A.
Purpose. The purpose of this article is to encourage
the protection of farmland and farming resources by allowing the transfer
of development potential from a site in an agricultural area having
a resource deserving protection to one in a receiving district. The
transfer of development rights will further the community interest
by providing long-term protection of land in the A-1 Agriculture-Rural
District.
B.
DEVELOPMENT RIGHT
INSTRUMENT OF TRANSFER
ORIGINAL INSTRUMENT OF TRANSFER
ORIGINAL TRANSFEROR
RECEIVING PARCEL
SENDING PARCEL
TRANSFER
TRANSFEREE
TRANSFEROR
Definitions. As used in this article, the following
words shall have the meanings indicated:
The right to erect a dwelling unit on property.
An instrument, in the form required by this chapter, by which
one or more development rights are transferred.
An instrument of transfer by which development rights are
initially transferred from a sending parcel by the original transferor.
A parcel that is eligible to receive rights from a sending
parcel.
A parcel of land located in a Wicomico County Agricultural
Land Preservation District or a Maryland Agricultural Land Preservation
District, within Wicomico County, and for which no easement has been
sold and from which development rights are transferred.
A transfer of development rights from a sending parcel to
a receiving parcel by an instrument of transfer. Transfer includes
a subsequent transfer to or among transferees.
A person to whom development rights are transferred; and
all persons who have any lien, security of interest, or other interest
with respect to development rights held by a transferee.
A person who transfers development rights; and all persons
who have any lien, security of interest, or other interest with respect
to development rights held by a transferor.
C.
Sending areas and allocations.
(1)
Sending areas. Sending areas are all those properties located in a Wicomico County Agricultural Land Preservation District or a Maryland Agricultural Land Preservation District within Wicomico County, for which no easement has been sold. Every parcel of land located in a sending area shall have a specific number of transferable development rights based on the allocation standards set forth in this section. These development rights may be used to obtain approval for development on lands located in a receiving area, as identified below in Subsection H(1), at a density greater than would otherwise be allowed on those lands.
(2)
Allocation formula.
(a)
(b)
One development right shall be subtracted for
each existing dwelling.
(c)
No development rights shall be granted on land
which is subject to restrictive development regulations, covenants
or indentures which preclude the subdivision and/or development of
the land. Examples of such restrictions include, but are not limited
to, agriculture land preservation programs (MALPF or county program),
critical areas, CREP or rural legacy easements.
(d)
The owner of any parcel located in a sending
area may apply to the Planning Director for a certificate verifying
the number of transferable development rights which are allocated
to that parcel.
(e)
Where application of the allocation formula
results in the creation of a fraction of a development right, such
fraction (to the nearest tenth) may be sold, conveyed, or transferred
to the same extent as a whole development right.
D.
Transfer of development rights.
(1)
Right to transfer. The owner of any parcel of land
located in a sending area may transfer the development rights allocated
to that parcel to any person at any time, to the same extent and in
the same manner as any other interest in real property is transferred.
A development right may be used to increase density on a receiving
parcel in accordance with the provisions of this article.
(2)
Limitations.
(a)
A development right may not be used in any manner
inconsistent with the provisions set forth in this article.
(b)
A development right may not be used to increase
density for receiving parcels located within the critical area beyond
the density allowed within the parcel's zoning district.
(c)
A development right may not be used to increase
density for receiving parcels located within the Paleochannel Overlay
District, or the eight-thousand-foot radius area of the Airport Overlay
District, beyond the density allowed within the parcel's zoning district.
(3)
Subsequent transfer. A development right may be transferred
to a transferee prior to the time when its use for a specific receiving
parcel has been finally approved in accordance with this article.
(4)
Instruments of transfer. An instrument of transfer
shall conform to the requirements of this article. An instrument of
transfer shall contain:
(a)
The names of the transferor and the transferee;
(b)
A covenant that the transferor grants and assigns
to the transferee and the transferee's heirs, personal representatives,
successors and assigns a specified number of development rights from
the sending parcel;
(c)
A covenant by which the transferor acknowledges
that he has no further use or right of use with respect to the development
rights being transferred;
(d)
A statement of the rights of the transferee prior to final approval of the use of those development rights on a specific receiving parcel, as set forth in Subsection D(4)(f) below, except when development rights are being transferred to Wicomico County in accordance with this article;
(e)
A covenant that at the time when any development
rights involved in the transfer are finally approved for use on a
specific receiving parcel, such rights shall be transferred to the
county for no consideration; or in cases when development rights are
being transferred to the county after such approval, a covenant that
the rights are being transferred to the county for no consideration.
[Amended 10-17-2006 by Bill No. 2006-11]
(f)
If the instrument is not an instrument of original
transfer, a statement shall appear that the transfer is a subsequent
transfer of rights derived from a sending parcel described in an original
instrument of transfer, which original instrument shall be identified
by its date, the names of the original transferor and transferee,
and the book and page where it is recorded among the land records
of Wicomico County.
(5)
An instrument of transfer, other than an original
instrument of transfer, need not contain a metes and bounds description
or plat of the sending parcel. An instrument of original transfer,
which is required when a development right is initially separated
from the subject property, shall also contain:
(a)
A metes and bounds description of the sending
parcel, prepared by a licensed surveyor named in the instrument, or
a deed or deeds that describe in detail the acreage contained in said
property along with a title certificate for the sending parcel. A
metes and bounds survey for certification shall only be required to
be submitted by the owner when:
[1]
The deed/deeds for the property in the designated
sending area requesting to have their development rights certified
fail to specifically indicate numerically the number of acres contained
in the sending parcel; or
[2]
During the initial title search there is some
conflict between said acreage in the deed/deeds and the Tax Assessor's
office and the owner wants to claim the larger of the two figures;
or
[3]
When deemed necessary within the discretion
of the Director of the Department of Planning, Zoning and Community
Development.
[Amended 12-18-2012 by Bill No. 2012-13]
(b)
A covenant that the entire sending parcel may
not be subdivided, unless the subdivision is for agricultural purposes;
(c)
A covenant by which use of the sending parcel
is restricted to, and may be used only for agricultural uses, other
than farm dwellings;
(d)
A covenant that all provisions of the instrument
of transfer shall run with and bind the sending parcel and may be
enforced by the County Executive; and
[Amended 10-17-2006 by Bill No. 2006-11]
(e)
The certificate of the Planning Director required
by this section.
E.
Certificate of development rights.
(1)
Requirement. No transfer shall be recognized under
this article unless the original instrument of transfer contains a
certificate of development rights issued by the Planning Director
indicating that the number of development rights represents the number
of development rights applicable to the sending parcel and is recorded
in the land records of Wicomico County by the Planning Director.
(2)
Responsibility. The transferor and the transferee
named in an original instrument of transfer shall have sole responsibility
to supply all information required by this article; to provide a proper
original instrument of transfer; and, to pay, in addition to any other
fees required by this chapter, all costs of its recordation among
the land records of Wicomico County.
(3)
(4)
Issuance of certificate. On the basis of the information
submitted, the Planning Director shall affix a certificate of his
findings to the original instrument of transfer. The certificate shall
contain a specific statement of the number of development rights which
are derived from the sending parcel.
(5)
Effect of determination. The determination of the
Planning Director shall not be construed to enlarge or otherwise affect
in any manner the nature, character and effect of a transfer not otherwise
permitted by this chapter.
F.
Effect of transfer.
(1)
After development rights have been transferred by
an original instrument of transfer:
(a)
The sending parcel from which development rights
are transferred shall not be subdivided and shall be used only for
agricultural uses, other than farm dwellings, as defined and permitted
in this chapter.
(b)
The sending parcel from which rights are transferred
shall not be used in connection with any determination of site area
or site capacity of a future development.
(c)
All development rights which are the subject
of the transfer, and the value of such rights, shall be deemed for
all other purposes, including assessment and taxation, to be appurtenant
to the sending parcel, until such rights have been finally approved
for use on a specific receiving parcel and transferred to the countyl.
[Amended 10-17-2006 by Bill No. 2006-11]
(2)
Rights of transferees. Between the time of the transfer
of a development right by an original transferor and the time when
its use on a specific receiving parcel is final in accordance with
the provisions of this article, a transferee has only the right to
use the development right to the extent authorized by all applicable
provisions of this chapter.
(3)
No transfer shall be construed to limit or affect
the power of the County Council to amend, supplement, or repeal any
or all of the provisions of this section or any other provisions of
this chapter at any time or to entitle any transferor or transferee
to damages or compensation of any kind as the result of any such amendment,
supplementation, or repeal.
G.
Recordation of transfers. After it is properly executed,
an instrument of transfer and a title certificate shall be delivered
to the Planning Director, who shall deliver it to the Clerk of the
Circuit Court for Wicomico County, together with the required fees
for recording furnished by the original transferor and transferee.
The Planning Director shall immediately notify the original transferor
and transferee in writing of such recording.
H.
Receiving area and use of transferable development
rights.
(2)
A transferable development right in the above designated
areas shall only be used when the development conforms to standards
established for their use in this chapter.
(3)
The owner of any property located in a receiving area
may use transferable development rights, in addition to that density
allowed on the property as a matter of right, to build up to the maximum
density of development allowed on the property. Transferable development
rights and any fractions thereof, may be aggregated from different
parcels and owners for use in securing additional development in a
receiving area.
(4)
Development permitted with use of development rights. Each development right may be used to secure approval from the county for additional development above the number of dwelling units otherwise allowed to be developed on the property at the rate prescribed in Subsection C(2)(a)[1].
I.
Development approval procedure. The request to use
transferable development rights on a property shall be in the form
of a sketch plat, preliminary subdivision plat, site plan or other
application submitted in accordance with the requirements of this
Code. In addition to any other information required by this chapter,
the application shall be accompanied by an affidavit of intent to
transfer development rights indicating the number of development rights
to be transferred to the property.
