West Hempfield Township
City Zoning Code
City Zoning Code
ARTICLE 1100
Transferable Development Rights
§ 1103.1 Sending area qualifications.
The sending area tract of land shall comprise at least 25 acres located within the R Rural Agricultural District or RR Rural Residential District and shall be located outside the UGB.
§ 1103.2 Calculation of transferable development rights.
A.
The total number of transferable development rights which may be sold from a sending tract shall be established as follows with any fractional products rounded to the nearest whole number:
1.
In the R Rural Agricultural District, on any sending tract where no rights have been exercised to subdivide or erect residences pursuant to § 301.4A, the number of available transferable development rights shall be calculated by multiplying the sending tract area, in acres, times 0.25, and subtracting from the product the number of existing residences on the sending tract, if any. As an example, if the area of the sending tract from which development rights shall be severed is 100 acres, and there is one existing dwelling, there shall be 24 transferable development rights ([100 X 0.25] - 1 = 24).
2.
In the R Rural Agricultural District, on any sending tract that has exercised rights to subdivide or erect residences pursuant to § 301.4A, the number of available transferable development rights shall be calculated by multiplying the area of the sending tract, in acres, as it existed prior to subdivision or erection of residences pursuant to § 301.4A, times 0.25 and, from the product of that calculation, subtracting: 1) the product of four times the number of lots subdivided or residential dwellings erected pursuant to § 301.4A; and further subtracting: 2) the number of residences on the sending tract, if any, which existed prior to subdivision of lots or erection of residential dwellings pursuant to § 301.4A. As an example, if the area of the sending tract from which transferable development rights shall be severed is 100 acres, but two one-acre residential lots have been subdivided pursuant to § 301.4A, and there is one existing dwelling, there shall be 16 transferable development rights ([100 X 0.25] - [4 X 2] - 1 = 16).
3.
In the RR Rural Residential District, the number of available transferable development rights shall be determined by multiplying the area of the portion of the tract from which development rights are to be sold, in acres, by 0.067. The portion of the tract from which development rights may be sold shall be measured as the gross area of the tract less at least three acres to provide for at least one retained development right. If additional development rights are to be retained, whether to accommodate existing or future residences, then the area available for calculation of transferable development rights shall be further reduced accordingly, such that for all retained rights, applicable area and bulk regulations shall be complied with. The reduction in applicable acreage shall be in addition to any reduction required to account for existing public rights-of-way.
B.
Land restricted against development by covenant, easement or deed restriction shall not be eligible for calculation of transferable development rights unless and until such time as said covenant, restriction or easement is dissolved or rescinded, such land shall be eligible for calculation of transferable development rights. Land subject to preferential assessment and taxation under Act 319, commonly known as "Clean and Green," shall not be considered restricted against development for the purposes of this article.
§ 1103.3 Severance of transferable development rights.
Transferable development rights shall be conveyed by a deed of transferable development rights duly recorded in the Office of the Lancaster County Recorder of Deeds. The deed of transferable development rights shall specify the tract of land within the receiving district to which the rights shall be permanently attached or that the rights shall be transferred to the Township, the owner of the sending tract, or another person in gross. The deed of transferable development rights which severs the development rights from the sending tract shall be accompanied by restrictive covenants meeting the requirements of § 1103.4, which shall permanently restrict development of the sending tract as provided below and which shall be recorded in the Office of the Recorder of Deeds at the same time as or prior to the deed of transferable development rights. Development rights which have been severed from a sending tract shall be conveyed by a deed of transferable development rights which shall be recorded in the Office of the Recorder of Deeds. All deeds of transferable development rights shall be endorsed by the Township prior to recording.
§ 1103.4 Sending area restrictive covenant.
Except for retained development rights (not to be severed), if any, the sending tract must be permanently restricted from future development by a declaration of restriction of development or other restrictive covenant which meets the following requirements:
A.
Except where any retained development rights are specified, the restrictive covenant shall permanently restrict the entire sending tract from future development of any nonagricultural uses, except for public park land, conservation areas, municipal facilities and similar uses. Where development rights will be severed from less than an entire parcel, the portion of the parcel from which the development rights are transferred shall be clearly identified on a plan of the entire parcel, drawn to scale, the accuracy of which shall be satisfactory to the Township. Such plan shall also include a notation of (i) the number of development rights applicable to the entire parcel, (ii) the number of development rights applicable to the identified portion of the parcel from which the development rights are to be severed, and (iii) the number of development rights which remain available to the remaining portion of the parcel. This plan shall be a part of the restrictive covenant and shall be recorded.
B.
The restrictive covenant shall be approved by the Board of Supervisors of the Township, in consultation with the Township Solicitor. Final plan approval of any subdivision or land development plan proposing the severance or use of TDRs, and endorsement of any deed of transferable development rights, will be contingent upon the recording of the restrictive covenant at the Lancaster County Recorder of Deeds.
C.
The restrictive covenant shall designate the Township, and/or a bona fide conservation organization acceptable to the Township at its sole discretion, as the beneficiary/grantee, but shall also designate both (a) all future owners of all or a portion of the sending parcel, and (b) all future owners of any portion of the receiving parcel as having separate and independent enforcement rights with respect to the restrictive covenants.
D.
The restrictive covenant shall apply to the tract of land from which development rights are sold, and shall specify the number of development rights to be transferred as well as any to be retained. No portion of the tract area used to calculate the number of development rights to be transferred shall be used to satisfy minimum yard setbacks or lot area requirements for any development rights which are to be retained or for any other development.
E.
All owners of the tract from which development rights are severed shall execute the restrictive covenant(s). All lienholders of the tract from which development rights are severed shall execute a joinder and/or consent to the restrictive covenant(s).
F.
Where development rights are retained, those parcels with a minimum acreage of 25 acres per each development right may be developed with traditional farm/estate building groupings including, in addition to one primary residence, customary accessory agricultural structures and one tenant residence which shall be less than 50% of the total habitable square footage of the primary residence. In order to be utilized, this option must be specified in the restrictive covenants.
G.
Agricultural uses not in keeping with the intent statement of this ordinance may be restricted or denied by the Township.
H.
Should the Township acquire ownership of the sending tract, the land may be used for passive recreation coincidental with municipal purposes that allow for possible municipal uses and continue to promote the conservation of open space and preservation of view sheds.
§ 1104.1 Receiving area qualifications.
§ 1104.2 Provision for transfer of development in receiving sites.
A.
Except as provided in § 1104.2B below, for each development right purchased from sending area parcel(s) in accordance with this article, landowners in receiving districts have the right to build one additional dwelling unit in addition to what is otherwise allowed pursuant to the open space design option provisions of this ordinance.
B.
In the R-3 District only, for each development right purchased from sending area parcel(s) in accordance with this article, landowners have the right to build 1.5 dwelling units in addition to what is otherwise allowed pursuant to the open space design option, where such dwelling units are quadraplex dwellings, multiple-family dwellings and/or garden apartments. Additional density for all other dwelling unit types shall be permitted in accordance with § 1104.2A above.
§ 1104.3 Calculation of maximum receiving area development rights.
A.
The maximum total number of additional dwelling units permitted to be developed by the owner of the receiving area tract of land shall be computed by multiplying the gross area of the tract, less existing public rights-of-way, by the incremental multiplier stipulated for each zoning district as follows:
B.
The product represents the number of additional dwelling units that may be developed fully in excess of the maximum permitted under the open space design option.
§ 1104.4 Receiving area standards.
Development in the receiving area, wherever transferable development rights are utilized, shall adhere to all standards and criteria for development under the open space design option.
§ 1104.5 Ownership or acquisition of required development rights.
[Amended 6-1-2021 by Ord. No. 3-21]
At the time of application for conditional use approval of an open space option development under Article 1200, Open Space Design Option, the applicant shall identify ownership of or demonstrate compliance with this article to acquire the required number of transferable development rights for its proposed development. The applicant shall proceed in one or more of the following manners:
A.
The applicant shall demonstrate ownership of the appropriate number of transferable development right(s), up to the maximum additional increment calculated as above. The applicant may be the equitable owner of the transferable development rights at the time of application, but the applicant shall be required to demonstrate, to the satisfaction of the Township Solicitor, legal ownership of all required transferable development rights prior to unconditional final approval of any subdivision or land development plan utilizing transferable development rights.
B.
The applicant shall request that the Township sell transferable development rights which it owns to the applicant if, at the time of application, the Township owns transferable development rights. Such request shall be accompanied by an agreement to reimburse the Township for all costs associated with compliance with requirements of the Second Class Township Code[1] for the sale of an interest in real estate. The applicant shall settle on the purchase of the transferable development rights from the Township prior to the release of a plan for the applicant's open space option development for recording.
[1]
Editor's Note: See 53 P.S. § 65101 et seq.
C.
If the Township does not own sufficient transferable development rights for the applicant's open space design option development at the time the applicant files its conditional use application, the applicant may request that the Township accept a payment for future Township acquisition of transferable development rights. The applicant shall make payment in full to the Township for the required number of transferable development rights to enable the Township to purchase that number of transferable development rights in the future prior to Township release of applicant's subdivision or land development plan. The Board of Supervisors shall, by resolution, annually establish the fair market value of a transferable development right.
D.
The applicant shall provide evidence to the Township that the applicant has made a good faith effort to acquire transferable development rights from landowners within the Rural Agricultural District before proceeding under § 1104.5C. An applicant may proceed under § 1104.5C only if the applicant is unable to acquire transferable development rights from a landowner and the Township does not own sufficient transferable development rights to sell to the applicant.
§ 1105.1 Severance of transferable development rights from tract in sending area.
A landowner who desires to sever transferable development rights from a tract in the sending area for sale to an applicant for development, for sale in gross, or for retention for future transfer shall file an application with the Township setting forth all of the following information:
A.
A plan of the sending tract(s) from which the applicant proposes to sever transferable development rights. This plan shall show all information needed to determine the number of transferable development rights which may be severed. In addition, the plan shall be accompanied by a metes and bounds description of the tract(s), as well as each tract's tax account number and record owner name. If the applicant is severing transferable development rights from a portion of a sending area tract, this portion shall be shown on the plan and described with metes and bounds. If transferable development rights have previously been severed from such tract in the sending area, a copy of the recorded deed of transferable development rights shall be submitted.
B.
A title search of the tract from which the transferable development rights will be severed sufficient to determine all owners of the tract, whether any transferable development rights were previously severed, and whether any portions of the tract are restricted from development by covenant, easement or deed restriction.
C.
If the application to sever development rights would entail less than an entire parcel, the portion of the parcel involved in the proposed severance of development rights shall meet the following criteria:
1.
The portion of the sending tract to be deed restricted as a result of the severance of development rights shall contain at least 50% prime agricultural soils.
2.
The acreage to be restricted shall be contiguous and generally be of a regular configuration.
3.
The portion of the sending tract which will not be restricted shall be usable under the use, area, dimensional, performance and other standards of this chapter.
D.
If the application for severance of transferable development rights would entail less than an entire tract, the portion of the tract from which the development rights are transferred shall be clearly identified on a plan of the entire parcel, drawn to scale, the accuracy of which shall be satisfactory to the Township. Such plan shall also include a notation of i) the number of transferable development rights applicable to the entire tract, ii) the number of transferable development rights applicable to the identified portion of the tract from which the transferable development rights are to be severed, and iii) the number of transferable development rights which remain available to the remaining portion of the tract.
E.
The transferable development rights shall be severed by the recording of a deed of transferable development rights. The Township shall not endorse a deed of transferable development rights until the applicant for severance of the transferable development rights provides documentation that appropriate restrictive covenants have been recorded for all sending area lands whose development rights are being severed by the applicant. These restrictive covenants shall meet the requirements of § 1103.4 above. The restrictive covenant on the sending area land shall be recorded first, followed by the deed of transferable development rights in accordance with the provisions of the MPC which severs the development rights from the sending area tract.
§ 1105.2 Application to use transferable development rights.
An applicant who seeks to use transferable development rights in an open space design option development shall comply with the following regulations:
A.
If the applicant proposes to acquire transferable development rights previously severed from a tract within the receiving area, the conditional use application for the open space design option development shall include:
1.
An agreement of sale for the development rights proposed to be purchased in gross.
2.
A title search for the transferable development rights to be purchased in gross demonstrating that they remain valid and were not previously used for any development.
3.
If the application would entail less than the entire number of development rights represented by a recorded deed of transferable development rights, the applicant shall indicate the disposition of the remaining transferable development rights.
B.
An applicant who desires to use transferable development rights which have not yet been severed from a tract within the sending area shall submit:
C.
An applicant who desires to use transferable development rights to be purchased from the Township shall submit a written request identifying the number of transferable development rights the applicant desires to purchase from the Township which contains a commitment to reimburse the Township for all costs associated with the sale of the transferable development rights. The applicant shall post escrow in the amount established by resolution to enable the Township to reimburse itself for such costs.
D.
An applicant who desires to submit an application for an open space design option development using transferable development rights but who is unable to obtain transferable development rights under any of the above procedures shall submit the following:
1.
An application to make a payment towards the future purchase of transferable development rights by the Township in lieu of using existing transferable development rights.
2.
A statement outlining the steps the applicant has taken to acquire transferable development rights from a landowner in the sending area or from an owner of transferable development rights in gross.
3.
An acknowledgment that the applicant will pay the fee for future purchase of transferable development rights in the amount established by resolution on the date the applicant submits its final subdivision or land development plan in full for the entire open space design option development before the first plan is released for recording.
§ 1105.3 Fees for future acquisition of transferable development rights.
In recognition of the fact that transferable development rights may not be available to purchase when a developer desires to file an application for development, the Township will allow developers to make payment to a fund to enable the Township to acquire transferable development rights and undertake preservation of land in the future. This fund shall be established, maintained, and used by the Township in accordance with the following requirements:
A.
Fees paid to the Township for the future acquisition of transferable development rights shall not be refunded to any person. An applicant's determination to abandon a development or reduce the intensity of the development is not grounds for a return of any fee paid for future acquisition of transferable development rights.
B.
The Board of Supervisors shall annually establish by resolution the estimated fair market value of a transferable development right. An applicant who desires to pay a fee for future acquisition of a transferable development right shall pay the annually established fair market value for each transferable development right required by an applicant's proposed open space design option development.
C.
The Township shall use the funds paid under this section for one or more of the following purposes:
1.
Acquisition of transferable development rights in gross from a landowner in the sending area.
2.
Acquisition of transferable development rights previously severed from a tract in the sending area and held in gross.
3.
Cooperation with another entity in preserving agricultural land within the Township, including, but not limited to, cooperation with the Lancaster County Agricultural Preserve Board, the Commonwealth of Pennsylvania, or Lancaster Farmland Trust.
4.
Preservation of agricultural land through the recording of restrictive covenants over of portions of an agriculturally used tract, including, but not limited to, acquisition of a riparian buffer easement or conservation easement and performance of work, including, but not limited to, stream bank restoration, within the area subject to the riparian buffer easement or conservation easement.