Lower Windsor Township
City Zoning Code
City Zoning Code
ARTICLE VII
Transfer of Development Rights
§ 470-140 Purpose.
The Lower Windsor Township Comprehensive Plan Update identifies and emphasizes the importance of preserving agricultural lands and associated natural features within the Township as essential elements for promoting farming operations, thus enhancing the Township's "town and country" character. It further states, to effectively protect the Township's finite supply of agricultural land for existing and future agricultural production, those lands should remain primarily as open farmland and relatively undeveloped scenic countryside. The purpose of this article is to assist the Township in permanently protecting and promoting vital agricultural resources and other natural elements, including large tracts of prime farmland and prime agricultural soils, while maintaining an equitable balance between government regulation and private property rights. Therefore, in accordance with Sections 603(c)(2.2), 605(4) and 619.1 of the MPC,[1] the Township established a transfer of development rights (TDR) program within the Township, where the Agricultural District serves as the sending area and the Residential, Village and Waterfront Recreation Districts are designated as the receiving areas. The purpose of the TDR program is to preserve large tracts of prime agricultural land, as well as the Township's "town and country" character by shifting development to the designated areas within the Township better able to accommodate intensive development. It is further the intent of the Board of Supervisors to encourage flexibility, economy and ingenuity in the development of parcels in the designated receiving areas.
[1]
Editor's Note: See 53 P.S. §§ 10603(c)(2.2), 10605(4) and 10619.1.
§ 470-141 Concept.
A.
Within the Agricultural, Residential, Village and Waterfront Recreational Districts, each parent parcel shall be allocated a number of development rights based upon the lot area of the parent parcel legally existing on the effective date of this chapter. The owner of the parent parcel in the Agricultural District has the right to retain, use or transfer the allocated development rights as limited by this chapter. The owner of parent parcel within the Residential, Village or Waterfront Recreation District, has the right to develop on site at the base density of the district in which located, or to increase density to the maximum development density permitted on site by buying and transferring development rights.
B.
The creation of a new lot upon which dwelling or principal nonresidential structure or use or siting of a new principal nonresidential structure or use upon and not separated from a parent parcel existing before the effective date of this chapter, requires the use of development rights. The number of development rights depends on the specific use proposed, as well as the number and size of the lots to be created.
C.
The creation of a new lot upon which a dwelling or principal nonresidential and/or nonagricultural structure or use or siting of a new principal nonresidential and/or nonagricultural structure or use upon and not separated from a parent parcel existing before the effective date of this chapter, requires the use of development rights. The number of development rights depends on the specific use proposed, as well as the number and size of the lots to be created. Owners of a parent parcel may use the development rights allocated to that parent parcel to erect new residential dwellings, principal nonresidential and/or nonagricultural structures or uses on the parent parcel, or create lots from the parent parcel utilizing Article IV herein.
D.
The transfer of development rights is a voluntary agreement under the terms of this chapter between a willing buyer and a willing seller. The right shall only be transferred to a person, corporation, partnership or other legal entity. The development rights may be held by the purchaser for future use or sale; however, a person who purchases development rights may only attach and use the development rights on parcels in the designated receiving areas of the Township. The price of the development rights will be determined by the willing buyer and the willing seller.
E.
Development rights shall be considered a separate estate in land and may only be transferred in accordance with the requirements of this article. Once the development rights are attached to a specific parcel of land, the rights shall run with that specific parcel in perpetuity.
F.
A buyer of development rights who attaches those rights to a parcel of land in accordance with the procedures set forth in this article is permitted an increase, with the use of the development rights, in the base density of their development within the receiving areas. The seller of the development rights receives compensation from the sale, plus the right to retain the land for agricultural use or other use permitted in the Agricultural District.
G.
A deed restriction against future residential and/or nonagricultural development is placed upon the parent parcel in the designated sending area from which the development rights have been severed. The deed restriction will not affect the landowner's ability to sell the land after the development rights have been severed; however, such restriction runs with the land.
§ 470-142 Recognition of transfer of development rights.
A.
Lower Windsor Township hereby recognizes the severability of development rights from certain parcels within the Township, which may be sold or donated as an interest in real estate. Ownership of the development rights shall be determined by deed, as further described in § 470-145. Development rights, once severed, may be:
B.
The initial transfer of development rights shall be solely at the volition of the owner of the parent parcel in the designated sending areas and the purchase of the development rights shall be solely at the volition of the buyer for use in the designated receiving areas. Under no circumstances shall the Township compel the transfer of development rights in order to develop land in the receiving areas.
§ 470-143 Designation of sending areas and receiving areas.
A.
Sending areas. For purposes of the transfer of development rights, the Agricultural (AG) District of the Township shall be designated as the "sending area":
B.
Receiving areas. For purposes of the transfer of development rights, the Residential (R), Village (V) and Waterfront Recreation (WR) Districts of the Township shall be designated as the "receiving areas."
§ 470-144 Apportionment, determination and severability.
A.
Apportionment. The development rights apportioned to each parent parcel within the designated sending area of the Township existing on the effective date of this chapter shall be based on the criteria set forth in § 470-13 and this article.
(1)
Parcels of land in the AG District which are restricted against development by covenant, easement or deed restriction shall not be eligible for transfer of development rights and therefore shall not be included in the computation of the area, unless and until such time as said covenant, easement or deed restriction is dissolved or rescinded.
(2)
The owner of any parcel of land eligible for development rights in the AG District shall not be restricted from developing said parcel in accordance with the provisions of § 470-13 and this article. In the event of a subdivision or land development of any parcel of land eligible for development rights permitted on site, the number of rights granted and permitted to be used on site in § 470-13 of this chapter shall be reduced by:
B.
Severability. Prior to any severance or formal transfer of development rights, the owner of a parent parcel in the sending areas must submit a plan to the Zoning Officer. The plan shall be drawn to scale and show and/or indicate the following:
(1)
A complete metes and bounds description or boundary survey of the sending area parcel as it existed on the effective date of this chapter, from which the rights will be transferred, or a Deed book description thereof.
(2)
The location of any lots that have been subdivided from the parent parcel before the effective date of this chapter and the use of said lots.
(3)
The name of all owners of the parent parcel.
(4)
The total acreage of the parent parcel.
(5)
Land(s) of the parent parcel, which have development restrictions by covenant, easement, right-of-way, or deed restriction, including a description thereof.
(6)
The statement, "It is the determination of the Board of Supervisors of Lower Windsor Township, York County, Pennsylvania, that (number) development rights may be transferred by sale or donation from the property shown on this plan as of (date)."
(7)
If the proposed agreement of sale of development rights entails less than the entire number of development rights available, the plan shall also include:
C.
The Zoning Officer shall verify the information provided by the owner of the parent parcel as required in subsection b) above relating to the severability of development rights, specifically the number of development rights attributable to the parent parcel, within 15 days after receipt of a complete application. The Zoning Officer shall inform the owner of the parent parcel, of his determination in writing. Any appeals from the determination of the Zoning Officer may appeal in the manner set forth in either Article IX or X-A of the MPC.[1]
[1]
Editor's Note: See 53 P.S. § 10901 et seq. and § 11001-a et seq.
D.
Following the transfer, the transferor parcel must either contain an existing residential dwelling, principal nonresidential and/or nonagricultural structure or use or at least one development right unless it is being permanently joined to an adjacent parcel which either contains an existing dwelling, principal nonresidential and/or nonagricultural structure or use or has allocated at least one development right.
§ 470-145 Transfer of development rights.
A.
Transfer of development rights.
(1)
Deed of transfer of development rights. Development rights which have been determined by the Zoning Officer shall be formally transferred by means of a deed of transfer of development rights duly recorded in the Office of the York County Recorder of Deeds. The deed shall specify the parcel of land within the receiving area to which the rights shall be permanently attached or that the rights shall be transferred to a person, corporation, partnership, or other legal entity. The entity transferring the development rights may sell or donate any number of development rights up to the number identified in §§ 470-13 and 470-144C.
(a)
All deeds of transfer of development rights shall be endorsed for approval by the Board of Supervisors prior to recording. No deed of transfer of development rights shall be endorsed until the Township is presented with evidence that the declaration of restriction of development has been approved by the Township and has been recorded in the office of the York County Recorder of Deeds. In lieu of presentation of the recording of said declaration, the fully executed declaration may be presented to the Township when the deed of transfer of development rights is presented for endorsement, and the Township, at the applicant's expense, shall simultaneously record both documents.
(b)
If the development rights shall be immediately attached to a parcel in the receiving area, no deed of transfer of development rights shall be recorded before preliminary plan approval of the development utilizing the development rights has been obtained.
(2)
Declaration of restriction of development.
(a)
A declaration of restriction of development shall be executed simultaneously with the deed of transfer of development rights. Such declaration shall be attached as a deed restriction to the sending parcel and shall serve to restrict subsequent development of that parcel to the remaining number of development rights available for transfer either in perpetuity or until the owner of parcel shall donate or sell some or all of the remaining development rights, if any. Such declaration shall clearly state the number of development rights available for transfer that remain with the parcel.
(b)
The declaration of restriction of development shall be in a form approved by the Township Solicitor. All owners of the parcel from which development rights are severed shall execute the declaration of restriction of development and all lien holders of said parcel shall execute a joinder and/or consent to the declaration of restriction of development. The declaration shall be recorded in the office of York County Recorder of Deeds by the Township, at the applicant's expense. Said recording shall occur at the same time as or prior to, the recording of the deed of transfer of development rights.
(c)
Parcels from which development rights have been severed shall;
[1]
Be restricted against future development;
[2]
Continue to be owned subject to said restrictions by the landowner, his heirs, executors, administrators, successors and assigns; and
[3]
Continue to be used for agricultural or other nonresidential uses specified in the list of permitted uses for the district in which located, and in accordance with the requirements of the district in which located.
§ 470-146 Use of development rights.
A.
Development rights shall be transferred and subsequently utilized only upon parcels located within the areas identified as receiving areas in this article.
B.
In receiving areas, development utilizing transferred development rights shall be permitted to be developed in accordance with the density provision of maximum development density listed in § 470-12A:
C.
Development utilizing transferred development rights shall be designed in conformity with and satisfy all the regulations and provisions of Article IV herein, specifically Tables 470-25A and 470-25B.
D.
For an increase in density greater than the base density permitted in the R, V or WR Districts, whichever is applicable, developers shall be required to acquire additional development rights to achieve the maximum development density in accordance with provisions of Article III and this article.
E.
Each development right purchased and transferred shall equate to provisions set forth in § 470-6 of this chapter.
F.
Procedure. The procedure for utilization of development rights transferred from the sending area upon an eligible property in the receiving area shall be as follows:
(1)
A request to utilize the transferred development rights shall be in the form of:
(a)
Preliminary subdivision/land development plan if applicable; and/or
(b)
Final subdivision/land development plan in accordance with the requirements of Chapter 410, Subdivision and Land Development; or
(c)
If no subdivision or land development approval is required for the proposed development, an application for a zoning/building permit.
(d)
The plan or permit application must include the following requirements;
[1]
Base density of the receiving parcel, the proposed density on the receiving parcel, the maximum development density and the number of development rights transferred (or to be transferred) to the receiving parcel.
[2]
An application for apportionment and transfer of development rights on a form provided by the Township must accompany the plan. Such application shall be signed by both the transferor and the transferee. If the development rights which shall be used by the developer have previously been apportioned and severed from the sending parcel, a copy of the deed of transfer of development rights which has been recorded in the office of the York County Recorder of Deeds indicating the number of development rights available, and a title search demonstrating that such development rights are still held by such person and setting forth all liens placed against them shall be included.
[3]
An agreement of sale for the development rights between the owner of the parcel from which the development rights have been requested, or the owner of the development rights which have been previously severed from a parcel in the sending area as evidence by a recorded deed of transfer of development rights, and the owner of the parcel in the receiving area proposed to be developed utilizing the transferred development rights must accompany the plan. The agreement may be contingent upon conditional approval of a final subdivision and land development plan for development of the parcel to which the development rights are to be transferred.
[4]
A copy of the proposed deed of transfer of development rights and declaration of restriction of development must accompany the plan.
[5]
A title search of the parcel from which the development rights will be transferred, sufficient to determine all owners of the parcel and all lienholders must be provided. If the development rights have previously been severed from the parcel in the sending area, a title search of the rights set forth in the deed of transfer of development rights, sufficient to determine all the owners of the development rights and all lienholders shall be furnished to the Township.
(2)
Final subdivision/land development plan:
(a)
No final plan for any subdivision or land development utilizing the transfer of development rights shall be executed on behalf of the Township until the Township has been presented with a copy of the recorded deed of transfer of development rights and the recorded declaration of restriction of development with the customary recording information of the office of York County Recorder of Deeds clearly endorsed thereon. In lieu of presentation of proof of recording the declaration of restriction of development and the deed of transfer of development rights, the fully executed declaration of restriction of development may be presented to the Township with the deed of transfer of development rights for endorsement, and the Township, at the applicant's expense, shall record both documents and then shall execute and, if the applicant so desires, at applicant's own expense, shall record the final plan;
(b)
Upon approval of the final plan of a project utilizing transferred development rights, a new deed shall be created and recorded for the receiving parcel. Such deed shall identify the deed(s) of transfer of development rights being used by the Deed Book volume(s) and number(s) and shall state that the transferred development rights are attached to the receiving property in perpetuity; or
(3)
If no subdivision or land development approval is required for the proposed development, an application of a zoning/building permit indicating the proposed development, the number of development rights attributable to the receiving parcel being developed, the number of development rights needed for the proposed development, and the number of additional development rights transferred or to be transferred to the receiving parcel. The purchaser of development rights shall provide the Zoning Officer with proof that the deed of development rights has been recorded.
§ 470-147 Reservation of Township rights.
A.
The Township reserves the right to amend this article in the future. The Township further expressly reserves the right to:
(1)
Change the manner in which the number of development rights shall be portioned to parent parcels; or
(2)
Change the manner in which development rights may be attached to a parcel in a receiving area; or
(3)
Change the procedure by which development rights can be conveyed; or
(4)
Terminate its transfer of development rights program at any time.
B.
No owner of land or owner of development rights shall have any claim against the Township for damages resulting from a change in this article relating to the regulations governing the apportionment, transfer and use of development rights or the abolition of the transfer of development rights program.
C.
If the transfer of development rights program is abolished by the Township, no developer may attach development rights to any parcel of land in the receiving area after the effective date of the ordinance abolishing the transfer of development rights program, unless an application in conformity with the provisions of § 470-146 herein was filed prior to the effective date of such ordinance.