A.
Legislative intent. In accordance with Sections 603(c)(2.2), 603(b)(5),
605(4) and 619.1 of the Act,[1] this section establishes procedures by which transferable
development rights are granted, severed, applied, and recorded. This
technique enables the permanent preservation of the Township's valuable
and productive farmlands, sensitive natural features and rural character.
In addition, this article protects personal property rights of landowners
within such valuable settings by enabling such landowners to transfer
their development rights to other areas of Conewago Township that
are planned for, and have required infrastructure necessary to support,
community growth and development in accordance with the recommendations
of the Official Conewago Township Comprehensive Plan.
[1]
Editor's Note: See 53 P.S. §§ 10603(c)(2.2),
10603(b)(5), 10605(4) and 10619.1, respectively.
B.
Sending area overview. This article and other provisions of this
chapter issue transferable development rights (TDRs) to eligible landowners
within the (A) Agricultural Zone based upon the sizes of their properties.
This zone contains the Township's most valuable concentrations of
prime and productive farmlands, active farming operations, sensitive
and important natural features, and landscapes of rural character.
This zone comprises the TDR sending areas as TDRs are sent herefrom.
Landowners within these sending areas may sell or donate all or a
portion of their assigned TDRs to landowners and developers who are
looking to develop property elsewhere within the Township's receiving
areas. All transactions (donations or sales) are completely voluntary.
Landowners may also opt to retain their TDRs. Landowners who transact
TDRs (donate, sell or retire) are required to apply a TDR easement
that will protect the respective area within a natural, rural or agricultural
state, depending upon the character of the property and its surroundings.
C.
Receiving area overview. This article and other sections of this
chapter establish the Township's TDR receiving areas to include portions
of the (HC) Highway Commercial Zone, as depicted as such on the Zoning
Map.[2] These zones are planned to accommodate the Township's
community development and generally have access to needed infrastructure.
Within these receiving zones, density bonuses are granted and prescribed
for the acquisition of TDRs from the sending area and their application
to proposed developments during the land development review process.
All TDR transactions (donations or sales) are completely voluntary.
[2]
Editor's Note: The Zoning Map is on file in the Township offices.
A.
Except as noted below in § 155-152A(4), properties within the (A) Agricultural Zones are granted transferable development rights that shall run with the land unless severed in accordance with the requirements of § 155-155 of this chapter. Such transferable development rights shall be granted in accordance with the following:
(1)
Every parcel within the (A) Agricultural Zone that, on the effective
date of this chapter, contains at least three acres is issued one
transferable development right for each three gross acres contained
therein that can be voluntarily transferred. No transferable development
rights are issued to parcels containing less than three acres, and
no additional transferable development rights are issued for fractions
of lot area above each three-acre interval.
(2)
Should a parcel of three acres or more which was not classified
as part of the (A) Zone on the effective date of this chapter be subsequently
rezoned to the (A) Zone, that parcel, too, will be issued one transferable
development right for each three gross acres contained therein on
the effective date of the rezoning.
(3)
Adjoining parcels under single and separate ownership shall
be considered to be combined for the purposes of the granting of transferable
development rights under this section. For the purposes of this section,
land held in single and separate ownership shall be considered to
be contiguous, regardless of whether:
(4)
All such transferable development rights shall be one and the same as those granted under § 155-14L of this chapter.
(5)
Transferable development rights granted under this section are separate and distinct from those granted within § 155-14D of the Agricultural Zone of this chapter. However, should a landowner who has been granted transferable development rights on his/her property transfer all of said rights and apply the required deed restriction language and conservation easements in accordance with § 155-155 of this chapter to his/her entire property, such deed restrictions and conservation easements could prevent the use of those development rights granted under § 155-14D of the Agricultural Zone of this chapter.
(6)
Transferable development rights are not granted to:
(a)
Portions of land owned by or subject to easements (including,
but not limited to, easements of roads, railroads, electrical transmission
lines, and water, gas or petroleum pipelines) in favor of governmental
agencies, utilities, and nonprofit corporations; and/or
(b)
Land restricted from development by covenant, easement or deed restriction, unless and until such time as said covenant, restriction or easement is dissolved or rescinded. In the event said covenant, restriction or easement is dissolved or rescinded, such land shall be automatically issued transferable development rights at that time, subject to the eligibility standards listed in § 155-152A(1) through (6), respectively.
B.
Township certification. Property owners within the sending area may request a written certification by the Township regarding the number of TDRs that are granted to their respective property by this § 155-152. Such determination shall be provided based upon a review of that information submitted by the applicant as required in § 155-155A(1) and (2) of this chapter.
The severance of transferable development rights is accomplished solely on a voluntary basis. Landowners are in no way compelled to sever their transferable development rights. If a severance occurs, it must be accomplished according to the process and requirements of § 155-155 of this chapter. Unsevered transferable development rights may be transferred with land sold, transferred with land donated or transferred with land bequeathed. Transferable development rights shall run with the land unless severed in accordance with the requirements of § 155-155 of this chapter.
The monetary value of transferable development rights is completely
determined between the seller and buyer.
Transferable development rights granted through § 155-152 of this chapter may be sold and/or donated to any party, subject to the following:
A.
Application materials. Application shall be made on a form developed
by the Township, which shall be signed by the transferor and the transferee.
Along with said completed and duly signed application form, the following
shall be submitted:
(1)
A metes and bounds description of the property of the owner
of the land from which the rights will be transferred and a plot plan
or survey thereof, showing:
(2)
If the proposed severance entails 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 enable the Township to clearly
determine:
(a)
The number of development rights applicable to the entire parcel;
(b)
The number of development rights applicable to the identified
portion of the parcel from which the development rights are to be
transferred; and
(c)
The number of development rights which remain available to the
remaining portion of the parcel.
(3)
A title search of the subject tract from which the transferable
development rights will be severed, sufficient to determine all owners
of the tract and all lienholders. In addition, the applicant shall
submit a written legal opinion of title affirming that the TDRs to
be severed by the deed of transferable development rights have not
been previously severed from or prohibited upon the subject property.
Such legal opinion must be approved by the Township Solicitor.
(4)
A copy of the proposed deed of transferable development rights.
(5)
A copy of the deed restriction language to be applied to all
of, or that portion of, the subject property from which the TDRs are
to be severed that permanently restricts use of the subject property
for any purpose other than those listed as follows:
(6)
A copy of two proposed TDR easements, one of which shall designate
Conewago Township as the grantee, the other which shall designate
a bona fide conservation organization (public or private) as the grantee
and shall designate Conewago Township as a third-party grantee, to
be applied to all of, or that portion of, the subject property from
which the TDRs are to be severed that:
(a)
Permanently restricts use of the subject property for any purpose other than those listed for each respective zone in the above § 155-155A(5).
(b)
Provides for the suitable ownership, maintenance and stewardship
of the subject property given its current use and land use context.
(c)
Provides for protection of the subject property's important natural and cultural features, as guided by the requirements of Article V, Environmental Protection, of this chapter.
(d)
Prohibits the use of any portion of the subject property from
which the TDRs are to be severed to be used to satisfy any other area,
bulk or coverage requirements for any development rights retained
on the subject property.
(e)
Specifically grants all future owners of any portion of the
sending area property and any owners of any of the receiving area
property to which the transferable development rights have been attached
separate and independent enforcement rights.
B.
Review, endorsement, recording and approval of severance.
(1)
Upon complete submission as required above, the Zoning Officer shall determine the number of transferable development rights which shall be permitted to be severed from the sending tract. The Zoning Officer shall also determine, with the advice of the Township Solicitor and/or the Township Engineer, the sufficiency of the plan indicating the portion of the parcel restricted from future development if the development rights from less than the entire parcel shall be severed; the title search and accompanying legal opinion; the deed of transferable development rights; the deed restriction language; and the TDR easements. The Zoning Officer shall inform the transferor and transferee of the development rights of his/her determination in writing. Any appeals from the determination of the Zoning Officer shall be made in accordance with the provisions of § 155-174G of this chapter.
(2)
Upon receipt of written approval by the Zoning Officer, as provided in § 155-155B(1), the transferor and transferee may present the Township with the deed restriction language and the deed of transferable development rights for endorsement as required by Municipalities Planning Code Section 619.1(c).[1] No deed restriction language and deed of transferable
development rights shall be so endorsed until the Township is presented
with evidence that the deed restriction language has been approved
by the Township and the TDR easement has been approved by the Township
and has been recorded with the Adams County Recorder of Deeds. In
lieu of presentation of proof of recording the TDR easement, the fully
executed TDR easement may be presented to the Township when the deed
restriction language and the deed of transferable development rights
is presented for endorsement, and the Township, at the applicant's
expense, shall record both documents.
[1]
Editor's Note: See 53 P.S. § 10619.1(c).
(3)
If the development rights are to be severed from less than the entire parcel, the plan prepared in accordance with § 155-155A(2) above shall be attached to and recorded with the TDR easement. All owners of the tract from which transferable development rights are severed shall execute the TDR easement. All lienholders of the tract from which transferable development rights are severed shall execute a joinder and/or consent to the TDR easement.
(4)
Final approval for any subdivision or land development plan
utilizing transferred development rights shall not be granted prior
to the recording of the above-described restrictions with the Adams
County Recorder of Deeds.
C.
Use of property after severance of transferable development rights
is approved.
(1)
The owner severing transferable development rights from the
sending area shall be bound by the deed restriction language and by
the TDR easement and all other applicable sections of this chapter.
(2)
Land from which transferable development rights have been severed
shall continue to be owned by the landowner, his/her heirs, executors,
administrators, successors and/or assigns, all of which shall be bound
by the deed restriction language and by the TDR easement.
When transferable development rights have been acquired by the
transferee for the purposes of assignment to lands within the receiving
area, the following shall apply:
A.
Application materials. Application shall be made on a form developed by the Township, which shall be signed by the transferor and the transferee. Along with said completed and duly signed application form and those materials required by § 155-155A, the transferee shall submit:
(1)
For uses permitted by right, a preliminary subdivision or land development plan, prepared in accordance with the latest version of Chapter 135, Subdivision and Land Development, of the Code of the Township of Conewago. The preliminary plan must indicate:
(2)
For uses permitted by special exception or conditional use, a site plan, prepared in accordance with § 155-174C(1) or 155-185A, respectively, of this chapter that includes the applicable requirements as listed in § 155-156A(1)(a) through (d) listed above.
(3)
An agreement of severance for the development rights between
the owner of the tract to which development rights have been granted,
or the owner of development rights which have been previously severed
from a tract in the sending area, as evidenced by a recorded deed
of transferable development rights, and the owner of the tract proposed
to be developed with the transferred development rights. The agreement
may be contingent upon approval of a final subdivision or land development
plan of the tract to which the transferable development rights are
to be severed.
(4)
If the use of transferable development rights which were previously
severed from a tract in the sending area is proposed, a title search
of such previously severed transferable development rights.
(5)
In all cases, the applicant must clearly demonstrate and the
plan must note that the proposed use has the requisite number of TDRs
to achieve the planned residential density.
B.
Review, approval and recording of transferable development rights
applied to lands within the receiving area.
(2)
No final plan for any subdivision or land development which
utilizes transferable development rights shall be executed on behalf
of the Township until the Township has been presented with a copy
of the recorded deed restriction language, the deed of transferable
development rights and the recorded TDR easements, with the customary
recording information of the office of the Recorder of Deeds in and
for Adams County clearly endorsed thereon. In lieu of presentation
of proof of recording the TDR easements, the deed restriction language
and the deed of transferable development rights, the fully executed
TDR easements may be presented to the Township with the deed of transferable
development rights and the deed restriction language for endorsement,
and the Township, at the applicant's expense, shall record all three
documents and then shall execute and, if applicant so desires, at
applicant's expense, shall record the final plan.
C.
Effect of assignment of transferable development rights within the receiving areas. For each transferable development right that is approved for severance according to § 155-155B, the transferee is entitled to an increase in 1,000 square feet of permitted lot coverage, up to a maximum of 75% lot coverage.
Conewago Township and/or Adams County may purchase development rights and may accept ownership of transferable development rights through transfer by gift. All such transferable development rights may be resold or retired by the Township and/or county. Any such purchase or gift shall be accompanied by a TDR easement and deed restriction language, as specified in § 155-155A of this chapter.
The Township reserves the right to amend this chapter in the
future, and the Township expressly reserves the right to change the
manner in which the number of development rights shall be apportioned
to a tract in the sending area, the manner in which development rights
may be attached to land within the receiving area, the locations of
the sending area and the receiving areas and the procedure by which
development rights can be severed. The Township further expressly
reserves the right to terminate its transferable development rights
program at any time. No landowner or owner of development rights shall
have any claim against the Township for damages resulting from a change
in this chapter relating to the regulations governing the apportionment,
transfer and use of development rights 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 this chapter abolishing the transferable development rights program,
unless an application in conformity with the provisions of this section
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 complying
with such rights is thereafter filed within six months from the date
of such approval.
