential development of the land.
(4)
The owner of any parcel located in a TDR sending area may apply to the Zoning Officer for a certificate verifying the number of TDRs or options which are allocated to that parcel.
(5)
Fractions of development rights. Where application of the allocation formula results in the creation of a fraction of a TDR, e.g., one or two development options, such fraction of a development right, known as a "development option," may be sold, conveyed or transferred to another party to the same extent as a whole TDR.
C.
Construction of a dwelling on a property with certified development rights. If three development options have been withheld at the time of certification of the development rights and no primary residence exists on the property, then the landowner may construct a dwelling subject to approval by the Charles County Agricultural Land Preservation Advisory Board, local planning and zoning approval, and approval by the Maryland Agricultural Land Preservation Foundation.
§ 297-280 Ability to transfer development rights.
A.
The owner of any parcel of land located in a TDR sending area may transfer the development rights or options allocated to that parcel to any person at any time, to the same extent and in the same manner as any other interest in real property is transferred.
B.
Limitations. A development right may not be used in the following manner:
(1)
To increase the density of a receiving parcel unless such right is derived from a portion of a sending parcel which is in an approved Agricultural Land Preservation District; or
(2)
To increase density within the RL, RM, or RH Zones unless the form of development proposed using such right(s) meets the standards for cluster subdivision as outlined in Article XIV or a planned development as outlined in Article VII of this chapter.
[Amended 3-1-1999 by Ord. No. 99-16]
C.
Intermediate transfer. A development right may be transferred to a transferee prior to the time when its use for a specific receiving parcel has been finally approved in accordance with this article. At the time of the County approval of the intermediate transfer, a title report needs to be submitted.
§ 297-281 Certificate of development options or rights.
A.
Requirement. No transfer shall be recognized under this article unless the original instrument of transfer contains a certificate of development options issued by the Zoning Officer indicating that the number of development rights or options represents the number of development rights applicable to the sending parcel and is recorded by the Zoning Officer.
B.
Responsibility. The transferor and the transferee named in an original instrument of transfer shall have sole responsibility to supply all information required by this article; to provide a proper original instrument of transfer; and to pay, in addition to any other fees required by this article, all costs of its recordation among the land records of Charles County.
C.
Application for certificate. An application for a certificate shall contain such information, prescribed by the Zoning Officer, as may be necessary to determine the number of development rights involved in the proposed transfer. An application shall contain such information as deemed necessary to verify parcel size as a basis for certifying the number of development options and, at a minimum, shall require submission of a plat of the proposed sending parcel, prepared by a registered land surveyor on the basis of an actual on-site survey and/or deed or deeds that describe in detail the acreage contained in the said property along with a title search for the sending parcel and shall be accompanied by such review fee as may be prescribed by the County Commissioners. A metes and bounds survey, for certification of development rights, shall only be required to be presented by the landowner when:
(1)
The deed/deeds for the property in the designated sending area requesting to have their development rights certified by the Charles County Zoning Officer fail to specifically indicate numerically the number of acres contained in the sending parcel; or
(2)
During the initial title search there is some conflict between said acreage in the deed/deeds and the Charles County Tax Assessor's office and the landowner wants to claim the larger of the two figures.
D.
Issuance of certificate. On the basis of the information submitted, the Zoning Officer shall affix a certificate of his findings to the original instrument of transfer. The certificate shall contain a specific statement of the number of development rights which are derived from the sending parcel.
E.
Effect of determination. The determination of the Planning Director shall not be construed to enlarge or otherwise affect in any manner the nature, character and effect of a transfer.
§ 297-282 Instrument of transfer.
A.
An instrument of transfer shall conform to the requirements of this section. An instrument of transfer, other than an original instrument of transfer, need not contain a metes and bounds description or plat of sending parcel.
B.
Any instrument of transfer shall contain:
(1)
The names of the transferor and the transferee;
(2)
A current title search.
(3)
A covenant that the transferor grants and assigns to the transferee and the transferee's heirs, personal representatives, successors and assigns a specified number of development rights or development options from the sending parcel.
(4)
A covenant by which the transferor acknowledges that he has no further use or right of use with respect to the development rights or options being transferred, unless those development rights or options are repurchased. The sale of any TDR immediately encumbers the entire property certified for TDRs and prohibits any additional residential dwellings other than allowed by § 297-279B(2) or subdivision for residential purposes.
(5)
A statement of the rights of the transferee prior to final approval of the use of those development rights on a specific receiving parcel, as set forth in § 297-283, except when development rights or options are being transferred to the Board of County Commissioners in accordance with this article.
(6)
A covenant that at the time when any development rights or options involved in the transfer are finally approved for use on a specific receiving parcel, such rights or options shall be transferred to the County Commissioners for no consideration; or, in cases when development rights are being transferred to the County Commissioners after such approval, a covenant that the rights are being transferred to the County Commissioners for no consideration.
C.
An instrument of original transfer, which is required when a development option or right is initially separated from the subject property, shall also contain:
(1)
A metes and bounds description of the sending parcel, prepared by a licensed surveyor named in the instrument or a deed or deeds that describe in detail the acreage contained in said property along with a title search for the sending parcel and shall be accompanied by such review fee as may be prescribed by the County Commissioners. A metes and bounds survey for certification shall only be required to be submitted by the landowner when:
(a)
The deed/deeds for the property in the designated sending area requesting to have their development rights certified by the Charles County Zoning Officer fail to specifically indicate numerically the number of acres contained in the sending parcel; or
(b)
During the initial title search, there is some conflict between said acreage in the deed/deeds and the Charles County Tax Assessor's Office and the landowner wants to claim the larger of the two figures.
(2)
A covenant that the entire sending parcel may not be subdivided unless the subdivision is for agricultural purposes [per the Maryland Agricultural Land Preservation Foundation's Regulations on Agricultural Subdivisions, Article 15-1501-05-(N)(8), Code of Maryland Regulations]. However, when an agricultural subdivision is being requested by the landowner whose development rights have been certified by the Charles County Zoning Officer, such a proposal must be reviewed by the local Agricultural Land Preservation Advisory Board and recommended to the Planning Commission for approval or denial. Final approval of such a subdivision is subject to Planning Commission action.
(3)
A covenant by which the use of the sending parcel is restricted to and may be used only for agricultural uses as permitted by the Code of Maryland Regulations Subtitle 15-1501-03A(B.ii).
(4)
A covenant that all provisions of the instrument of transfer shall run with and bind the sending parcel and may be enforced by the County Commissioners.
(5)
The certificate of the Zoning Officer required by § 297-281.
(6)
Intermediate transfers. If the instrument is not an instrument of original transfer, a statement shall appear that the transfer is an intermediate transfer of rights derived from a sending parcel described in an original instrument of transfer, which original instrument shall be identified by its date, the names of the original transferor and transferee and the book and page where it is recorded among the land records of Charles County.
D.
Recordation of transfer. After it is properly executed, any instrument of transfer and a title search shall be delivered to the Zoning Officer, who shall deliver it to the Clerk of the Circuit Court for Charles County, together with the required fees for recording furnished by the original transferor and transferee. The Zoning Officer shall immediately notify the original transferor and transferee, in writing, of such recording.
§ 297-283 Effect of transfer.
A.
After development rights have been transferred by an original instrument of transfer:
(1)
The sending parcel from which development rights or options are transferred shall be used only for oil and natural gas extraction and/or agricultural uses, other than farm residences, as defined and permitted in this chapter, or as permitted by the Maryland Agricultural Land Preservation Foundation, whichever is more restrictive.
(2)
The sending parcel from which development rights or options are transferred shall not be subdivided, except for agricultural purposes (per the Maryland Agricultural Land Preservation Foundation's policy regarding agricultural subdivisions found in Article 15-1501-05-P3biii, Code of Maryland Regulations). However, when an agricultural subdivision is being requested by the landowner whose development rights have been certified by the Charles County Zoning Officer, such a proposal must be reviewed by the local agricultural land preservation advisory board and recommended to the Planning Commission for approval or denial. Final approval of such a subdivision is subject to Planning Commission action.
(3)
The sending parcel from which development rights are transferred shall not be used in connection with any determination of site area or site capacity of a future development.
(4)
All development rights which are the subject of the transfer, and the value of such rights, shall be deemed for all other purposes, including assessment and taxation, to be appurtenant to the sending parcel, until such rights have been finally approved for use on a specific receiving parcel and transferred to the County Commissioners.
(5)
Upon the transfer of the first development right, the entire sending parcel shall be encumbered.
B.
Rights of transferee. Between the time of the transfer of a development right by an original transferor and the time when its use on a specific receiving parcel is final in accordance with the provisions of this section, a transferee has only the right to use the development right to the extent authorized by all applicable provisions of this chapter. No transfer shall be construed to limit or affect the power of the County Commissioners to amend, supplement or repeal any or all of the provisions of this or any other article of this chapter at any time or to entitle any transferor or transferee to damages or compensation of any kind as the result of any such amendment, supplementation or repeal.
C.
Rights of transferor. An owner of land in a TDR sending area on which development rights have been transferred may repurchase those rights, provided:
(1)
The number of transferable development rights or options repurchased shall not exceed the number transferred from those originally assigned to the parcel prior to their sale.
(2)
Such rights, when repurchased, are purchased from sites which are located in an eligible sending zone.
(3)
Subsequent rights having been repurchased, the total number of development rights on the parcel shall not exceed the number of rights initially assigned to the property as documented by the certificate of development options issued prior to the initial transfer by the Zoning Administrator. Three development options or one development right shall be subtracted from the number of development rights originally assigned the parcel through the certificate of development options for each residence constructed after the date of issuance of the certificate of development options in determining compliance with this provision.
(4)
Action by an owner of land in an eligible sending zone to repurchase development rights formerly transferred shall be subject to the same procedural and recordation requirements outlined in §§ 297-284 through 297-285 of this article as are applicable to all other transfers.
(5)
The covenants recorded with the original instrument of transfer shall be terminated upon the owner demonstrating proof of ownership as set forth in § 297-285B. The proof of ownership shall be for an equivalent number of options that were originally sold from the property. Upon satisfactory proof of ownership, the owner shall execute an instrument terminating the covenants on the land from which development rights were previously transferred.
§ 297-284 TDR receiving area; use of transferable development rights.
A.
Creation and purpose of TDR receiving area; ability to use TDRs.
(1)
There is hereby created a TDR receiving area which shall be limited to properties located in the RL, RM, RH, MX, TOD, PRD, CER, CRR, CMR, AUC and WC Zones. With the exception of the CER, CRR, CMR, AUC and WC Zones, a TDR in the above residential zones shall only be used when the development conforms to standards for cluster or planned development contained in this chapter.
[Amended 10-25-1999 by Ord. No. 99-92; 3-1-1999 by Ord. No. 99-16; 7-25-2005 by Bill No. 2005-01; 4-13-2010 by Bill No. 2010-02]
(2)
The owner of any property located in a TDR receiving area may use transferable development rights, in addition to that density allowed on the property as a matter of right, to build up to the maximum density of development allowed on the property. TDRs and any fractions thereof in the form of development options may be aggregated from different parcels and owners for use in securing additional development in a TDR receiving area.
B.
Development permitted with use of TDRs. Each TDR may be used to secure approval from the County for additional development above the number of dwelling units otherwise allowed to be developed on the property, provided that the total development on the property does not exceed the limits set forth in this chapter.
§ 297-285 Approval of development using transferable development rights.
A.
Development approval procedure. The request to use TDRs on a property shall be in the form of a preliminary subdivision plat, a site plan or other application submitted in accordance with the requirements of this chapter. In addition to any other information required by this chapter, the application shall be accompanied by an affidavit of intent to transfer development rights indicating the number of development rights to be transferred to the property.
B.
Proof of ownership of TDRs and proof of deed restriction. No final plat shall be approved and no zoning permits shall be issued for development involving the use of TDRs until and unless the applicant has demonstrated to the County that:
(1)
The applicant is the bona fide owner of all TDRs which will be used or redeemed for the construction of additional dwellings or the creation of additional lots;
(2)
A deed of transfer for each TDR has been recorded in the chain of title of the parcel of land from which the development right has been transferred and that such instrument restricts the use of that parcel in accordance with this article; and
(3)
The TDRs proposed for the development have not previously been used. Proof must be shown via submission of a current title search.
C.
Preliminary approvals. The County may grant preliminary subdivision or site plan approval for the proposed development conditioned upon such proof being presented to the County as a prerequisite to final subdivision or site plan approval.
§ 297-286 Final approval of use.
Transfer from a sending parcel to a receiving parcel is final at the time when final subdivision approval or final site plan approval for the receiving parcel, based upon use of development rights, has been given in accordance with this chapter.