Within Hellam Township, there are certain areas that, because of their unique natural resources, make them worthy of special protection. The purpose of this article is to assist in permanently protecting this vital natural resource, farmlands and prime agricultural soils. In accordance with Sections 603(c)(2.2), 605(4) and 619.1 of the MPC,[1] a transferable development rights (TDR)[2] program is established in Hellam Township. The purpose of the transferable development rights program is to preserve the prime agricultural soils and agricultural and open space character of the lands in the Rural Agricultural Zone by shifting development from that area to areas of the Township where more intensive development is desirable. It is the further intent of the Board of Supervisors to encourage flexibility, economy and ingenuity in the development of the Township.
[1]
Editor's Note: See 53 P.S. §§ 10603(c)(2.2), 10605(4) and 10619.1, respectively.
[2]
Editor's Note: Ord. No. 2008-07, adopted 8-21-2008, amended Article VIII to place the word “transferable” preceding the words “development rights” throughout.
A. 
Within the TDR Sending Overlay District, each parent tract shall be allocated a certain number of transferable development rights based upon the lot area of the parent tract on the effective date of this section. The owner of the parent tract has the right to retain, use, or transfer the transferable development rights. No transferable development rights shall be apportioned to tracts in the Rural Agricultural Zone outside the TDR Sending Overlay District. Development in the Rural Agricultural Zone outside the TDR Sending Overlay District shall follow the specifications noted in limitations on subdivision/land development in the corresponding section of Article II of this chapter.
B. 
The erection of any new dwelling or other principal structure within the TDR Sending Overlay District or the creation of a new lot within the TDR Sending Overlay District will require the use of transferable development rights. The number of transferable development rights necessary will depend on the use proposed and the number and size of the lots to be created. Owners of a parent tract can only use the transferable development rights allocated to only that parent tract to erect a new dwelling or other principal structure on the parent tract or create residential lots from the parent tract.
[Amended 1-18-2007 by Ord. No. 2007-01]
C. 
The transfer of transferable development rights is a voluntary agreement under the terms of this chapter between a willing buyer and a willing seller. Transferable development rights may be transferred to a person, corporation, partnership or other legal entity having an interest in a specific parcel of land who will immediately attach said transferable development rights to said specific parcel of land. Transferable development rights also may be transferred in gross to the Township or other entity.
D. 
The buyer is permitted an increase, with the use of the acquired transferable development rights, in the intensity of his development. The seller receives compensation from the sale of his transferable development rights plus the right to retain ownership of the parent tract. The price of the transferable development rights will be determined by the willing buyer and the willing seller.
A. 
Hellam Township hereby recognizes the severability, transferability, and/or use of transferable 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 § 490-157, Apportionment of transferable development rights, shall determine the eligibility of each parent tract within the TDR Sending Overlay District for allocation of transferable development rights. The Township has no obligation, however, to determine the specific number of such rights apportioned to each parent tract, nor to give any formal notice to the landowner other than by the passage of this chapter, until such time as an application to apportion, transfer or utilize transferable development rights is made in accordance with § 490-158, Transfer of transferable development rights, or § 490-159, Use of transferable development rights, of this chapter.
A. 
Transferable development rights shall be apportioned to each parent tract of land within the TDR Sending Overlay District of the Township existing on July 15, 2004, based on the following criteria:
Parent Tract Size in Acres*
Transferable Development Rights Granted
First 0 to 2
None
Next 3 to 10
1 per acre
Next 11 and over
0.5 per acre
NOTE:
*
Rounded down to the last whole acre. In accordance with the definition of parent tract, the size in acres is determined as of July 15, 2004.
B. 
Transferable development rights shall be allocated and used in increments of 0.5 transferable development rights. The Township shall not recognize any fractional transferable development rights other than 0.5 development right.
C. 
Land restricted against development by covenant, easement or deed restriction shall not be eligible for transferable development rights and shall not be included in the computation of the area of the parent tract unless and until such time as said covenant, restriction or easement is dissolved or rescinded. In the event said covenant, restriction or easement is dissolved or rescinded, such land shall be eligible for issuance of transferable development rights.[1]
[1]
Editor's Note: Former Subsection D, regarding application for apportionment, which immediately followed this subsection, as amended 1-18-2007 by Ord. No. 2007-01, was repealed 8-21-2008 by Ord. No. 2008-07.
D. 
The landowner shall have the burden to present the Zoning Officer with sufficient information to determine the precise area of the parent tract on July 15, 2004, whether there are any restrictions of development recorded against the parent tract, and the soil classification (i.e., prime agricultural soils or nonprime agricultural soils) of the parent tract. The landowner may be required to provide a survey.
E. 
The Zoning Officer, with input from the Township Solicitor, shall determine the number of transferable development rights attributable to the parent tract within 90 days after receipt of a complete application. The Zoning Officer shall inform the applicant for the apportionment of the transferable development rights of his determination in writing. Any appeals from the determination of the Zoning Official shall be in accordance with the provisions of the MPC.
[Amended 1-18-2007 by Ord. No. 2007-01; 8-21-2008 by Ord. No. 2008-07]
A. 
Any landowner desiring to transfer transferable development rights from a transferring tract in the TDR Sending Overlay District shall request and obtain an apportionment of transferable development rights in accordance with § 490-157 of this chapter. The transfer of transferable 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 transferable development rights shall be solely at the volition of the buyer to use in the designated receiving areas. Under no circumstances shall the Township compel the transfer of transferable development rights in order to develop land in the receiving areas.
B. 
Transferable development rights which have been apportioned but which have not been severed from a transferring tract shall be conveyed by a deed of transferable development rights duly recorded in the Office of the York County Recorder of Deeds. The deed of transferable development rights shall specify the tract of land to which the transferable development rights shall be attached or that the transferable development rights shall be transferred in gross.
[Amended 1-18-2007 by Ord. No. 2007-01]
C. 
Transferable development rights which have been previously severed from a transferring tract and conveyed in gross shall be conveyed by a deed of transferable development rights duly recorded in the Office of the York County Recorder of Deeds. The deed of transferable development rights shall recite the entire chain of title of the transferable development rights and shall identify the soil classification of the transferring tract from which the transferable development rights were severed. The deed of transferable development rights shall specify the tract of land to which the transferable development rights shall be permanently attached or that the transferable development rights shall be transferred in gross.
D. 
Prior to presentation of any deed of transferable development rights to the Recorder of Deeds, the transferor and transferee shall present the Township with the deed of transferable development rights for endorsement as required by Section 619(1)(c) of the MPC[1] and any fee the Township requires for the processing of a deed of transferable development rights. No deed of transferable development rights shall be so endorsed until the Township is presented with satisfactory evidence that the transferable development rights set forth in the deed have not previously been used.
[1]
Editor's Note: See 53 P.S. § 10619(1)(c).
E. 
The purchaser of transferable development rights shall provide the Zoning Officer with proof that the deed of transferable development rights has been recorded.
F. 
A deed restriction against future residential and/or non-agricultural development is placed upon the parent parcel in the designated sending area from which the transferable development rights have been severed. The deed restriction will not affect the landowner's ability to sell the land after the transferable development rights have been severed, however such restriction runs with the land.
G. 
Declaration of restriction of development.
(1) 
A declaration of restriction of development shall be executed simultaneously with the deed of transfer of transferable 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 transferable development rights available for transfer either in perpetuity or until the owner of parcel shall donate or sell some or all of the remaining transferable development rights, if any such declaration shall clearly state the number of transferable development rights available for transfer that remain within the parcel.
(2) 
The declaration of restriction of development shall be in a form approved by the Township Solicitor. All owners of the parcel from which transferable 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 transferable development rights.
(3) 
Parcels from which transferable development rights have been severed shall:
(a) 
Be restricted against future development;
(b) 
Continue to be owned subject to said restrictions by the landowner, his heirs, executors, administrators, successors and assigns; and
(c) 
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. 
Sending areas. For purposes of the transfer of transferable development rights, the TDR Sending Overlay District of the Township shall be designated as the "Sending Area";
B. 
Receiving areas. For purpose of the transfer of transferable development rights, the Residential Zone (R), Mixed-Use 1 Zone (MU-1), Mixed-Use 2 Zone (MU-2), Commercial/Industrial Zone (C/I) and Interchange Zone (I) shall be designated as the "Receiving Zone."
[Amended 8-21-2008 by Ord. No. 2008-07; 12-15-2016 by Ord. No. 2016-03]
A. 
No transferable development rights may be used unless the Township has been presented with proof that the applicants to use such transferable development rights are all of the record owners of the parent tract to which the transferable development rights are applicable and such transferable development rights have not previously been apportioned and transferred or that the applicants are all of the record owners of transferable development rights under a duly recorded deed of transferable development rights. Transferable development rights may only be attached and used in the designated receiving areas of the Township. Once the transferable development rights are attached to a specific parcel of land, the rights shall run with that specific parcel in perpetuity.
B. 
A request to utilize transferable development rights on a developing tract shall be in the form of:
(1) 
A preliminary subdivision and/or land development plan of the proposed development using the transferable development rights prepared in accordance with Chapter 430, Subdivision and Land Development. The preliminary plan must indicate the base density of the developing tract, the proposed density of the development, the number of additional transferable development rights transferred or to be transferred to the property and the source of such transferable development rights; or
(2) 
If no subdivision or land development approval is required for the proposed development, an application for a zoning permit indicating the proposed development, the number of transferable development rights attributable to the developing tract being developed, the number of transferable development rights needed for the proposed development, and the number of additional transferable development rights transferred or to be transferred to the developing tract.
C. 
In addition to the preliminary subdivision and/or land development plan or an application for a zoning permit, a request to utilize transferable development rights shall include the following:
(1) 
If the applicant is not using transferable development rights which have previously been severed from a parent tract, an application for apportionment and transfer of transferable development rights providing all information § 490-157 requires with any applicable fees. Such application shall be signed by both the transferor and the transferee.
(2) 
If the applicant proposes to use transferable development rights which have been severed from a parent tract, a copy of the deed of transferable development rights and a title search demonstrating current title to the transferable development rights.
(3) 
If the applicant is not the current holder of title to the transferable development rights, an agreement of sale for the transferable development rights between the owner of the parent tract to which transferable development rights have been apportioned and the applicant for use of the transferable development rights, or, if the transferable development rights have already been severed from a parent tract, an agreement of sale for the transferable development rights between the owner of the transferable development rights and the applicant for the use of transferable development rights. The agreement may be contingent upon zoning approval or approval of a final subdivision or land development plan for the development of the developing tract.[1]
[1]
Editor's Note: Original Section 807.3.D, regarding use of TDRs which have been severed from a parent tract, which immediately followed this subsection, was repealed 8-21-2008 by Ord. No. 2008-07.
(4) 
All other nondwelling uses. For each transferable development right, the impervious surface coverage of the developing tract may be increased by 4,000 square feet, up to a maximum impervious surface coverage of 70% in the Residential Zone.
[Added 8-21-2008 by Ord. No. 2008-07]
D. 
Processing of application to use transferable development rights.
(1) 
The Zoning Officer shall review the application and all supporting information. The Zoning Officer shall render a written determination whether the applicant meets all requirements of this chapter to use transferable development rights and whether the applicant has sufficient transferable development rights for the proposed use of the developing tract.
(2) 
After receiving the Zoning Officer's determination, the applicant shall provide the Zoning Officer with a fully executed deed of transferable development rights transferring title to all necessary transferable development rights to the applicant if the applicant is not the record owner of all of the transferable development rights for endorsement and recording.
(3) 
The Zoning Officer shall present the fully executed deed of transferable development rights to the Board of Supervisors for endorsement in accordance with Section 619.1 of the MPC.[2]
[2]
Editor's Note: See 53 P.S. § 10619.1.
(4) 
If the applicant for the use of transferable development rights proposes development requiring subdivision or land development approval, the applicant shall provide the Zoning Officer with a copy of the recorded deed of transferable development rights and a fully executed and acknowledged declaration of use of transferable development rights. The Township shall condition approval of any subdivision or land development plan proposing the use of transferable development rights upon proof that the applicant will record the deed of transferable development rights and the declaration of use of transferable development rights. The Township shall not execute any final subdivision or land development plan using transferable development rights for recording until the Township has been presented with a copy of the recorded deed of transferable development rights transferring the transferable development rights to the developer and attaching those transferable development rights to the developing tract and copy of the recorded declaration of use of transferable development rights.
(5) 
If the applicant for the use of transferable development rights proposes development which does not require subdivision or land development approval, the applicant shall provide the Zoning Officer with a copy of the recorded deed of transferable development rights and a fully executed and acknowledged declaration of use of transferable development rights. The Zoning Officer may then issue a zoning permit for the proposed construction, and the Township will record the declaration of use of transferable development rights.
(6) 
The Township shall not issue any zoning permit which requires the use of transferable development rights unless the applicant:
[Amended 1-18-2007 by Ord. No. 2007-01]
(a) 
Demonstrates to the satisfaction of the Zoning Officer that the proposed construction was authorized by a subdivision or land development plan which proposed the use of such transferable development rights and the developer met all requirements of this § 490-160; or
(b) 
Meets the requirements of Subsection D(5).
E. 
Use of transferable development rights within the TDR Sending Overlay District.
(1) 
Each subdivision, land development, or construction of any principal structure within the TDR Sending Overlay District shall require the use of transferable development rights. The number of transferable development rights shall be required as follows:
[Amended 1-18-2007 by Ord. No. 2007-01; 8-21-2008 by Ord. No. 2008-07]
Use
Transferable Development Rights Required
Creation of a new lot containing less than five acres which contains an existing residential structure or proposes erection of one principal residential structure on the new lot
2.0 TDR per acre rounded up to the next 0.5 TDR
Creation of a new lot containing 5.0 or more acres and the erection of one principal residential structure on the new lot
1.5 TDR per acre rounded up to the next 0.5 TDR
Erection of a principal nonresidential and nonagricultural structure on an existing lot
1.0 TDR for each 4,000 square feet of impervious surface coverage or portion thereof
Erection of a single-family detached dwelling on a lot containing less than two acres in single and separate ownership on the effective date of this section (July 15, 2004) or erection of one principal residential or agricultural structure on any lot in single and separate ownership on the effective date of this section which does not contain a principal structure
0 TDR
A subdivision, the sole purpose of which is to transfer land to increase the size of a tract being used for agricultural purposes, where the tract to which the land is added will be 10 acres or greater after such subdivision
0 TDR, provided, however, that the subdivision plan and the deed for the land shall expressly state that there is no right to erect any principal structure upon such land without the acquisition and use of TDRs
A subdivision to increase the lot size of a lot where the lot will not be 10 acres after the addition of the land or where the lot, regardless of size, will not be used for agricultural purposes
1.5 TDR per acre or portion there subdivided from the parent tract and added to the existing lot until the existing lot is 5 acres in area and 1.0 TDR per acre or fraction thereof for an increase in lot size in excess of 5 acres
A subdivision of land for transfer to an entity with the power of eminent domain
0 TDR
Erection of an accessory structure or an agricultural structure (e.g., barn, silo) other than a farm dwelling
0 TDR
(2) 
Use of transferable development rights within the TDR Sending Overlay District is subject to the limitations on development as specified in § 490-23, TDR Sending Overlay District, of this chapter. These limitations supersede the allowable development via the use of transferable development rights as noted above.
[Amended 4-15-2010 by Ord. No. 2010-01]
F. 
Use of transferable development rights in the Residential Zone and Village Overlay District.
(1) 
Use of transferable development rights within the Residential Zone and Village Overlay District is not required. Landowners may use transferable development rights within the Residential Zone and Village Overlay District to increase the permitted intensity of a proposed development as follows:
Dwelling Type
Minimum Lot Size With Use of TDRs
Maximum Density With Use of TDRs
Maximum Lot Coverage With Use of TDRs
Single-family detached
9,000 square feet
4.5 dwelling units per acre
60%
Single-family semidetached
2,500 square feet per unit
5.5 dwelling units per acre
70%
All other dwelling types
2,000 square feet per unit
7.0 dwelling unit per acre
70%
(2) 
For each additional dwelling unit or portion thereof in excess of the number of dwelling units permitted by the base density, the applicant shall acquire and use one development right in accordance with this article. If a proposed development is to be finally approved in phases, the density for each phase shall not exceed the density of the entire development.
G. 
Use of transferable development rights in the Commercial/Industrial Zone and the Interchange Zone. Use of transferable development rights within the Commercial/Industrial Zone and Interchange Zone is not required. Landowners may use transferable development rights within the Commercial/Industrial Zone and Interchange Zone to increase the permitted intensity of a proposed development. For each development right, the impervious surface coverage of the developing tract may be increased by 4,000 square feet up to the maximum allowed coverage in the receiving district.
[Amended 12-15-2016 by Ord. No. 2016-03]
H. 
Use of transferable development rights in the Mixed-Use 1 Zone and the Mixed-Use 2 Zone.
[Amended 12-15-2016 by Ord. No. 2016-03]
(1) 
Use of transferable development rights within the Mixed-Use 1 Zone and the Mixed-Use 2 Zone is not required. Landowners may use transferable development rights within the Mixed-Use 1 Zone and the Mixed-Use 2 Zone to increase the permitted intensity of a proposed development.
(a) 
Nonresidential uses. For each development right, the impervious surface coverage of the developing tract may be increased by 4,000 square feet up to the maximum allowed coverage in the receiving district.
(b) 
Residential uses. For residential uses within the Mixed-Use 2 Zone, the following shall be applicable:
Zone
Base Density Without TDRs
Maximum Density With TDRs
Mixed-Use 1
0.5 DU per acre
1.0 DU per acre
Mixed-Use 2
4.0 DU per acre
6 DU per acre
(2) 
For each additional dwelling unit or portion thereof in excess of the number of dwelling units permitted by the base density in the Mixed-Use 2 Zone, the applicant shall acquire and use one development right in accordance with this article. If a proposed development is to be finally approved in phases, the density for each phase shall not exceed the density of the entire development.
Hellam Township may purchase transferable development rights and may accept ownership of transferable development rights through transfer by gift. All such transferable development rights may be resold or retired by the Township.
A. 
The Township reserves the right to amend this chapter in the future, and the Township expressly reserves the right to change the manner in which the number of transferable development rights shall be apportioned to a parent tract, the manner in which transferable development rights may be attached to a developing tract, and the procedure by which transferable development rights can be conveyed. The Township further expressly reserves the right to terminate its transferable development rights program at any time. Any changes to these regulations will be made by an ordinance, which will be advertised in accordance with the requirements of the MPC.
B. 
No landowner or owner of transferable development rights shall have any claim against the Township for damages resulting from a change in this chapter relating to the regulations governing the apportionment, transfer and use of transferable development rights, or the abolition of the transferable development rights program.
C. 
If the Township abolishes the transferable development rights program, no developer may attach transferable development rights to any land within the Rural-Agricultural, Commercial/Industrial, Residential, Village Overlay, Mixed-Use 1, Mixed-Use 2 or Interchange Zones after the effective date of the ordinance abolishing the transferable development rights program unless:
[Amended 8-21-2008 by Ord. No. 2008-07; 12-15-2016 by Ord. No. 2016-03]
(1) 
An application in conformity with the provisions of this chapter was filed prior to the effective date of such ordinance, in which case such application shall have all of the rights granted to applicants under Section 508 of the MPC;[1] or
[1]
Editor's Note: See 53 P.S. § 10508.
(2) 
The record owner of transferable development rights which have been severed from a parent tract prior to the effective date of the ordinance abolishing the transferable development rights program within one year of the effective date of such ordinance files a request to utilize transferable development rights on a developing tract in accordance with § 490-159 of this chapter. The Township shall consider the request to utilize transferable development rights in accordance with the transferable development rights regulations in effect immediately before the abolition of the transferable development rights program. If the application meets such requirements, the record owner of the transferable development rights shall be granted the ability to develop in accordance with the transferable development rights regulations in effect immediately before the abolition of the transferable development rights program for the time period in Section 508(4) of the MPC,[2] with such period being measured from the date of filing the request to utilize transferable development rights.
[2]
Editor's Note: See 53 P.S. § 10508(4).