Douglass Township Berks County
City Zoning Code
City Zoning Code
PART 8
TRANSFER DEVELOPMENT RIGHTS TDR
§ 27-801 Purpose.
[Ord. 2013-01, 2/11/2013]
The primary purpose of establishing a program for transferable development rights (TDRs) is to permanently preserve prime farmland, sensitive natural areas, and scenic open spaces within designated areas of Douglass Township. Further, in lieu of developing such lands, landowners shall be permitted to convey their development rights to other persons or entities who are granted incentives hereunder to further development in designated receiving areas.
§ 27-802 Basic Concept and Authorization.
[Ord. 2013-01, 2/11/2013]
1.
The provisions of this Zoning Ordinance which permit TDRs allow landowners in areas of Douglass Township proposed for conservation, called "sending areas," to voluntarily sever and sell or otherwise convey the right to develop all, or a portion of their land to other public or private entities or individuals who may hold ("bank") such rights, retire them or, pursuant to this chapter, use them or convey them for use for additional development in areas of Douglass Township designated for TDR receipt. The creation of TDRs and the ability to sell and purchase them as described below are specifically authorized under §§ 603(c)(2.2) and 619.1 of the Pennsylvania Municipalities Planning Code, under the terms of which development rights are acknowledged to be severable and separately conveyable from a sending area to a receiving area.
A.
When landowners in the sending area sever their right to develop all or a portion of their land, they must restrict that portion of land from which TDRs are severed against any future development as provided in this chapter, although the land may still be used for purposes that do not involve residential, commercial, industrial or institutional development, such as open space, agriculture or forestry and uses customarily accessory thereto. When owners of sites eligible for TDR receipt acquire TDRs which have been severed by landowners in the sending area, they receive the right to increase the density or extent of development as provided below. The monetary value of TDRs is completely determined between the seller and buyer.
B.
Deed restrictions imposed on any lands in the sending area upon severance of TDRs shall not prohibit the landowner's sale of such lands after the TDRs have been severed, subject to the recorded restrictions. Restrictive covenant(s) or conservation easement(s) established on the lands from which TDRs have been severed shall benefit or run in favor of Douglass Township and/or another governmental entity and/or a conservation organization approved by the Township.
C.
The owner of the lands in the sending area from which TDRs are severed, or any subsequent party to whom TDRs may be conveyed, may declare the TDRs for sale, may hold the TDRs or may convey the TDRs to any other party. The only use which may be made of the TDRs is the ultimate transfer to development at eligible TDR receiving sites. Notwithstanding anything to the contrary, Douglass Township shall have no obligation of any kind to hold, to purchase or to own any TDRs which have been severed from any lands in the sending area.
§ 27-803 Severance and Sale or Conveyance of TDRs.
[Ord. 2013-01, 2/11/2013; as amended by Ord. 2013-05, 10/14/2013, § 1]
1.
Owners of any lands which meet the following requirements may sever and sell or convey their TDRs:
A.
Sending Area Qualifications.
B.
Calculation of TDRs.
(1)
The total number of TDRs available for severance from an eligible sending lot shall be determined by multiplying the Net TDR Area, as set forth below, measured in acres, by 0.33.
(2)
The net TDR area shall be established as the lot area LESS the following exclusions:
Calculation of Net TDR Area Exclusions from Lot Area | ||||
|---|---|---|---|---|
Features and Resources Present | Area of Resource (acres) | Exclusion Factor | Area to be excluded (acres) | |
a. | Existing street, utility, municipal or stormwater rights-or-way or easements | x 1.00 | ||
b. | Common open space or other lands restricted by easement or deed restriction from further development | x 1.00 | ||
c. | 100-year FEMA Floodplain | x 1.00 | ||
d. | Hydric Soils as defined in the Soil Survey of Berks County | x 0.30 | ||
e. | Soils in slope categories exceeding 25% | x 0.75 | ||
Total Area to be Excluded = Sum of a Through e = | ||||
(3)
Area falling into more than one exclusion category shall only be excluded once at the most restrictive applicable exclusion factor.
(4)
Land previously restricted against development by covenant, easement or deed restriction shall not be eligible for calculation of TDRs unless and until such time as said covenant, restriction or easement is dissolved or rescinded with agreement of all beneficiaries of such covenant, restriction or easement.
(5)
Where calculation of available TDRs results in fractional numbers, a fraction of 0.5 or higher shall be rounded up to the next whole number and a fraction of less than 0.5 shall be rounded down to the next lower whole number.
(6)
Any owner of eligible sending area lands may elect to request that the Township determine the number of TDRs that may be severed from lands owned within the sending area, based on application of the provisions of paragraph .B and pursuant to the following:
(a)
The landowner seeking Township calculation of available TDRs shall make application on a form provided by the Township.
(b)
The landowner shall provide a metes and bounds description of the sending lot or lots from which the TDRs may be severed and a plot plan or survey thereof, showing total acreage of the sending lot(s); areas of the sending lot(s) subject to easements in favor of governmental agencies, utilities and nonprofit corporations; and any area of the sending lot(s) restricted against development by covenant, easement or deed restriction.
C.
Endorsement of TDRs to Be Severed. Any owner of eligible sending area lands, wishing to sever available TDRs, prior to recording a deed of transferable development rights pursuant to paragraph .D below, shall request and receive written and signed endorsement of the rights to be severed by the Douglass Township Board of Supervisors. Such endorsement shall not be unreasonably withheld upon receipt by the Township of all information necessary for accurate determination of the validity of the proposed severance. The landowner seeking endorsement shall make written application on a form provided by the Township and shall additionally provide all of the following:
(1)
Where not previously submitted pursuant to paragraph .B(6) above, a metes and bounds description of the sending lot or lots from which the TDRs may be severed and a plot plan or survey thereof, showing total acreage of the sending lot(s); areas of the sending lot(s) subject to easements in favor of governmental agencies, utilities and nonprofit corporations; and any area of the sending lot(s) restricted against development by covenant, easement or deed restriction.
(2)
Documentation of calculation of available TDRs pursuant to paragraph .B above.
(3)
Where a landowner requests endorsement of severance of less than all of the TDRs which may be attributable to the sending lot(s), the portion of the sending lot(s) from which severance of TDRs is intended shall be clearly identified on a plan of the entirety of the sending lot(s), drawn to scale, the accuracy of which shall be satisfactory to the Township. Such plan shall also include a notation of:
(4)
A title search of the sending lot(s) from which the TDRs will be severed sufficient to determine all owners of the sending lot(s) and all lienholders prepared by a title insurance company licensed in the Commonwealth of Pennsylvania, together with a commitment to insure title to the TDRs or prepared and certified by an attorney licensed by the Commonwealth of Pennsylvania.
(5)
A copy of the proposed deed of transferable development rights and a copy of the proposed declaration of restriction of development, as regulated by this Part.
D.
Severance of TDRs.
(1)
Severance of TDRs shall be effected by duly recording a deed of transferable development rights in the Office of the Berks County Recorder of Deeds. The deed of transferable development rights shall specify the lot or lots from which TDRs have been severed and the party(ies) who own the TDRs upon their severance, whether retained by the owner(s) of the lands from which the rights have been severed, or conveyed to any other party.
(2)
Simultaneously with the recording of any deed of transferable development rights, or prior thereto, restrictive covenant(s) or conservation easement(s), which shall permanently restrict development of the sending area lands as provided in paragraph .E below, also shall be recorded in the Office of the Berks County Recorder of Deeds. Subsequent sale or conveyance of any recorded deed of transferable development rights shall clearly indicate the deed record of the pertinent restrictive covenant(s) or conservation easement(s) and shall be in form and substance satisfactory to the Township Solicitor.
(3)
Notwithstanding anything to the contrary, the Township shall have no duty to recognize any deed of transferable development rights for any purpose and shall not credit, enhance, or increase density or development capability of any land within designated receiving districts based on any deed of transferable development rights that does not contain the signed endorsement of the Township. The Township may, in its discretion, request an update of the title search required by paragraph .C(4) above if there has been a delay in presentation of the deed of transferable development rights for recordation after prior endorsement of the number of TDRs to be severed from the applicable lot(s) in the sending area pursuant to paragraph .D above.
(4)
Subsequent sale or conveyance of any recorded deed of transferable development rights or portion thereof shall clearly indicate the deed record of the original deed of transferable development rights effecting the severance of the TDRs and any intervening sale or conveyance.
E.
Sending Area Restrictive Covenant(s). Any sending area lands from which TDRs have been severed must be permanently restricted from future development by restrictive covenant(s) or conservation easement(s) which meet the following requirements:
(1)
The restrictive covenant(s) or conservation easement(s) shall permanently restrict the lands from future development for any purpose other than principal or accessory agricultural uses, forestry, public park or recreational lands, conservation areas and similar uses. Structural development for such permitted uses shall be permitted subject to compliance with the regulations set forth in the base zoning district and, if applicable, conformance with any pre-existing restrictive covenant(s) or easement(s).
(2)
The restrictive covenant(s) or conservation easement(s) shall be approved by Douglass Township, in consultation with the Township Solicitor.
(3)
The restrictive covenant(s) or conservation easement(s) shall designate Douglass Township, and/or a bona fide conservation organization or governmental agency acceptable to Douglass Township at its sole discretion, as the beneficiary/grantee.
(4)
The restrictive covenant(s) or conservation easement(s) shall apply to the lot or lots from which TDRs are severed (sending area lands) and the acreage which is restricted.
(5)
All owners of any legal or beneficial interest in the lands from which TDRs are severed shall execute the restrictive covenant(s) or conservation easement(s). All lienholders of the lands from which TDRs are severed shall execute a joinder and/or consent to the restrictive covenant(s) or conservation easement(s).
§ 27-804 TDR Receiving Area Qualifications and Calculations.
[Ord. 2013-01, 2/11/2013]
1.
TDRs may be utilized to enhance development opportunities in accordance with specific TDR receiving opportunities within the RR (those portions of the RR District as identified by an overlay on the Official Zoning Map), RS, SD, VC, HC, LI and GI Zoning Districts in accordance with the following. Development not utilizing receipt of TDRs within said zoning districts shall be limited to the extent provided in the applicable base zoning district(s). Permitted uses, design standards, development approval procedures and other applicable provisions shall be as set forth for the respective zoning districts, except where otherwise specifically provided herein.
A.
Age-Restricted Residential Development. Where approved as a conditional use, age-restricted residential development shall be permitted in any zoning district except the RC, LI and GI Districts in accordance with the standards set forth in § 27-767, notwithstanding the otherwise applicable limitation set forth therein to such development only in the RS District and in accordance with the following:
(1)
Except as provided in paragraph .A(6) below, in any permitted district other than the RS District, a minimum of 20 TDRs shall be received as a condition of utilization of this development option. The 20 TDRs meeting this qualifying condition may be used to earn increased density or increased building or impervious coverage. In the RS District, no such qualifying condition shall apply.
(2)
Conditional use approval shall only be granted where extension of public sewer and water services, if necessary, is approved at the sole discretion of the Township.
(3)
Except as provided in paragraph .A(6) below, where the density exceeds three dwelling units per acre, including in the RS District, additional units may be accommodated through receipt of one TDR per each two age-restricted dwelling units above the number that would be accommodated by the base density limitation of three units per acre, up to a maximum total density of four units per acre.
(4)
Maximum building coverage may be increased above a base maximum of 20% to a maximum of 30% in accordance with paragraph .F, below.
(5)
Maximum impervious coverage may be increased above a base maximum of 30% to a maximum of 45% in accordance with paragraph .F, below.
(6)
Apartments. In any district, including the RS District, where a minimum of 30 TDRs are received, age-restricted residential development may include apartment dwellings in addition to or instead of single-family detached, single-family semi-detached or single-family attached dwellings, subject to the following:
(a)
Where at least 25% of the dwellings in the age-restricted Residential Development are apartments, the maximum total density may be increased to six dwelling units per acre.
(b)
As set forth in paragraph .A(3) above, density above three dwelling units per acre shall be accommodated through receipt of TDRs, except that age-restricted apartment dwellings units may be accommodated through receipt of one TDR per each three apartment dwellings.
(c)
Where apartment dwellings are provided, the maximum building height may be increased above a base maximum of 30 feet to a maximum of 50 feet in accordance with paragraph .F, below.
B.
Conventional Development of Single-Family Dwellings. Conventional lot by lot development of single-family dwellings may occur at enhanced density in the RR and RS districts where public or community sewerage and public water service is provided and where a minimum of five TDRs are received as follows:
(1)
The minimum individual lot size may be decreased to 20,000 square feet in the RR District and 15,000 square feet in the RS District.
(2)
For each single-family dwelling developed in addition to the number of dwellings that could have been developed at the minimum lot size stipulated in the base RR or RS District, as applicable, one TDR shall be received. TDRs received for additional dwelling units may be used to meet the five TDR qualifying condition for this development option.
(3)
The applicant shall submit a sketch plan satisfactory to the Township demonstrating the number of single family dwellings that could have been developed had the minimum lot size remained as stipulated in the base RR or RS District, as applicable.
(4)
All area, bulk and design standards otherwise applicable in the subject zoning district shall apply with the exception of lot width which shall be reduced to a minimum of 80 feet in line with the lot size reductions specified above.
C.
Cluster Development of Single-Family Dwellings. Cluster development of single-family dwellings may occur at enhanced density in the RR and RS Districts where public or community sewerage and public water service is provided and where a minimum of five TDRs are received as follows:
(1)
The overall density of the development shall be no greater than that which would be permitted for conventional development.
(2)
For each single family dwelling developed in addition to the number of dwellings that could have been developed in a conventional subdivision with a minimum lot size as stipulated in the base RR or RS District, as applicable, one TDR shall be received. TDRs received for additional dwelling units may be used to meet the five TDR qualifying condition for this development option.
(3)
The applicant shall submit sketch plans satisfactory to the Township demonstrating the number of single family dwellings that could have been developed in conventional subdivisions:
(a)
With a minimum lot size as stipulated in the base RR or RS District, as applicable.
(b)
With a minimum lot size of 20,000 square feet in the RR District and 15,000 square feet in the RS District. The difference between the number of units permitted under the two plans shall be the maximum increment of additional dwellings that may be developed through receipt of TDRs.
D.
Development of Multi-family Dwellings. Multi-family development as permitted in accordance with § 27-730 may occur in the RS District with enhanced density, and in the RR District, subject to conditional use approval and upon receipt of TDRs as follows:
(1)
The overall density of development for apartments may increase from the base maximum density of four dwelling units per acre to a maximum of six units per acre, subject to receipt of TDRs as provided below.
(2)
The overall density of development for townhouses may increase from the base maximum density of three dwelling units per acre to a maximum of 4 1/2 dwelling units per acre, subject to receipt of TDRs as provided below.
(3)
The incremental increase in density above the base maximum density shall be justified by receipt of TDRs at a rate of 2.5 apartments per TDR received and 1.5 townhouses per TDR received.
E.
Development of Multiple Principal Uses. In the VC, HC, LI and GI Districts, development of more than one principal use on a single lot, where provided in the applicable district, shall be permitted where one TDR is received for each principal use beyond the first. Apartments above commercial or office space, where permitted in any district, shall not require receipt of additional TDRs, except where additional building height is needed to accommodate them as provided below.
F.
Development with Increased Coverage or Height. Increased building coverage, impervious coverage and building height shall be permitted in the VC, HC, LI and GI Districts and wherever development of age-restricted residential development is permitted, subject to the following:
(1)
Each TDR received may be used for incremental increase, in permitted building coverage or impervious coverage or height, each measured separately and received TDRs applied separately.
(2)
One received TDR shall permit up to 3,000 square feet of additional building coverage or 5,000 square feet of additional impervious coverage or 3,000 square feet of building footprint exceeding the base height limit. Additional square footage less than the 3,000 or 5,000 square feet allowance, as applicable, will nevertheless require one received TDR.
(3)
The following table indicates the base level of coverage or height permitted without receipt of TDRs and the maximum level permitted with receipt of TDRs. The increment to be utilized above the base must be justified through receipt of an appropriate number of TDRs.
Zoning District | VC | HC | LI | GI | AR* |
|---|---|---|---|---|---|
Base Building Coverage Permitted (%) | 20 | 30 | 30 | 30 | 25 |
Max. Building Coverage Permitted (%) | 40 | 50 | 50 | 50 | 30 |
Base Impervious Coverage Permitted (%) | 40 | 50 | 50 | 50 | 35 |
Max. Impervious Coverage Permitted (%) | 60 | 80 | 75 | 75 | 45 |
Base Building Height Permitted (feet) | 35 | 35 | 35 | 35 | 30 |
Max. Building Height Permitted (feet) | 45 | 50 | 60 | 60 | 50 |
*AR = Age-Restricted Residential Development in any district where permitted. | |||||
G.
Final plan approval for any land development or, where applicable, any building permit(s) shall be conditioned upon demonstration of receipt of sufficient TDRs recorded in a deed of transferable development rights pursuant to this chapter.
§ 27-805 Plan Submittal Process for Receiving Development.
[Ord. 2013-01, 2/11/2013]
1.
All applicants for use of TDRs shall submit applicable subdivision/land development plans and/or building permit applications as required by Douglass Township for the use requiring TDR receipt. Any and all plans and proposals for the use of TDR receipt shall, in addition to meeting all other applicable provisions, include submission of the following:
A.
Note(s) on the plan indicating:
(1)
The total density in number of dwelling units, and the total square footage of building or impervious coverage, as applicable, permitted without receipt of TDRs.
(2)
The total density in number of dwelling units, and the total square footage of building or impervious coverage, as applicable, proposed with receipt of TDRs.
(3)
The incremental difference in each applicable case between the values claimed for #a and those indicated for #b.
(4)
Where applicable, the total square footage of any portion of a proposed building footprint where the building(s) exceed the applicable base permitted height.
(5)
The number of principal uses.
(6)
The total number of TDRs required to be received.
B.
A deed of transferable development rights or an agreement of sale for TDRs proposed to be purchased from sending area site(s). The applicant must prove ownership or equitable ownership of the appropriate number of TDRs to justify the proposed density, building or lot coverage, building height, or number of principal uses, as applicable.
C.
A title search sufficient to determine the validity of the deed of transferable development rights or that the lot(s) from which TDRs will be transferred is/are eligible to sever the TDRs as proposed and to determine if any other owners or lienholders may have an interest in the TDRs.
2.
In order to receive final plan approval, the applicant must demonstrate ownership of sufficient TDRs and provide documentation that appropriate restrictive covenants have been or are simultaneously being recorded for all sending area lands from which TDRs have been or are simultaneously being severed and recorded in a deed of transferable development rights and being used by the applicant. These restrictive covenants must meet all requirements of this chapter. In lieu of presentation of proof of recording of the restrictive covenants, the fully executed declaration containing the restrictive covenants may be presented to the township when the deed of TDR is presented for endorsement, and the Township, at the applicant's expense, shall record both documents.
§ 27-806 Extinguishment of TDRs.
[Ord. 2013-01, 2/11/2013]
As a condition of final plan approval of any plan using TDRs, the deed or deeds of transferable development rights for the TDRs which have been used will be extinguished where all TDRs have been utilized or, where less than the entirety of TDRs have been utilized, the deed of transferable development rights shall be amended and re-recorded to specify the number of TDRs which have been extinguished and any number of TDRs which remain available for future use.
§ 27-807 Public Acquisition of TDRs.
[Ord. 2013-01, 2/11/2013]
Douglass Township may purchase TDRs and may accept ownership of TDRs through conveyance by gift. All such TDRs may be held, resold, or extinguished by Douglass Township. Any such purchase or gift shall be accompanied by restrictive covenant(s) or conservation easement(s) as specified in § 27-803, Subsection 1E.
§ 27-808 Conveyance of TDRs to Conservation Organizations.
[Ord. 2013-01, 2/11/2013]
TDRs may be conveyed to an organization which possesses a tax exempt status under § 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3)) and which has as its primary purpose the conservation of land for historic, scenic, agricultural or open space purposes, or to the Berks County Agricultural Preserve Board.
§ 27-809 Amendment and/or Termination.
[Ord. 2013-01, 2/11/2013]
Douglass Township reserves the right to modify, amend, and/or repeal any of the provisions of this chapter regarding TDRs at any time in the future. The Township expressly reserves the right to modify the manner in which the number of TDRs shall be calculated in the sending area and the manner in which TDRs may be conveyed and used on applicable TDR receiving sites. Douglass Township further expressly reserves the right to terminate its TDR program at any time. No owner of the land or owner of TDRs shall have any claim against Douglass Township for damages resulting from a change in this chapter relating to the regulations governing the calculation, conveyance and use of TDRs or the termination of the TDR program.