[Added 4-28-2010]
Pursuant to the authority granted by §§ 15.2-2316.1 and 15.2-2316.2 of the Code of Virginia, there is established a transfer of development rights (TDR) program, the purpose of which is to transfer residential density from eligible sending areas to eligible receiving areas and/or transferee through a voluntary process for permanently conserving agricultural and forestry uses of lands and preserving rural open spaces, and natural and scenic resources. The TDR program is intended to supplement land use regulations, resource protection efforts and open space acquisition programs and encourage increased residential density where it can best be accommodated with the least impacts on the natural environment and public services by:
A. 
Providing an effective and predictable incentive process for property owners of rural and agricultural land to preserve lands with a public benefit; and
B. 
Implementing the Comprehensive Policy Plan by directing residential land uses to the Urban Development Area (UDA); and
C. 
Providing an efficient and streamlined administrative review system to ensure that transfers of development rights to receiving areas are processed in a timely way and balanced with other county goals and policies and are adjusted to the specific conditions of each receiving area.
[Amended 11-13-2013]
The procedures and regulations in Article III of Chapter 165 shall apply to the transfer of development rights from land qualifying as sending properties to land qualifying as receiving properties and/or to a transferee. Land utilizing transferred development rights may be subdivided at an increased density above the base density specified by Tables 1 to 3 in § 165-302.03 in applicable receiving areas. All development utilizing transferred development rights shall conform to the guidelines contained in the Comprehensive Policy Plan.
A. 
A development right shall be transferred only by means of documents, including a covenant to which Frederick County is party and any appropriate releases, in a recordable form approved by the Director of Planning and Development or his designee. The covenant shall limit the future construction of dwellings on a sending property to the total number of development rights established by the zoning of the property minus all development rights previously transferred in accordance with this chapter, any development rights previously extinguished or limited as a result of a recorded covenant against the property, the number of development rights to be transferred by the proposed transaction, and the number of existing single-family detached dwellings on the sending property. If a sending property contains no dwelling units, a development right equal to that for one single-family dwelling must be maintained for the property, except that for properties larger than 100 acres, one development right equal to that for one single-family dwelling must be maintained for each multiple of 100 acres, or fraction thereof, contained within the sending property.
B. 
Each transferor shall have the right to sever all or a portion of the rights to develop from the parcel in a sending district and to sell, trade, or barter all or a portion of those rights to a transferee consistent with the purposes of § 165-301.01 so long as the conditions of § 165-301.03A are met.
C. 
Any transfer of development rights pursuant to this chapter authorizes only an increase in maximum density and shall not alter or waive the development standards of the receiving district, nor shall it allow a use otherwise prohibited in a receiving district.
D. 
Transfer of development rights shall not be available for the following:
(1) 
Portions of lots owned by or subject to easements (including, but not limited to, easements of roads, railroads, electrical transmission lines, gas or petroleum pipelines) in favor of governmental agencies, utilities and nonprofit corporations.
(2) 
Land restricted from development by covenant, easement or deed restriction.
E. 
Any transfer of development rights shall be recorded among the land records of Frederick County, Virginia.
F. 
Value of transferable development rights. The monetary value of transferred development rights is completely determined between the seller and buyer.