By providing landowners in the agricultural
holding area the option of transferring some or all of the development
rights associated with the land which they own and by providing certain
other landowners in areas of the Township considered suitable for
development with the option of increasing the density of development
of their land with the acquisition of such development rights, it
is the purpose of the Township to:
A.
Provide an equitable way to compensate landowners
in the agricultural holding area who voluntarily forbear from developing
land considered critical for maintaining the environmental and agricultural
values which mark the present land use pattern in the Township.
B.
Provide an incentive for owners of land within the
areas of the Township considered suitable for development to provide
a variety of housing types and densities and, in return for covenanting
land within the agricultural holding area against future development,
to increase the density of development in suitable areas consistent
with the overall development capacity of the Township.
C.
Preserve thereby the agricultural, rural and scenic
character of the Township as a regional resource, while at the same
time providing housing opportunities consistent with regional projection
and demands and the concept of fair share.
A.
The Township of Birmingham hereby recognizes the severability
and transferability of development rights from certain lands within
the Township to be transferred and used in accordance with the provisions
hereof.
B.
The Township, in accordance with the criteria set forth in § 122-74 hereof, determines the eligibility of each tract of land within the Township for recognition of transferable development rights. The Township has no obligation, however, to determine the specific number of such rights apportioned to each tract nor to give any formal notice to the owner thereof other than by the passage of this chapter, until such time as an application for distribution and transfer is made in accordance with § 122-75 hereof.
C.
Any owner of a tract not having eligibility for development
rights shall have the right to develop the tract in accordance with
otherwise applicable portions of this chapter and other applicable
ordinances. The owner of a tract which is eligible for transferable
development rights shall have the option of developing the tract in
accordance with otherwise applicable provisions of this chapter or
of transferring all or some of the apportioned development rights
in accordance with the provisions hereof.
Transferable development rights are recognized
and apportioned to tracts of land within the Township upon the following
criteria:
A.
The tract of land shall be not less than 10 acres
in size.
B.
The land shall be within the R-A Zoning District.
C.
The following land classifications, type or uses shall
not be eligible for transferable development rights, notwithstanding
their inclusion within the R-A Zoning District: tracts of land or
portions thereof subject to easement (including by way of illustration
easements of roads, railroads, electrical transmission lines, pipelines
and conservation easements) or other deed restriction or covenant
(other than a covenant with Chester County pursuant to Act 515 or
Act 319) against residential development which would otherwise be
permitted by the applicable Township ordinances.
D.
The number of transferable development rights apportioned
to an eligible tract of land is established by subtracting from the
number of acres qualifying therefor in accordance with the above criteria
four acres for each existing dwelling unit and multiplying the difference
by 0.5 or by 0.125 if the land is within that portion of the FH Overlay
lying west of Route 100.
A.
In conjunction with PRD application or conditional
use retirement community.
(1)
Any owner of a tract of land to which has been apportioned transferable development rights may sell or transfer all or a portion of said development rights to the owner of any tract of land located within the planned residential development districts of the Township for the purpose of enabling the PRD tract to be developed in accordance with the increased density provisions of § 122-67B(2) or to the owner of any tract of land within the Eleemosynary-Institutional (E-I) District of the Township for the purpose of enabling the E-I zoned tract to be developed in accordance with the increased intensity of use provisions of § 122-38C(4)(b) hereof.
(2)
In such event, the apportionment of the landowner's
transferable development rights and transfer of the requested number
thereof shall be made upon submission of the following:
(a)
Application for apportionment and transfer of
development rights on the form provided or approved by the Township
for such application, signed by both the transferor and the transferee
owners.
(b)
An agreement of sale for said development rights
between the owner of the tract to which development rights have been
apportioned and the owner of the tract proposed to be developed as
a PRD or retirement community. The agreement may be contingent upon
approval of a tentative or final development plan for PRD development
or upon approval of a preliminary or final plan for retirement community
development of the tract to which the development rights are to be
transferred.
(c)
A metes and bounds description of the property of the owner of the land from which the rights will be transferred and a plot plan or survey thereof, showing total acreage of the selling owner's property and the portion, if less than the entirety, of the total tract to be restricted as provided in Subsection A(2)(g). In addition, the plot or survey shall show all existing structures, perennial streams and pertinent identified floodplain areas, historic sites, the name and address of the owner, the county tax parcel number and deed book reference to the deed by which the owner obtained title to the property.
[Amended 7-10-2017 by Ord. No. 17-02]
(d)
A metes and bounds description of the property
of the owner of the land to which the rights will be transferred and
a plot plan or survey thereof, showing the total acreage of the tract,
the name and address of the owner, the county tax parcel number and
the deed book reference to the deed by which the owner obtained title.
(e)
A title search or certificate for the tract
from which the development rights will be transferred, prepared by
a title insurance company having offices in Chester County or an attorney
admitted to practice before the courts of Chester County, showing
all liens, mortgages, easements, restrictions or other encumbrances
against the premises.
(f)
The written consent in recordable form of all
lien creditors, mortgagees or other persons having property rights
in the premises from which the development rights are to be transferred;
provided, however, that consent shall not be required of any easement
holder or person having the right to enforce a building restriction
or other covenant running with the land so long as such person has
no right, present or contingent, to take possession of the premises
for the purpose of developing the same.
(g)
A copy of the proposed deed of easement by which
the development rights shall be transferred and restricting the tract
from which the rights are transferred from development in accordance
with the provisions of this section and on the form to be provided
by the Township.
(3)
Upon approval of the application for distribution and transfer, the owner of the tract to which development rights have been transferred shall be entitled to proceed with application for development of a retirement community at the increased density authorized by § 122-38C(4)(b) or for PRD development of the tract at the increased densities authorized by § 122-67B(2), in accordance with the following table of PRD density increases permitted by acquisition of transferable development rights.
(4)
For each additional dwelling unit to be constructed
within the overall density ranges set forth below, the applicant shall
acquire additional transferable development rights as set forth adjacent
thereto.
|
Overall Density Range
|
TDRs per Additional Unit
| |
|---|---|---|
|
PRD-1
| ||
|
0.6 to 1.5
|
0.8
| |
|
1.5 to 2.25
|
0.7
| |
|
PRD-2
| ||
|
2.5 to 3.5
|
0.6
| |
|
3.5 to 4.25
|
0.55
| |
|
4.25 to 5.0
|
0.5
| |
(5)
Once the development rights are transferred to any
property, they shall thereafter attach to the land and run in favor
of the owner of the land and the owner's heirs, executors, administrators
and assigns.
(6)
All sales shall be in favor of the owner purchasing the rights, the owner's heirs and assigns, and all restrictions and covenants imposed on the seller's land shall run in favor of the purchaser and the purchaser's heirs, executors, administrators and assigns and in favor of the Township as a third-party donee beneficiary. The rights, when transferred, shall become an easement appurtenant to the designated land of the purchasing owner, burdening the seller's land, and shall no longer be severable from the land with the exception of transfers in accordance with Subsection B.
B.
No transfers of development rights shall be permitted, other than to the owners of land eligible for development as a PRD or owners of land eligible for development as a retirement community in accordance with the procedures set forth in Subsection A; provided, however, that Birmingham Township may acquire transferable development rights by purchase or gift, following the procedures set forth in Subsection A(2)(a), (b), (c), (e), (f) and (g). In such event, the rights so acquired may be canceled by the Township as transferee or may be held independent of any designated transferee parcel of land for any length of time in anticipation of ultimate transfer to the owner of a tract of land located within the planned residential development areas of the Township.
When a landowner wishes to transfer less than
the total number of development rights available to a tract identified
by a single tax parcel number, the landowner may do so, provided that:
A.
The tax parcel shall be subdivided into at least two
parcels in proportion to the percentage of development rights to be
transferred against those to be retained. Parcel(s) from which development
rights are to be transferred shall be so designated.
B.
No residual parcel, except those from which development
rights have been transferred, not in compliance with the applicable
minimum lot size and dimensional requirements of this chapter shall
be created.
C.
The subdivision plan shall provide all data required in § 122-75A(2)(c) hereof.
A.
The owner selling development rights shall, by the
deed of easement, totally and permanently restrict the future development
of the tract or designated portion thereof from which the rights are
sold or transferred.
B.
No transfer of development rights shall be effective
until the deed of easement has been approved by the Township Board
of Supervisors. Said deed of easement shall designate Birmingham Township
as third-party donee beneficiary of the restrictions imposed on the
seller, and the seller's land, and said restrictions shall be enforceable
by the Township as third-party beneficiary, by the owner of the land
to which they are transferred or by any subsequent owner of such land
or any part thereof.
C.
The Township shall maintain at all times an appropriate
indexing system and map for permanently recording transfers of development
rights and property which is restricted from development pursuant
thereto. This shall be in addition to recording of appropriate plans
and legal instruments in the county office for recording of deeds.
D.
Land from which development rights have been transferred
shall be permanently restricted against development, shall continue
to be owned subject to said restrictions by the landowner, the landowner's
heirs, executors, administrators and assigns and may continue to be
used for agricultural or other uses, excluding topsoil stripping,
compatible with its preservation as open space, provided that appropriate
soil and water conservation measures are applied. In addition, the
land shall be subject to all restrictions imposed on said land by
virtue of the deed of easement, whether or not such restrictions or
restrictive covenants are specifically enumerated in this chapter.
This article shall not restrict the owner of
any tract of land eligible for development rights from developing
said tract in accordance with otherwise applicable ordinances of this
Township. In the event of subdivision or land development of any such
tract, the following principles shall apply:
A.
In any case where land is subdivided into parcels
of 10 acres or more, the landowner shall retain eligibility for all
development rights apportionable to the tract, and upon the transfer
of any such parcel, the appurtenant development rights shall be conveyed
with the land.
B.
In any case where a landowner subdivides a tract which is eligible for transferable development rights into lots, all or some of which shall be less than 10 acres in size, all parcels less than 10 acres in size shall be thereafter ineligible (as provided in § 122-74A hereof), and all parcels of 10 acres or more in size shall remain eligible, as set forth in Subsection A hereof.
Transferable development rights, both before
and after transfer to a specific parcel of land within the PRD District
shall be considered as real property. Upon distribution and transfer,
the instrument conveying the development rights and accompanying deed
of easement shall be recorded in the Chester County Recorder of Deeds
office and notification given by the Township to the Chester County
Board of Assessors so that proper reassessment may be effected.
