Honey Brook Township
City Zoning Code
City Zoning Code
PART 7
TRANSFERABLE DEVELOPMENT RIGHTS
§ 27-701 Statement of Intent.
[Ord. No. 196-2018, 9/12/2018]
In accordance with the planning goals of the Honey Brook Township and Borough Multi-Municipal Comprehensive Plan and the purpose statements and community development objectives set forth in Article I of this Chapter, this Part establishes a Transferable Development Rights (TDR) Program for Honey Brook Township. The regulations set forth herein are intended to achieve the following specific purposes:
A.
To support the agricultural, watershed protection, and urban revitalization goals of the Multi-Municipal Comprehensive Plan;
B.
To provide landowners in agricultural and natural resource areas of the Township with an opportunity to permanently preserve that land and the rural community character through the conveyance of TDRs;
C.
To provide landowners and developers in areas where growth is planned in the Township to develop at higher densities or intensities through the use of TDRs; and
D.
To provide landowners and developers in areas where growth is planned in Honey Brook Borough and/or Honey Brook Township to develop at higher densities or intensities through the use of TDRs originating in Honey Brook Township through the terms of the Honey Brook Township and Borough Agreement for Inter-Municipal Transfer of Development Rights.
§ 27-702 Authorization and Concept.
[Ord. No. 196-2018, 9/12/2018]
A.
The provisions of this Part which permit TDRs allow landowners in areas of Honey Brook 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 public or private entities or individuals who may hold ("bank") such rights, retire them or, pursuant to this Chapter and the Zoning Ordinance of Honey Brook Borough, use them or convey them for use for additional development in areas of Honey Brook Township and/or Honey Brook Borough designated as receiving areas. 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.
B.
In general, where a tract of land in the A — Agricultural District or RC — Resource Conservation District has been allocated TDRs in accordance with the terms of this Zoning Ordinance, the owner of such tract may, upon receiving certification of said TDRs by the Honey Brook Township Board of Supervisors, sever some or all of the development rights and thereupon offer them for sale or retain them. The only subsequent use to which the severed development rights may be put is in conjunction with the development of a tract in the Township's or Borough's receiving areas.
C.
Where some or all development rights allocated to a property in Honey Brook Township's A — Agricultural District or RC — Rural Conservation District are severed, that property, or a portion thereof, is made subject to a conservation easement permanently limiting the use of such land to agriculture, agriculturally related uses, or open space uses, consistent with the terms of the Honey Brook Township Zoning Ordinance.
D.
The conservation easement placed on the land from which development rights are severed will permit the subsequent sale of land, subject to the terms of the conservation easement. The conservation easement shall be granted to the Township or to a public agency, conservation organization, or agricultural preservation organization approved by the Board of Supervisors.
E.
Any transfer of development rights between Honey Brook Township and Honey Brook Borough shall only be permitted if the Township and Borough execute an agreement for intermunicipal transfer of development rights, and any such intermunicipal transfer shall be subject to the terms of such agreement.
§ 27-703 Severance and Sale of Transferable Development Rights.
[Ord. No. 196-2018, 9/12/2018]
Transferable development rights may be severed from the land and may be sold in accordance with the following terms:
A.
Sending Area Qualifications.
(1)
The sending area tract of land shall be located within the A — Agricultural District, or the RC — Rural Conservation District, as designated under the terms of this Chapter.
(2)
Development rights shall be allocated only to sending area tracts with a gross tract area of 10 acres or greater within the A — Agricultural District.
(3)
The sending area lot or lots from which TDRs are to be severed within RC — Resource Conservation District shall comprise a minimum gross lot area of 10 acres, except for preexisting lots of record as of the date of this Part containing less than 10 acres in area, which lots shall be eligible for TDR severance in accord with § 27-703C below.
B.
Calculation of Transferable Development Rights within the A — Agricultural District.
(1)
The total number of development rights available on a sending area tract located within the A — Agricultural District at the time of enactment of this Part shall be determined by the following sequence of steps:
(a)
Determine the gross lot area of the sending tract.
(b)
Where the tract contains any of the following features, the area comprising such feature or features shall be deducted from the gross lot area of the sending tract:
[1]
Any area lying within the Flood Hazard District and regulated by § 27-802.
[2]
Any area of prohibitive slope regulated by the Steep Slope Conservation District of § 27-804.
[Amended by Ord. No. 197-2019, 7/10/2019]
[3]
Any area regulated by the Riparian Corridor Conservation District of § 27-805.
[Amended by Ord. No. 197-2019, 7/10/2019]
[4]
Any area designated as a wetland, lake, or pond, except where such area already is excluded by another feature category above.
(c)
Where the tract contains a dwelling unit or units in existence at the time of calculation, deduct two acres of gross tract area for each dwelling unit.
(d)
Deduct the actual area of the tract occupied by any other non-farm development use, exclusive of any permitted rural occupation use. Such area shall include the footprint of the building or activity area, as well as any property line setback areas or separation distances that would be imposed by this Chapter if the use were located on its own separate lot.
(e)
Deduct any portion of the tract that is restricted against development by covenant, easement, or deed restriction.
(f)
Multiply the gross lot area of the sending tract, as reduced by the applicable deductions in Subsection B(1)(b) through B(1)(e) above, by 0.54. This product shall be the total number of development rights allocated to the tract.
C.
Calculation of Transferable Development Rights within the RC — Resource Conservation District.
(1)
The total number of TDRs available for severance from a sending area tract within the RC — Resource Conservation District with at least 10 acres of gross lot area at the time of enactment of this Part shall be determined by applying the same formula outlined for the A — Agriculture district in § 27-703B(1) above, except that the multiplier in Subsection 27-703B(1)(f) shall be 0.40 for the RC — Resource Conservation District.
(2)
Preexisting legal lots of record containing less than 10 acres in area as of the date of enactment of this Part shall be allocated TDRs on the following basis:
(a)
All lots with gross lot area of five acres or less, with no dwelling equals one TDR;
(b)
All lots with gross lot area of five acres or less, with one-plus dwellings equals zero TDRs;
(c)
All lots with gross lot area of greater than five acres but less than 10 acres, with no dwelling equals two TDRs; and
(d)
All lots with gross lot area of greater than five acres but less than 10 acres, with one or more dwellings equals one TDR.
(3)
The lot, prior to or upon the recording of a deed of transferable development rights, shall be permanently restricted from future development pursuant to § 27-703E.
(4)
Where any preexisting legal lot(s) of record less than 10 acres in area shall be legally consolidated with one or more additional lots to form a single lot greater than 10 acres in area, upon recordation of the single consolidated lot, the consolidated lot shall be allocated one TDR per each original lot subject to the consolidation and 0.2 TDRs per acre as provided in § 27-703C(1) above, where the consolidated lot, prior to or upon the recording of a deed of transferable development rights, shall be permanently restricted from future development pursuant to § 27-703E.
D.
Where a portion, but not all, of the development rights allocated to a sending area tract are severed in accordance with the terms of this Part, any future calculation of development rights to be allocated to the tract, as determined by Subsections B and C, above, shall be reduced by the number of such development rights previously severed.
E.
The methods of calculation of development rights prescribed in this Section shall be employed whenever the landowner proposes to sever development rights from the tract.
F.
Where any lot severs TDRs pursuant to this Section, one available TDR shall be retained and extinguished for each habitable structure located on the lot or consolidated lot, as applicable. Future construction of additional habitable structures shall require the original retention or the purchase of one TDR per structure and shall not be subdivided on to individual lots.
G.
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.
H.
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 lowest whole number.
I.
Certification of Available Transferable Development Rights.
(1)
Any owner of a sending area tract eligible for the allocation of development rights may request from the Township a determination and certification of the number of development rights available on that tract. Upon receiving such a request, the Township Planning Commission, or a subcommittee thereof, may meet with the landowner. Using the calculation methodology in § 27-703B or C, as applicable, the two parties may compute the number of development rights allocable to the subject property. The landowner may present additional information for the Planning Commission's consideration. The Township may charge a fee, established by resolution of the Board of Supervisors, to cover the administrative, technical, and information costs of this process.
(2)
Where a landowner and the Planning Commission are in agreement on the amount of development rights allocated, the Planning Commission shall make a recommendation to the Board of Supervisors regarding the number of development rights available on the property.
(3)
Upon receiving a recommendation from the Planning Commission, the Board of Supervisors shall make a final determination of the number of development rights available on the property and shall provide a written certification of that number to the landowner.
(4)
Any landowner dissatisfied with the Board's determination and certification of the amount of development rights allocated to his or her tract may appeal the action of the Board to the Township Zoning Hearing Board.
J.
Severance of Transferable Development Rights.
(1)
Where TDRs are proposed to be severed from a property to which they have been allocated, such development rights shall be conveyed by a deed of transferable development rights duly recorded in the Office of the Chester County Recorder of Deeds. The deed of transferable development rights shall specify:
(a)
The tract of land within the receiving area to which the rights shall be permanently attached (if known).
(b)
That the rights shall be:
[1]
Sold or otherwise transferred to the Township.
[2]
Retained by the owner of the sending area tract.
[3]
Sold or otherwise transferred in gross to another person, organization, or entity, consistent with the terms of this Part.
(2)
Submission of plan.
(a)
Where a landowner proposes to sever less than all of the TDRs which may be attributable to the sending area lot(s), the portion of the sending area lot(s) from which severance of TDRs is intended shall be clearly identified on a plan of the entirety of the sending area lot(s), drawn to scale, the accuracy of which shall be satisfactory to the Township. Such plan shall also include a notation of:
[1]
The number of TDRs attributable to the entirety of the sending area lot(s).
[2]
The number of TDRs attributable to the identified portion of the sending area lot(s) from which TDRs are to be severed.
[3]
The number of TDRs which remain available to the remaining portion of the sending area lot(s).
(b)
This plan shall be submitted to the Township along with the deed of transferable development rights required by Subsection J(3) below. Further, the identified portion(s) of the sending area lots from which TDRs are to be severed shall be clearly identified in the conservation easement documentation to be recorded pursuant to this Part. It shall be the burden of the landowner requesting endorsement of partial severance to demonstrate to the satisfaction of the Township that the portion of the property to be subject to conservation easement as a result of TDR severance shall meet the Township's conservation objectives.
(3)
The deed of transferable development rights and any plan for partial TDR severance as required in Subsection J(2) above, shall be accompanied by a conservation easement that shall permanently restrict development of the sending area tract as provided in § 27-703E, above, and that shall be recorded in the Office of the Recorder of Deeds prior to the deed of transferable development rights.
(4)
All deeds of transferable development rights and conservation easements shall be endorsed by the Township prior to recording.
(a)
Deeds submitted to the Township for endorsement shall be accompanied by a title search of the sending area tract(s) and a legal opinion of title affirming that the development right(s) being transferred by the deed have not been previously severed from or prohibited upon the sending area tract.
(b)
The title report shall be prepared no more than 10 days prior to submission of the deed. The legal opinion of title must meet the reasonable approval of the Township Solicitor.
(c)
If the deed of transferable development rights would entail less than the entire number of development rights then available to be severed, it shall also include a notation of:
[1]
The total number of development rights then available to the entire parcel.
[2]
The number of development rights to be severed.
[3]
The number of development rights that will remain available following the proposed transaction.
[4]
If the agreement of sale of development rights would entail less than the entire number of development rights represented by a recorded deed of transferable development rights, the applicant shall indicate in the deed the disposition of the remaining development rights.
K.
Sending Area Conservation Easement. Any sending area lands from which TDRs are proposed to be severed must be permanently restricted from future development by a conservation easement that meets the following requirements:
(1)
The conservation easement shall permanently restrict the land from future development for any purpose other than agriculture, agriculturally related uses, public parkland, conservation areas and similar open space uses permitted in the A — Agricultural District or RC — Rural Conservation District applicable to the sending area lands. The easement shall specifically prohibit the creation of lots for non-farm dwellings on the land from which development rights are proposed to be severed.
(2)
The conservation easement shall be approved by the Board of Supervisors, in consultation with the Township Solicitor.
(3)
The conservation easement(s) shall apply to the lot or lots from which TDRs are severed (sending area lands) and the acreage which is restricted.
(4)
The conservation easement shall designate the Township, and/or another public agency or bona fide conservation or agricultural preservation organization acceptable to the Township at its sole discretion, as the grantee, but shall also designate the following parties as having separate and independent enforcement rights with respect to the conservation easement:
(a)
All future owners of any portion of the sending area parcel.
(b)
All future owners of any portion of any receiving area parcel to which the transferable development rights shall be permanently attached.
(5)
Any owner of a legal and beneficial interest in the tract from which development rights are severed shall be a party to the conservation easement. All lienholders of the tract from which development rights are severed shall execute a joinder and/or consent to the conservation easement.
(6)
Final approval for any subdivision or land development plan utilizing TDRs shall not be granted prior to the recording of the appropriate conservation easement in the Office of the Chester County Recorder of Deeds.
§ 27-704 Receiving Area Qualifications and Calculations.
[Ord. No. 196-2018, 9/12/2018]
Owners of tracts in designated receiving areas in Honey Brook Township that meet the following requirements may use development rights that have been severed and transferred from sending area properties in the Township. Owners of tracts in designated receiving areas in Honey Brook Borough that meet applicable receiving area requirements specified in the Borough of Honey Brook Zoning Ordinance may use development rights that have been severed and transferred from sending area properties in the Township. Development not utilizing receipt of TDRs 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.
Receiving Area Qualifications. Otherwise applicable densities may be increased and area and bulk regulations modified through the use of TDRs as part of a proposed subdivision or land development plan, in accordance with the provisions of this Section and the applicable zoning district, when the receiving area tract of land is located in any of the following zoning districts:
(1)
MUR — Mixed Use Residential District.
(2)
MUC — Mixed Use Commercial District.
(3)
BI — Business Industrial District.
B.
Use of Transferable Development Rights on Receiving Area Properties.
(1)
Increase in Permitted Density or Intensity of Development.
(a)
Where TDRs are proposed to be used as part of a subdivision or land development plan in the MUR, MUC, and/or BI Districts, the otherwise applicable maximum number of dwelling units or maximum intensity of nonresidential use on the tract, as authorized in the respective zoning districts, may be expanded or increased in accordance with the limits stipulated in the zoning districts. The expanded limits shall be based upon the number of development rights to be transferred.
(b)
Actual increases in the number of dwelling units or intensities of use permissible on any tract shall be determined by the number of development rights being transferred for use on the property, the type or types of uses proposed, and compliance with all other applicable standards of this Chapter.
(c)
The incremental increase in density or intensity of use above that otherwise provided without the use of TDRs must be fully accounted for through proof of purchase and transfer of the development rights in accordance with the provisions of this Part.
(2)
Development right/dwelling unit or intensity factor equivalency.
(a)
Each development right proposed for residential use on a receiving area tract in the MUR or MUC District, under the terms of this Chapter, shall be equivalent to the following number of dwelling units and shall entitle the developer to that number of additional dwellings on the site:
[1]
1.1 single-family detached dwelling units per development right.
[2]
1.3 two-family dwelling units per development right.
[3]
1.5 single-family attached (townhouse) dwellings per development right.
[4]
1.7 quadraplex dwelling units per development right.
[5]
2.0 apartment units per development right.
[6]
The above ratios may be increased by 50% for any dwelling units restricted to persons over 55 years of age, and any dwelling units qualifying as workforce housing.
(b)
Each development right proposed for residential or nonresidential use on a receiving area tract in the MUR District, under the terms of this Chapter, shall be equivalent to the following amount of developed area:
[1]
5,000 square feet of impervious surface, exclusive of building coverage.
[2]
5,000 square feet of floor area, attainable through an increase in the maximum permissible building height.
(c)
Each development right proposed for residential or nonresidential use on a receiving area tract in the MUC District, under the terms of this Chapter, shall be equivalent to the following amount of developed area:
[1]
6,000 square feet of impervious surface, exclusive of building coverage.
[2]
6,000 square feet of floor area, attainable through an increase in the maximum permissible building height.
(d)
Each development right proposed for nonresidential use on a receiving area tract in the BI District, under the terms of this Chapter, shall be equivalent to the following amount of developed area:
[1]
6,000 square feet of impervious surface, exclusive of building coverage.
[2]
6,000 square feet of floor area, attainable through an increase in the maximum permissible building height.
(e)
The developer shall be entitled to the additional development area authorized by the number of development rights transferred, up to the maximum residential density (Dus/acre), or maximum amounts of impervious surface, floor area, and/or building height established in the applicable zoning district.
(3)
Design Requirements and Modification of Area and Bulk Standards. A proposed development in the receiving area using TDRs shall comply with all requirements and design standards applicable in the base zoning district in which it is located, except as specifically provided in this Part. For any development proposing to use at least five TDRs, applicable area and bulk requirements in the base zoning district not otherwise modifiable through the provisions of § 27-704B(2) above may be modified by as much as 25% when such modification is approved as a conditional use by the Board of Supervisors. Any conditional use approval to permit such modification(s) shall be subject to the following criteria:
(a)
The design and modifications:
[1]
Shall not produce lots or street systems that would be impractical in terms of layout or circulation or detract from the appearance of the development or surrounding community.
[2]
Shall not adversely affect emergency vehicle access.
(b)
The applicant shall demonstrate to the Board that the proposed modification(s):
[1]
Will produce equal or better development design and/or open space conservation results than could be achieved without the requested modification(s).
[2]
Represent the minimum modification necessary.
(c)
If the Board determines that the applicant has met his/her burden of proof, it may grant modification(s) to the otherwise applicable requirements. In approving modifications through the grant of a conditional use, the Board may impose such conditions as will, in its judgement, secure the objectives and purposes of this Chapter.
§ 27-705 Plan Submittal Process.
[Ord. No. 196-2018, 9/12/2018]
An applicant proposing the use of TDRs shall submit a subdivision or land development plan as required in accordance with the Township Subdivision and Land Development Ordinance, Chapter 22, for the development to which TDRs will be added. Submitted subdivision or land development plans, and/or conditional use applications, as applicable, shall, in addition to meeting all other applicable provisions, include submission of the following:
A.
A deed of transferable development rights or an agreement of sale for all development rights proposed to be purchased from the sending area site(s). The applicant must prove ownership or equitable ownership of the requisite number of development right(s) to enable the proposed additional density or intensity increase in the development plan, up to the maximum additional increment permitted by this Part.
B.
A note on the plan showing the total number of dwelling units or increased amount of impervious surface or floor area proposed on the receiving area site, the total number or amount that could be built not using TDRs, and the incremental difference between the two. This difference represents the number of additional dwelling units or square footage of impervious surface or floor area that could be constructed using TDRs.
C.
If the development rights proposed for use in the receiving area have previously been severed from a tract in the sending area, a copy of the recorded deed of transferable development rights shall be submitted. A title search of the rights set forth in the deed of transferable development rights sufficient to determine all of the owners of the development rights and all lienholders also shall be furnished to the Township.
D.
As a requirement for final plan approval, the applicant shall provide documentation that appropriate conservation easements have been recorded for sending area lands in the Township from which development rights are proposed for use by the applicant. The conservation easement restricting the sending area tract must be recorded prior to recording of the deed of transferable development rights, in accordance with the provisions of the Pennsylvania Municipal Planning Code, as amended, 53 P.S. § 10101 et seq.
§ 27-706 Amendment and/or Extinguishment.
[Ord. No. 196-2018, 9/12/2018]
The Township reserves the right to amend this Chapter in the future, and the Township expressly reserves the right to change the manner in which TDRs can be used in the Township's receiving area, in accord with any applicable intergovernmental cooperative implementation agreements or agreements for intermunicipal transfer of development rights. The Township further expressly reserves the right to terminate its participation in any multi-municipal transferable development rights program as provided for in any such agreement for intermunicipal transfer of development rights, and as an ordinance amendment pursuant to such intergovernmental cooperative implementation agreement. No owner of the land or owner of development rights shall have any claim against the Township for damages resulting from a change in this Chapter relating to the regulations governing the calculation, transfer, and use of development rights or the abolition of the TDR program. If the TDR program is abolished by the Township, no developer may attach development rights to any tract in the receiving area after the effective date of the ordinance abolishing the TDR program unless an application in conformity with the provisions of this Part was filed prior to the effective date of such ordinance and thereafter is continuously processed to approval.
