[Added 12-15-2008 by Ord. No. 495]
In expansion of the community development objectives contained in Article I, § 182-2 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.
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.
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 § 182-44G of this chapter, and approved by the Township. Any fractional yield shall be rounded down to the next whole number.
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 § 182-71.3C herein to an appropriate R-1 or R-2 property as defined in § 182-71.5A 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 154, 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 § 182-71.4A(1), 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.
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 § 154-36D(5)(c) of Chapter 154, 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 § 154-36D(5)(e) of Chapter 154, Subdivision and Land Development, is required. However, a fifteen-foot buffer with plants and proportional requirements associated with a Buffer Type 2, pursuant to § 154-36D(5)(c) of Chapter 154, 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: § 182-71.5A(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 § 182-44G of this chapter, and approved by the Township.
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:
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.
