The Lower Windsor Township Comprehensive Plan Update identifies
and emphasizes the importance of preserving agricultural lands and
associated natural features within the Township as essential elements
for promoting farming operations, thus enhancing the Township's "town
and country" character. It further states, to effectively protect
the Township's finite supply of agricultural land for existing and
future agricultural production, those lands should remain primarily
as open farmland and relatively undeveloped scenic countryside. The
purpose of this article is to assist the Township in permanently protecting
and promoting vital agricultural resources and other natural elements,
including large tracts of prime farmland and prime agricultural soils,
while maintaining an equitable balance between government regulation
and private property rights. Therefore, in accordance with Sections
603(c)(2.2), 605(4) and 619.1 of the MPC,[1] the Township established a transfer of development rights
(TDR) program within the Township, where the Agricultural District
serves as the sending area and the Residential, Village and Waterfront
Recreation Districts are designated as the receiving areas. The purpose
of the TDR program is to preserve large tracts of prime agricultural
land, as well as the Township's "town and country" character by shifting
development to the designated areas within the Township better able
to accommodate intensive development. It is further the intent of
the Board of Supervisors to encourage flexibility, economy and ingenuity
in the development of parcels in the designated receiving areas.
[1]
Editor's Note: See 53 P.S. §§ 10603(c)(2.2),
10605(4) and 10619.1.
A.
Within the Agricultural, Residential, Village and Waterfront Recreational
Districts, each parent parcel shall be allocated a number of development
rights based upon the lot area of the parent parcel legally existing
on the effective date of this chapter. The owner of the parent parcel
in the Agricultural District has the right to retain, use or transfer
the allocated development rights as limited by this chapter. The owner
of parent parcel within the Residential, Village or Waterfront Recreation
District, has the right to develop on site at the base density of
the district in which located, or to increase density to the maximum
development density permitted on site by buying and transferring development
rights.
B.
The creation of a new lot upon which dwelling or principal nonresidential
structure or use or siting of a new principal nonresidential structure
or use upon and not separated from a parent parcel existing before
the effective date of this chapter, requires the use of development
rights. The number of development rights depends on the specific use
proposed, as well as the number and size of the lots to be created.
C.
The creation of a new lot upon which a dwelling or principal nonresidential and/or nonagricultural structure or use or siting of a new principal nonresidential and/or nonagricultural structure or use upon and not separated from a parent parcel existing before the effective date of this chapter, requires the use of development rights. The number of development rights depends on the specific use proposed, as well as the number and size of the lots to be created. Owners of a parent parcel may use the development rights allocated to that parent parcel to erect new residential dwellings, principal nonresidential and/or nonagricultural structures or uses on the parent parcel, or create lots from the parent parcel utilizing Article IV herein.
D.
The transfer of development rights is a voluntary agreement under
the terms of this chapter between a willing buyer and a willing seller.
The right shall only be transferred to a person, corporation, partnership
or other legal entity. The development rights may be held by the purchaser
for future use or sale; however, a person who purchases development
rights may only attach and use the development rights on parcels in
the designated receiving areas of the Township. The price of the development
rights will be determined by the willing buyer and the willing seller.
E.
Development rights shall be considered a separate estate in land
and may only be transferred in accordance with the requirements of
this article. Once the development rights are attached to a specific
parcel of land, the rights shall run with that specific parcel in
perpetuity.
F.
A buyer of development rights who attaches those rights to a parcel
of land in accordance with the procedures set forth in this article
is permitted an increase, with the use of the development rights,
in the base density of their development within the receiving areas.
The seller of the development rights receives compensation from the
sale, plus the right to retain the land for agricultural use or other
use permitted in the Agricultural District.
G.
A deed restriction against future residential and/or nonagricultural
development is placed upon the parent parcel in the designated sending
area from which the development rights have been severed. The deed
restriction will not affect the landowner's ability to sell the land
after the development rights have been severed; however, such restriction
runs with the land.
A.
Lower Windsor Township hereby recognizes the severability of development rights from certain parcels within the Township, which may be sold or donated as an interest in real estate. Ownership of the development rights shall be determined by deed, as further described in § 470-145. Development rights, once severed, may be:
B.
The initial transfer of development rights shall be solely at the
volition of the owner of the parent parcel in the designated sending
areas and the purchase of the development rights shall be solely at
the volition of the buyer for use in the designated receiving areas.
Under no circumstances shall the Township compel the transfer of development
rights in order to develop land in the receiving areas.
A.
Sending areas. For purposes of the transfer of development rights,
the Agricultural (AG) District of the Township shall be designated
as the "sending area":
B.
Receiving areas. For purposes of the transfer of development rights,
the Residential (R), Village (V) and Waterfront Recreation (WR) Districts
of the Township shall be designated as the "receiving areas."
A.
Apportionment. The development rights apportioned to each parent parcel within the designated sending area of the Township existing on the effective date of this chapter shall be based on the criteria set forth in § 470-13 and this article.
(1)
Parcels of land in the AG District which are restricted against
development by covenant, easement or deed restriction shall not be
eligible for transfer of development rights and therefore shall not
be included in the computation of the area, unless and until such
time as said covenant, easement or deed restriction is dissolved or
rescinded.
(2)
The owner of any parcel of land eligible for development rights in the AG District shall not be restricted from developing said parcel in accordance with the provisions of § 470-13 and this article. In the event of a subdivision or land development of any parcel of land eligible for development rights permitted on site, the number of rights granted and permitted to be used on site in § 470-13 of this chapter shall be reduced by:
B.
Severability. Prior to any severance or formal transfer of development
rights, the owner of a parent parcel in the sending areas must submit
a plan to the Zoning Officer. The plan shall be drawn to scale and
show and/or indicate the following:
(1)
A complete metes and bounds description or boundary survey of
the sending area parcel as it existed on the effective date of this
chapter, from which the rights will be transferred, or a Deed book
description thereof.
(2)
The location of any lots that have been subdivided from the
parent parcel before the effective date of this chapter and the use
of said lots.
(3)
The name of all owners of the parent parcel.
(4)
The total acreage of the parent parcel.
(5)
Land(s) of the parent parcel, which have development restrictions
by covenant, easement, right-of-way, or deed restriction, including
a description thereof.
(6)
The statement, "It is the determination of the Board of Supervisors
of Lower Windsor Township, York County, Pennsylvania, that (number)
development rights may be transferred by sale or donation from the
property shown on this plan as of (date)."
(7)
If the proposed agreement of sale of development rights entails
less than the entire number of development rights available, the plan
shall also include:
C.
The Zoning Officer shall verify the information provided by the owner of the parent parcel as required in subsection b) above relating to the severability of development rights, specifically the number of development rights attributable to the parent parcel, within 15 days after receipt of a complete application. The Zoning Officer shall inform the owner of the parent parcel, of his determination in writing. Any appeals from the determination of the Zoning Officer may appeal in the manner set forth in either Article IX or X-A of the MPC.[1]
[1]
Editor's Note: See 53 P.S. § 10901 et seq. and § 11001-a
et seq.
D.
Following the transfer, the transferor parcel must either contain
an existing residential dwelling, principal nonresidential and/or
nonagricultural structure or use or at least one development right
unless it is being permanently joined to an adjacent parcel which
either contains an existing dwelling, principal nonresidential and/or
nonagricultural structure or use or has allocated at least one development
right.
A.
Transfer of development rights.
(1)
Deed of transfer of development rights. Development rights which have been determined by the Zoning Officer shall be formally transferred by means of a deed of transfer of development rights duly recorded in the Office of the York County Recorder of Deeds. The deed shall specify the parcel of land within the receiving area to which the rights shall be permanently attached or that the rights shall be transferred to a person, corporation, partnership, or other legal entity. The entity transferring the development rights may sell or donate any number of development rights up to the number identified in §§ 470-13 and 470-144C.
(a)
All deeds of transfer of development rights shall be endorsed
for approval by the Board of Supervisors prior to recording. No deed
of transfer of development rights shall be endorsed until the Township
is presented with evidence that the declaration of restriction of
development has been approved by the Township and has been recorded
in the office of the York County Recorder of Deeds. In lieu of presentation
of the recording of said declaration, the fully executed declaration
may be presented to the Township when the deed of transfer of development
rights is presented for endorsement, and the Township, at the applicant's
expense, shall simultaneously record both documents.
(b)
If the development rights shall be immediately attached to a
parcel in the receiving area, no deed of transfer of development rights
shall be recorded before preliminary plan approval of the development
utilizing the development rights has been obtained.
(2)
Declaration of restriction of development.
(a)
A declaration of restriction of development shall be executed
simultaneously with the deed of transfer of development rights. Such
declaration shall be attached as a deed restriction to the sending
parcel and shall serve to restrict subsequent development of that
parcel to the remaining number of development rights available for
transfer either in perpetuity or until the owner of parcel shall donate
or sell some or all of the remaining development rights, if any. Such
declaration shall clearly state the number of development rights available
for transfer that remain with the parcel.
(b)
The declaration of restriction of development shall be in a
form approved by the Township Solicitor. All owners of the parcel
from which development rights are severed shall execute the declaration
of restriction of development and all lien holders of said parcel
shall execute a joinder and/or consent to the declaration of restriction
of development. The declaration shall be recorded in the office of
York County Recorder of Deeds by the Township, at the applicant's
expense. Said recording shall occur at the same time as or prior to,
the recording of the deed of transfer of development rights.
(c)
Parcels from which development rights have been severed shall;
[1]
Be restricted against future development;
[2]
Continue to be owned subject to said restrictions by the landowner,
his heirs, executors, administrators, successors and assigns; and
[3]
Continue to be used for agricultural or other nonresidential
uses specified in the list of permitted uses for the district in which
located, and in accordance with the requirements of the district in
which located.
A.
Development rights shall be transferred and subsequently utilized
only upon parcels located within the areas identified as receiving
areas in this article.
B.
In receiving areas, development utilizing transferred development rights shall be permitted to be developed in accordance with the density provision of maximum development density listed in § 470-12A:
C.
Development utilizing transferred development rights shall be designed in conformity with and satisfy all the regulations and provisions of Article IV herein, specifically Tables 470-25A and 470-25B.
D.
For an increase in density greater than the base density permitted in the R, V or WR Districts, whichever is applicable, developers shall be required to acquire additional development rights to achieve the maximum development density in accordance with provisions of Article III and this article.
E.
Each development right purchased and transferred shall equate to provisions set forth in § 470-6 of this chapter.
F.
Procedure. The procedure for utilization of development rights transferred
from the sending area upon an eligible property in the receiving area
shall be as follows:
(1)
A request to utilize the transferred development rights shall
be in the form of:
(a)
Preliminary subdivision/land development plan if applicable;
and/or
(b)
Final subdivision/land development plan in accordance with the requirements of Chapter 410, Subdivision and Land Development; or
(c)
If no subdivision or land development approval is required for
the proposed development, an application for a zoning/building permit.
(d)
The plan or permit application must include the following requirements;
[1]
Base density of the receiving parcel, the proposed density on
the receiving parcel, the maximum development density and the number
of development rights transferred (or to be transferred) to the receiving
parcel.
[2]
An application for apportionment and transfer of development
rights on a form provided by the Township must accompany the plan.
Such application shall be signed by both the transferor and the transferee.
If the development rights which shall be used by the developer have
previously been apportioned and severed from the sending parcel, a
copy of the deed of transfer of development rights which has been
recorded in the office of the York County Recorder of Deeds indicating
the number of development rights available, and a title search demonstrating
that such development rights are still held by such person and setting
forth all liens placed against them shall be included.
[3]
An agreement of sale for the development rights between the
owner of the parcel from which the development rights have been requested,
or the owner of the development rights which have been previously
severed from a parcel in the sending area as evidence by a recorded
deed of transfer of development rights, and the owner of the parcel
in the receiving area proposed to be developed utilizing the transferred
development rights must accompany the plan. The agreement may be contingent
upon conditional approval of a final subdivision and land development
plan for development of the parcel to which the development rights
are to be transferred.
[4]
A copy of the proposed deed of transfer of development rights
and declaration of restriction of development must accompany the plan.
[5]
A title search of the parcel from which the development rights
will be transferred, sufficient to determine all owners of the parcel
and all lienholders must be provided. If the development rights have
previously been severed from the parcel in the sending area, a title
search of the rights set forth in the deed of transfer of development
rights, sufficient to determine all the owners of the development
rights and all lienholders shall be furnished to the Township.
(2)
Final subdivision/land development plan:
(a)
No final plan for any subdivision or land development utilizing
the transfer of development rights shall be executed on behalf of
the Township until the Township has been presented with a copy of
the recorded deed of transfer of development rights and the recorded
declaration of restriction of development with the customary recording
information of the office of York County Recorder of Deeds clearly
endorsed thereon. In lieu of presentation of proof of recording the
declaration of restriction of development and the deed of transfer
of development rights, the fully executed declaration of restriction
of development may be presented to the Township with the deed of transfer
of development rights for endorsement, and the Township, at the applicant's
expense, shall record both documents and then shall execute and, if
the applicant so desires, at applicant's own expense, shall record
the final plan;
(b)
Upon approval of the final plan of a project utilizing transferred
development rights, a new deed shall be created and recorded for the
receiving parcel. Such deed shall identify the deed(s) of transfer
of development rights being used by the Deed Book volume(s) and number(s)
and shall state that the transferred development rights are attached
to the receiving property in perpetuity; or
(3)
If no subdivision or land development approval is required for
the proposed development, an application of a zoning/building permit
indicating the proposed development, the number of development rights
attributable to the receiving parcel being developed, the number of
development rights needed for the proposed development, and the number
of additional development rights transferred or to be transferred
to the receiving parcel. The purchaser of development rights shall
provide the Zoning Officer with proof that the deed of development
rights has been recorded.
A.
The Township reserves the right to amend this article in the future.
The Township further expressly reserves the right to:
(1)
Change the manner in which the number of development rights
shall be portioned to parent parcels; or
(2)
Change the manner in which development rights may be attached
to a parcel in a receiving area; or
(3)
Change the procedure by which development rights can be conveyed;
or
(4)
Terminate its transfer of development rights program at any
time.
B.
No owner of land or owner of development rights shall have any claim
against the Township for damages resulting from a change in this article
relating to the regulations governing the apportionment, transfer
and use of development rights or the abolition of the transfer of
development rights program.
C.
If the transfer of development rights program is abolished by the Township, no developer may attach development rights to any parcel of land in the receiving area after the effective date of the ordinance abolishing the transfer of development rights program, unless an application in conformity with the provisions of § 470-146 herein was filed prior to the effective date of such ordinance.
