Upper Providence Township Montgomery County
City Zoning Code
City Zoning Code
ARTICLE XXI
Transfer of Development Rights District
§ 300-378 Legislative intent.
In expansion of the community development objectives contained in Article I, § 300-2 of this chapter, it is hereby declared that the intent of this article with respect to the TDR Transfer of Development Rights District to establish reasonable standards and criteria to protect unique and valuable environmental features and preserve areas identified through Township plans as important open space. It shall be further the intent of this District:
A.
To preserve such lands entirely within the R-1 Residential Agricultural District (R-1) and the R-2 Residential District (R-2), or other areas consistent with the recommendations of the Township's Comprehensive Plan and Open Space and Environmental Resource Protection Plan, and to ensure that lands are preserved for such use for the future.
B.
To reduce the negative impacts of suburbanization and sprawl within the receiving districts.
C.
To protect property rights by allowing landowners whose immediately developable land, without the need for remediation, is intended for preservation to transfer their rights to develop to other areas of the Township deemed more appropriate for development based upon the availability of community facilities and infrastructure.
§ 300-379 Statutory authority; conditional use requirement.
A.
This district is enacted pursuant to the authority granted by Sections 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.
§ 300-380 Establishment of sending and receiving districts.
A.
The R-1 and R-2 Districts shall be the sending district for the purposes of the TDR program. Parcels shall be entirely within either one or both of these districts.
B.
Sending tract.
(1)
A sending area tract shall comply with at least one of the following requirements:
(a)
The sending area tract shall be identified within the Township's most recently amended Open Space and Environmental Resource Protection Plan. Such parcels shall either be located in designated preservation areas or be an individual parcel recommended for preservation.
(b)
The property has at least a portion of any boundary along the banks of the Schuylkill River or Perkiomen Creek.
(c)
More than 33% of the site shall contain wetlands, steep slopes, floodplains, native woodlands worthy of protection, as determined by the Township, or a combination of such features. Such constraints shall be accurately delineated in the required sending area yield plan based on documented source material.
(d)
An established agricultural operation shall be occurring on at least 85% of the site; this specifically excludes those operations which are considered commercial composting by industry standards (i.e., 500 cubic yards throughput per annum); composting which is accessory to an on-site agricultural operation need not be excluded. If a site with a composting operation meeting these standards is remediated to the satisfaction of the Township Engineer or other appointed Environmental Professional, the site can then be reevaluated by the Township as a potential sending site.
(2)
Determination as to the qualifications of any tract as a sending area tract based on the criteria contained herein shall rest solely with the Township.
C.
The maximum number of transferable development rights available to owners of eligible lots shall be determined by submission of a yield plan, drawn pursuant to the requirements § 300-175G of this chapter, and approved by the Township. Any fractional yield shall be rounded down to the next whole number.
§ 300-381 Use regulations.
A.
Land from which TDRs have been sold may be used only for the following purpose:
(1)
Permanent preservation of open space or agricultural land by appropriate deed restriction or legal mechanism acceptable by the Township. Prior to determining the ownership of the property to be preserved (restricted), the applicant may offer it for dedication to the Township. In deciding whether or not to accept any public open space, the Board of Supervisors may obtain the recommendation of the Parks and Recreation Board, Planning Commission, or Township staff. Any preserved property, if not to be accepted for dedication by the Township, shall be maintained in the same manner as it was prior to the transfer of development rights or in a manner acceptable to the Township. This land can be managed by a homeowners' association, a recognized conservation organization, the landowner severing his/her rights, or other group as approved by the Township, once the mechanism for conservation is in place. If the managing organization is a homeowners' association, the organization and governing documents must adequately provide for the preservation and conservation of the land to the satisfaction of the Township.
B.
Transfer of development rights.
(1)
The transferor may transfer only up to the number of lots indicated on the approved yield plan drawn pursuant to the requirement of § 300-380C herein to an appropriate R-1 or R-2 property as defined in § 300-382A herein. If only a portion of the lots based on the yield plan are transferred, the remaining land may be developed pursuant to applicable zoning standards and subject to all other applicable regulations of this chapter and of Chapter 270, Subdivision and Land Development, or as open space, agricultural land, in the same state as prior to the transfer of development rights, or in a manner agreeable to the Township; provided, however, that a minimum of 50% of the sending tract must be restricted from future development as the result of utilizing transfer of development rights.
(2)
All parties involved in any transfer of development rights conditional use application must submit with that application a statement of ownership or equitable ownership of the receiving parcel and a letter of agreement from the transferor to sell development rights from the sending parcel.
(3)
No TDRs created by this article shall be transferable beyond the boundaries of Upper Providence Township.
(5)
The Township may purchase development rights, may accept ownership of development rights through transfer by gift, and may resell or retire development rights. If they are resold, they must be resold in accordance with all applicable provisions of this article.
(6)
If a single-family home and/or farmstead remains on a sending tract after the transfer of development rights transaction has been completed, the owner will retain all rights for that single-development unit; this will include the ability to build farm related buildings, including and similar to: storage buildings, barns, silos, animal coops/pens, and other out-buildings typical to residential or farm development, as long as all development complies with the applicable zoning standards.
(7)
Nothing within this article is meant to preclude the county, commonwealth, or other conservation organization from purchasing the development rights from any tract within the Township and holding them in perpetuity.
C.
Severance of transferable development rights.
(1)
Transferable development rights which have been permanently severed shall be conveyed by a deed of transferable development rights duly recorded in the office of the Recorder of Deeds in and for Montgomery County. The deed of transferable development rights shall specify the tract or tracts of land within eligible receiving area(s) to which the rights shall be permanently attached or that the rights shall be transferred to the Township, retained by the transferor, in gross. Such deeds of transferable development rights shall be suitable in form and in substance to the Township Solicitor.
(2)
The deed of transferable development rights which severs the development rights from the sending area tract(s) shall be accompanied by appropriate legal instrument, as provided in § 300-381A, in a form and substance acceptable to the Township Solicitor and subsequently will be recorded in the office of the Recorder of Deeds in Montgomery County.
(3)
All deeds of transferable development rights shall be accompanied by a title report for the sending area tract(s). Such title report shall be prepared within 10 days prior to submission of the deed of transferable development rights and shall be suitable in form and in substance to the Township Solicitor.
(4)
If less than all of the development rights eligible for transfer hereunder are to be transferred, the applicant and/or sending area landowner shall indicate in the deed of transferable development rights the disposition of any retained development rights.
D.
Sending area conservation restrictions.
(1)
Final plan approval for any plan utilizing transferred development rights shall be conditioned upon the recording of the deed of transferable development rights and the restrictive covenant(s) or conservation easement in the office of the Recorder of Deeds in and for Montgomery County.
(2)
If the owner of the sending tract is not retaining the parcel, the restrictive covenant(s), deed restriction, or conservation easement shall designate the Township, a bona fide conservation organization acceptable to the Township or homeowners' association, at the Township's sole discretion, as the beneficiary or grantee.
(3)
The restrictive covenant(s), deed restriction, or conservation easement shall apply to the sending area tract(s) from which development rights are sold and shall specify the number of development rights so severed as well as any to be retained. No portion of the sending area tract(s) used to calculate the number of development rights which shall be severed shall be used to satisfy minimum yard setbacks, lot area or any other area and bulk requirements for any development rights which are to be retained for any other future development.
(4)
All owners from the tract(s) from which development rights are severed shall execute the deed of transferable development rights and any restrictive covenant(s) or conservation easement. All lien holders of the tract from which development rights are severed shall execute a joinder and/or consent to the deed, restrictive covenant(s) and/or conservation easement.
§ 300-382 Development regulations.
A.
Standards for single-family detached residential development using TDRs. TDRs may be utilized only for the development of single-family detached dwellings. A single-family detached residential development utilizing TDRs shall be known as a "subdivision with transferable development rights."
(1)
Development rights previously severed or land previously restricted from development by covenant or deed restriction are not eligible for severance and transfer and shall be subtracted from any applicable TDR calculations.
(2)
Tracts eligible for receiving TDRs must be at least seven acres in area and shall be located entirely within one or both of the R-1 or R-2 Districts.
(3)
The receiving tract must have direct access to a feeder or higher classification roadway as defined by the Township's adopted Ultimate Right-Of-Way Ordinance and Map.
(4)
At least some portion of the perimeter of the receiving tract shall be adjacent to a commercial, office, or industrial district or be adjacent to a R-3 or R-4 District or a residential development with an average lot size of 30,000 square feet or less.
(5)
The receiving area tract shall not be identified within the Township's most recently amended Open Space and Environmental Resource Protection Plan, as located in designated preservation areas therein as interpreted by the Township, nor shall it be an individual parcel recommended for preservation, or be a property fronting the Schuylkill River or Perkiomen Creek.
(6)
At least 85% of the receiving tract shall be free of environmental constraints, including steep slopes, woodlands, floodplains, and wetlands or other features which would preclude more intensive development than the traditional existing zoning without benefit of TDR.
(7)
If any side of the TDR subdivision is adjacent to a residential district or use with lots of 30,000 square feet or greater and/or a vacant, developable parcel, a Buffer Type 2, as described in § 270-68D(5)(c) of Chapter 270, Subdivision and Land Development, shall be required.
(8)
Where the boundary of the tract proposed for development of a TDR subdivision abuts a tract zoned and/or used for nonresidential purposes, a Buffer Type 3 pursuant to § 270-68D(5)(e) of Chapter 270, Subdivision and Land Development, is required. However, a fifteen-foot buffer with plants and proportional requirements associated with a Buffer Type 2, pursuant to § 270-68D(5)(c) of Chapter 270, Subdivision and Land Development, may be used instead if the applicant chooses to provide a solid fence along the portion of the common boundary line which is adjacent to the above-mentioned districts and/or uses.
(9)
Houses in a TDR subdivision that are not otherwise subject to specified buffers within this section shall be set back a minimum of 30 feet from adjacent properties not part of a subdivision with transferable development rights.
(10)
All required buffer areas shall be maintained by a homeowners' association or other group as approved by the Township.
(11)
The maximum number of lots which may developed on a qualifying receiving tract shall be the sum of the number of lots identified through the yield plan for the receiving tract [reference: § 300-382A(13) herein], plus the number of lots to be transferred to the receiving parcel, in addition to a number equal to no more than 20% of lots to be transferred to the receiving tract.
(a)
Should it not be possible to construct all of the lots to be transferred from a sending tract to a single qualifying receiving tract, said lots may be distributed among two or more qualifying receiving tracts. Any fractional yield shall be rounded down to the next whole number.
(b)
Compliance with the standards in this article does not guarantee that the maximum number of dwelling units will be achievable in all cases. The applicant's ability to develop the maximum number may be reduced as a result of the applicant's choices of dwelling types, building and/or lot sizes, physical constraints of the development site, or other factors.
(12)
Tracts eligible for receiving TDRs must be serviced by public sewer and public water.
(13)
To determine the maximum number of lots which could be permitted on a receiving tract prior to the addition of transferred development rights, a yield plan of the tract must be submitted using standard existing zoning requirements, drawn pursuant to the requirements of § 300-175G of this chapter, and approved by the Township.
§ 300-383 Dimensional regulations.
A.
Lot area and dimensional criteria for a subdivision with transferable development rights in the R-1 District. Lot area and dimensional criteria applicable to the subdivision with transferable development rights in the R-1 District shall be as follows:
B.
Lot area and dimensional criteria for a subdivision with transferable development rights in the R-2 District. Lot area and dimensional criteria applicable to the subdivision with transferable development rights in the R-2 District shall be as follows:
§ 300-384 Township rights.
The Township reserves the right to amend this article in the future, and the Township expressly reserves the right to change the manner in which the number of development rights shall be calculated for a tract in the sending area and the manner in which development rights can be conveyed. The Township further expressly reserves the right to terminate its own transferable development rights program at any time. No owner of the land or owner of development rights shall have a claim against the Township for damages resulting from a change in this article relating to the regulations governing the calculation, transfer and use of development rights, or the amendment thereof, or the abolition of the transferable development rights program. If the transferable development rights 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 transferable development rights program, unless a transfer of development rights conditional use application in conformity with the provisions of this article was filed prior to the effective date of such ordinance and thereafter is continuously processed to approval, and, following such approval, a complete subdivision and/or land development application applying such rights is thereafter filed within two years from the date of such approval.