Article XX Transferable Development Rights

A development right may not be used in any manner inconsistent with the provisions set forth in this subsection.

A development right may not be used to increase residential density or nonresidential floor area or impervious area within the critical area unless the development right is derived from a portion of a transferor parcel that is located within the Critical Area Resource Conservation Area (RCA).

The use of a development right may result in the reduction of natural resource protection land required under this Chapter 18:1 on the receiving parcel, provided that natural resources are protected on the combined parcels overall based on the requirements set forth in Chapter 18:1, Part 4, Article XI.

A development right may not be used to increase density for receiving parcels located within the Critical Area Resource Conservation Area beyond the density allowed within the parcel's zoning district.

TDRs used on receiving parcels within the CMPD and TC Districts must be derived from eligible transferor parcels located within the Fourth (Kent Island) Election District.

TDRs used on receiving parcels within the Stevensville Growth Area must be derived from eligible transferor parcels located within the Fourth Election District of Queen Anne's County.

Intermediate transfer. Subject to the provisions of this section, 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.

§ 18:1-101 Effect of transfer.

After development rights have been transferred by an original instrument of transfer, the transferor parcel:

May not be subdivided or reconfigured;

Shall be deemed open space and shall be limited to only those uses allowed pursuant to Column A of the open space table in § 18:1-12 of this Chapter 18:1;

May not be used in connection with any determination of site area or site capacity, except as may be necessary in determining the number of development rights involved in the transfer; and

A transferor parcel must be at least 24 acres or 1/2 of the size of the lot of record, whichever is less, and meet the following soils criteria as per the 1966 Soils Survey of Queen Anne's County:

[Amended 9-7-2004 by Ord. No. 04-29]

At least 50% of the land shall classify as Class I, II or III soils; or

If the land is wooded, 50% of the land is classified as woodland Group 1 or 2; or

If there is an insufficient percentage of Class I, II or III soils alone and there is an insufficient percentage of woodland Group 1 or 2 soils alone, the land must have a combination of the classifications that meets or exceeds 60%.

§ 18:1-102 Certificate of Planning Director.

Plats of TDR parcels must provide the location of all existing buildings.

A transferor parcel within the Chesapeake Bay Critical Area shall be at least 20 acres in size; and

All development rights that 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 transferor parcel, until such rights have been finally approved for use on a specific receiving parcel and transferred to the County Commissioners.

General requirement. A transfer may not be recognized under this article unless the original instrument of transfer:

Contains a certificate of the Planning Director that the number of development rights that are the subject of the transfer represent the number of development rights applicable to the transferor parcel; and

Is recorded by the Planning Director as provided in this article.

Responsibility. The transferor and the transferee named in an original instrument of transfer shall have sole responsibility to:

Supply all information required by this section;

Provide a proper original instrument of transfer; and

Pay, in addition to any other fees required by this section, all costs of its recordation among the land records of the County.

Application for certificate. An application for a certificate shall:

Contain information, prescribed by the Planning Director, as may be necessary to determine the number of development rights involved in the proposed transfer;

Include five copies of a plat of the proposed transferor parcel, prepared by a registered land surveyor on the basis of an actual on-site survey; and

Be accompanied by such fee as may be prescribed by the County Commissioners.

Issuance of certificate.

On the basis of the information submitted, the Planning Director shall affix a certificate of the Planning Director's findings to the original instrument of transfer.

The certificate shall contain a specific statement of the number of development rights that are derived from the transfer parcel.

Effect of determination. The determination of the Planning Director may not be construed to enlarge or otherwise affect in any manner the nature, character, and effect of a transfer, as set forth in § 18:1-100 of this Chapter 18:1.

§ 18:1-103 Instruments of transfer.

In general.

An instrument of transfer shall conform to the requirements of this Chapter 18:1, Part 7, Article XXVII, relating to covenants.

An instrument of transfer, other than an original instrument of transfer, need not contain a metes and bounds description or plat of the transferor parcel.

Contents. In addition to the provisions in Chapter 18:1, Part 7, Article XXVII, an instrument of transfer shall contain:

The names of the transferor and the transferee;

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 from the transferor parcel;

If the instrument is not an original instrument of transfer, a statement that the transfer is an intermediate transfer of rights derived from a transferor 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 the County);

A specific statement of the number of development rights included within the transfer;

A covenant by which the transferor acknowledges that the transferor has no further use or right of use with respect to the development rights being transferred;

Except when development rights are being transferred to the County Commissioners in accordance with this article, 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 provided in § 18:1-100 of this Chapter 18:1; and

(7)

Either:

A covenant that at the time when any development rights involved in the transfer are finally approved for use on a specific receiving parcel the rights shall be transferred to the County Commissioners for no consideration; or

§ 18:1-104 Original instruments of transfer.

In cases when development rights are being transferred to the County Commissioners after approval, a covenant that the rights are being transferred to the County Commissioners for no consideration.

Contents of original instrument of transfer. In addition to fulfilling the requirements of § 18:1-103 of this Chapter 18:1, an original instrument of transfer shall also contain:

A metes and bounds description of the transferor parcel, prepared by a licensed surveyor named in the instrument;

A covenant that the development rights being permanently transferred represent all development rights with respect to the transferor parcel under the existing or any future zoning or similar ordinance regulating the use of land in the County;

A covenant that the transferor parcel may not be subdivided or reconfigured;

A covenant by which use of the transferor parcel is restricted to Column A of the open space table in § 18:1-12 of this Chapter 18:1;

A covenant that all provisions of the instrument of transfer shall run with and bind the transferor parcel and may be enforced by the County Commissioners; and

The certificate of the Planning Director required by this article.

Recordation of original transfer.

After it is properly executed, an original instrument of transfer shall be delivered to the Planning Director.

The Planning Director shall:

Deliver the original instrument of transfer to the recorder of deeds, together with the required fees for recording furnished by the original transferor and transferee; and

§ 18:1-105 Application for use on receiving parcel.

Immediately notify the original transferor and transferee in writing of the recording.

Application. The owner of a proposed receiving parcel shall file with the Planning Director an application to use transferred development rights with respect to the development of the proposed receiving parcel.

Contents. The application shall:

Contain information as may be prescribed by the Planning Director;

Include five copies of a plat of the proposed receiving parcel, prepared by a registered land surveyor on the basis of an actual on-site survey;

Be accompanied by such fee as may be prescribed by the County Commissioners; and

Be accompanied by:

Original or certified copies of a recorded original instrument of transfer involving the development rights proposed to be used and any intervening instruments of transfer through which the applicant became a transferee of those rights; or

§ 18:1-106 Consideration of application for use.

A signed, written agreement between the applicant and a proposed original transferor that contains the plat of a proposed transferor parcel and other information required by § 18:1-102 of this Chapter 18:1 and in which the proposed transferor agrees to execute an original instrument of transfer from the proposed transferor parcel to the applicant at the time when the use of such rights on the proposed receiving parcel is finally approved.

Review of application. The Planning Director shall review the instruments of transfer or agreement submitted with the application and determine their sufficiency to fulfill the requirements of this article.

Determination. The Planning Director shall:

Determine the number of development rights that are available for use under the terms of the instruments submitted with the application;

Determine the number of development rights that this Chapter 18:1 allows to be used on the proposed receiving parcel; and

Report the preliminary determination of the Planning Director in writing to the applicant within 30 days after all information necessary to make the determinations has been received.

Residential density, open space, and net buildable area.

The following density, open space, and net buildable area standards shall be used in the application of residential TDRs for residential purposes.

For purposes of cluster and planned residential development outside the critical area in the E, SE, SR, UR, VC, GNC, SHVC, GVC, TC, and CS Districts:

The minimum required open space for the receiving parcel as determined in § 18:1-12 of this Chapter 18:1 may be decreased by a maximum of 25%;

The maximum density allowed for the receiving parcel as determined in Article V of Part 3 of this Chapter 18:1 may be increased by a maximum of 25%; and

The net buildable area for the receiving parcel as determined in § 18:1-12 of this Chapter 18:1 may be increased by a maximum of 25%; and;

In the AG District, eight acres of land shall be permanently deed restricted as open space for each development right transferred from a transferor parcel; or

(e)

In the CS District located outside of the critical area, five acres of land shall be permanently deed restricted as open space in accordance with § 18:1-12 of this Chapter 18:1 for each development right transferred from a transferor parcel.

For purposes of cluster and planned residential development inside the critical area in the E, SE, SR, UR, VC, GNC, SHVC, GVC, and TC Districts:

The minimum required open space for the receiving parcel as determined in § 18:1-12 of this Chapter 18:1 may be decreased by a maximum of 25%;

The maximum density allowed for the receiving parcel as determined in Article V of Part 3 of this Chapter 18:1 may be increased by a maximum of 25%;

The net buildable area for the receiving parcel as determined in § 18:1-12 of this Chapter 18:1 may be increased by a maximum of 25%; and

In the CS District, 20 acres of critical area RCA land shall be permanently deed restricted as open space for each development right transferred from a transferor parcel.

For purposes of cluster and planned residential development in the CS District located within the Critical Area Resource Conservation Area:

The maximum density permitted for a receiving parcel may be increased to one dwelling unit per five acres;

Twenty acres of RCA critical area land shall be permanently deed restricted as open space on the transferor parcel for each development right transferred from a transferor parcel in accordance with § 18:1-12 of this Chapter 18:1; and

The receiving parcel shall maintain a minimum sixty-percent open space ratio, and the overall open space ratio for the receiving parcel and transferor parcel combined may not be less than 85%.

For purposes of single-family large-lot, cluster, and planned residential development in the NC District located within the Critical Area Resource Conservation Area:

The maximum density allowed for a receiving parcel shall be the base density as determined by the minimum lot size required for the district;

For cluster and planned residential developments in the NC-5, NC-2, and NC-1 Districts, a minimum forty-percent open space ratio shall be maintained; in the NC-20, NC-15, and NC-8 Districts, a minimum thirty-percent open space ratio for the receiving parcel shall be maintained; and the overall open space ratio for the receiving parcel and transferor parcel combined may not be less than 85%.

For the purposes of cluster and planned residential development in SMPD, CMPD, and GPRN Districts outside of the critical area:

The maximum density allowed for the receiving parcel as determined in Article V of Part 3 of this Chapter 18:1 may be increased by a maximum of 25%; and

Eight acres of AG land shall be permanently deed restricted as open space for each development right transferred from a transferor parcel; or

In the CS District located outside of the critical area, five acres of CS land shall be permanently deed restricted as open space in accordance with § 18:1-12 of this Chapter 18:1 for each development right transferred from a transferor parcel; and

The receiving parcel shall maintain a minimum of twenty-five-percent open space ratio.

(7)

For the purposes of cluster and planned residential development in SMPD, CMPD, and GPRN Districts inside the critical area:

The maximum density allowed for the receiving parcel as determined in Article V of Part 3 of this Chapter 18:1 may be increased by a maximum of 25%;

In the CS District, 20 acres of critical area RCA land shall be permanently deed restricted as open space for each development right transferred from a transferor parcel; and

The receiving parcel shall maintain a minimum of twenty-five-percent open space ratio.

Nonresidential intensity and floor area.

The following intensity and floor area standards shall be used in the transfer of development rights for nonresidential purposes.

For purposes of nonresidential development in the VC, TC, SC, UC, and SI Districts and in the same zoning districts with a critical area (IDA) designation:

The maximum floor area allowed for the receiving parcel as determined in Article V of Part 3 of this Chapter 18:1 may be increased by a maximum of 25%;

The maximum impervious area allowed for the receiving parcel as determined in Article V of Part 3 of this Chapter 18:1 may be increased by a maximum of 25%.

In the AG District, eight acres of land shall be permanently deed restricted as open space for each 200 square feet of floor area and 500 square feet of impervious area transferred to the receiving parcel.

In the CS District located within the Critical Area Resource Conservation Area, 20 acres of land shall be permanently deed restricted as open space, in accordance with § 18:1-12 of this Chapter 18:1, for each 1,000 square feet of floor area and 2,500 square feet of impervious area transferred to the receiving parcel.

In the CS District located outside of the critical area, five acres of land shall be permanently deed restricted as open space, in accordance with § 18:1-12 of this Chapter 18:1, for each 200 square feet of floor area and 500 square feet of impervious area transferred to the receiving parcel.

Effect. Any determination of the Planning Director under this section:

Is not final; and

Shall be subject to amendment, modification, or rescission until the time when the transfer is final in accordance with § 18:1-107 of this Chapter 18:1.

§ 18:1-107 Final approval of use.

When final. Transfer from a transferor parcel to a receiving parcel is final at the time when:

Final subdivision approval or final site plan approval with respect to the receiving parcel, based upon use of development rights, has been given in accordance with Part 7 of this Chapter 18:1; and

All development rights upon which such approval was based have been transferred to the County Commissioners as provided in Subsection B of this section.

Required instruments. Final approval may not be given to any site plan or subdivision plan that involves the use of development rights transferred under the provisions of this article until satisfactory evidence is presented that such of the following instruments as may be required to effect transfer of those rights to the County Commissioners have been approved as to form and legal sufficiency by the attorney to the Planning Commission and recorded among the land records of the County:

An original instrument of transfer to a transferee, other than the County Commissioners;

An instrument of transfer to the owner of the receiving parcel;

Instrument(s) of transfer between any intervening transferees; and