[Amended 12-7-1993 by Ord. No. 93-100; 11-21-1994 by Ord. No.
94-100; 8-26-1996 by Ord. No. 96-74]
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 residential receiving zone within a development
area. Transfer of development rights (TDRs) will further the community
interest by providing long-term protection of land in County- and
state-designated Agricultural Land Preservation Districts. This article
also supplements the Maryland Agricultural Land Preservation Foundation
easement purchase program by providing an alternative to easement
purchase by the state. This voluntary program furthers the objectives
of the Comprehensive Plan.
In addition to the definitions contained in Article III, Definitions, as used in this article, the following words shall have the meanings indicated:
A five-member Board appointed by the County Commissioners
with the duties and responsibilities as specified in the public local
law and these regulations.
A recorded section of prime agricultural or forestry land
that is voluntarily enrolled in the Maryland Agricultural Land Preservation
District Program by the owner of the property with a recommendation
of approval of such a petition for district establishment by the County
Preservation Advisory Board, County Planning Commission and County
Commissioners.
The portion of a development right which attaches to one
acre of land in an Agricultural Land Preservation District. (Example:
a one-hundred-acre parcel would have 100 development options.)
The right that a landowner has to develop his or her property
residentially. These rights may then be conveyed to increase the density
of residential land use in designated receiving zones. Three development
options constitute one development right.
The form required by this section by which one or more development
rights are transferred.
An instrument of transfer by which development rights are
initially transferred from a designated sending area by the original
transferor.
A person (transferor) who is the owner of the sending parcel
from which the development rights are being transferred along with
all persons who have a mortgage, deed of trust or other lien or encumbrance
on the transferor parcel.
A lot or parcel of land that has been designated as the development district in the Comprehensive Plan, is located in a zone in which the use of TDRs is authorized by this chapter (RL, RM, RH, CER, CRR, CMR, AUC, WC) and is located in a cluster development in the RL, RM or RH Zones, a duplex, touwnhouse, or multifamily development, or in a PRD, TOD or MX Zone as set forth in Article VII; or in the CER, CRR, CMR, AUC or WC Zones.
[Amended 10-25-1999 by Ord. No. 99-92; 3-1-1999 by Ord. No. 90-16; 7-25-2005 by Bill No. 2005-01; 4-13-2010 by Bill No. 2010-02; 9-21-2021 by Bill No. 2021-02]
A parcel of land in an Agricultural Land Preservation District described in Chapter 215 of the County Code and which has been recorded in the County Courthouse from which development rights are transferred.
An interest in real property that constitutes the right to
develop and use the property under this chapter which is made severable
from the parcel to which the interest is appurtenant and transferable
to another parcel of land for development and use in accordance with
this chapter.
The transfer of development rights from a sending parcel
to a receiving parcel is done by instrument(s) of transfer. A transfer
can include any intermediate transfers to or among a transferee or
directly from the transferor to a transferee. The word is used both
as noun and a verb and, in the latter case, includes any tense of
the verb.
A person to whom development rights are transferred and all
persons who have any lien, security interest or other interest with
respect to development rights held by the transferee.
A person who transfers development rights from an Agricultural
Land Preservation District along with all persons who have any lien,
security interest or other interest with respect to development rights
held by the transferor.
A.
Properties assigned TDRs. TDR sending areas are all those properties that are enrolled in the Maryland Agricultural Land Preservation Program and have been recorded in the Charles County Land Records. Every parcel of land located in a sending area has a specific number of TDRs based on the allocation standards in the following subsection. These TDRs may be used to obtain approval for development on other lands located in a TDR receiving area, identified in § 297-284 below, at a density greater than would otherwise be allowed on those lands.
B.
Allocation formula.
(1)
The number of transferable development rights attached to a
particular property located in a TDR sending area shall be equal to
one development right per three acres.
(2)
One development option shall be allocated per acre of land in an Agricultural Preservation District and three development options shall equal one development right, except that three development options shall be subtracted for each residence located on a parcel in an Agricultural Preservation District which exists prior to the effective date of this chapter or is built on the property after the effective date of this chapter. However, where there is no existing dwelling unit on the Agricultural Land Preservation District property, the owner has the option of using three development options for future use for construction of a primary farm residence, but those development options will be subtracted prior to the development rights becoming certified. The total number of certified development rights will be indicated on the certificate of development rights. Construction of a residence must conform to all the requirements of Subsection C below.
(3)
No development options or rights shall be granted on land which
previously has been subjected to recorded restrictive development
covenants or indentures which preclude the subdivision and/or residential
development of the land.
(4)
The owner of any parcel located in a TDR sending area may apply
to the Zoning Officer for a certificate verifying the number of TDRs
or options which are allocated to that parcel.
(5)
Fractions of development rights. Where application of the allocation
formula results in the creation of a fraction of a TDR, e.g., one
or two development options, such fraction of a development right,
known as a "development option," may be sold, conveyed or transferred
to another party to the same extent as a whole TDR.
C.
Construction of a dwelling on a property with certified development
rights. If three development options have been withheld at the time
of certification of the development rights and no primary residence
exists on the property, then the landowner may construct a dwelling
subject to approval by the Charles County Agricultural Land Preservation
Advisory Board, local planning and zoning approval, and approval by
the Maryland Agricultural Land Preservation Foundation.
A.
The owner of any parcel of land located in a TDR sending area may
transfer the development rights or options 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.
B.
Limitations. A development right may not be used in the following
manner:
(1)
To increase the density of a receiving parcel unless such right
is derived from a portion of a sending parcel which is in an approved
Agricultural Land Preservation District; or
C.
Intermediate 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.
At the time of the County approval of the intermediate transfer, a
title report needs to be submitted.
A.
Requirement. No transfer shall be recognized under this article unless
the original instrument of transfer contains a certificate of development
options issued by the Zoning Officer indicating that the number of
development rights or options represents the number of development
rights applicable to the sending parcel and is recorded by the Zoning
Officer.
B.
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 article, all costs of its recordation among the land
records of Charles County.
C.
Application for certificate. An application for a certificate shall
contain such information, prescribed by the Zoning Officer, as may
be necessary to determine the number of development rights involved
in the proposed transfer. An application shall contain such information
as deemed necessary to verify parcel size as a basis for certifying
the number of development options and, at a minimum, shall require
submission of a plat of the proposed sending parcel, prepared by a
registered land surveyor on the basis of an actual on-site survey
and/or deed or deeds that describe in detail the acreage contained
in the said property along with a title search for the sending parcel
and shall be accompanied by such review fee as may be prescribed by
the County Commissioners. A metes and bounds survey, for certification
of development rights, shall only be required to be presented by the
landowner when:
(1)
The deed/deeds for the property in the designated sending area
requesting to have their development rights certified by the Charles
County Zoning Officer 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 Charles County Tax Assessor's
office and the landowner wants to claim the larger of the two figures.
D.
Issuance of certificate. On the basis of the information submitted,
the Zoning Officer 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.
E.
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.
A.
An instrument of transfer shall conform to the requirements of this
section. An instrument of transfer, other than an original instrument
of transfer, need not contain a metes and bounds description or plat
of sending parcel.
B.
Any instrument of transfer shall contain:
(1)
The names of the transferor and the transferee;
(2)
A current title search.
(3)
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 or development options
from the sending parcel.
(4)
A covenant by which the transferor acknowledges that he has no further use or right of use with respect to the development rights or options being transferred, unless those development rights or options are repurchased. The sale of any TDR immediately encumbers the entire property certified for TDRs and prohibits any additional residential dwellings other than allowed by § 297-279B(2) or subdivision for residential purposes.
(5)
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 § 297-283, except when development rights or options are being transferred to the Board of County Commissioners in accordance with this article.
(6)
A covenant that at the time when any development rights or options
involved in the transfer are finally approved for use on a specific
receiving parcel, such rights or options shall be transferred to the
County Commissioners for no consideration; or, in cases when development
rights are being transferred to the County Commissioners after such
approval, a covenant that the rights are being transferred to the
County Commissioners for no consideration.
C.
An instrument of original transfer, which is required when a development
option or right is initially separated from the subject property,
shall also contain:
(1)
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 search for the sending parcel and shall be accompanied
by such review fee as may be prescribed by the County Commissioners.
A metes and bounds survey for certification shall only be required
to be submitted by the landowner when:
(a)
The deed/deeds for the property in the designated sending area
requesting to have their development rights certified by the Charles
County Zoning Officer fail to specifically indicate numerically the
number of acres contained in the sending parcel; or
(b)
During the initial title search, there is some conflict between
said acreage in the deed/deeds and the Charles County Tax Assessor's
Office and the landowner wants to claim the larger of the two figures.
(2)
A covenant that the entire sending parcel may not be subdivided
unless the subdivision is for agricultural purposes [per the Maryland
Agricultural Land Preservation Foundation's Regulations on Agricultural
Subdivisions, Article 15-1501-05-(N)(8), Code of Maryland Regulations].
However, when an agricultural subdivision is being requested by the
landowner whose development rights have been certified by the Charles
County Zoning Officer, such a proposal must be reviewed by the local
Agricultural Land Preservation Advisory Board and recommended to the
Planning Commission for approval or denial. Final approval of such
a subdivision is subject to Planning Commission action.
(3)
A covenant by which the use of the sending parcel is restricted
to and may be used only for agricultural uses as permitted by the
Code of Maryland Regulations Subtitle 15-1501-03A(B.ii).
(4)
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 Commissioners.
(6)
Intermediate transfers. If the instrument is not an instrument
of original transfer, a statement shall appear that the transfer is
an intermediate 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 Charles County.
D.
Recordation of transfer. After it is properly executed, any instrument
of transfer and a title search shall be delivered to the Zoning Officer,
who shall deliver it to the Clerk of the Circuit Court for Charles
County, together with the required fees for recording furnished by
the original transferor and transferee. The Zoning Officer shall immediately
notify the original transferor and transferee, in writing, of such
recording.
A.
After development rights have been transferred by an original instrument
of transfer:
(1)
The sending parcel from which development rights or options
are transferred shall be used only for oil and natural gas extraction
and/or agricultural uses, other than farm residences, as defined and
permitted in this chapter, or as permitted by the Maryland Agricultural
Land Preservation Foundation, whichever is more restrictive.
(2)
The sending parcel from which development rights or options
are transferred shall not be subdivided, except for agricultural purposes
(per the Maryland Agricultural Land Preservation Foundation's policy
regarding agricultural subdivisions found in Article 15-1501-05-P3biii,
Code of Maryland Regulations). However, when an agricultural subdivision
is being requested by the landowner whose development rights have
been certified by the Charles County Zoning Officer, such a proposal
must be reviewed by the local agricultural land preservation advisory
board and recommended to the Planning Commission for approval or denial.
Final approval of such a subdivision is subject to Planning Commission
action.
(3)
The sending parcel from which development rights are transferred
shall not be used in connection with any determination of site area
or site capacity of a future development.
(4)
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 County Commissioners.
(5)
Upon the transfer of the first development right, the entire
sending parcel shall be encumbered.
B.
Rights of transferee. 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
section, a transferee has only the right to use the development right
to the extent authorized by all applicable provisions of this chapter.
No transfer shall be construed to limit or affect the power of the
County Commissioners to amend, supplement or repeal any or all of
the provisions of this or any other article 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.
C.
Rights of transferor. An owner of land in a TDR sending area on which
development rights have been transferred may repurchase those rights,
provided:
(1)
The number of transferable development rights or options repurchased
shall not exceed the number transferred from those originally assigned
to the parcel prior to their sale.
(2)
Such rights, when repurchased, are purchased from sites which
are located in an eligible sending zone.
(3)
Subsequent rights having been repurchased, the total number
of development rights on the parcel shall not exceed the number of
rights initially assigned to the property as documented by the certificate
of development options issued prior to the initial transfer by the
Zoning Administrator. Three development options or one development
right shall be subtracted from the number of development rights originally
assigned the parcel through the certificate of development options
for each residence constructed after the date of issuance of the certificate
of development options in determining compliance with this provision.
(5)
The covenants recorded with the original instrument of transfer shall be terminated upon the owner demonstrating proof of ownership as set forth in § 297-285B. The proof of ownership shall be for an equivalent number of options that were originally sold from the property. Upon satisfactory proof of ownership, the owner shall execute an instrument terminating the covenants on the land from which development rights were previously transferred.
A.
Creation and purpose of TDR receiving area; ability to use TDRs.
(1)
There is hereby created a TDR receiving area which shall be
limited to properties located in the RL, RM, RH, MX, TOD, PRD, CER,
CRR, CMR, AUC and WC Zones. With the exception of the CER, CRR, CMR,
AUC and WC Zones, a TDR in the above residential zones shall only
be used when the development conforms to standards for cluster or
planned development contained in this chapter.
[Amended 10-25-1999 by Ord. No. 99-92; 3-1-1999 by Ord. No. 99-16; 7-25-2005 by Bill No. 2005-01; 4-13-2010 by Bill No. 2010-02]
(2)
The owner of any property located in a TDR 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. TDRs and any fractions thereof
in the form of development options may be aggregated from different
parcels and owners for use in securing additional development in a
TDR receiving area.
B.
Development permitted with use of TDRs. Each TDR 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,
provided that the total development on the property does not exceed
the limits set forth in this chapter.
A.
Development approval procedure. The request to use TDRs on a property
shall be in the form of a preliminary subdivision plat, a site plan
or other application submitted in accordance with the requirements
of this chapter. 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.
B.
Proof of ownership of TDRs and proof of deed restriction. No final
plat shall be approved and no zoning permits shall be issued for development
involving the use of TDRs until and unless the applicant has demonstrated
to the County that:
(1)
The applicant is the bona fide owner of all TDRs which will
be used or redeemed for the construction of additional dwellings or
the creation of additional lots;
(2)
A deed of transfer for each TDR has been recorded in the chain
of title of the parcel of land from which the development right has
been transferred and that such instrument restricts the use of that
parcel in accordance with this article; and
(3)
The TDRs proposed for the development have not previously been
used. Proof must be shown via submission of a current title search.
C.
Preliminary approvals. The County may grant preliminary subdivision
or site plan approval for the proposed development conditioned upon
such proof being presented to the County as a prerequisite to final
subdivision or site plan approval.
Transfer from a sending parcel to a receiving parcel is final
at the time when final subdivision approval or final site plan approval
for the receiving parcel, based upon use of development rights, has
been given in accordance with this chapter.
