A. 
For the purposes of this chapter, a sending property must be an entire tax parcel or lot qualified under § 165-302.01B of this section. Sending areas may only be located within the rural areas outside of the Urban Development Area (UDA) and the Sewer and Water Service Area (SWSA), and zoned RA (Rural Areas), as described in the Comprehensive Policy Plan and the RA Zoning District of this chapter.[1] A sending property shall be maintained in a condition that is consistent with the criteria in this section under which the sending was qualified.
[1]
Editor's Note: See Art. IV, Agricultural and Residential Districts, Part 401, RA Rural Areas District.
B. 
Qualification of a sending property shall demonstrate that the site contains a public benefit such that the preservation of that benefit by transferring residential development rights to another site is in the public interest, according to all of the following criteria:
(1) 
Designated in the Comprehensive Policy Plan as Rural Area;
(2) 
Designated on the Zoning Maps of Frederick County as being zoned RA (Rural Areas) and be located outside of the Urban Development Area (UDA) and the Sewer and Water Service Area (SWSA);
(3) 
Designated on the Sending Areas Map;
(4) 
Comprised of at least 20 acres in size; and
(5) 
Qualified for subdivision in accordance with Chapter 144 of the Frederick County Code, including, but not limited to, meeting all state road and access requirements. For TDR purposes, if the sending property consists of more than one parcel of land, at least one lot must meet all the subdivision requirements of Chapter 144; this lot shall be deemed the primary lot. Additional parcels that do not meet the subdivision requirements but are contiguous to the primary lot may be added to the sending property, if they are all under common ownership. For purposes of this section, lots divided by a street are considered contiguous if the lots would share a common lot line if the street was removed.
[Amended 11-13-2013]
C. 
If a sending property has any outstanding code violations and/or unpaid taxes, the owner shall resolve these violations, including any required abatement, restoration, or payment of penalties or taxes, before the property may be qualified as a sending property in the transfer of development rights program.
[Amended 11-13-2013; 9-24-2025]
A. 
Except as provided in Subsections B and C of this section, in order to be eligible as a receiving property, a property must be:
(1) 
Located in one of the following zoning districts:
(a) 
RP (Residential Performance) District;
(b) 
R4 (Residential Planned Community) District; or
(c) 
RA (Rural Areas) District; and
(2) 
Designated on the Receiving Areas Map;
(3) 
Served by public water and public sewer;
(4) 
Served by state-maintained roads or have the ability to utilize private roads in the RP District as permitted by Chapter 165 or Chapter 144;
(5) 
Located within the Urban Development Area (UDA) or a designated and defined Rural Community Center as identified in the Comprehensive Policy Plan; and
(6) 
Identified in the Frederick County Comprehensive Policy Plan as a future land use that is solely residential in nature.
B. 
A property is not eligible as a receiving property if the transfer of development rights to the property would adversely impact regionally or locally significant historical resources or naturally sensitive areas as specified in the Comprehensive Policy Plan.
C. 
A property is not eligible as a receiving property if the property is located within the airport support area as identified by the Comprehensive Policy Plan.
D. 
If a receiving property has any outstanding code violations and/or unpaid taxes, the owner shall resolve these violations, including any required abatement, restoration, or payment of penalties or taxes, before the property may be qualified as a receiving property in the transfer of development rights program.
E. 
A receiving property may accept development rights from one or more sending properties, up to a maximum density specified in Tables 1 to 3 in § 165-302.03.
A. 
The number of residential development rights that a sending property is eligible to send to a receiving property and/or transferee shall be determined by applying the sending property base density established in Subsection C of this section to the area of the sending property after deducting all the following:
(1) 
Development rights previously transferred in accordance with this chapter;
(2) 
Development rights previously extinguished or limited as a result of a recorded conservation easement or similar covenant against the property;
(3) 
The number of existing single-family dwellings on the sending property;
(4) 
The amount of any submerged land (i.e., lakes, ponds, streams), floodplains, and steep slopes as determined by Frederick County GIS data.
(5) 
The amount of any land contained within 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.
B. 
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. Properties with over 100 acres shall be required to retain the number of development rights required in accordance with § 165-301.03A.
C. 
For the purposes of calculating the amount of development rights a sending property can transfer, the square footage or acreage of land contained within a sending property shall be determined by a valid recorded plat or survey, submitted by the applicant property owner and that has been prepared and stamped by a land surveyor licensed in the Commonwealth of Virginia.
D. 
For the purposes of the transfer of development rights program only, sending sites zoned RA (Rural Areas) shall have a base density of one dwelling unit per five acres for transfer purposes.
E. 
Any fractions of development rights that result from the calculations in Subsection A of this section shall not be included in the final determination of total development rights available for transfer.
F. 
Development rights from one sending property may be allocated to more than one receiving property and/or transferee and one receiving property and/or transferee may accept development rights from more than one sending property.
G. 
The determination of the number of residential development rights a sending property has available for transfer to a receiving property and/or transferee shall be documented in a TDR letter of intent to issue a transfer of development rights certificate issued by the Director of Planning and Development or his designee, pursuant to the provisions of § 165-302.05 of Chapter 165, and shall be considered a final determination, not subject to revision. Such a determination shall be valid only for purposes of the transfer of development rights program and for no other purpose. Any changes to the proposed sending property shall void any issued letters of intent.
H. 
A sending property transferee may extinguish TDR density rights, sever and hold TDR density rights, sever and sell TDR density rights, or apply TDR rights to a receiving property in a receiving district in order to obtain approval for development at a density greater than would otherwise be allowed on the land in the receiving district, up to the maximum density or intensity outlined in the table below.
[Amended 11-13-2013]
Table 1
Maximum Density Allowed in Zoning Districts Through Transfer of Development Rights (TDR) Program
Zoning District and Land Use
Property Size
(acres)
Maximum Density in Dwelling Units per Acre Without TDRs
Maximum Density for Dwelling Units per Acre with TDR Transfers
RA (Rural Areas)
RA receiving property
1 unit per 5 acres
Density for qualified RA receiving properties in the UDA shall be consistent with the allowable RP density utilizing TDRs (see below)
RA (Rural Areas) *For designated rural community centers
RA receiving property
1 unit per 5 acres
1 unit per acre in designated rural community centers served by community septic systems
RP (Residential Performance)
*Density by parcel size for all other housing types and developments with mixed housing types
*See § 165-402.05 for maximum percentage of multifamily housing.
0 to 10
10.1 to 25
25.1 to 50
50.1+
10
6
6
6
15
10
10
10
RP (Residential Performance) Multifamily residential buildings and Age-Restricted multifamily
N/A
20
24
Garden apartments
10
15
Townhouse (single-family attached)
10
15
R4 (Residential Planned Community)
>100
4
10
I. 
TDR density rights may be converted to bonus density rights by an increase in the residential density on the receiving property, based on the conversion factors in the table below.
[Amended 11-13-2013]
Table 2
Maximum Density Allowed in Zoning Districts Through Transfer of Development Rights (TDR) Program
Designated Sending Area
Each Transferred Density Right May Be Converted to This Bonus Density in the Receiving Area
Sending Area No. 1
1 density right = 2 dwelling units
Sending Area No. 2
1 density right = 1.5 dwelling units
Sending Area No. 3
1 density right = 1 dwelling unit
(1) 
Allowable sending area bonus density remains subject to the maximum density provisions outlined in Table 1 of § 165-302.03H.
(2) 
If properties located in Sending Area No. 1 (designated Agricultural and Forestal District) that have transferred bonus density rights are subsequently withdrawn from the designated sending area (the designated Agricultural and Forestal District), the total number of density rights transferred, including bonus density rights, shall be counted against any future subdivision ability of the property.
(3) 
When TDR density rights are applied to a receiving property, the density right to housing type conversion rate shall be outlined in the table below. Such density conversions shall be demonstrated on the master development plan for the receiving property.
Table 3
TDR Density Right Conversion Rate
Housing Type
Conversion Rate
Single-family
1 TDR density right = 1 dwelling unit
Single-family attached
1 TDR density right = 1.5 dwelling units (*all fractions must be rounded down)
Multifamily
1 TDR density right = 1.75 dwelling units (*all fractions must be rounded down)
A. 
Following the transfer of residential development rights, a sending property that has retained part of its development rights may subsequently accommodate remaining residential dwelling units on the sending property consistent with the requirements of the RA (Rural Areas) District and all requirements of the Frederick County Code. A sending property that has retained part of its development rights may also transfer the remainder of the eligible rights through the transfer of development rights program.
B. 
On sending properties with environmental features as outlined in § 165-302.03A, the development rights shall be severed from the areas outside of the specified environmental features. If development rights are retained on the sending property, future subdivision of the parcel cannot occur on the areas where development rights have already been severed.
C. 
The limitations in this section shall be included in a deed covenant applicable to the sending property.
A. 
The Director of Planning and Development or his designee shall be responsible for determining that a proposed sending property meets the qualifications of § 165-302.01. The Director of Planning and Development or his designee shall render a determination or denial under this subsection within 60 days of the date of submittal of a completed sending property determination application. If the determination is that a property meets the qualifications of § 165-302.01, the Director of Planning and Development or his designee shall issue the determination in the form of a letter of intent to issue a transfer of development rights certificate. A letter of intent issued under this subsection shall be valid until the development rights are severed and extinguished through the transfer process or unless applicable zoning changes are approved that would affect the sending property or unless the property is developed.
B. 
Determinations of sending property qualifications under Subsection A of this section are appealable to the Board of Supervisors by filing a notice of appeal with the Director of Planning and Development or his designee within 30 days of the date of the determination.
C. 
The Director of Planning and Development shall be responsible for maintaining permanent records of action taken pursuant to the transfer of development rights program under this Article III of Chapter 165, including records of letters of intent issued, certificates issued, deed restrictions and covenants known to be recorded, and development rights retired, otherwise extinguished, or transferred to specific properties and/or transferees.
D. 
Responsibility for preparing a completed application for a determination that a proposed sending property meets the qualifications of § 165-302.01 rests exclusively with the applicant/property owner. An application for a transfer of development rights to issue a transfer of development rights letter of intent shall contain:
(1) 
A certificate of title for the sending property prepared by an attorney admitted to practice law in the Commonwealth of Virginia;
(2) 
Five copies of a valid recorded plat or survey of the proposed sending parcel and a legal description of the sending property prepared by a land surveyor licensed in the Commonwealth of Virginia;
(3) 
A plan showing the existing and proposed dwelling units and any areas already subject to a conservation easement or other similar encumbrance;
(4) 
A completed density calculation worksheet for estimating the number of available development rights;
(5) 
The application fee as set forth in the development review fees adopted by the Board of Supervisors; and
(6) 
Such additional information required by the Director of Planning and Development or his designee as necessary to determine the number of development rights that qualify for transfer.
E. 
A transfer of development rights letter of intent issued by the Director of Planning and Development or his designee shall state the following information:
(1) 
The name of the transferor;
(2) 
The name of the transferee, if then known;
(3) 
A legal description of the sending property on which the calculation of development rights is based;
(4) 
A statement of the size, in acres, of the sending property on which the calculation of development rights is based;
(5) 
A statement of the number of development rights, stated in terms of number of dwelling units, eligible for transfer;
(6) 
If only a portion of the total development rights is being transferred from the sending property, a statement of the number of remaining development rights, stated in terms of number of dwelling units, remaining on the sending property;
(7) 
The date of issuance;
(8) 
The signature of the Director of Planning and Development or his designee; and
(9) 
A serial number assigned by the Director of Planning and Development or his designee.
F. 
No transfer of development rights under this article shall be recognized by Frederick County as valid unless the instrument of transfer contains the transfer of development rights certificate issued under this section.
A. 
An instrument of transfer of development rights shall be reviewed and approved as to the form and legal sufficiency by the County Attorney and, upon such approval, the County Attorney shall notify the transferor or his or her agent, who shall record the instrument with the Clerk of the Circuit Court and shall provide a copy to the Commissioner of the Revenue. An instrument of transfer of development rights shall conform to the requirements of this section and shall contain the following:
(1) 
The names of the transferor and the transferee;
(2) 
A legal description and plat of the sending property prepared by a land surveyor licensed in the Commonwealth of Virginia;
(3) 
The transfer of development rights certificate described in § 165-302.03G;
(4) 
A covenant indicating the number of development rights remaining on the sending property and stating that the sending property may not be subdivided to or developed to a greater density than permitted by the remaining development rights;
(5) 
A covenant that the transferor grants and assigns to the transferee and the transferee's heirs, assigns, and successors a specific number of development rights from the sending property to a receiving property and/or a transferee;
(6) 
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; and
(7) 
A covenant that all provisions of the instrument of transfer of development rights shall run with and bind the sending property and may be enforced by Frederick County.
B. 
An instrument of transfer of development rights shall be recorded prior to release of development permits, including building permits, for the receiving property.