Pursuant to Code of Virginia, §§ 15.2-2316.1 and 15.2-2316.2, a transfer of development rights (TDR) program is established. The purpose of the TDR program is to provide a mechanism by which a property owner can transfer residential density from sending areas to receiving areas and/or to a transferee without relation to any particular property through a voluntary process intended to permanently conserve agricultural and forestry uses of lands, reduce development densities on those and other lands, and preserve rural open spaces and natural and scenic resources. The TDR program is intended to complement and supplement county land use regulations, resource protection efforts, and open space acquisition programs. The TDR program is intended to encourage increased residential density in areas that can better accommodate this growth with less impact on public services and natural resources.

(Ord. No. O13-21, 2-19-13)

This article shall apply to the transfer of development rights from land in sending areas to land in receiving areas and/or to a transferee without relation to any particular property. Land utilizing transferred development rights may be subdivided or developed in receiving areas at the maximum density specified by County Code section 28-35, Table 3.1 and Table 3.1(a), above the base density for the applicable zoning district.

(Ord. No. O13-21, 2-19-13; Ord. No. O15-06, 2-24-15)

(a)

A development right shall only be transferred by means of the recordation of a TDR certificate and a covenant to which the county is a party, or a permanent conservation easement granted to a "qualified holder" as that term is defined in Code of Virginia, § 10.1-1009, that restricts further development of the sending property and joins all lien holders, who must execute any necessary releases in order for the transfer of development rights to take place.

(1)

The covenant or permanent conservation easement shall limit the future construction of residential dwelling units on a sending property to the total number of development rights established by the zoning ordinance provisions applicable to the property, minus: (i) all development rights severed and extinguished from the sending property by the TDR certificate and thereby transferred under this article; (ii) any development rights previously severed and extinguished or limited as a result of an earlier recorded covenant or conservation easement against the property; and (iii) the number of existing single-family detached dwelling units located on the sending property, if any, as of the date the TDR certificate has been issued and recorded by the director.

(2)

The county attorney shall review and approve any such covenants and permanent conservation easements, and related document(s) for form and legal sufficiency.

(b)

Each transferor shall have the right to sever all or a portion of the development rights from a sending property and to sell, trade, and/or barter all or a portion of those development rights to a transferee consistent with the purposes of County Code section 28-354 so long as the requirements of subsection (a) of this section are met.

(c)

Any transfer of development rights under this article only authorizes an increase in maximum density. It shall not alter or waive the development standards of any property in the receiving area, nor shall it allow a use otherwise not permitted in a receiving area.

(d)

No development rights may be transferred from a sending property if those rights are materially restricted from development by covenant, easement, and/or deed restriction; provided, however, that for any sending property located within an area designated as "park" on the land use map in the comprehensive plan, no such restriction will be deemed to exist if it arose out of a subdivision approval or note on a subdivision plat requiring the provision of public water and sewer to the subdivision.

(e)

Any transfer of development rights shall be recorded among the land records of Stafford County, Virginia.

(f)

No transfer of development rights will be effective until the director has recorded the TDR certificate and its related covenant or permanent conservation easement in the land records of Stafford County, Virginia.

(g)

The monetary or other value of transferred development rights is a private matter that is determined by the seller and buyer.

(h)

The owner of development rights severed from a sending property under the provisions of this article may make application to the Commissioner of the Revenue of Stafford County for a real estate tax abatement for a period up to twenty-five (25) years, to compensate the owner of such development rights for the fair market value of all or part of the development rights, which shall retire the number of development rights equal to the amount of the tax abatement, and such abatement is transferable with the property. The commissioner of the revenue shall compute the tax abatement amount and the retirement of development rights in fractional increments; provided, however, that any such fractional development rights are not transferable.

(Ord. No. O13-21, 2-19-13; Ord. No. O15-06, 2-24-15)

(a)

For the purposes of this article, a sending property must be an entire tax map parcel or lot that complies with all requirements of this article. Sending areas shall be limited to those areas designated as sending areas on the map entitled, "Transfer of Development Rights (TDR) Sending and Receiving Areas," in the comprehensive plan, zoned A-1 (agricultural) or A-2 (rural residential).

(b)

In order for a property in a sending area to qualify as a sending property eligible for a transfer of development rights, such property shall be:

(1)

Designated for agricultural, rural, or park land use(s), in the comprehensive plan;

(2)

Located in areas designated as sending areas on the map entitled "Transfer of Development Rights (TDR) Sending and Receiving Areas" in the comprehensive plan; and

(3)

Zoned A-1, agricultural, or A-2, rural residential, and meet one of the following criteria:

a.

A separate parcel in existence on the effective date of Ordinance No. O15-06, that is at least twenty (20) acres;

b.

Contiguous parcels in existence on the effective date of Ordinance No. O15-06, comprising at least twenty (20) acres that are under the same ownership on the date of the application; or

c.

A separate parcel in existence on the effective date of Ordinance No. O15-06 that is at least two (2) acres and designated as "park" on the land use map in the comprehensive plan.

(c)

If a sending property has any outstanding code violations and/or unpaid taxes, the owner(s) shall completely resolve all of these violations, including any required abatement, restoration, and/or payment of penalties or taxes, before the property may be made the subject of a TDR certificate by the director.

(Ord. No. O13-21, 2-19-13; Ord. No. O15-06, 2-24-15)

(a)

In order for a property in a receiving area to qualify as a receiving property eligible for a transfer of development rights to said property, such property shall be:

(1)

Located in one of the following zoning districts: A-1, agricultural; R-1, suburban residential; PD-1, planned development-1; PD-2, planned development-2; PTND-planned traditional neighborhood development; UD, urban development; or B-3, office;

(2)

Located in areas designated as receiving areas on the map entitled, "Transfer of Development Rights Sending and Receiving Areas," in the comprehensive plan;

(3)

Located within the urban services area (USA) by the comprehensive plan; and

(4)

Included in an assessment of the infrastructure in the receiving area that identifies the ability of the area to accept increases in density and its plans to provide necessary utility services within any designated receiving area.

(b)

If a receiving property has any outstanding code violations and/or unpaid taxes, the owner shall completely resolve all such violations, including any required abatement, restoration, and/or payment of penalties or taxes, before the property may have any development rights transferred to it as part of the county's TDR program.

(c)

A receiving property may accept development rights from one or more sending properties, but the density allowed on the receiving property may not exceed the maximum applicable density specified in County Code section 28-35, Table 3.1 and Table 3.1(a).

(d)

At the discretion of the owner of any residential development rights severed from a sending property, such development rights may be converted to commercial development rights. In the event residential development rights from a sending property are transferred to a receiving property and the owner of the receiving property wishes to convert those residential development rights to commercial development rights, each such residential development right shall be deemed the equivalent of the right to construct three thousand (3,000) square feet of commercial space on the receiving property.

(e)

Every three thousand (3,000) square feet of commercial space, or fraction thereof, in a development project shall be deemed the equivalent of one development right. (For example, two thousand seven hundred eighty-eight (2,788) square feet of commercial space shall be deemed one development right, three thousand (3,000) square feet of commercial space shall be deemed one development right, and three thousand five (3,005) square feet commercial space shall be deemed two development rights.)

(f)

The provisions of this article XX are not intended to supersede any of the protections set forth elsewhere in this chapter relating to properties having historical significance and/or properties with environmentally sensitive features such as, but not limited to, hydric soils, wetlands, or steep slopes.

(g)

Architectural treatment shall be designed so that all building facades of the same building (whether front, side or rear) will consist of similar architectural treatment in terms of materials, quality, appearance and detail pursuant to the neighborhood development standards plan element of the comprehensive plan.

(Ord. No. O13-21, 2-19-13; Ord. No. O15-06, 2-24-15; Ord. No. O17-19, 6-20-17)

(a)

The number of residential development rights that a sending property is eligible to send to a receiving property and/or transferee without relation to any particular property shall be determined by the director after he initially calculates the number of residential dwelling units allowed as a matter of right on the sending property under the provisions of the zoning district in which the sending property is located. In making this initial calculation, the director shall determine the gross acreage of the sending property from a valid, recorded plat or survey prepared and certified by an engineer or land surveyor licensed in the Commonwealth of Virginia provided to the director by the applicant as part of the TDR application, and then subtract from the gross acreage of the sending property: (i) the portion, if any, of the sending property that is comprised of hydric soils and/or steep slopes (i.e., those slopes exceeding twenty-five (25) percent) based on a review of the county's maps and the owner's TDR application by the director; (ii) the portion, if any, of the sending property that is comprised of easements or rights-of-way for public roads; and (iii) for those sending properties that do not abut any public road, five (5) percent of the gross acreage of such sending property. Upon rendering this initial calculation, the director shall subtract all of the following to determine the number of development rights that are eligible to be transferred from the sending property:

(1)

All development rights previously transferred under this article from the sending property;

(2)

All development rights previously extinguished or limited as a result of a recorded conservation easement or similar covenant/restriction against the sending property, or any portion thereof;

(3)

All development rights previously extinguished or limited as a result of any private agreement or any other county program relating to the extinguishment or limitation of development rights; and

(4)

The number of existing single-family residential dwelling units on the sending property as of the date of the TDR certificate.

(b)

Any fraction of development rights resulting from the calculations shall not be included by the director in the final determination of total development rights available for transfer.

(c)

Development rights from a sending property may be allocated to more than one receiving property and/or transferee. However, fractions of development rights shall not be transferrable.

(d)

A receiving property and/or transferee without relation to any particular property may accept development rights from more than one sending property.

(e)

The determination of the number of residential development rights a sending property has available for transfer to a receiving property and/or a transferee without relation to any particular property shall be documented in a determination of development rights document issued by the director.

(f)

A determination of development rights document shall be used by the director as the basis for the issuance of a TDR certificate if there has been no material change in the criteria used by the director in relation to the sending property to issue the determination of development rights document.

(g)

The decisions of the director in the determination of development rights document shall be considered final determinations for purposes of the TDR program, except that if there is any material change in the criteria, in relation to the sending property, used by the director to issue the determination of development rights document, then a new determination of development rights document must be issued for the sending property before a TDR certificate may be issued for that sending property.

(h)

Any determination made in a determination of development rights document shall be valid only for purposes of the TDR program and for no other purpose.

(i)

A transferor may extinguish development rights, sever and hold development rights, sever and sell development rights, or apply severed development rights to a receiving property to allow development of that receiving property at a density greater than would otherwise be allowed on such land, up to the maximum density specified for the applicable zoning district in County Code section 28-35, Table 3.1.

(Ord. No. O13-21, 2-19-13)

(a)

Following the transfer of residential development rights, a sending property that has retained a portion of its development rights may subsequently accommodate remaining residential dwelling units on the sending property consistent with the requirements of the A-1 (agricultural) or A-2 (rural residential) zoning district, and all other applicable County Code requirements. A sending property that retains a portion of its development rights may also transfer the remainder of those development rights through the TDR program; provided, however, that fractional development rights shall not be transferrable.

(b)

On sending properties with environmental features as outlined in County Code subsection 28-359(a), (i.e., hydric soils and steep slopes exceeding twenty-five (25) percent), the development rights shall be severed from the areas outside of the specified environmental features, and any such areas on the sending property that have either hydric soils or steep slopes exceeding twenty-five (25) percent shall not be eligible for any consideration regarding the transfer of development rights. If development rights are retained on the sending property, future subdivision and development cannot occur on the areas where any development rights have already been severed and those areas cannot be considered as a portion of any buildable lot.

(c)

The limitations in this section shall, when development rights are severed from a sending property, be included in a covenant or permanent conservation easement applicable to the sending property which shall be recorded in the land records of Stafford County, Virginia. The county attorney shall review and approve the covenant or permanent conservation easement as to form and legal sufficiency. A plat shall accompany and be recorded with the deed delineating and describing the location of the portion of the property to be conserved.

(d)

Unless otherwise specified in this article XX, or unless expressly provided in the related covenant or permanent conservation easement, the severance of development rights from a sending property shall not deprive the owner of such sending property of the right to use that portion of the property from which development rights have been severed for any: (i) agricultural uses; and (ii) forestal uses with reforestation plans; provided that such uses were permitted by right on the sending property prior to the transfer of such development rights. Any buildings or structures that exist on a sending property at the time development rights are severed shall be allowed to remain to support any such existing agricultural and forestal uses. New buildings and structures comprising up to a cumulative total of six thousand (6,000) square feet shall be allowed to be constructed on a sending property to support any such existing agricultural and forestal uses. Any building constructed as a lawful nonconforming use under the provisions of this article XX shall not count against the allowance of up to six thousand (6,000) cumulative square feet for new buildings on any such sending property.

(e)

Unless otherwise specified in this article XX, or unless expressly provided in the related covenant or permanent conservation easement, the severance of development rights from a sending property shall not deprive the owner of such sending property of the right to use that portion of the property from which development rights have been severed for parks, campgrounds and related camping facilities, provided that such uses were permitted by right on the sending property prior to the transfer of such development rights. Any buildings or structures that exist on a sending property at the time development rights are severed shall be allowed to remain to support any such existing park, campground, and related camping facilities. New buildings and structures comprising up to a cumulative total of two thousand (2,000) square feet shall be allowed to be constructed on a sending property to support any such existing park, campground and related camping facilities. No new buildings and structures shall be allowed on sending properties less than twenty (20) acres in size. Any building constructed as a lawful nonconforming use under the provisions of this article XX shall not count against the allowance of up to two thousand (2,000) cumulative square feet for new buildings on any such sending property. For purposes of this section, the term "campgrounds" does not include any use by travel trailers, motor homes and similar vehicular type structures.

(f)

For sending properties designated as "park" on the land use map in the comprehensive plan, the severance of development rights shall not deprive the owner of the use of that property from which development rights were severed for park purposes or agricultural purposes, providing that agricultural uses were permitted by-right on the sending property prior to the transfer of such development rights. Agricultural uses shall be conducted pursuant to applicable best management practices, and only on parcels twenty (20) acres or more in size, or groups of parcels twenty (20) acres or more in size and under common ownership. For the purpose of this section, agricultural uses shall not include forestry. No other residual uses, buildings or structures shall be permitted on that portion of the property from which the development rights were severed, except noncommercial campgrounds. For the purpose of this section, the term "noncommercial campgrounds" shall not include any use by travel trailers, motor homes and similar vehicular type structures.

(Ord. No. O13-21, 2-19-13; Ord. No. O15-06, 2-24-15)

(a)

The director shall be responsible for determining whether a proposed sending property meets the qualifications of County Code section 28-357. The director shall respond in writing to an owner's request for a determination of development rights document under this article XX within sixty (60) days of the date of submission of a complete TDR application.

(1)

If the director determines that a property satisfies the requirements of County Code section 28-357, the director shall issue a determination of development rights document for the sending property.

(2)

If the director determines that a property does not satisfy the requirements of County Code section 28-357 or any other applicable provisions of this article, the director shall issue a written decision to the applicant and shall state the basis for this decision.

(b)

Any decision of the director under County Code subsection 28-361(a) may be appealed to the board of zoning appeals as provided by law.

(c)

The director shall be responsible for maintaining permanent records of actions taken pursuant to the TDR program under this article XX, including, but not limited to:

(1)

TDR applications received, and all supporting documents, including plats and surveys showing the gross acreage of the sending property;

(2)

Determination of development rights documents issued;

(3)

Other written decisions of the director responding to an owner's request in a TDR application for a determination of development rights document;

(4)

TDR certificates issued;

(5)

Deed restrictions and covenants known to be recorded; and

(6)

Development rights retired, otherwise extinguished, or transferred to specific properties and/or transferees.

(d)

The owner(s) of any property proposed to be the subject of a TDR application shall be responsible for preparing and submitting to the director a complete TDR application for a transfer of development rights on a standard application form provided by the county that satisfies County Code section 28-357 and all other applicable provisions of this article XX. All owners of any sending property that is the subject of a TDR application must, at the time of application, each own the sending property in its entirety. All such owners must endorse and be parties to that application; otherwise, the application shall be deemed invalid and of no force and effect. In addition to a standard application form completed by the owner(s), an application shall contain:

(1)

At least one of the following:

a.

A certificate of title for the sending property dated no more than thirty (30) days before the date that a complete TDR application is submitted; said certificate to be prepared by an attorney admitted to practice law in the Commonwealth of Virginia;

b.

Title company report (commitment binder) dated no more than thirty (30) days before the date that a complete TDR application is submitted; or

c.

Title company policy dated no more than thirty (30) days before the date that a complete TDR application is submitted.

(2)

Five (5) copies of a valid recorded plat or survey of the proposed sending property that shows the gross acreage of the proposed sending property, and a legal description of the proposed sending property prepared and certified by an engineer or land surveyor licensed in the Commonwealth of Virginia;

(3)

A statement by all owners of the sending property requesting that the director issue a determination of development rights document for the transfer of a specified number of development rights in compliance with this article;

(4)

A chain of title that includes all deeds, covenants, easements, and other encumbrances that materially limit or restrict the ability to develop the sending property;

(5)

A plan showing any existing residential dwelling units, proposed residential dwelling units, and improvements on the sending property and any areas on the sending property that are already subject to a conservation easement or other similar encumbrance;

(6)

A plan prepared and certified by an engineer or land surveyor licensed in the Commonwealth of Virginia that shows the location, extent, and gross acreage calculation of all hydric soils and steep slopes on the proposed sending property;

(7)

A complete density calculation worksheet that sets forth the number of available development rights and the basis for the applicant's request to transfer the specified number of development rights from the sending property under the provisions of this article;

(8)

The applicable application fee adopted by the board; and

(9)

Any additional information that the director deems necessary to determine the number of development rights that qualify for transfer.

(e)

A determination of development rights document issued by the director shall contain the following information:

(1)

The name of the transferor;

(2)

A legal description of the sending property on which the calculation of development rights is based;

(3)

The tax map parcel number(s) of the sending property;

(4)

A statement of the size, in acres, of the sending property on which the calculation of development rights is based; and a determination of the number of development rights, stated in terms of number of dwelling units, eligible for transfer;

(5)

If only a portion of the total development rights is being transferred from the sending property, a statement of the number of remaining development rights, stated in terms of number of dwelling units, remaining on the sending property;

(6)

The date of issuance;

(7)

A serial number assigned by the director; and

(8)

The signature of the director.

(Ord. No. O13-21, 2-19-13)

(a)

Upon receipt of a determination of development rights document for a sending property, the TDR applicant may request the director to issue a TDR certificate to sever all or some of the development rights from the sending property that is the subject of the application. If such an applicant wishes to transfer development rights, the applicant shall request a TDR certificate in writing from the director and file with the director a covenant to which Stafford County is a party, that restricts the development of the sending property to the extent the applicant desires to sever and extinguish development rights from the sending property for the purpose of transferring those development rights to a receiving property or a transferee without regard to a particular property.

(b)

Upon receipt from an applicant of a request for the issuance of a TDR certificate, the director shall determine whether his decision to issue a determination of development rights document has been appealed to the board of zoning appeals (BZA). If the director's decision to issue a determination of development rights document to an applicant has been appealed to the BZA, then the director shall withhold the issuance of a TDR certificate to that applicant until the issues raised in that appeal have been finally decided by the BZA and/or the courts.

(c)

If the director's decision to issue a determination of development rights document to an applicant has not been appealed to the BZA, then the director shall proceed with the issuance of a TDR certificate. In this regard, the director shall submit the covenant filed by the applicant to the county attorney for approval as to form and legal sufficiency. If the county attorney reviews the covenant and approves it as to form and legal sufficiency, the director shall prepare and record the TDR certificate and the related covenant(s) in the land records of Stafford County, Virginia, and shall provide a copy to the commissioner of the revenue. Upon such recordation, the development rights that are the subject of the TDR certificate shall be deemed severed and extinguished from the sending property, and the director shall notify the applicant of the applicable deed book, page number, instrument number, and plat book where the recorded documents may be found in the land records.

(d)

The instruments recorded for the purpose of transferring development rights shall comply with the requirements of this section and shall consist of the following:

(1)

The names of the transferor and the transferee;

(2)

The number of residential development rights that are being transferred;

(3)

A legal description and plat of the sending property prepared and certified by an engineer or land surveyor licensed in the Commonwealth of Virginia;

(4)

The TDR certificate(s);

(5)

A plat showing the portion of the sending property that is restricted from development as a result of the transfer of development rights;

(6)

A covenant(s) to which the county is a party, approved by the county attorney as to form and legal sufficiency, specifying the number of development rights severed from the sending property and the number of development rights remaining on the sending property, and stating that the sending property may not be subdivided or developed to a greater density than permitted by the development rights remaining on the sending property;

(7)

A covenant that the transferor grants and assigns to the transferee, its heirs, assigns, and successors, a specified number of development rights from the sending property to a receiving property and/or a transferee without relation to any particular property;

(8)

A covenant by which the transferor acknowledges that he has no further use or right to use the development rights being transferred; and

(9)

A covenant that all provisions of the TDR certificate and related covenants shall run with and bind the sending property in perpetuity and may be enforced by the county.

(e)

The covenants recorded as part of instruments transferring development rights shall be endorsed and approved by all lien holders.

(f)

The instruments of transfer of development rights shall be recorded prior to the approval of any development permits for the receiving property, including, but not limited to, building permits.

(Ord. No. O13-21, 2-19-13)

Development rights shall be transferred using the following processes:

(1)

Following the issuance of a determination of development rights document, and the filing by the applicant of a request for a TDR certificate with all other required documents and information, and compliance with all other provisions of this article XX, the director shall issue a TDR certificate, agreeing to a transfer of development rights in exchange for the required covenant(s) to which the county is a party restricting development on the sending property.

(2)

The applicant at whose request a determination of development rights document has been issued may, if all other requirements of this article are satisfied, request that the director issue the TDR certificate to said applicant or to another person or legal entity specified by the applicant, who may transfer those development rights to an eligible receiving property or may hold those development rights without relation to any particular property.

(3)

The owner of development rights severed from a sending property may transfer those rights to a receiving property or to another person, who may hold those development rights without relation to any particular property. In applying for the transfer of development rights to a receiving property or a transferee without relation to any particular property, the applicant shall provide the director with the following:

a.

A TDR certificate issued in the name of the applicant or another person or legal entity and an option to purchase the development rights covered by the certificate signed by the applicant and the owner(s) of the receiving property or to a transferee without relation to any particular property; and

b.

Proof satisfactory to the director that there are no delinquent taxes or penalties owed on the development rights being transferred.

(4)

If development rights that are the subject of a TDR certificate are transferred to another person or legal entity who wishes to hold those rights without relation to any particular property, the director shall invalidate, in whole or in part, the TDR certificate that created those rights, and shall issue a new TDR certificate in the name of the new owner of those rights. The director will record the new TDR certificate in the land records of Stafford County, Virginia, upon payment to the director of any applicable fees by the party requesting the transfer of development rights.

(5)

If development rights that are the subject of a TDR certificate are approved by the director to attach to a receiving property, then the director shall invalidate in perpetuity, in whole or in part, the TDR certificate that created those rights to the extent those rights are transferred to the receiving property.

(6)

Development rights from a sending property shall be considered severed and extinguished from the sending property and transferred to a receiving property or a transferee without relation to any particular property when the TDR certificate and the applicable covenant(s) to which the county is a party and any other required documents have been recorded by the director in the land records of Stafford County, Virginia.

(Ord. No. O13-21, 2-19-13)

(a)

A request to utilize transferred development rights on an eligible receiving property must be in the form of a preliminary subdivision plan or final site plan submitted to the department of planning and zoning in accordance with the requirements of chapter 22 and chapter 28 of the county Code. If such request is made via a preliminary subdivision plan, the plan must state on its face that approval of the preliminary plan is conditioned upon affixing the requisite number of transferred development rights on the property, and without the transferred development rights the plan is void. Prior to approval of a final recorded plat or final site plan, the director must be provided proof that the transfer of the development rights has been completed and the development rights have been affixed to the zoning of the receiving property.

(b)

A final recorded plat for a subdivision using transferred development rights shall contain a statement setting forth the development proposed, the zoning classification of the property, the number of development rights used, and a notation of the recordation of the conveyance required by County Code section 28-362.

(Ord. No. O13-21, 2-19-13; Ord. No. O19-16, 2-19-19)