HomeMy WebLinkAboutH_2008_TDRFinalReportFINAL TRANSFERABLE
DEVELOPMENT RIGHTS
FRAMEWORK REPORT
Prepared for:
Washington County, Maryland
by:
White & Smith I Planning and Law Group
in Association with:
Dr. James C. Nicholas
Dated:
December 12, 2007
II
WASHINGTON COUNlY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER t 2, 2007
Contents
EXECUTIVE SUMMARY ..•..........•......•.•...........•.................•.......•.............•...............•...•.••........•......•..••..... 4
PROJECT BACKGROUND ............•................•.•...........•..........•...........••.•..............•....•................•.............. 8
I. TDR AUTHORITY ............................................................................................................................. 8
II. TDR OVERVIEW ................................................................................................................................ 9
III. REPORT OVERVIEW ................................................................................................................. 10
IV. THE WASHINGTON COUNTYTDR FRAMEWORK .......................................................... 10
A. IDENTIFICATION OF THEW ASHINGTON COUNTY SENDING AREA AND TDR VALUATION ...... 11
1. Identification of the Sending Area ........................................................................................... 11
2. Calculation of TD Rs in the Sending Area .............................................................................. 12
3. Estimated TDR Value .............................................................................................................. 14
B. IDENTIFICATION OF POTENTIAL WASHINGTON COUNTY RECEIVING AREAS ........................... 15
1. Maryland Department of Planning's Development Capacity Analysis ................................ 16
2. Alternative Receiving Area Scenarios ..................................................................................... 17
a. Urban Growth Areas -Existing Zoning ............................................................................................ 18
b. Urban Growth Areas -Roll Back Zoning .......................................................................................... 21
c. Fringe Areas within •;. Mile of the UGAs ........................................................................................... 22
d. Fringe Areas within •;. Mile of Certain Rural Villages ...................................................................... 23
e. Summary of Receiving Area Altematives ........................................................................................... 25
3. The "Sending Area as Receiving Area" -Noncontiguous Use Programs ............................. 26
V. RECOMMENDED TDR PROGRAM COMPONENTS .............................................................. 27
A. ADOPT RECEIVING AREAS ............................................................................................................. 27
B.
c.
D.
EARLY ENTRY BONUS .................................................................................................................... 29
MONITOR AND REDUCE TDR "COMPETITION'' .......................................................................... 29
1. Exempt Lots ............................................................................................................................... 29
a. Sending Area ........................................................................................................................................ 29
b.
2.
Receiving Areas ................................................................................................................................... 30
Undevelopable Lands in the Sending Area ............................................................................ 30
3. Limit Up zonings within Receiving Areas ............................................................................... 31
4. Purchase of Development Rights Programs ............................................................................ 31
COMMERCIAL PROPERTIES WITHIN THE RECEIVING AREAS ...................................................... 32
E. MAINTAIN SIMPLICITY AND Low TRANSACTION COSTS ............................................................. 32
VI. TDR PROGRAM IMPLEMENTATION ................................................................................... 33
STEPl-TDR TRANSFERAPPLICATION ................................................................................................. 33
STEP 2 -COUNTY TDR CERTIFICATION ................................................. ··························· .................... 34
STEP 3-APPLICATION FOR PROPOSED DEVELOPMENT ....................................................................... 35
STEP 4-TDR LEDGER ............................................................................................................................ 35
DISCUSSION AND NEXT STEPS .......................................................................................................... 35
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FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
List of Tables
Table 1-Projected Eligible Lands within Sending Area
Table 2 -Projected Potential Exempt Lots within Sending Area
Table 3 -Potential Receiving Area: Entire Unincorporated Area within UGAs at Existing
Densities
Table 4 -UGA TDR Absorption Potentials
Table 5 -Potential Receiving Area: 1/4 Mile Fringe Adjacent to UGAs
Table 6 -Potential Receiving Area: 1/4 Mile Fringe Adjacent to Certain Rural Villages
Table 7 -Overview of Potential Receiving Areas
Table 8-Projected TDR Absorption in UGA Fringe Area
Table 9-Projected TDR Absorption in Rural Villages Fringe Areas
List of Maps
Map 1-TDR Sending Area
Map 2 -Potential Receiving Area -the Unincorporated Urban Growth Area
Map 3 -Potential Receiving Area -the Urban Growth Area Fringe
Map 4 -Potential Receiving Area -the Rural Village Fringe
Appendices
Appendix A-Overview of Other TDR Programs in Maryland
Appendix B -TDR Ordinances from Other Maryland Jurisdictions
Appendix C -Sample Agreement to Transfer Development Rights
Appendix D -Sample TDR Deed Restriction
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WASHINGTON COUNTY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER t 2, 2007
EXECUTIVE SUMMARY
This "Final IDR Framework Report" was prepared in order to assess the
economic feasibility of a ''Transferable Development Rights" (fDR) program in
Washington County as a means of protecting rural areas through the sale of IDRs.
IDR programs, after all, have worked in other jurisdictions, what will it take for
them to work for Washington County?
In order to answer this question, White & Smith, LLC and Dr. James Nicholas
have reviewed extensive property sales and growth trend data provided by
Washington County. Additionally, we have drawn upon our experience in other
jurisdictions, in Maryland and around the country, to identify the key features that
characterize those IDR programs that are successful, as compared to the majority
ofTDR programs, which are not.
The Report was developed in two steps. First, what are the recommended Sending
and Receiving Areas and what is the estimated value of a IDR in Washington
County? Second, what are the components necessary for a IDR program to be
economically feasible in Washington County?
Our first step was to identify the Sending Area; that is, the area from which IDRs
would be transferred under a Washington County program. Consistent with the
County Commissioner's goal of "equity and land preservation in the rural areas"
we have recommended that the entire unincorporated area outside of the existing
Urban Growth Areas (UGAs) be designated as the Sending Area.
Second, we estimated the number of IDRs in the recommended Sending Area
that would be available for transfer. Based on the methodology that is described
fully in the Report, we estimate that about 14,222 IDRs could be available for
transfer. Third, we estimated, based on property sales data in the area, that IDRs
in an active TDR program could sell for an average of about $10,032 per IDR
The next step was to identify areas in the County into which IDRs would be
transferred under the program. This involves two key components, one qualitative
and the other quantitative. The qualitative component involves the identification
of areas that are appropriate for higher density development, based on existing
County policies and the Comprehensive Plan. The quantitative component
involves identification of areas where developers seek more density than currently
is allowed under present zoning, i.e., the "base density." These clearly are areas that
would "demand" IDRs and which should be large enough to accommodate the
14,222 IDRs estimated to exist in the Sending Area.
Consistent with these two objectives, we identified the following three (3) potential
Receiving Areas.
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1. Lands within the existing Urban Growth Areas;
2. Lands within a 1/4 mile Fringe Surrounding the existing Urban Growth
Areas; and/or
3. Lands with a 1/4 mile Fringe Surrounding Certain Rural Villages.
Designating the UGA as a Receiving Area has the benefit of directing growth to
lands already recognized as appropriate for higher intensity development The two
fringe areas, though currently planned for rural densities, represent a logical
extension of areas currently slated for higher densities, the UGA and the Rural
Villages.1
In recent years, developments in the UGAs have been approved at densities
significantly below the allowable, base density. Accordingly, there would appear to
be no demand for TDRs in the UGA at this time. However, if the allowable base
densities within the UGAs were rolled back to, for example, one unit per 5 acres
(i.e., a density significantly below what currently is being built), demand for TDRs
presumably would exist.
On the other hand, the identified "fringe" areas may demand greater densities than
currently are allowed, either now or in the future, as growth continues in
Washington County. While currently identified as rural, the benefit of designating
these areas as Receiving Areas is that, since they remain zoned at lower, rural
densities, no density rollback is required to generate demand for TDRs. In these
areas, property owners seeking higher densities would have to participate in the
TDR program to do so.
The following table illustrates the potential each of the three identified Receiving
Areas has to accommodate the estimated 14,222 TDRs in the recommended
Sending Area.
Potential
TDR
Potential Receiving Area Absorption
Urban Growth Areas (w/ Density Roll Back
to 1 unit per 5 acres) 20,434
1/4 Mile UGA Fringe 7,832
1 / 4 Mile Rural Villages Fringe 8,954
Total 37,220
I Note that no lands adjacent to Rural Villages that have been designated on the National Register of Historic
Places have been designated as a receiving area.
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DECEMBER 1 2, 2007
The County should adopt one or more Receiving Areas sufficient to accommodate
the TDRs in the Sending Area. As the table above illustrates, the UGA, with a
significant density rollback, and the two "fringe" areas together have adequate
capacity to absorb the 14,222 TDRs in the Sending Area.
In addition, density bonuses are required in each potential Receiving Area in order
to stimulate demand for TDRs. These represent, on one hand, how many units
can be built without TDRs (the "base density") and how many units could be built
with TDRs (the "bonus density").2 The greater the bonus density, the more TDR
absorption potential there will be. The Potential TDR Absorptions estimated in
the table above assume the an "area-wide," net density bonus in the UGA fringes
of 1.32 units per acre and in the Rural Area fringes of 1.06 units per acre. The
allowable bonus for each zoning district will have to be determined in accordance
with the County Comprehensive Plan and local input.
The final step, once the Sending Area and potential Receiving Areas have been
designated, is the County's commitment to other key 'crrogram Components" that
may initiate interest in the sale of TDRs. This interest is particularly desirable
during the initial stages of TDR implementation.
These key components are described in detail in the Report, but are summarized
here.
• Early Entry Bonus -up to a 50% bonus could be awarded to Sending
Area property owners during the first two years of TDR implementation to
generate initial interest and sales.
• Exempt Lots -no TDRs should be assigned to "exempt lots" in the
Sending Area and the County should consider eliminating or limiting the
exempt lot allowance within the UGA and Rural Village Receiving Areas
because this creates "competition" for the purchase ofTDRs.
• Undevelopable Lands in Sending Area -no TDR value should be
assigned to lands that are otherwise not developable within the Sending
Area, unless all physical use of the property is prohibited.
• "Upzonings" in the Receiving Areas -upzonings in the Receiving Areas
should be discouraged or severely restricted so that additional density is
2 The term "density" will have several connotations as used in the Report. "Base density" is the density
allowed by the Washington County zoning code. "Bonus Density" is the number of units per acre that would
be allowed ifTDRs were used. The "bonus density" would be in addition lo the "base density." For example, if
the allowable, "base density" in a particular zoning distnct is .2 units per acre (i.e., "1 :5 zoning") and the "bonus
density" with TDRs is 2.0 units per acre; a propertv owner could achieve 2.2 units per acre using TDRs.
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achieved through IDR purchase, because the availability of upzonings
removes the incentive to purchase TDRs and destroys the value ofIDRs.
• Commercial TDRs -in order to increase the demand for IDRs, the
County should consider allowing IDRs to be transferred (1) to establish
limited residential uses on commercial properties within the Receiving
Areas; and (2) to increase allowable nonresidential floor area within the
Receiving Areas.
• Simplicity and Low Transaction Costs -the County's TDR Ordinance
should allow IDR transfers to be accomplished "as-of-right," without
additional approvals required by the County, in order to encourage the use
of TDRs. Additionally, any required approvals will reduce the value of the
TDRs to potential users.
As the County Commissioners embark on its assessment of whether TDRs are
right for Washington County, it might bear in mind two things. First, if the
economic viability of TDRs cannot be achieved immediately, it may develop as
growth continues. As is discussed in the Report, this was the case in Montgomery
County, which now has one of the nation's most successful TDR programs. If the
demand for higher densities does not exist today, it may in the future. If the TDR
program is in place when this happens, the County will have the framework in
place to accommodate that growth through TDRs instead of incremental or
system-wide upzonings.
Second, it is common for TDR programs to undergo amendments and
adjustments in order to strike the necessary balance between supply and demand
for TDRs and density. We would not expect Washington County's experience to
be different If the County adopts a TDR program, it should monitor it closely
and, at least on an annual basis, consider amendments that may increase TDR
activity.
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FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
PROJECT BACKGROUND
White and Smith, ILC and James C. Nicholas (together, the Project Team) have
undertaken an assessment of existing conditions in Washington County (the
County) and have prepared this ''Final TDR Framework Report," which sets forth
our findings and recommendations with respect to several key components of a
Transferable Development Rights (TDR) program in Washington County. It is
anticipated that this Report will be used by County Staff and the County
Commissioners to: (1) assess the viability of a TDR program in the County as a
means of advancing orderly growth patterns and reducing development impacts in
areas designated by the County for rural protection; and (2) if such a program is
deemed viable and is desired, to support the implementation of a TD R program
through the development of County-adopted ordinances.
In preparing this Report, we have researched and reviewed County policy
documents, property sales histories throughout the unincorporated County, zoning
laws, state laws, and TDR programs from other jurisdictions in Maryland. The
recommendations in the Report also reflect our meetings with County Staff and
input taken at two County Commissioners' work sessions.
The Report sets out the Project Team's findings and recommendations regarding
proposed TDR Sending and Receiving Areas, as well as an estimate of the potential
value of a TDR if the system is implemented as recommended. Finally, based on
our experience in other places and our evaluation of TDR programs in other
Maryland jurisdictions, we have set forth key components we believe are necessary
in order for a TDR program to be economically viable in Washington County.
I. TDR Authority
Article 66B, Section 11.01 of the Annotated Code of Maryland enables local
governments with planning and zoning authority to implement TDR programs.
That section reads as follows:
A local legislative body that exercises authority granted by this article
may establish a program for the transfer of development rights to:
(1) Encourage the preservation of natural resources; and
(2) Facilitate orderly growth and development in the State.
There has been very little case law related to TDRs in Maryland, although in 1987,
the Court of Appeals of Maryland held that Montgomery County's TDR program
-as it was structured at the time -was invalid because it purported to implement
density increases in designated Receiving Areas through its Comprehensive Plan
and not through amendments to the zoning map and zoning regulations. ~
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Montgomery Citizens Association v. Maryland-National Capital Park and Planning
Commission, 309 Md. 183, 522 A.2d 1328 (Md 1987).
II. TDR Overview
Unlike other "government-driven" preservation programs, TDR programs are
driven by private investment and participation. In most programs, the government
does not participate or "extinguish" development rights, but rather, the private
sector is left to operate, based on the market's demand for higher intensity
development within areas of the community prioritized for development
Unfortunately, many of the nation's TDR programs go unused because the
demand for higher densities either does not exist within designated Receiving Areas
or can be achieved through means other than TDRs, usually "upzonings."
TDR programs allow residential development rights from preservation areas (the
"Sending Areas'') to be transferred into areas where more-intense development is
appropriate (the "Receiving Areas''). This transfer is market-driven, with
landowners in the Receiving Areas purchasing development rights from those in
the Sending Area, thereby reducing the number of units built on lands designated
for preservation without the need for downzonings. Other limited uses would be
allowed to continue on Sending Area properties from which development rights
have been transferred, including, for example agricultural cultivation, produce
stands, wineries, and other uses consistent with the County's rural preservation
policies.
In preparation of this Report, we have reviewed TDR programs around the state.
In Appendix A, we identify some of the notable components and distinguishing
features of some of those programs. Additionally, we have worked with and/ or
developed other TDR programs around the country. Based on our research and
experiences elsewhere, we know that while TD R programs exist, their success
varies from place to place and over time.
For example, the TDR program in Montgomery County, Maryland; now viewed as
one of the country's most successful, initially was not very active. Although the
ability to transfer TDRs existed, TDRs were not being transferred during the
program's early stages. Eventually, some regulatory changes occurred, but most
significant, the market demand for densities greater than those allowed under the
code increased in designated Receiving Areas. As a result, Montgomery County's
program has preserved nearly 50,000 acres of land.
The fact remains, however, that merely adopting a TDR program will not be
enough to generate the transfer of development rights out of the rural areas of
Washington County. Rather, the County's first challenge will be to commit to
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FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
some or all of the Program Components recommended in this Report and to an
ongoing commitment to monitoring and adjusting the program to achieve and
maintain the program's economic feasibility.
The recommended Program Components are consistent with those found in
jurisdictions that have achieved economic feasibility. While it is impossible to
assure the County's success through implementation of these components, failure
to commit to any of these components will assure that economic feasibility will not
be achieved.
Ill. Report Overview
This Report is broken into three major sections. The first is the Washington
County TDR Framework, which is Section N of the Report. Here we identify the
recommended Sending Area and the potential Receiving Areas: the areas from
which and to which TDRs can be transferred. These have been identified based
on both the County's existing planning policies (i.e., preservation versus density)
and the need to establish economic feasibility within Washington County for
TDRs.
The second major section of this Report is taken up on Section V. Here we set out
the ''Program Components" we believe necessary to the success of a TDR
program in Washington County. The third and final section is ''Program
Implementation," where we address how TD R transfers would likely occur and
how a Washington County TDR program would be structured, should the
Commissioners adopt TDRs.
IV. The Washington CountyTDR Framework
The first condition for a successful TDR program is that there must be sufficient
demand for development in the Receiving Area and sufficient value to the TDRs
so that rural landowners have an incentive to sell all or a portion of their TDRs
instead of exercising them through onsite development Second, the program
should be structured to advance and be consistent with County planning and land
preservation objectives.
In order to achieve this balance, we first identified the areas within Washington
County that have been identified for protection. This is the Sending Area. The
location and size of the Receiving Areas then is driven by the number and value of
the TDRs calculated to exist in the Sending Area. The more TDRs that exist, the
greater the size of the Receiving Areas. This Report is structured in accordance
with this analytical process.
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FINAL TOR FRAMEWORK REPORT
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2. Calculation ofTDRs in the Sending Area
Since a parcel-by-parcel assessment of development potential is neither practical
nor of significantly greater value, the categories of properties within the Sending
Area that are most likely to transfer development rights under a County TDR
program were identified.
This was done by identifying lands within one of the following zoning districts:
(a) Agricultural-Rural.
(b) Environmental Conservation.
(c) Preservation.
Second, within these zoning districts, parcels were excluded that met the following
criteria:
(a) Contain permanent easements.
(b) Do not have an Agricultural Use Assessment. ·
(c) Are less than 20 acres in size, unless they have no existing, onsite
improvements.
Consistent with the criteria used in other County preservation programs, these
criteria appear to eliminate the developed and "undevelopable" portions of the
rural area of the County, allowing us to hone in on actual development potential
within the Sending Area.
There are a total of 298,851 acres of land within Washington County, which have
been divided into about 57,200 parcels. Of that amount, about 1,729 parcels -and
115,473 acres -match the above criteria. Table 1 illustrates, by zoning district, the
acreage and potential units, or "development rights," associated with the identified
lands.
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FINAL TOR FRAMEWORK REPORT
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Table 1-Projected Eligible Lands within Sending Area
Base
Zoning District No. of Parcels Acreage Density
Agricultural Rural 833 57,608 1:5
Environmental Conservation 639 46,318 1:20
Preservation 257 11,547 1:30
TOTALS 1,729 115,473 N/A
Source: Washington County Planning Staff,January, 2007.
Potential
Units3
11,522
2,316
385
14,222
However, since the 2005 comprehensive rezoning of the County's rural areas
allows a significant number of "exempt lots" to be created, it is necessary to
estimate the potential level of construction that could occur within the Sending
Area, in addition to the 14,222 potential units allowed by zoning. Table 2 breaks
down the eligible parcels within the Sending Area, according to their potential for
creating these "exempt lots."
Table 2 -Projected Potential Exempt Lots within Sending Area
No. of
Lots Potential
per Exempt
No. of Acres No. of Parcels Parcel Lots
< 20 374 2 748
> 20 and< 50 577 3 1,731
> 50 and< 100 375 4 1,500
> 100 403 5 2,015
TOTALS 1,729 NIA 5,994
Source: Washington County Planning Staff, January, 2007.
Based on this analysis, as many as 14,222 units could be built in addition to the
5,994 lots that may be created within the Sending Area, through exemptions. It is
recommended that no TDRs be allowed for development rights created through
3 Although we would expect that site-related development constraints exist that might prohibit this
"mathematical maximum" build-out, for purposes of calculating TDRs and their potential value within the
Sending Area1 this estimation is appropriate.
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DECEMBER 1 2, 2007
"exempt lots." 1bis would only increase the supply of potential TDRs and
potentially decrease the value and demand for additional development rights in the
Receiving Areas.
Based on our experience in other areas, we would expect that about half of the
14,222 potential TDRs -somewhere in the range of 7,000 to 8,000 -may actually
transfer over the life of the TDR program. 1bis is simply a result of the fact that
many landowners within the Sending Area will prefer to develop units onsite and
others simply will not wish to participate at all.
3. Estimated TOR Value
Ultimately, the market will determine the value of a TDR, but, for planning
purposes and for purposes of evaluating the economic feasibility of the program in
Washington County, the potential value of a TDR has been estimated. The TDR's
value should reflect the difference between the value of a parcel in the Sending
Area without a development right and the value of that parcel with a development
right
Typically, residential land prices are a logarithmic function of the quantity of land
and the number of authorized units and is expressed as follows:
Price = MAcrescx Units~
Where:
+ M is a constant;
+ a. is the (regression) coefficient of Price with respect to Acres; and
+ ~ is the (regression) coefficient of Price with respect to Units.
The Washington County property data provided by County Staff indicates a
difference among Sending Area parcels based on the number of units allowed by
zoning to be built on that parcel. Parcels with fewer allowable units have sold at
significantly lower prices per unit than those with more. We found that parcels
with more than 9 authorized units sold for substantially lower prices per unit, likely
due to development and marketing costs, including the cost of money due to
extended absorption periods.
Therefore, the following model was used:
Price= M + (B1 *Acres)+ (B2 *Units)+> 9
Where:
+ Mis a constant (the intercept);
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+ B1 is the coefficient of Price with respect to Acres;
+ B2 is the coefficient of Price with respect to Units; and
+ >9 is a dummy variable that adjusts estimated price for those parcels with
more than 9 authorized units.
Putting these results into the model yields:
Price= $342,576 + ($3,149 *Acres)+ ($10,032 * Units) -$227,152
Therefore, based on current data and assumptions, the average value for a unit, or a
development right, in the Sending Area is approximately $10,032. However, this
average has a range as high as $27 ,000 and as low as $0. It appears that the highest
unit values would be associated with the smaller parcels, as noted above.
Additionally, the highest TDR values would be expected to occur on properties
with a base density of approximately one unit per five acres that would be allowed
to develop at as much as one unit per acre with TDRs.
The TDR will take its value from the sale of the additional dwelling that it was used
to create and will depend on the location and size of the Receiving Areas.
Specifically, in order for the TD R program to be active, the Receiving Areas must
be designed to create sufficient demand for the TDRs that exist in the Sending
Area.
B. Identification of Potential Washington County Receiving Areas
Landowners in the Receiving Areas will have two development options: develop
without TDRs or develop with TDRs. Development without TDRs will be limited
to the allowable ''base density" in the applicable zoning district, while development
with IDRs would be allowed an increase above base density, referred to here as
''bonus density." The challenge in this regard is to identify areas in the community
where the market demands greater densities than are allowed under current zoning
and approvals. We have set out two alternatives the County may consider in order
to maintain an active IDR program.
The first alternative is to adjust current density provisions within the identified
Receiving Areas so that a demand for TDRs will exist, either when the IDR
program is adopted or at some point in the future as demand for residential
development continues over time. Under this scenario, each zoning district
within the Receiving Areas would have two permitted densities, one without
TDRs (the "base density") and one with (the "bonus density").
The second alternative is to allow TDR transfers within the designated Sending
Area. While not removing development rights from the rural areas of the
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DECEMBER 12, 2007
County, it would encourage clustered development, leaving larger areas
protected. A similar program is in place in Queen Anne's County, which is
described in Appendix A. This alternative is discussed in section IV(B)(3) of
this Report.
However, first, we will discuss a recent assessment by the Maryland
Department of Planning of the development capacity within certain areas of
the County.
1. Maryland Department of Planning's Development
Capacity Analysis
The Maryland Department of Planning (MDP) conducted an analysis of
development capacities in Washington County. The Governor appointed the
Governor's Development Capacity Task Force, which studied buildout
scenarios in many areas of the state. The Task Force submitted its final report in
2004, which can be downloaded at http:/ /www.mdp.state.md.us
/ develop_cap.htm.
One of the points made is that actual development would tend to be 75% of
that allowed by zoning. This was suggested as a default and was recommended
for use in the absence of jurisdiction specific data. This reduced yield is due to
a number of factors including the need to devote land area to ancillary uses
such as streets and water retention in addition to not all land areas being
suitable to development (steep slopes, wetlands and the like). Also, market
conditions and local preferences will come into play. The net result is that
actual densities of development will tend to be less than that allowed by zoning.
This Report employs the Task Force's recommended default value of a 75%
yield.
It should be noted that the state's draft analysis of development capacity in
Washington County differed from the methodology here, which has been tailored
to specific purposes of this Report. The state's analysis assessed development
potential within and outside of designated "priority funding areas," which generally
correspond to the Urban Growth Areas in Washington County, which we have
used as the geographic reference in this Report. The state calculated the
development potential outside of the PF As as 24,753 units, as contrasted with the
14,222 estimated TDRs herein.4 Our estimation, in contrast to the state's, was
based on the criteria set forth above and the densities set out in Table 1. By
4 Maryland Department of Planning, "Draft Washington County Development Capacity Analysis," June 12,
2007.
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contrast, the state's analysis is based on one unit per five (5) acres throughout the
entire area. In addition, the estimated 14,222 TDRs does not include an additional
5,994 potential units associated with exempt lots (see Table 2).
Also, the state's projected densities are higher for the areas "outside" of the
priority funding areas, due to the state's assumption of areawide five-acre
densities. For the areas "inside" the priority funding areas, the state's analysis
yields an estimate of 19,147 potential units as contrasted with our estimate of
26,122 units within the unincorporated areas in the UGAs. The principal
difference is the permitted densities of the Agricultural zoned area. The state's
analysis used one dwelling per 5 acres for the A zoned areas as contrasted with
the 2 dwellings per acre used herein (reduced to 75%). The 2 units per acre
density is the maximum allowable under existing regulations and thus was
incorporated into this analysis.
2. Alternative Receiving Area Scenarios
From experience, we expect that few communities within the County are likely to
welcome higher densities. Therefore, the challenge is to find the best Receiving
Areas relative to the alternatives. There must be sufficient market demand for
density in excess of base density so that the 1DR program is economically feasible,
but also situated so that other County planning and preservation objectives are not
frustrated.
To that end, this section sets out potential alternatives for County Receiving Areas
-based on the need to absorb about 14,222 1DRs from the Sending Area (see
Section IV(A)(2) of this Report). This analysis is fundamentally a technical one,
where we have identified three potential Receiving Areas and have estimated the
potential of each to absorb 1DRs from the Sending Area. It will be up to the
County then, to decide, from a planning policy perspective, which Receiving Area
or Areas are suitable.
This analysis will consider three potential Receiving Areas with a variation on
one, as follows:
1. The Urban Growth Areas as designated in the Washington County
Comprehensive Plan;
a. Based on Existing Densities; and
b. Based on a Roll-Back of Existing Densities.
2. Properties within a One-Quarter (1/4) Mile Fringe of the Urban
Growth Areas; and
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DECEMBER 1 2, 2007
3. Properties within a One-Quarter (1/4) Mile Fringe of Certain Rural
Villages.
These areas are expected to be the natural extensions of existing growth
patterns in Washington County and thus are areas with significant potential for
receiving TD Rs.
An analysis of the sale of residential properties in Washington County suggests
that residential densities of approximately two units per gross acre are
achievable. For areas when allowable densities are already in excess of two per
acre it will be accepted for the purposes of this analysis that there is no
additional potential development. Additionally, analysis of development
capacities by the MDP found that the ratio of zoned densities to built densities
averaged 75°/o.5 Therefore, this Report's analysis of development potential will
use two units per acre as the likely build out density within the Receiving Areas
which, consistent with the state's analysis, is reduced by 25% to reflect actual
development potential. Those areas that are presently zoned for one unit per
acre or greater will not be reduced to 7 5% for establishing existing
development potential.
a. Urban Growth Areas -Existing Zoning
The County has had designated Urban Growth Areas since 1983, pursuant to the
1980 Comprehensive Plan. The UGAs coincide generally with state priority
funding areas under the state's original smart growth framework. Accordingly, and
as a starting point for our discussion, the UGAs would be a potential Receiving
Area. If the UGA were used, the Receiving Area would exclude incorporated
municipalities, the most notable, of course, being Hagerstow~ because its
participation in a countywide TDR program is not expected at this time. A "UGA
Receiving Area" is shown in yellow on Map 2 below.
s Maryland Department of Planning, "Models & Guidelines Summary: Development Capacity Analyses," July
2004, page 3, available at www.mdp.state.md.us.
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employing the 25% reduction referred to above. However, the average density
being built within the UGAs is 2.14 dwellings per gross acre even though the
allowable, base density in most districts is in excess of 2.14 units per acre.
Therefore, at existing zoning, the Urban Growth Areas appear to provide few
opportunities for transfer of development because actual built densities are
below that allowed by current zoning. In other words, there is no apparent
demand within the UGAs for density greater than that already allowed under
current zoning.
Note, however, that in the area of the UGA zoned Agricultural, a maximum
permissible density of 2 units per acre is achievable only by constructing
duplex, or "two-family," dwelling units. Should a bonus single family dwelling
be allowed by TDR, as an alternative to an as-of-right duplex unit, land owners
would be provided with a valuable TDR option, which would not result in an
increase in development potential under current base densities. This option
would have the potential to create demand for as many as 7,000 TDRs. An
advantage of this option is that the existing right to construct two-family
dwelling units can remain, with the addition of the option to construct a
detached unit, using TD Rs, instead of the second duplex unit currently allowed
as-of-right.
Table 3
Potential Receiving Area: Entire Unincorporated Area within UGAs at
Existing Densities
Potential
New TDR Allowable Units Above Base under Existing Density Existing Existing Total
Zoning (du/acre) Parcels Acres Units Zoning Densitie
s Units
A 1:1 365 7,573.07 62.18% 238 11,543 0 11,781
AHP 1:1 1 129.33 1.06% 1 209 0 210
c 1:3 45 309.21 2.54% 34 67 0 101
HI2 na 66 1,150.68 9.45 % 35 2,649 0 2,684
RM 16:1 4 73.78 0.61 % 0 473 0 473
RR 1:.5 214 1,703.12 13.98% 135 5,487 0 5,622
PAGE 200F49 II
RS
WASHINGTON COUNTY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 12, 2007
1:.25 139 1,007.14 8.27% 60 3,805 0 3,865
RSPUD 12:1 4 7.92 0.07% 0 41 0 41
RU 1:.125 43 225.90 1.85% 7 1,339 0 1,346
TOTALS
/AVG 881 12,180.14 100.00% 510 25,612 0
NOTES:
Additional units at 75% of maximum allowable except for Conservation zoned
property.
b. Urban Growth Areas -Roll Back Zoning
26,122
A s an alternative, a second possible UGA scenario would be to roll-back
existing allowable base densities within the UGAs to something less than what
the market is or is expected to demand in coming years. The extent to which
this would create demand for TDRs depends on how much of a roll back were
undertaken. For example, rolling back existing base densities to 1 unit per 5
acres would result in a demand for as many as 20,000 TDRs on the 12,180
acres of developable land within the UGA. This is more than enough to
absorb all the 14,222 estimated to exist in the recommended Sending Area.
Table 4 illustrates the potential TDR demand created through a density roll
back within the UGAs. The extent that the current base densities would be
rolled back within each zoning district in the UGAs would have to be
determined.
Table 4
U GA TD R Absorption Potentials
At Rolled back Potential
Density of:* TOR Units
1:5 20,000
1:4 16,000
1:3 12,000
1:2 8,000
1:1 4,000
* units per gross acre
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the 25% reduction from zoned to realized development, above the current base
densities shown. This scenario could absorb an estimated 7,832 TDRs, which,
though on its own, would not provide sufficient capacity to absorb all 14,222
TD Rs, indicates the feasibility of TD Rs in these areas.
Table 5
Potential Receiving Area: % Mile Fringe Adjacent to UGAs
Current Potential Add'l
Zoning Parcels Acres Base Existing Units
Density Dwellings Existing By
Densities TDR
AR 138 4,907.26 58.01 % 0.20 110 2,403 7,039
AR50 22 1,093.56 12.93% 0.02 18 148 146
EC 130 2,257.42 26.69% 0.05 92 750 603
p 9 198.66 2.35% 0.03 7 54 44
RBN 1 2.60 0.03% NA 1 0 0
TOTAL 300 8,459.50 100.00% 228 3,355 7,832
d. Fringe Areas within % Mile of Certain Rural
Villages
There are approximately 30 existing Rural Villages throughout the County,
which represent areas that historically have higher intensity development than
the majority of the areas outside the UGAs. Limited areas contiguous to these
existing Rural Villages could be identified as Receiving Areas, where TDR
transfers would be allowed, generally consistent with the densities within the
adjacent Rural Village. For purposes of this analysis, we have excluded Rural
Villages with a National Register of Historic Places Designation. Therefore,
this area is actually a number of areas that are within a quarter-mile fringe,
adjacent to certain "non-designated" Rural Villages. These are shown in pink
on Map 4 below.
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Table 6
Potential Receiving Area: % Mile Fringe Adjacent to Certain Rural
Villages
Current Potential Add'l
Zoning Parcels Acres Base Existing Units
Density Dwellings Existing By
Densities TDR
AR 174 5,470.34 40.54% 0.20 157 2,896 7,784
EC 336 6,069.75 44.99% 0.02 260 1,836 798
p 97 1,725.45 12.79% 0.03 67 464 373
RBE 4 137.76 1.02% 0.03 3 0 0
RV 6 89.30 0.66% NA 5 188 0
TOTAL 617 13,492.60 100.00% 0.44 492 5,384 8,954
e. Summary of Receiving Area Alternatives
Designating the lands within existing Urban Growth Areas as Receiving Areas,
without a roll back in current allowable densities will absorb few TDRs since, at
this time, the demand for density in these areas is significantly lower than what
currently is allowed. On the other hand, if single-family detached units are
allowed with TDRs where "two-family," or duplex units currently are allowed
as of right, additional TDR absorption potential could be created in the UGA.
However, as an alternative, the County could roll-back base densities currently
allowable in the UGAs in order to create demand for TDRs which currently
does not exist, as most development projects are being developed below
allowable base densities. This could result in the area being able to absorb
between 4,000 and 20,000 TD Rs, depending on the scale of the rollback.
Finally, the% mile fringe areas analyzed could absorb between 7,832 and 8,954
TDRs each. As the demand for higher density in these areas increases, if the
TDR program is the only means of doing so, we would expect to see activity in
the TDR program. In fact, recent requests for upzonings within the UGA
fringe area would indicate that demand already may exist.
Table 7 summarizes the absorptive capacity of the several potential Receiving
Areas identified. Collectively, a theoretical total of up to 37,220 TDRs in
absorptive capacity is available, indicating the potential to create an
economically feasible TDR program in Washington County. The success of
such a program, however, will depend on the implementation of some or all of
the Program Components discussed in section V of this Report.
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Table 7
Overview of Potential Receiving Areas
Existing Potential Add'l Units
Parcels Acres Existing By Dwellings
Densities TDR Total
Growth .Areas 881 12,180.1 4 35.7% 510 25,612 25,612
Growth .Areas with Roll Back to
1 unit per 5 acres 881 12,180.14 35.7% 510 2,028 20,434 22,462
1/. Mile .Area .Adjacent to
Growth .Areas 300 8,459.50 24.8% 228 3,355 7,832 11,1 87
'I• Mile .Area .Adjacent to Rural
Villages 617 13,492.60 39.5% 492 5,384 8,954 14,338
1,798 34,132.24 100.0% 1,740 36,379 37,220 73,599
3. The "Sending Area as Receiving Area" -Noncontiguous
Use Programs
Many of today's preservation programs allow density to be transferred within the
areas designated for preservation. We discussed this scenario at our public work
sessions with the Conunissioners and the Agricultural Board has indicated support
for this approach. Queen Anne's County, Maryland has had some success with
this approach, which it refers to as its "non-contiguous use" (NCU) program. We
would anticipate that Washington County could implement an NCU program
either in tandem with TDRs, as has been the case in Queen Anne's County, or as
an alternative to a traditional TDR program.
NCU programs allow two property owners within the Sending Area to submit a
development plan that essentially calculates the required open space based on the
acreage of both properties. This allows the total permitted lots to be clustered on
one parcel (the "Developed Parcel'') while the other parcel (the ''Noncontiguous
Parcel'') is largely or completely preserved as open space.
It is recommended, however, that minimum open space requirements, minimum
setbacks, and maximum densities (ie., "maximum net densities'') be applied to the
Developed Parcel so that rural character is encouraged despite the more dense
development on the property. Similarly, the environmental/ conservation quality of
the Noncontiguous ("preserved'') Parcel should be protected by limiting
subsequent uses to open space, environmental, and/ or agricultural uses. Queen
Anne's County further limits Noncontiguous Parcels to those of 40 acres or more
that meet adopted soil and woodland quality standards. Once designated as a
Noncontiguous Parcel, no further subdivision or lot configuration is allowed.
PAGE 260F49 II
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FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
V. Recommended TDR Program Components
The following section identifies the "Program Components" identified as
necessary to or supportive of the economic feasibility of a TDR program in
Washington County. In jurisdictions where TDRs are economically feasible,
these characteristics tend to exist.
A. Adopt Receiving Areas
There is a need to absorb 14,222 rights. Having more absorptive capacity is
desirable so the 14,222 should be considered to be a minimum. As was
discussed previously, the incentive to use TDRs results from their being a
density "bonus" for their use. Accordingly, the "base density" (density
allowable without using TDRs) and the recommended "bonus density" (density
allowable using TDRs) are described for each potential Receiving Area. If this
framework were adopted, the County would amend its zoning regulations to
allow these density increases.
The following are alternate ways of providing necessary absorptive capacity.
1) Allow detached units, with the use of TDRs, where only two-family,
duplex units currently are allowed. It is unknown how many
transferred rights could be absorbed using this option. Nevertheless,
this is a viable option and should be considered as the UGAs are
designated to receive growth.
2) Roll back densities in the UGA. A roll back to a base density of one
dwelling per 5 acres could provide absorptive capacity for 20,434
TDRs. Less significant roll backs would reduce the absorptive
capacity of the UGAs (see Table 4), but may be easier to implement.
The appropriate roll back for each zoning district within the UGA
should be determined only after public input and district-by-district
consideration. Roll back is a difficult program to implement, but it
also is one that likely would absorb all of the created TDRs without a
need for other receiving areas.
3) Designate the one-quarter mile areas adjacent to the Urban Growth
Areas as Receiving Areas. This area could absorb as many as 7 ,832
TDRs. In order to achieve this absorption rate, the base densities,
shown below, would require an additional bonus density in the area
of about 1.32 units per acre. This does not mean that the density
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DECEMBER 1 2, 2007
with TDRs would be that great in every district necessarily. Rather,
that would be the net density throughout this Receiving Area.
However, in Table 8 we have shown the bonus density for each
zoning district that results from a tenfold increase in each district.
Table 8
p . roJecte dTDRAb sorptton 1n UGAF. nnge Ar ea
Zoning Base Bonus Acres to be Bonus Units
Density* Density* Developed at75%
AR 0.20 2.00 4,692 7,039
AR50 0.02 0.20 975 146
EC 0.05 0.40 2,011 603
p 0.03 0.33 176 44
RBN na 0
TOTAL 7,854 7,832
* Units per gross acre
4) Designate areas within one-quarter mile of certain Rural Villages as
TDR Receiving Areas. If, for example, a bonus density of 1.06 units
per acre were allowed, this area could absorb almost 9,000 TDRs.
Again, as is discussed with respect to the UGA Fringe Area, the
appropriate TDR bonus for achieving a net density of 1.06 units per
acre must be determined. In the example below, that area-wide
density is achieved through a ten-fold density increase in potential
density in each district.
Table 9
p . roJecte dTDRAb . R 1 V"ll sorpt10n 1n ura 1 ages nnge Ar eas
Zoning Base Bonus Acres to be Bonus Units
Density* Density* Developed at75%
AR 0.20 2.00 5,189 7,784
EC 0.05 0.20 5,317 798
p 0.03 0.33 1,508 373
RBE na na 0 0
RV na 0
TOTAL 12,014 8,954
* Units per gross acre
5) Receiving Areas Summary. There are a number of ways to combine
receiving areas so that there will be sufficient absorptive capacity.
The above options could be used in together with each designed to
absorb a part of the TDRs created. Such a multiple area approach
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DECEMBER 12, 2007
would have the advantage of offering many different options for the
use of TDRs. It should be noted that if bonus densities in the
amounts suggested above cannot be achieved, lesser bonuses still
would result in TDR absorption, though the potential would be less
than those projected in our examples. Also, to put these potential
increases in perspective, it would not be expected that the entire
Receiving Area would be developed at the higher density in the near
term, but only those properties using TDRs. Though the potential is
there for such densities area-wide it would not be expected initially.
B. Early Entry Bonus
Experience with other TDR programs has shown a reluctance on the part of
Sending Area property owners to restrict their lands and thus create transferable
development rights. This reluctance has been particularly problematic in the early
stages of TDR programs and could frustrate the TDR program. A recent Florida
experience provides an example of how to overcome this early entry reluctance.
Collier County, Florida, allowed a bonus as high as 100% for TDRs transferred
within two years of the adoption of the TDR Ordinance. Note may be taken of
the fact that Collier County had more than sufficient absorptive capacity to receive
the additional rights created by the bonus.
To ensure sufficient absorptive capacity, Washington County may wish to consider
a bonus of 50% for transferring development rights within two years of adoption.
This will provide the development rights that developers within the Receiving
Areas will need in order for the program to function and an incentive to property
owners in the Sending Area to participate. However, if an early entry bonus is
included, care will have to be taken to assure that there are adequate receiving areas
for the possible increased number ofTDRs.
C. Monitor and Reduce TDR "Competition"
1. Exempt Lots
a. Sending Area
As has been discussed, the viability of a TDR program hinges on an often
difficult to achieve balance between supply and demand. It is, therefore,
essential that the supply of transferable development rights not be so great as
to diminish their value to a point where landowners in the Sending Area would
elect to build instead of selling development rights. For that reason, it is
recommended that lots that currently can be created in the Sending Area
PAGE 290F49 Ill
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DECEMBER 1 2, 2007
through the County's existing exemption program not be allowed for transfer
as TDRs.
Indeed, the intent of these exemptions is to allow property owners some
reasonable onsite use of their property without undergoing full subdivision
review. However, assigning TDR value to these lots, while creating a potential
financial gain to individual owners, likely will work against the viability of the
overall program by adding to the market as many as 5,994 additional TDRs.
Consistent with this approach, we have not counted these exempt lots among
those available for transfer when estimating the value of a single TDR.
b . Receiving Areas
On the Receiving Area side of the equation, the exempt lot provision allows
some landowners in the UGA and Rural Villages fringe areas to create
additional density by exercising this exemption instead of purchasing TDRs.
This creates competition for a TDR program, because it creates a pool of
"free" density for property owners in these two potential Receiving Areas. It is
expected that removal of this option within these potential Receiving Areas
would increase demand for TDRs and therefore the economic feasibility of a
County TDR program.
2. U ndevelopable Lands in the Sending Area
Similarly, it is recommended that TDRs not be assigned to lands in the Sending
Area that are otherwise not buildable, perhaps with one exception. Some programs
assign limited TDR value to lands within sending areas that could not otherwise be
developed. For example, although a landowner in the Sending Area would not be
allowed to develop on or near certain wetlands, those wetlands may have some
TDR potential associated with them. However, as with the exempt lots, this tends
to add to the significant number of TD Rs that already exist in the Sending Area
recommended for Washington County. Based in part on this concern, our
methodology in calculating potential TDRs in the Sending Area excluded a portion
of those properties that lack significant development potential.
An instance in which the County might consider allowing a TDR transfer from
otherwise undevelopable lands would be in cases where a property has no other
onsite development potential. This would not only address issues of "policy
equity" but also may provide some potential "use" or "value" to an otherwise
undevelopable property.
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FINAL TOR FRAMEWORK REPORT
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3. Limit Upzonings within Receiving Areas
It also is important that the alternatives available to Receiving Area landowners
for increased densities be limited. For example, assume a landowner in a
Receiving Area currently is allowed to build one unit per twenty acres, but
wishes to build 4 units per twenty acres (i.e., 1:5 zoning). Assume also that the
landowner can build up to 4 units per twenty acres by purchasing TDRs from
Sending Area property owners or by petitioning the County for a rezoning.
Clearly, the landowner will chose the less expensive alternative; likely the
rezoning. If it is granted, the net increase in development potential has grown
countywide. If, however, the landowner had been limited to purchasing those
rights from the Sending Area, the net effect would have been not only to have
reduced countywide development potential, but more important, to have
reduced development potential in the rural areas while allowing payment to the
rural property owner for the TDR.
Charles County has incorporated restrictions on upzonings for precisely this
reason. (see Appendix A). While the County Commissioners must retain the
reasonable authority to rezone property, if the County adopts a TDR program,
it too should severely limit density increases within the Receiving Areas to
TDR purchase instead of rezonings. Similarly, future rezonings in the Sending
Area should take into account the implications on the TDR program.
4. Purchase of Development Rights Programs
There are a number of state-run "purchase of development rights" (PDR)
programs that will compete with the County's TDR program. Although no
amendments to the County's approach are recommended at this time, the
impact of other PDR programs should be monitored.
PDR programs involve the purchase of development rights (or easements) by a
governmental entity instead of by another private property owner, as would be
the case under a TDR program. The rural property owner -those in the
"Sending Area" under the TDR scenario -will sell his or her development
rights to the highest bidder, regardless of whether it is the government or a
private purchaser.
In recent years, the state of Maryland has paid as much as $7 ,000 per acre of
agricultural land, or about $35,000 for five acres. As is discussed in section
IV(A), the average estimated value of a TDR may be about $10,000 at this time.
Therefore, at 1 unit/ 5 acre zoning, the same 5 acre parcel could be worth as
much as $35,000 under the state's PDR program and only $10,000 under a
County TDR program.
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DECEMBER 1 2, 2007
However, the PDR programs will not be available to all potential sellers of
development rights. First, the program does not have enough funding to meet
the current demand. During the most recent application cycle, state funding
allowed the purchase of only about 20% of those applying for PDR purchases.
Second, the state's selection criteria likely will eliminate some properties from
eligibility, leaving the TDR program as the only viable preservation program
for some landowners.
If the County does adopt a TDR program, it is recommended that it be
monitored as it relates to the state's PDR program. Further bonuses could be
offered in the Sending Area to stimulate interest in TDRs as an alternative to
the state's purchase programs. However, to do so will result in the creation of
even more potential TDRs in the Sending Area -and, therefore, the need for
even more demand in the Receiving Areas. However, this step is not
recommended unless experience with the program necessitates it after
implementation.
D . Commercial Properties within the Receiving Areas
As a means of increasing the demand for TDRs, the County may consider
allowing TDRs for residential and commercial development in Receiving Areas
zoned commercial. In its simplest form, TDRs would be allowed where
residential uses are proposed in districts zoned commercial. Another
alternative is to create a residential-to-commercial conversion that allows
commercial square footage above base intensities where TDRs are used. In
Queen Anne's County, for every eight (8) acres of land permanently deed
restricted within the sending area, an additional 200 square feet of floor area
and 500 square feet of impervious area can be built on the commercial property
in the receiving area. (see Appendix A) Although this would be a more
complex system, it would have the potential to create additional demand for
the 14,222 TDRs in Washington County's recommended Sending Area.
E. Maintain Simplicity and Low Transaction Costs
Particularly during the initial stages of implementation, property owners in
Washington County will be unfamiliar with TDRs and how they work. For
that reason, the County should make participation as simple and as economical
as possible. There may exist, either now or in the future, policy or
administrative barriers to complete simplicity and economy. Calvert County,
for example, has included in its program a "Purchase and Retirement Program"
and "Leveraging and Retirement Fund" in order to guarantee a market for
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DECEMBER 1 2, 2007
TDRs. Similarly, Montgomery County has attempted to address affordable
housing through its program. (see Appendix A)
While the benefits of these programs are apparent, it is hoped that this level of
County involvement could be avoided and the other "Program Components"
discussed in this section would be sufficient to achieve economic feasibility.
Certainly, to the extent these complexities can be avoided, participation in the
program -and therefore preservation of rural areas and payments to rural
property owners -is most likely to occur.
For these reasons, we recommend that TDRs be transferable as-of-right, with
as little discretion by the County to "approve" the transfer as possible. Section
VI of this Report, "TDR Program Implementation," sets out a fairly simple
approach in this regard. The County's discretion essentially is limited to
confirming the number of TDRs available for transfer and their
appropriateness on the proposed Receiving Area parcel. Additional public
hearings, costs, and County scrutiny associated with the use of TD Rs are likely
to discourage their use.
VI. TDR Program Implementation
This final section of the Report covers key aspects of implementing a TDR
program in Washington County. Several TDR ordinances from other Maryland
jurisdictions have been provided at Appendix B for reference. While each
jurisdiction tends to handle the TDR process differently, the basic steps are the
same, with the common goal of preserving open space in the Sending Area and
increasing allowable, base densities in the Receiving Areas.
Needless to say, Washington County's program would differ in some respects from
these other jurisdictions and it must be tailored to the County's unique policies,
growth and sales patterns, and existing development review procedures. The goal
in this section of the Report is to lay out the general implementation steps that will
guide the County's development of a TDR program should the Commissioners
elect to proceed with TDRs. We would expect the following generalized steps to
be a part of a TDR implementation program adopted by the County.
Step 1-TDR Transfer Application
The Developer/ Applicant within the Receiving Area who wishes to undertake
development at a density or intensity greater than what is allowed under base
density, files an application with the County for a TDR transfer. The TDR
Application should include, at a minimum:
• a survey indicating the acreage of the Receiving Area parcel;
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DECEMBER 1 2, 2007
• a survey indicating the acreage of the Sending Area parcel, including
identification of any portions thereof not capable of development onsite,
due to soil, floodplain, or other environmental constraints;
• the allowable, base density and the proposed bonus density on the Receiving
Area parcel;
• the Applicant's estimation of TDRs needed to achieve desired density on
the parcel to be developed and the number of TDRs available on the
Sending Area parcel;
• an executed TDR Transfer Agreement between the Sending Area property
owner and the Receiving Area property owner, including:
• an agreement to transfer TDRs from one to the other;
• an agreement as to the number ofTDRs transferred; and
• the Sending Area property owner's agreement to restrictions on use of
the property after the transfer (which runs with the land); the Receiving
Area property owner's agreement to transfer the rights (see Appendix C).
• a draft Restrictive Covenant, consistent with a form provided by the
County, which, at a minimum:
• designates the County as the holder of the easement; and
• limits future uses and development on the Sending Area property in
perpetuity to the uses allowed by ordinance (typically agricultural and
open space uses only) (see Appendix D).
• Proof that the Receiving Area property owner/ Applicant is authorized to
act on behalf of the Sending Area property owner and will inform him or
her of the status of the Application.
Step 2 -County TOR Certification
In coordination with the County Attorney, County staff will verify that the TDR
Transfer Application and each of its required elements are complete. The County
will then calculate the available and desired TDRs, based on the provisions of the
TDR Ordinance. Available TDRs on the Sending Area parcel will be based on the
relative buildability of the parcel, any previously-transferred TDRs, and other
factors. The County Attorney will verify the form and substance of the TDR
Transfer Agreement and the draft Restrictive Covenant Based on County staffs
final detennination, it will certify the number of TDRs to be transferred and will
provide such certification to the Receiving Area Applicant
PAGE 34 OF 49 II
WASHINGTON COUNTY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
Step 3 -Application for Proposed Development
Having received a certification by the County of the number of TDRs to be
transferred, in Step 2, the Application for the Proposed Development may be
accepted by the County. The Proposed Development may include the additional
density or intensity achieved by the TDR transfer, however, any final approval will
be subject to the condition that the TDR Transfer Agreement be recorded and that
a Restrictive Covenant be placed on the Sending Area parcel, in favor of the
County Commissioners, and duly recorded.
Step 4 -TOR Ledger
After the necessary documents have been recorded, the County should enter the
transfer into the TOR Ledger as discussed above. This allows the County not only
to track the progress of the TDR program, but also to monitor areas where rights
have been extinguished so that TDRs are not transferred more than once.
DISCUSSION AND NEXT STEPS
If the County designates adequate Receiving Areas and implements the Program
Components as described in this Report, it appears that a TDR program in
Washington County could be economically feasible, resulting in the purchase of
development rights (i.e., TDRs) from rural property owners. The price of those
TDRs will vary and ultimately will be determined by the free market, but have been
estimated here to be around $10,000. Property owners in the Sending Area could
sell all or a portion of the TDRs attached to their properties, depending on their
desire to develop units onsite.
Ultimately, a TDR program is both a short-term and a long-term tool. The initial
objective, of course, is to structure the program so that TDRs are used
immediately. However, we also would expect the TDR program to become part of
the County's long-term planning framework. Whether or not significant activity is
generated initially, future rezoning requests and market increases in demand should
be considered in light of the TDR program.
For example, areas developing below existing base densities today may demand
higher densities in the future. At that point, the landowner will be faced with one
of two alternatives for achieving a higher density. Without a TDR program, the
only alternative, if the County wishes to accommodate the additional demand,
would be to allow an "upzoning," or density increase, as a legislative matter. This
would be by legislative act and would increase the total available development
rights in the community, without contribution by the private sector.
PAGE350F49 II
WASHINGTON COUNTY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
However, if a IDR program is in place and is the preferred means of increasing
density within the Receiving Areas, the applicant can increase his or her density (to
reflect increased market demand) by purchasing ID Rs from the Sending Area,
without increasing the total number of development rights in the community.
Ultimately, the IDR program should reflect the County's current circumstances
while anticipating that its future circumstances may very well converge with the
IDR program.
In the event the County elects to adopt a IDR program, as a prerequisite, it
should, at a minimum:
• adopt any amendments to the County Comprehensive Plan needed to
implement IDRs;
• adopt a Sending Area and one or more Receiving Areas sufficient to
accommodate 14,222 IDRs;
• establish density (residential) and intensity (nonresidential) standards and
bonuses, including any rollbacks by zoning district, if necessary;
• establish the uses that still may be undertaken on properties in the Sending
Area, from which IDRs have been transferred; for example, in Queen
Anne's County, properties from which IDRs have been sold cannot be
further subdivided, can be used only in accordance with the County's
"openspace" use restrictions, and may no longer be used to calculate site
area or site capacity for purposes of onsite development;
• adopt zoning ordinance amendments to allow and facilitate the use of
IDRs;and
• establish a "IDR Ledger," which, at a minimum, tracks:
• the number ofIDRs transferred;
• the acres preserved pursuant to the IDR Ordinance;
• the properties from which ID Rs have been removed;
• the properties to which TDRs have been transferred;
• the value of the IDRs transferred;
• a list of Sending Area property owners willing to sell ID Rs; and
• a list of property owners in a Receiving Area interested in purchasing
TDRs.
PAGE36 OF49 II
WASHINGTON COUNTY, MARYL.AND
FINAL TOR FRAMEWORK REPORT
DECEMBER t 2, 2007
The County's list of property owners interested in parnapating in the IDR
program is intended to facilitate the corning together of buyers and sellers of
TDRs, at least in the initial stages of the County's program. It should be clear,
however, the Counry is not a broker efTDR.r. In fact, if the program becomes viable,
we would expect that private real estate agencies will assume this role, much as they
currently do for traditional fee simple properties. That has been the experience in
some jurisdictions with mature IDR programs. However, during the initial stages
of the IDR program, the community will not be used to the concept and by
maintaining this list, the County may facilitate the transition and thereby facilitate
early IDR activity.
PAGE 37 OF49 II
WASHINGTON COUN1Y, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 12, 2007
Appendices
A -Overview of Other TDR Programs in Maryland
B -TDR Ordinances from Other Maryland Jurisdictions
C -Sample Agreement to Transfer Development Rights
D -Sample TDR Deed Restriction
PAGE380F49 II
WASHINGTON COUN"TY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
Appendix A: Overview of Other TOR Programs in
Maryland
This Appendix discusses eight (8) TDR programs in Maryland, how they have
worked, and their varying levels of success. At the end of the Appendix, an
overview table is included that summarizes the key components of these
programs. This report will provide an overview of the TDR programs in the
following eight counties.
• Calvert County
• Caroline County
• Charles County
• Harford County
• Howard County
• Montgomery County
• Queen Anne's County
• Talbot County
Calvert County
Calvert County, along with Montgomery County, is cited as having some of the
most successful development rights transfer programs in the country. The
County has spearheaded its Agricultural Preservation Program with the
appointment of an Agricultural Preservation Advisory Board, which oversees
preservation of open space and farmland in Calvert County. With this
County's TDRs there was no downzoning done in receiving areas and a
baseline of 1 du/5 acres is maintained, but a developer can build 1 du/2 acres
with TDRs (County Commissioners 2006).
What has made the County successful in its TDR program has much to do with
its proximity to Washington D.C. which creates a high demand market for one
of the fastest growing counties in Maryland. Although it maintains a purchase
program, discussed below, Calvert County generally relies on the private market
to sell TDRs and merely approves the sale of development rights for recording.
What made Calvert's TDR program work well was the control on supply and
demand. High growth rates have created high demand for land and higher
densities in the receiving areas.
PAGE 39 OF49 Ill
WASHINGTON COUNTY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
Further, by controlling the amount of TD Rs in the market, the County could
increase the demand bringing the overall price of individual TDRs up as well.
This was done using the Purchase and Retirement Program (PAR) and the
Leveraging and Retirement Fund (LAR). The PAR allows the property owner
to sell his/her development rights to the County while the LAR allows the
owner to sell his/her development rights to the County with an installment
purchase which will pay a tax free interest until the end term of the agreement.
Once the County is in possession of the development rights in both programs
it will retire the rights and preserve the land in perpetuity (Plummer-Welker
2007).
Caroline County
The Caroline County TDR program is rather small and is not frequently used; a
product of there being little demand high density development in the area and a
limit on development projects due to specific soils in the area that make it
difficult to support septic systems. The program originally allowed transfers in
a rural zoning district at a 1 :1 ratio (Heflin 2007). In recent years the County
redesigned the program, by locating sending areas in the Rural District (R), as
mapped by the Planning Commission. Receiving areas are located in the R
zone or in a municipality that has approved intergovernmental agreements
(IGA) between the County and municipality. These specific sending and
receiving areas mapped and are reviewed annually each October.
The County limits major subdivisions and minor subdivisions can have only 4
lots per parcel. This, coupled with the TDR program is what the County hopes
will preserve farmland. In order to entice developers to use TDRs, a density
allows developers to build projects with a maximum of 50 units per parcel, up
to one dwelling per acre. Density rights also limit the size of lots to 15 acres.
The allowed density within those fifteen acres will be a function of how many
acres are actually in the lot.
Charles County
Charles County has had a relatively small operating TDR program. Property
owners in the sending areas must be enrolled in an Agricultural Land
Preservation District. Once enrolled, the sender can sell rights at a rate of three
acres per development right. To increase the use and value of its TDR
program, the County amended its regulations to require that any residential
density increase made by the County Commissioners, greater than the base
density of the zone, must be done using TDRs (Charles County Demographic
Trends 1996). Notably, the Planning Commission has recommended density
PAGE400F49 II
WASHINGTON COUNTY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
reductions in the sending area from 1 du/3 acres to 1 du/10 or 20 acres, but
this recommendation has not been implemented.
Harford County
Transfers in Harford County are allowed between near or adjacent lots and
have an optional bonus of a 900 percent density increase. The development
rights currently give the right to develop one residential unit for every 10 acres
of fannland preserved. The sender can either: 1) use the developing rights on
his/her property; 2) sell the development rights; or 3) transfer the development
right to another parcel located within 1/2 mile of the sending property (this was
done to eliminate the need to specify sending and receiving areas). (Harford
County Government 1999).
Howard County
Howard County's growth in recent years has resulted in little rema1111ng
significant agricultural zoning. Therefore, the County's preservation program
focuses on its rural residential zones. Development rights can be transferred
from the sending zone at one right per three acres, which results in an
increased density of 1 du/2 acres in the receiving area (Heflin 2007). However,
the sending area parcel must be at least 20 contiguous acres. Howard County
also requires that a minimum of 5°/o of the receiving subdivision must be
dedicated to open space and cannot be located within 2,500 feet of a water
supply reservoir
Montgomery, MD
Land in the County's sending area is designated as Agricultural Reserve with a
permitted density of 1 du/25 acres, which is allocated at a transfer rate of 1
du/5 acres for TDRs. These TDRs must be used in specified non-rural areas.
Prices for TDRs established in the private market have ranged from $7,000 to
$40,000 during recent years. A pplicants in the sending areas must use at least
2/3 of the possible development rights that transferable (the 2/3 requirement
may be waived due to compatibility or environmental reasons). The number of
TDRs allowed in each zone is established in the County Master Plan. The
Master Plan is to be used as a guide and to reference the maximum TDR as
well as delineating sending and receiving areas. This is followed by a site plan
and a recorded plat.
The following is an example of how TD Rs are calculated:
PAGE41 OF49 II
WASHINGTON COUNTY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
• 100 acre parcel recommended in a master plan for use of TD Rs at
a density of 7 units per acre in the R-60/TDR Zone (R-60 zone
establishes base density)
• Maximum number of units based on TDR density is:
o 100 (gross acreage) x
o 7 (TDR Density)=
o 700 du
• Maximum number of units based on the R-60 zone density is:
o 100 (gross acreage) x
o 5 (R-60 Cluster development) =
o 500 du
• Difference between the two densities equates to 200 TDRs
In Montgomery County, density can exceed the Master Plan maximum density
allowed if affordable units are built. These provisions permit an increase in
density when a minimum of 12.5% of the total dwelling units are established as
affordable units. (Montgomery Planning 2001 ).
One of the most instructive lessons from Montgomery County is the fact that
its program was not particularly active during its initial stages. There was little
demand for higher density development in its designated receiving areas.
However, one of those areas, Clarksburg, began to experience significant
growth in more recent years, resulting in demands for greater densities. While
it would have been typical for communities to "upzone" growing areas like
Clarksburg, instead, Montgomery County relied on its TDR program and the
private market's demand for density resulted in the purchase of needed density
-through TD Rs -from the rural areas of the County.
Queen Anne's County, MD
While Queen Anne's County remains mostly agricultural, waterfront lots and
land proximate to the Bay Bridge remain in high demand. To deal with
continued growth pressures, Queen Anne's County developed a TDR program,
which over time has evolved into two components. The first component of
the Queen Anne's TDR program was derived when the plan was implemented
in 1987, which focused on farmland preservation. When the program was
modified in 2004, it was done so to create more density transfers between
parcels in a specified "Critical Areas" (McConnell 2007).
PAGE42 OF49 II
WASHINGTON COUNTY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
Changes under the new approach included:
• Transfer parcels will still be in the AG and Countryside (CS) zone
but the receiving areas can now be a part of any zone specified as
a growth area, except AG or CS.
• TD Rs will be allocated at 1 du/ 4 acres
•
•
•
25°/o reduction in Open Space on Receiving Parcel
25°/o increase in Net Buildable Area on receiving parcel
4 acres of AG land must be deed restricted
Another major change was to allow increases in commercial and industrial floor
area on receiving parcels, moving beyond the traditional residential format.
Using TDRs for commercial and industrial uses allowed for:
•
•
•
•
Increase of 25% in Floor Area
Decrease of 25% in Landscape surface area
Increase of 25% in Impervious Surfaces
4 Acres of AG land will be deed restricted for 200 SF of floor
area and 500 SF of impervious surface area (Queen Anne County
Land Preservation (Rossing 2006))
The second component of the Queen Anne's County preservation program is
the use of Noncontiguous Development (NCU) program. The NCU program
is a rural-to-rural transfer approach whose goal is to preserve farmland in
agriculturally-zoned districts. The NCU program follows many of the same
guidelines in the TDR program, allowing transfers in the AG and CS zoning
districts but not the Suburban Estate (SE) zones.
The NCU program allows a single or multiple landowners in the same zoning
district, but with non-contiguous lands to come together and submit a
development plan as if they were the owner of a single lot Under this program
the lesser of 40 acres or half the acreage of the development project must be
preserved for each project (i.e., the "Noncontiguous Parcel"). Since inception
in 2004, the NCU program has helped preserve over 5,000 acres of farmland
and open space in Queen Anne's County. (McConnell 2007).
Talbot County
Talbot County remains largely rural and, with a strong agricultural sector, has
enjoyed less development pressure than the other counties mentioned in this
Report. The County's TDR program has had relative success but has been
PAGE430F49 II
WASHINGTON COUN1Y, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
slowed by inadequate services for new development, inadequate incentives for
rural property owners to sell their development rights, and lack of a multi-
jurisdictional participation. The TDR program in Talbot County remains
relatively small in scale, but has preserved about 790 acres of the County's total
preserved lands through all preservation programs.
Since its inception, Talbot County has divided its program into two. The first
was designed to protect the Eastern Shoreline. The Sending Area parcels were
assigned one TDR for every 20 acres of permanently preserved land. The
Receiving Area parcels would be allowed to increase density from 1 du/20
acres to 1 du/ 5 acres. However, the Receiving Area developer must provide
certain measures to protect the shoreline from erosion. Waterfront property is
valuable here and TDRs have been sold for as much as $40,000 to $50,000.
The second component of the County's TDR program protects farmland. The
purpose is to concentrate future development only in areas where the land is
most valuable. In the agricultural zones, the County allocated one TDR for
every 10 acres. The use of a TDR would again push the density to 1 du/5
acres, but extra TDRs must accompany any proposal to subdivide a 10 acre
parcel with two buildings. The County hopes this will preserve rural, low value
lands while promoting development on the County's higher valued properties.
(National Center for Environmental Economics 1999)
All sending areas are located in the Rural Agricultural Conservation (RAC)
zone. When sending development rights, the rural landowner must place a
"reservation of development right" on 10 acres for every development right
transferred, which essentially prevents any residential or commercial structures
from being built on the sending parcel, although agricultural buildings are
allowed. One unique facet of Talbot County's program is that sending area
properties may buy back their development rights at a later point in time if they
have not been used in the receiving area.
PAGE440F49 II
WASHINGTON COUN1Y, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
Works Cited
Calvert County Board of Commissioners. Calvert County, Land Preservation,
Parks and Recreation Plan. December 2006. Accessed August 31, 2007.
<http://www.co.cal.md.us/assets/Planning_Zoning/PDF _Files/ AdoptedOpe
nSpacePlan. pdf>
Charles County Demographic Trends, Vol. 3 No. 2 (1996). Accessed on
August 29, 2007.
<http:/ /www.charlescounty.org/pgm/planning/publications/ demotrends/vol
3_2.pdf>
Harford County Government. Agricultural Land Preservation. 1999. Accessed
August 31, 2007.
<http://www.harfordcountymd.gov I parks_rec/LandPreservation/ ch4.html>
Heflin, Suzanne. Maryland-Howard County. Accessed on August 31, 2007.
<http:/ /www.aftresearch.org/PDRdatabase/21.htrn>
Heflin, Suzanne. Maryland-Caroline County. Accessed on August 31, 2007.
<http://www.aftresearch.org/PD Rdatabase/NAPidx.htrn>
McConnell, Virginia, Walls, Margaret, and Kelly, Francis. Markets for
Preserving Farmland in Maryland: Making TDR Programs Work Better.
February 2007. Accessed August 29, 2007.
<http://www.agroecol.umd.edu/ files /Virginia %20McConnell0/o20Final%20Re
port%20HRHCAE%20Pub%202007-03. pdf>
Montgomery Planning. Planning New Ground: Agricultural and Rural Open
Space Preservation Programs. 2001. Accessed August 31, 2007.
<http://www.mcmncppc.org/ community/ plan_areas I rural_area/ related_repo
rts / plowing_newground/ toc.shtrn>
Moritz, Todd, telephone interview, December 4, 2006.
National Center for Environmental Economics. 6.3.2.2. Talbot County,
Maryland. July 6, 1999. Accessed September 5, 2007.
<http://yosemite.epa.gov/EE/Epalib I incent.nsf/ c484aff385a 7 53cd85256c2c
0057ce35/5621f9f3eefc3a76852564f400558f36!0penDocument&Click=>
Plummer-Welker, Jenny. Preserving Farm and Forest in Calvert County, MD.
Accessed August 31, 2007.
< www.co.cal.md. us/ assets /Planning_Zoning/ Slideshows /March 19 -
AgWorkshopSlideshow. pdf ->
PAGE450F49 II
WASHINGTON COUN1Y, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 1 2, 2007
Rossing, Faith Elliot. Queen Anne County's Land Preservation. August 23,
2006. Accessed on August 31, 2007.
<http:/ /www.qac.org/ depts/planzone/program/CZ%20Program.htm>
Wall Margaret. Selling TDRs. Working Landscapes, Vol. 6 No. 2 (2007); 2-4
<http://www.agroecol.umd.edu/files/summ07NL.pdf>
PAGE46 OF49 II
Maryland TD R Programs Overview
Calvert C aroline Charles Harford
Inception Date 1978 1989 1992 1989
A..inendment Years 1999,2003 2006 1999 -
Mandatory /Voluntary Voluntary Mandatory Volun tary Volu ntary
Base Density /Sending Areas 1/20 1/1 1/3 (Du/ Acre) -
TDR Rate (TDR/ Ac re) 1/1 1/15 1/3 1/10
County Land (in acres) 130,820 204,744 29 4,407 337280
L a nd Protected by TDR's (in 11,652 345 2,028 acre s) -
Ave rage Price (per TDR) $7,500 $13000 -$15000 $8,500 -
continued on next page ...
Calvert Caroline Charles Harford
Specific Sending and Sending land owners must
Docs not record transferred Baseline density of 1 be enrolled in an
Features du/5 acres maintained in Receiving Areas reviewed Agricultural Land rights, limiting program sending areas annually Preservation District
Only minor subdivisions Any Residential density Sending Property allowed with only 4 lots made greater than the base Allowed between near or commits 5 years that land per parcel to encourage density of the zone must be adjacent properties will be preserved use of density bonus with done using TD Rs only TDR
Control on Supply of Density bonus with TD R Maintaining relatively high
allows a max of 50 units densities within the rural Insufficient development TDR's on market done per parcel, up to one areas (1 du/3 acres) standards in receiving areas with PAR and LAR dwelling per acre hampers participation
Sender can give ]DR to
another parcel lo cated
within 1 /2 mile of the
sending property
Maryland TDR Programs Overview (cont'd)
Howard Montgomery Queen Anne Talbot
Inception Date 1978 1980 1987 1989
Amendment Years --1994,2004 1991
Mandatory /Voluntary Vol untary Mandatory Voluntary Voluntary
Agn cultu.ra l: 1 / l.U
Base Density /Sending Areas 1/3 1/25 Countryside in CA : 1/5 RC District: 1 /20 RAC
(Du/Acre) Countryside in CA RCA: District: 1 /20
1 /?n
Agricultural: 1 /8
TDR Rate (TDR/ Acre) 1/3 1/5
Countrys ide in CA: 1 / 5 RC District: 1 /20 RAC
Countryside in CA RCJ\: District: 1/10
1/20
County Land (in acres) 162,560 316,800 238,337 172,227
Land Protected by TDR's (in 48,584 2,644 770 acres) -
Average Price (per TDR) $11 ,000 (a ll easem e nts) $42,000 $35,000 $14,000
continued on next page ...
Howard Montgomery Queen Anne Talbot
Until 2004, only handful of
land preserved with TDR; Use of NCD along with Primary preservation
Prices established in TDR to preserve land in No multi-jurisdictional
Features program is PDR -private market specified Critical Areas of program hinders program
Preservation Land Can not preservation growth
be reduced to under 20
acres
5% of receiving subdivision Preliminary plan must use Allow for TOR to be used 2-branch program: one
must be dedicated to open at least 2/3 of possible on commercial and for shoreline protection
development rights industrial floor area and one for farmland space transferable preservation
Development not located Amount ofTDR's in each
zone establis hed by I
within 2,500 ft. of reservoir Master Plan
Multiple parcels can be a
single receiving area
Density can exceed those
listed in the Master Plan if
affordable housing is built
WASHINGTON COUNn', MARYLAND
FINAL TDR FRAMEWORK REPORT
OECEMBER 12, 2007
AppendixB-
TDR Ordinances from Other Maryland Jurisdictions
Queen Anne's County (TDR and Noncontinguous Use Ordinances)
Montgomery County
St. Mary's County
PAGE 47 OF49 II
Queen Anne's County TOR Program
ARTICLE XX Transferable Development Rights
§ 18:1-100. Right of transfer.
A In general. A development right of a transferor parcel may be transferred and
used to increase residential or nonresidential development on a receiving
parcel in accordance with the provisions of this article.
B. For approved transfer of development rights prior to the 1994 Zoning
Ordinance Update refer to§ 18:1-?G.
C. Limitations .
(1) A development right may not be used in any manner inconsistent with
the provisions set forth in this subsection.
(2) 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).
(3) 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.
(4) 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.
(5) 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.
(6) 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.
D. 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.
A After development rights have been transferred by an original instrument of
transfer, the transferor parcel:
(1) May not be subdivided or reconfigured ;
(2) 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 ;
(3) 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
(4) 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]
(a) At least 50% of the land shall classify as Class I, II or Ill soils ; or
(b) If the land is wooded , 50% of the land is classified as woodland
Group 1 or 2 ; or
(c) If there is an insufficient percentage of Class I, II or Ill 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%.
(d) Plats of TOR parcels must provide the location of all existing
buildings.
B. A transferor parcel within the Chesapeake Bay Critical Area shall be at least
20 acres in size ; and
C. 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 .
§ 18:1-102. Certificate of Planning Director.
A. General requirement. A transfer may not be recognized under this article
unless the original instrument of transfer.
(1) 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
(2) Is recorded by the Planning Director as provided in this article.
B. Responsibility. The transferor and the transferee named in an original
instrument of transfer shall have sole responsibility to:
(1) Supply all information required by this section ;
(2) Provide a proper original instrument of transfer, and
(3) Pay, in addition to any other fees required by this section , all costs of its
recordation among the land records of the County.
C. Application for certificate. An application for a certificate shall:
(1) Contain information , prescribed by the Planning Director, as may be
necessary to determine the number of development rights involved in the
proposed transfer,
(2) 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
(3) Be accompanied by such fee as may be prescribed by the County
Commissioners .
D. Issuance of certificate.
(1) 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.
(2) The certificate shall contain a specific statement of the number of
development rights that are derived from the transfer parcel.
E. 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.
A In general.
(1) An instrument of transfer shall conform to the requirements of this
Chapter 18:1 , Part 7 , Article XXVII , relating to covenants.
(2) 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.
B. Contents . In addition to the provisions in Chapter 18:1 , Part 7 , Article XXVII ,
an instrument of transfer shall contain :
( 1) The names of the transferor and the transferee ;
(2) 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;
(3) 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);
(4) A specific statement of the number of development rights included within
the transfer,
(5) 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 ;
(6) 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) 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
(b) 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 .
§ 18:1-104. Original instruments of transfer.
A 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 :
(1) A metes and bounds description of the transferor parcel, prepared by a
licensed surveyor named in the instrument;
(2) 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;
(3) A covenant that the transferor parcel may not be subdivided or
reconfigured;
(4) 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;
(5) 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
(6) The certificate of the Planning Director required by this article .
B . Recordation of original transfer.
(1) After it is properly executed , an original instrument of transfer shall be
delivered to the Planning Director.
(2) The Planning Director shall:
(a) 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
(b) Immediately notify the original transferor and transferee in writing of
the recording.
§ 18:1-105. Application for use on receiving parcel.
A. 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.
B. Contents . The application shall :
(1) Contain information as may be prescribed by the Planning Director,
(2) 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;
(3) Be accompanied by such fee as may be prescribed by the County
Commissioners ; and
(4) Be accompanied by:
(a) 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
(b) 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 .
§ 18: 1-106. Consideration of application for use.
A 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.
B. Determination . The Planning Director shall:
(1) Determine the number of development rights that are available for use
under the terms of the instruments submitted with the application;
(2) Determine the number of development rights that this Chapter 18: 1
allows to be used on the proposed receiving parcel; and
(3) 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 .
C . Residential density, open space, and net buildable area.
(1) The following density, open space , and net buildable area standards
shall be used in the application of residential TDRs for residential
purposes.
(2) 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:
(a) 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 %;
(b) 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
(c) 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 ;
(d) 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.
(3) 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:
(a) 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%;
•• -· • --· ••• ·-··-·· •••• + ·-· -· ••••••••••••••• --- ----
(b) 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%;
(c) 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
(d) 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.
(4) For purposes of cluster and planned residential development in the CS
District located within the Critical Area Resource Conservation Area :
(a) The maximum density permitted for a receiving parcel may be
increased to one dwelling unit per five acres ;
(b) 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
(c) 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%.
(5) For purposes of single-family large-lot, cluster, and planned residential
development in the NC District located within the Critical Area Resource
Conservation Area:
(a) The maximum density allowed for a receiving parcel shall be the
base density as determined by the minimum Jot size required for the
district;
(b) 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
(c) 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%.
(6) For the purposes of cluster and planned residential development in
SMPD , CMPD, and GPRN Districts outside of the critical area:
(a) 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
(b) Eight acres of AG land shall be permanently deed restricted as
open space for each development right transferred from a
transferor parcel; or
(c) 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
(d) 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:
(a) The maximum density allowed for the receiving parcel as
determined in Article Vof Part 3 of this Chapter 18 :1 may be
increased by a maximum of 25 %;
(b) 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
(c) The receiving parcel shall maintain a minimum of twenty-five-
percent open space ratio.
D . Nonresidential intensity and floor area.
(1) The following intensity and floor area standards shall be used in the
transfer of development rights for nonresidential purposes .
(2) 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:
(a) 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%;
(b) 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%.
(3) 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.
(4) 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.
(5) 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.
E. Effect. Any determination of the Planning Director under this section :
(1) Is not final ; and
(2) 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.
A. When final. Transfer from a transferor parcel to a receiving parcel is final at
the time when :
(1) 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
(2) All development rights upon which such approval was based have been
transferred to the County Commissioners as provided in Subsection B of
this section .
B. 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.
( 1) An original instrument of transfer to a transferee , other than the County
Commissioners;
(2) An instrument of transfer to the owner of the receiving parcel;
(3) lnstrument(s) of transfer between any intervening transferees ; and
( 4) An instrument of transfer from the owner of the receiving parcel to the
County Commissioners .
Queen Anne's County Noncontiguous Development Program
ARTICLE XIX Noncontiguous Development
§ 18:1-97. Scope.
A Th is article applies only within the AG District, the noncritical area CS District and to
subdivisions utilizing the noncontiguous development technique after the adoption of this
Chapter 18.
8 . For approved subdivisions utilizing noncontiguous development prior to July 25 , 1999, refer to
§ 18:1-?H.
§ 18:1-98. Application and standards.
A Development plan. A landowner or group of landowners whose lots are in the same zoning
district, but are not contiguous , may file a development plan under Part 7 of this Chapter 18: 1
in the same manner as the owner of a single lot. The decision to use the noncontiguous
development technique must be made at the time of the initial major subdivision application .
[Amended 9-7-2004 by Ord. No. 04-28)
8. Open space.
(1) The open space ratio of the appropriate district shall apply to all land within the overall
development plan, rather than separately to the developed parcel and noncontiguous
parcel. [Amended 9-7-2004 by Ord. No. 04-28)
(2) The minimum open space ratio for the developed parcel is .50.
(3) Net buildable area and open space.
(a) After the date of adoption of this Chapter 18, if a landowner proposes a
noncontiguous development, pursuant to this article, the net buildable area and
open space on the developed parcel may be identified and set aside only in
accordance with the following two-step phasing schedule :
Developed Parcel -Net Buildable Developed Parcel -Open
Area Space
Phase Not to exceed 0.30
1
Phase Not to exceed 0.50
2
Minimum of 0.50
Minimum of 0.50
(b) The open space provided on the developed parcel during Phase 1 of the
development shall be labeled "Noncontiguous Open Space Phase 1" and may be
reduced and administratively reconfigured during Phase 2 of the project as
necessary.
C. Base site area . For the purpose of computing base site area, the area of the noncontiguous
parcel and the developed parcel shall be combined .
D. Density and Jot line setbacks.
(1) The developed parcel shall use a density of no more than 0.9 of a dwelling unit per acre.
(2) For any developed parcel 50 acres in area or less. all new lots shall be located at least
100 feet from the property lines of the developed parcel as they existed prior to
submittal of the development plan.
(3) For any developed parcel greater than 50 acres in area , all new lots shall be located at
least 50 feet from the property line of the developed parcel as they existed prior to
submittal of the development plan. [Added 8-2-2005 by Ord. No. 05-12 Editor's Note: Th is
ordinance also renumbe red form e r Subsection 0(3) as 0(4), which follows.)
(4) All new lots on a developed parcel shall be located at least 100 feet from the nearest
public road that exists prior to submittal of the development plan . (Amended 8-2-2005
by Ord. No. 05-12)
E. Developed parcel screening requirements : [Added 8-2-2005 by Ord. No. 05-12 Editor's Note:
This ordinance also renumbered former Subsections E and F as Subsections F and G , respectively. ]
( 1) A planted tree buffer at least 50 feet in width shall be installed between the developed
portion of the parcel and any adjacent farm operation or tillable and pasture land and
any public road.
(2) A qualified professional or licensed forester shall design the planting scheme for the
buffer area in accordance with the following :
(a) For every 100 linear feet of buffer, the developer shall plant:
[1] Seven canopy trees .
[2] Fifteen understory trees or large shrubs; and
[3] Thirty small shrubs
(b) The buffer shall be planted according to sound nursery practices with the following
specifications:
[1 J The minimum required size of canopy trees at the time of planting shall be
three-quarters-inch to one-inch caliper measured four inches above the root
ball. Understory and evergreen trees shall be at least three feet tall at the
time of planting.
(2] The canopy tree planting shall include at least four different species and trees
must be expected to attain a height of at least 50 feet at maturity .
(3] Drought-resistant native trees and plants shall be used whenever feasible.
(4] Plants shall be nursery grown in accordance with good horticultural practices
and grown under local climatic conditions .
[5] The State of Maryland's Noxious Weed Law must be adhered to during the
planting and maintenance of the planted tree buffer.
(6] Plants shall be installed with intact root balls. Properly installed guy wires
shall be provided for canopy and understory trees so that they stand plumb
after planting . The trees shall bear the same relation to finished grade as they
bore to grade at the nursery where grown .
[7] Planting soil (backfill mix) must be five parts topsoil and one part wet loose
peat moss. All plants shall be well watered after installation .
(8] The installation shall be supervised by a qualified professional or licensed
forester.
(c) A performance guarantee, secured by a bond , cash deposit or letter of credit from
the developer, shall be provided , ensuring survival of the plantings for two years
after installation.
(3) The screening provisions of this section may be used to meet the provisions of the
Forest Conservation Act and may not be required when there is an existing mature
forest located between the proposed development and any farm operation , tillable or
pasture land , and any public road provided that the mature forest is identified by a forest
stand delineation and will be protected by a long-term protective agreement in
accordance with the provisions of Chapter 18:2 , Forest Conservation.
F. Resource protection land . Natural resources shall be protected at the required percentage on
the developed parcel and noncontiguous parcels. (Amended 9-7-2004 by Ord. No. 04-28)
( 1) Total resource protection land shall be calculated for the developed parcel and
noncontiguous parcel, as if combined .
(2) Natural resources shall be protected at the required percentage on the developed parcel
and noncontiguous parcels, as if combined.
G . Noncontiguous parcel.
( 1) May be less than all of a lot of record , however, the area of the noncontiguous parcel
used must be at least 40 acres in size or constitute at least 1/2 of the total area of the lot
of record, whichever is less.
(2) Meets the following soils criteria as per the 1966 Soils Survey of Queen Anne's County:
[Amended 9-7-2004 by Ord. No. 04-29(
(a) At least 50% of the land shall classify as Class I , II or Ill soils; or
(b) If the land is wooded , 50% of the land is classified as woodland Group 1 or 2 ; or
(c) If there is an insufficient percentage of Class I, II or Ill 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%.
(3) Plats of the noncontiguous parcel must provide the location of all existing buildings.
(4) Upon approval of a development plan , the noncontiguous parcel:
(a) May not be subdivided or reconfigured ;
(b) 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;
and
(c) Shall not be used in connection with any determination of site area or density,
except as may be necessary in determining the amount of deed restricted open
space required by the development plan .
§ 18:1-99. Requirements for approval; covenants.
A Duties of property owner. In addition to any other requirements of this Chapter 18 , including
those relating to required improvements, guarantees and other covenants. a property owner
involved in an application shall , prior to any approval of a development plan , provide
covenants by which land required to remain in open space is restricted to the uses allowed in
§ 18:1-12 of this Chapter 18:1.
B. Covenants. The covenants shall conform to the requirements of Chapter 18:1, Part 7, Article
XX.VII.
Montgomery County TDR Ordinance Provisions
Chapter 28. Agricultural Land Preservation. [Note]
Article I. General Provisions.
§ 28-1. Definitions.
§ 28-2. Agricultural preservation advisory board; establishment; membership; terms of
office; duties and responsibilities.
§ 2B-3. State agricultural districts; procedures for establishment.
§ 28-4. Activities and land uses permitted in state districts.
§ 28-5. Agricultural easements.
§ 2B-6. Termination of state easements.
Article II. Purchase of Easements by the County.
§ 2B-7. Eligible land.
§ 28-8. Approval of county agricultural districts.
§ 28-9. Procedures to establish a county agricultural district.
§ 28-10. Procedures to terminate a county agricultural district.
§ 28-11. Use of land in a county agricultural district.
§ 28-12. Purchase and value of easements.
§ 28-13. Termination and repurchase of easements.
§ 28-14. Right to sell.
§ 28-15. Public access.
§ 2B-16. Easements on county-owned farmland.
§ 2B-1 7. Recordation.
§ 2B-18. Executive regulations.
§ 28-19. Administration and conflict.
Article I. General Provisions.
Sec. 2B-1. Definitions.
(a) In this chapter, the following words and phrases shall have the meanings
respectively ascribed to them by this section:
Agricultural board: The agricultural preservation advisory board.
Agriculture: The science or art of cultivating and managing the soil, growing and
harvesting crops and other plants, forestry, horticulture, hydroponics, breeding or raising
livestock, poultry, fish, game, and furbearing animals, dairying, beekeeping, similar
activities, and primary processing on the farm of an agricultural product in the course of
preparing it for market. This may or may not cause a change in the natural form or state
of the product, but it does not entail operations of a commercial or industrial character
that must be regulated so as to preclude adverse external impacts.
County agricultural district: An agricultural district that the council approves.
Easement: A covenant running with the land which limits the use permitted on the
property to agricultural and other uses as specified in this chapter.
Foundation: The Maryland Agricultural Preservation Foundation.
Fund: The county agricultural land preservation fund.
Landowner: A person or corporation owning or having an interest in land situated
within a state or county agricultural district or proposed to be so situated.
Planning board: The county planning board for Montgomery County.
Productive agricultural land: Land determined to be eligible to be included in a state
agricultural district in accordance with regulations promulgated by the foundation.
State agricultural district: An agricultural district established under subtitle 5 of title 2
of the Agricultural Article of the Annotated Code of Maryland.
(b) In this chapter, the following words and phrases have the meanings set forth in
subtitle 5 of title 2 of the Agriculture Article of the Annotated Code of Maryland:
(1) Allocated purchases;
(2) County;
(3) Eligible county;
( 4) General purchases of easements;
(5) Matching purchases of easements; and
(6) Total amount to be allotted. (1980 L.M.C., ch. 57, § I; 1988 L.M.C., ch.
30, § I.)
Sec. 2B-2. Agricultural preservation advisory board; establishment; membership;
terms of office; duties and responsibilities.
(a) Generally. The agricultural preservation advisory board operates under state law
to perform the duties and responsibilities set forth below.
(b) Composition. The agricultural board consists of five (5) members appointed by
the county executive and confirmed by the county council. Three (3) must be owner-
operators of commercial farm land earning fifty (50) percent or more of their income
from farming. All members of the agricultural board must be residents of Montgomery
County.
( c) Terms of office. The original members must be appointed as follows: One ( 1)
member must be appointed to a term of three (3) years; two (2) members must be
appointed to terms of four (4) years; and two (2) members must be appointed to terms of
five (5) years. Thereafter, the terms of office are for five (5) years. A member may not
serve more than two (2) successive full terms. Appointment to a vacancy must be for the
remainder of the unexpired term. Members must not be compensated for their services,
but may be reimbursed for necessary expenses.
(d) Duties and responsibilities. The agricultural board is assigned the following
duties and responsibilities as provided under subtitle 5 of title 2 of the Agriculture Article
of the Annotated Code of Maryland:
(]) To advise the county governing body with respect to the establishment of
state and county agricultural districts and the approval of purchases of easements by the
foundation within the county;
(2) To assist the county governing body in reviewing the status of state and
county agricultural districts and land under easement;
(3) To advise the foundation concerning county priorities for agricultural
preservation;
( 4) To promote preservation of agriculture within the county by offering
information and assistance to farmers with respect to establishment of state and county
agricultural districts and purchase of easements; and
(5) In addition to those duties prescribed by state law, the board should:
a. Delineate areas of productive agricultural land in the county.
b. Recommend to the county executive procedures for mediation or
arbitration of disputes as to values of easements being considered for purchase by the
county.
c. Review and make recommendations to the governing body on regulations
proposed for state and county agricultural districts, and perform other duties as may be
assigned by the county council or county executive.
d. Prepare and/or review recommendations to the governing body with regard
to county policies and programs for agricultural preservation.
e. Cooperate with the planning board, the cooperative extension service and
the soil conservation district in carrying out its responsibilities. (1980 L.M.C., ch. 57, § 1;
1988 L.M.C., ch. 30, § 1.)
Cross reference-Boards and commissions generally, § 2-141 et seq.
Sec. 2B-3. State agricultural districts; procedures for establishment.
(a) The procedures provided under subtitle 5 of title 2 of the Agriculture Article of
the Annotated Code of Maryland must be followed with regard to the review of petitions
to establish state agricultural districts and the recommendation of the county council to
the foundation. The recommendation of the council to the foundation must be by
resolution.
(b) Other agricultural land may be added to a state agricultural district provided the
owner applies for the land to be included, the state district meets acreage requirements
without inclusion of such land, and each parcel is at least five (5) acres.
( c) State districts may be established within the ten-year water and sewerage
envelope of Montgomery County only if the land is outstanding in productivity and is of
significant size. (1980 L.M.C., ch. 57, § 1; 1988 L.M.C., ch. 30, § 1.)
Sec. 2B-4. Activities and land uses permitted in state districts.
(a) Permitted uses. Notwithstanding any other provisions of this Code, the
following activities are permitted in districts in conformance with the county policy that
agriculture be the preferred land use in districts:
( 1) Any agricultural use of land.
(2) Operation at any time of any machinery used in farm production or the
primary processing of agricultural products.
(3) All normal agricultural operations performed in accordance with good
husbandry practices which do not cause bodily injury or directly endanger human health.
( 4) Sale of farm products produced on the farm where such sales are made.
(b) Land uses not permitted in districts.
(1) Subdivision or use for residential, commercial or industrial purposes is not
permitted within agricultural districts; provided, however, upon written application to the
foundation, conveyance of one (1) acre for the landowner and one (1) acre for each child
of the person owning the land at the time the land enters into a district shall be permitted
for the construction of the principal residence for the grantee or child and does not
constitute residential subdivision for commercial purposes. A landowner within a district
may also construct housing for tenants fully engaged in operation of the farm; provided
that, in no case shall the average density of tenant housing exceed one (1) house for each
one hundred (100) acres of land in the farm.
(2) Public access or use is not granted by virtue of purchase of an easement by
the foundation or the county unless specifically provided for in the easement contract.
(3) Condemnation of any land within a district for public use shall not occur
unless other reasonable alternatives do not exist.
( c) Enforcement of regulations.
(1) The Department of Permitting Services enforces this Chapter and any
regulations adopted to implement this Chapter.
(2) If, in the enforcement of regulations adopted pursuant to this Chapter,
conflict occurs between County laws or regulations concerned with land use, economic
activity, noise and environmental controls and regulations adopted pursuant to this
Chapter, the agricultural district regulations shall supersede such other conflicting
regulations.
( d) Appeals. An aggrieved individual may file an appeal to the County Board of
Appeals within 30 days after a decision of the Director of Permitting Services made
under this Section. (1980 L.M.C., ch. 57, § 1; 1988 L.M.C., ch. 30, § 1; 1993 L.M.C., ch.
20, § 1; 1996 L.M.C., ch. 20, § 1; 1998 L.M.C., ch. 12, § 1; 2001 L.M.C., ch. 14, § 1;
2002 L.M.C., ch. 16, § 2.)
Sec. 2B-5. Agricultural easements.
(a) Purchase of easements by the foundation.
( 1) The purchase of easements by the state of either general or matching allotted
purchases is governed by subtitle 5 of title 2 of the Agriculture Article of the Annotated
Code of Maryland.
(2) Agricultural easements must be recorded in the land records of the county;
provided, that recordation of an agricultural easement is not subject to any local transfer
tax.
(b) Additional county payment. If the foundation purchases an easement on land in a
state agricultural district, the county may make an additional payment to the landowner of
up to fifteen ( 15) percent of the price of the easement. The county executive must
annually establish the percentage used to determine the payment. (1980 L.M.C., ch. 57, §
1; 1984 L.M.C., ch. 24, § 5; 1988 L.M.C., ch. 30, § 1.)
Sec. 2B-6. Termination of state easements.
Termination of easements purchased in full or in part with state funds must comply
with subtitle 5 of title 2 of the Agriculture Article of the Annotated Code of Maryland.
(1980 L.M.C., ch. 57, § 1; 1988 L.M.C., ch. 30, § 1.)
Article II. Purchase of Easements by the County.
Sec. 2B-7. Eligible land.
(a) The county may purchase an easement under this article on land:
( 1) Without establishment of a county agricultural district if it is zoned Rural,
Rural Density Transfer, or Rural Cluster; or
(2) That is in a county or state agricultural district.
(b) The county may not purchase an easement under this article on land on which
further development is already precluded.
( c) An owner of land subject to a county easement under this article that is not
located in a county agricultural district has the same rights and is subject to the same
restrictions as an owner of land located in a county agricultural district. (1988 L.M.C., ch.
30, § 1.)
Sec. 2B-8. Approval of county agricultural districts.
(a) Land in a county district must:
( 1) Include at least fifty ( 50) contiguous acres;
(2) Meet USDA soil classification standards 1--III or woodland classifications 1
and 2 on at least fifty (50) percent of the acreage; and
(3) Lie outside water and sewer categories 1, 2, and 3. However, the council may
establish a county district that includes other land if the council decides it has significant
agricultural value and, after considering the recommendation of the master plan for the
area, determines that it is in the public interest to establish the county district.
(b) The council may establish conditions to its approval of a county district that it
considers in the public interest. (1988 L.M.C., ch. 30, § 1.)
Sec. 2B-9. Procedures to establish a county agricultural district.
(a) The council may establish by resolution one (1) or more county agricultural
districts.
(b) At the request of an owner of agricultural land, the agricultural board may
recommend that the council establish a county agricultural district or include the owner's
land in a county agricultural district.
(c) Upon receipt of a request from an owner to establish a county district, the
agricultural board must notify any adjacent property owner of the request and of
applicable approval procedures. An adjacent property owner must be notified, in writing,
of any public hearing on the request.
(d) Within sixty (60) days after receiving a request, the agricultural board must
forward a written recommendation to the council. This recommendation may be to:
(1) Approve;
(2) Deny; or
(3) Recommend modification of the request.
( e) Upon receipt of a request of an owner to establish a county district, the
agricultural board immediately must forward a copy of that request to the planning board
for review. The planning board must submit written comments to the council within thirty
(30) days after receiving the agricultural board's recommendation on the request. The
planning board's period for comment may be extended for up to fifteen (15) days.
(f) Within sixty (60) days after receiving comments from the planning board, the
council must act on the request.
(g) (1) After receiving the recommendations, the council must hold a public
hearing on the request unless it waives this requirement.
(2) The council may extend the period of action by up to one hundred twenty
(120) days.
(3) If the council talces no action within the applicable time period, the request is
denied.
(h) The council may not include a landowner's property in a county district without
the landowner's consent. (1988 L.M.C., ch. 30, § 1.)
Sec. 2B-10. Procedures to terminate a county agricultural district.
A landowner may withdraw from a county district by giving notification in writing to
the agricultural board and the county council:
(a) No earlier than five (5) years from the date the council includes the owner's land
in the district; or
(b) After the county has rejected the purchase of an easement on the landowner's
property.
In a county district that contains land from more than one (1) landowner, if a
landowner's withdrawal from the district causes the district no longer to meet
requirements for a county district, the council may reevaluate the district after receiving
the recommendations of the agricultural board and the planning board. (1988 L.M.C., ch.
30, § 1.)
Sec. 2B-JJ. Use of land in a county agricultural district.
(a) Except as prohibited by the zoning ordinance, these activities are permitted in a
county district:
(1) Any agricultural use of land;
(2) Operation of any machinery used in farm production or the primary
processing of agricultural products, regardless of the time of operation;
(3) All normal agricultural operations, performed in accordance with good
husbandry practices, that do not cause bodily injury or directly endanger human health;
and
( 4) Operation of a wayside stand for sale of farm products.
(b) Subsection (a) does not alter the special exceptions applicable to the zone in
which the county district is located under the zoning ordinance.
(c) A person who owns land that the council has included in a county district must
not use or subdivide the land for residential, commercial, or industrial uses. However, a
grantor may use no more than:
(1) One (1) acre, or the minimum lot size required by the zoning and health
regulations, whichever is greater, to build a house for use by the grantor;
(2) One (1) acre, or the minimum lot size required, whichever is greater, to a
maximum density of not more than one (1) house per twenty-five (25) acres for each
house built, to be occupied by an adult child of the granter, to a maximum of ten (10)
children; and
(3) The acreage needed to construct housing for tenants fully engaged in the
operations of the farm, not to exceed one (1) tenant house per one hundred (100) acres.
The owner or the owner's child must not further subdivide the parcel on which the house
is built. The land on which a tenant house is constructed must not be subdivided or
conveyed to any person. The tenant house must not be conveyed separately from the
original parcel. (1988 L.M.C., ch. 30, § 1.)
Sec. 2B-J 2. Purchase and value of easements.
(a) The county agricultural land preservation fund is created as a special, nonlapsing
revolving fund for agricultural land preservation purposes. It consists of:
(I) The county's share of the state agricultural transfer tax;
(2) Easement repurchases and reimbursements; and
(3) Any other available monies for the purchase of easements under this article.
(b) Monies from the county's share of the state agricultural transfer tax and any
revolving funds must be used for the purposes of this chapter before the expenditure of
any other funds.
( c) The county may purchase an easement on real property to preserve agricultural
land in the county. To purchase an easement, the county may use:
(1) Negotiations;
(2) Competitive bidding; or
(3) Any other method that is fair and equitable to the owners of agricultural land.
(d) The purchase price may be based on an appraisal or any other evidence of value
of the easement that the county is receiving.
( e) Priority for purchasing easements should be based on:
(1) Price;
(2) Whether the land is designated in the master plan as agricultural;
(3) Whether the land borders a municipality or other developing area; and
(4) Other factors the county executive determines are needed to preserve
agricultural land.
(f) The county may, in writing, agree to purchase an easement subject to the
condition that an owner;
(1) Make a good-faith application to the foundation for the purchase of an
easement by the state; and
(2) Accept any foundation offer if its price is equal to or higher than the agreed
county price.
If the foundation does not agree to purchase an easement subject to a conditional
agreement under this subsection, the county must purchase it at the agreed price and may
make an additional payment to an owner whose application has been rejected by the
foundation in order to compensate for any delay in the state application process that is
beyond the control of the applicant. This additional payment should be determined based
on an appropriate inflation index, the rate of return, or other relevant factors.
(g) Consistent with this article, the county may establish appropriate terms and
conditions for any agreement to purchase an easement or the easement itself. The county
may limit the right of the granter or any successor in interest to apply for a special
exception that is inconsistent with the purpose of this article.
(h) In addition to its authority to purchase easements under this article, the county
may accept the donation of an easement or other interest in property for agricultural land
preservation purposes. (1988 L.M.C., ch. 30, § 1.)
Sec. 2B-13. Termination and repurchase of easements.
(a) (1) Not earlier than twenty-five (25) years after the county has purchased an
easement, an owner may, in writing, ask the county to terminate the easement.
Termination may be requested earlier only if the district council zones the land subject to
easement in a manner that precludes agricultural uses as a matter of right.
(2) The council must hold a public hearing within ninety (90) days after
receiving a request to terminate an easement unless it waives that requirement. The
council must request the advice of the agricultural board and the planning board and
notify all people who own land adjacent to the land on which the easement is located.
(3) Within one hundred eighty (180) days after receiving a request to terminate
an easement, the council must decide whether to terminate the easement. The council
may extend the time for this decision by not more than ninety (90) days.
(4) Before granting the request, the council must find that the land is no longer
suitable for agriculture and that the public interest would be best served by terminating
the easement.
(5) Within one hundred eighty (180) days after the council agrees to terminate
the easement, an owner may repurchase the easement by paying to the fund the difference
between the fair market value and the agricultural value of the land, as determined by an
appraisal.
(b) If land under easement is purchased or condemned by the county for park or
other nonagricultural uses, the county must transmit funds equal to the present value of
the easement to the fund.
( c) An owner who builds a house under section 2B-1 l (b) of this article must
reimburse the fund the pro rata amount that the county paid for the easement on that land.
(1988 L.M.C., ch. 30, § 1.)
Editor's note--See County Attorney Opinion dated 4/26/99 explaining that a transfer
of development rights easement continues to restrict development even when the
underlying zoning of the property is changed. See County Attorney Opinion dated
10/2/90 explaining that, without a main dwelling or a transferable development right to
support it, no farm-tenant house may be constructed.
Sec. 2B-l 4. Right to sell.
This article does not restrict the right of an owner to sell land located in a county
agricultural district or land on which the county holds an easement. (1988 L.M.C., ch.
30, § 1.)
Sec. 2B-J 5. Public access.
Purchase of an easement by the county does not create a right of public access to the
land unless the easement contract specifically provides for public access. (1988 L.M .C.,
ch. 30, § I.)
Sec. 2B-16. Easements on county-owned/arm/and.
(a) Productive agricultural lands sold by the county must be sold with an easement
attached where the easement is consistent with the general plan of Montgomery County
as amended by applicable master plan.
(b) Productive agricultural lands purchased by the county in pursuit of farmland
preservation goals may be resold only for private agricultural uses and subject to an
easement. (1988 L.M.C., ch. 30, § I.)
Sec. 2B-J 7. Recordation.
The county must record an easement in the land records of the county. The recordation
of an easement is not subject to any county transfer or recordation tax. (1988 L.M.C., ch.
30, § 1.)
Sec. 2B-l 8. Executive regulations.
(a) Within four (4) months after this article becomes effective, the county executive
must adopt regulations under method ( 1) to implement this article.
(b) The regulations must include:
( 1) Method of easement valuation ;
(2) Method of purchasing easements;
(3) Terms of payment for easements; and
( 4) Method of ranking offers to sell easements. (1988 L.M.C., ch. 30, § 1.)
Sec. 2B-19. Administration and conflict.
(a) The funds to administer any agricultural land preservation program may be paid
from the fund and any other monies the Council appropriates.
(b) The Department of Economic Development must administer this Article and the
regulations under it.
( c) The Department of Economic Development must issue a public annual report on
this program.
( d) (1) If a conflict occurs between the provisions of this Article and County
laws on economic activity, noise , or environmental controls, this Article supersedes the
conflicting laws.
(2) If a conflict occurs between the enforcement of regulations adopted under
this Article and County regulations on economic activity, noise, or environmental
controls, the regulations adopted under this Article supersede the conflicting regulations.
(1988 L.M.C., ch. 30, § 1; 1996 L.M.C., ch. 14, § 1.)
Endnotes
[N 1 *Cross reference-Transfer of development rights for agricultural preservation, §
ote 59-A-6. l.
IJ ·sc _,: -----Th 's Cod_ of Ore ln c.1C€'::> c 1<./or c= :,~, ot.1er C: )CL TIE:~ ts .t1at .: •. )pear on this s·te
m. y n .... ~ r -·"' ;t th mc~,t curk r.~ L.:g1s lc.1 ion .... c :: p •E;d by the "..':tnicipa '::y. Arr -=-ricc1 11
Les e I PL)lishin1 Cori: X <.,t,on f:i ·ovides .. 1e -. ~ documer s for ··1formationa1
pu, ,JO .1.:s only. Ther: _ docL T !nts shoL, •:i not be re '-..:d u 1)on , s .he ci efir 'tive
.. :uthority for loc ' I ~~ ·r 12fion . Adc :rona :, t.'r> formc ,ting c1 nd p2 g :nntion of tr e
po ::ted docurr ir ~s v 1 ·ie s from the form r1t ting and p c=;gination of the offlc1a : copy
The c f ,icic: pri.,t -.;d cv>Y of C1 Cod.] of Ordina·1c c s should be consu ited prior to
a 1y :: • .:tion ... ·,gt(_ :.:t·n
For furtr ..:r ir ·-'.:Jrm, Lion reg .rc.:·ng the o.1,c1al v Jrsion of ,1 1y of this Code of
Ordtm. nc s or oth_r docum -nts ;:->os tt..d on .nis s :b , pleas t: con t-1 ct th0
:.~un :;:,)c1:· :y c:·· -:: y or contact American Lege=.' Pub:ishing to .. -free at 800-445-
5588.
59-C-1.33. Transferable development rights zones.
(a) Location. No land shall be classified in any of the transferable development
rights zones unless recommended on an approved and adopted master plan or sector plan.
59-C-1.331. Methods of Development. The following 2 methods of development are
possible in each of the TDR zones:
(a) Standard method of development. Development under the standard method
for TDR zones must comply with the requirements for development and density
limitatio ns contained in the corresponding zones as identified in section 59-C-1.332. In
addition, standard method development may be approved under either the cluster
development procedures of section 59-C-l .5 or the procedures for development including
moderately priced dwelling units, as contained in section 59-C-1.6, if the property
satisfies the minimum requirements for these development options.
(b) Optional method of development. Under the optional method of
development for the TDR zones, greater densities may be permitted up to the maximum
density established in the development standards of section 59 -C-1.332 of the zone, but
development must also conform to the special regulations for optional method
developments using transferable development rights as contained in section 59-C-1.39.
The sp ecial regulations require compliance with the density, numerical limitations , and
other guidelines contained in the applicable master plan approved by the district council.
RE-RE-2C/ RE-R-200/ R-150/ R-
2ffDR TDR 1/TDR TOR TOR 90 /TDR
59-C-1.332. Development
Standards-Transferable
Development Rights Zone:
(a) Land uses. U ses allowed in RE-2 RE-2C RE-1 R-200 R-150 R-90
the TD R zones are those uses
allowed in the following zones:
The optional method of
dev elopment allows more
residential uses. See subsection
59-C-1.395 , chart.
(b) Development standards-
Standard method:
Density limitations for RE-2 RE-2C RE-1 R-200 R-150 R-90
cluster development (section 59-
C-1.5) or MPDU development
(section 59-C-1.6), applicable to
the following zones, apply to
similar development in the
standard method TDR zones:
All other development RE-2 RE-2C RE-1 R-200 R-150 R-90
standards must be in accord with
the development standards
applicable to the following
zones:
(c) Development standards-
Optional method:
-Maximum density of 4 2 2 11 6 28
development (maximum number
of dwellings per acre)
-All other development
standards as specified in the
special regulation provision of
section 59-C-1.39.
59-C-J.34. Existing buildings and building permits.
R-
60/TOR
R-60
R-60
R-60
28
(a) Any building or structure for which a building permit was issued, and any lawful
use which was instituted on property reclassified to the RE-2, RE-2C or RE-1 zone prior
to the date of enactment of the last approved sectional zoning map amendment, where
such lot was rezoned to the RE-2, RE-2C or RE-1 zone by sectional map amendment,
shall not be regarded as a nonconforming use. Such building or use may be structurally
altered, replaced or repaired, or may be enlarged in conformance with the requirements of
the previous zone, so long as it remains an otherwise lawful use as previously allowed.
(b) Construction pursuant to a building permit validly issued and subsisting at the
time ofreclassification of the property to which it applies to the RE-2, RE-2C or RE-1
zone shall be permitted, provided all necessary excavation and piers and/or footings of
one or more buildings covered by the permit are completed not more than 6 months
subsequent to such reclassification. Buildings and structures so constructed shall not be
considered nonconforming.
59-C-1.34.1. Lots fronting on private cul-de-sacs in RE-2 zone.
In the RE-2 zone, lots may front on a private cul-de-sac if the planning board finds, as
part of the subdivision plan approval process, that the private cul-de-sac:
1. Provides safe and adequate access;
2. Has sufficient width to accommodate the dwelling units proposed;
3. Will better protect significant environmental features on and off site than would a
public road; and
4. Has proper drainage.
Each private cul-de-sac must comply with the requirements of section 59-C-7.235 of
the Zoning Ordinance and section 50-25(h) of the Subdivision Regulations pertaining to
private roads. A subdivision with lots fronting on a private cul-de-sac may also be
required to comply with the site plan review provisions of division 59-D-3.
59-C-1.35. Special regulations-R-fourplex zone.
59-C-1.351. Intent and Purpose. The purpose of the R-fourplex zone is to provide a
better method of utilization of land for housing in all price ranges within reasonable
walking distance of employment, shopping centers and public transportation while
providing for compatibility with existing residential neighborhoods. In order to provide
for compatibility with existing residential neighborhoods, the site plan review procedure
shall include consideration of the degree to which fourplex development is harmonious in
style, similarity, bulk and height with residential buildings on adjoining land. It is also the
intent that fourplexes not be arranged in a row, facing in the same direction. In order to
enable the council to evaluate the accomplishment of the purposes set forth herein, a
special set of plans is required for each fourplex zone, and the district council is
empowered to approve such plans if they find them to be capable of accomplishing the
above purposes and in compliance with the requirements of this zone.
59-C-1.352. Location. No application for the R-fourplex zone shall be granted unless
the following conditions are satisfied:
(a) At least 50 percent of the land lies within 1,500 feet of:
(!)land zoned C-0, C-1, C-2, C-3, I-1, I-2, or R-CBD; or
(2)a central business district; or
(3)a subway station of the approved regional metro system or a bus route of a
system established by the Washington Metropolitan Area Transit Authority or the county.
(b) The land is served by public water and sewer.
( c) The land has a frontage of more than 100 feet on a road of arterial or higher
classification.
59-C -1.353. Streets. Interior streets which are not publicly dedicated shall be
improved to the same standards as public streets.
59-C-1.36. Special regulations-RE-2 zone.
In addition to the special exception uses listed in subsection 59-C-1.31 the board of
appeals may authorize, subject to the requirements of article 59-G, the continuation and
expansion, including expansion on adjacent land, of any special exception that was
lawfully existing in the RE-2 zone prior to October 2, 1973, except that airports, airparks,
and airfields shall not be permitted to expand.
59-C-1.37. Special regulations-Mobile homes.
59-C -1.371. Intent and Purpose. The purpose of this section is to provide for the
continued use of mobile homes, under certain conditions, which have hitherto existed in
violation of existing zoning provisions. Continued use of such mobile homes is necessary
and in the publ ic interest and welfare due to the scarcity of low and moderate cost
housing.
59-C-1.372. Continuation in Present Locations. One-family mobile homes certified
by the Department of Permitting Services or the Department of Housing and Community
Affairs to have been installed on their sites as of August 15, 1978, may legally be
retained on their sites as long as they conform to all County housing and building codes.
The units may be repaired, reconstructed or replaced as needed to conform to these codes.
The units may continue to be located on sites not in conformance with the minimum lot
size and density of the zones in which they are located only while the land remains in the
same ownership as on August 15, 1978. After August 15, 1978 a lot in a one-family zone
or in the rural zone must not contain more than one dwelling unit per lot of the
appropriate minimum size after the owner of record on August 15, 1978 sells or
otherwise transfers ownership of the lot unless a lot of less than the minimum size for the
zone has been created for use as a one-family residence for a person for whom the
property owner is legal guardian, or the parent, child or the spouse of a child of the
property owner of record on August 15, 1978, in the following manner:
(a) Such lot is recorded on or before July 1, 1981; and
(b) One lot only has been created for each mobile home certified by the
Department of Permitting Services or the Department of Housing and Community Affairs
to have been in place on the property on August 15, 1978; and
( c) Such lot shall have a minimum area of 10,000 square feet. A lot created for a
one-family residence or a single residence thereon, pursuant to this section, shall not be
deemed to be a nonconforming use. Nothing in this section shall be held to contradict
Section 59-C-9.3.
59-C-1.37.1 Special regulations-Life sciences center.
(a) All uses shown on the development plan for the life sciences center are
permitted in the R-200 zone subject to the approval of a site plan by the planning board in
accordance with the procedures contained in division 59-0-3. At the time of site plan
review, the following additional requirements must be met:
(1) An adequate public facilities test, as specified in section 50-35 of the
subdivision regulations, is be required to demonstrate that existing and/or planned
facilities are adequate to support and service a proposed use. The adequate public
facilities test may occur prior to site plan review under either of the following
circumstances:
A. If a preliminary subdivision plan is submitted prior to submission of a site
plan; or
B. If the county executive submits a concept plan for a site to the planning
board for review. The planning board must specify a time limit for the submission of a
site plan without additional adequate public facilities test.
(b) The special regulations of this section do not apply to life sciences center uses
that have a signed lease agreement or a memorandum of understanding with the county
dated prior to June 30, 1984.
(c) For property that does not require the submission and approval of a preliminary
plan and/or record plat, a site plan approved for the property will be valid for 36 months
from the initiation date of the site plan. Commencement of construction must occur
within the validity period.
59-C-1.38. RMH-200 zone.
59-C-1.381. Purpose. The purpose of the residential mobile home option zone is to
provide for the coordinated development of residential mobile home areas at appropriate
locations in the regional district by permitting the residential use of mobile homes or
conventionally constructed homes. Concentrated development of mobile homes or the
development of mobile homes on individual parcels in excess of 5 acres would be
inconsistent with the purpose of this zone. Parcels in excess of 5 acres would only be
appropriate for development in the RMH-200 zone if such use is recommended on an
approved and adopted master or sector plan or other form of comprehensive study
approved or otherwise deemed sufficient by the district council.
59-C-1.382. Reclassification. Map amendment applications for rezoning to the RMH-
200 zone are limited to parcels of 5 acres or less in size unless such parcels are
recommended for the RMH-200 zone in an approved and adopted master or sector plan
or other form of comprehensive study approved or otherwise deemed sufficient by the
district council.
59-C-1.39. Special regulations/or optional method development using transferable
development rights.
59-C-1.391. Applicability. The following procedures and regulations apply to the
transfer of development rights from land classified in the rural density transfer zone
(RDT) to land classified in the transferable development rights (TDR) zones. The
planning board may approve subdivision of such land at densities not to exceed the
maximum density permitted in the applicable TDR zone and conforming to the guidelines
contained in the applicable master plan approved by the district council. Any increase in
density above the density applicable to the standard method of development must be
based on a ratio of one single-family dwelling unit for each transferable development
right (TDR), and 2 multi-family dwelling units for each transferable development right
(TDR).
59-C-1.392. General Provisions.
(a) A development right shall be created, transferred and extinguished only by
means of documents, including an easement and appropriate releases, in a recordable
form approved by the planning board. The easement shall limit the future construction of
one-family dwellings on a property in the RDT zone to the total number of development
rights established by the zoning of the property minus all development rights previously
transferred in accordance with this section, the number of development rights to be
transferred by the instant transaction, and the number of existing one-family detached
dwellings on the property.
(b) The transfer of development rights shall be recorded among the land records
of Montgomery County, Maryland.
( c) The development density of a property under the TOR optional method may
not be increased above the maximum density permitted in the zone (section 59-C-
1.332(c)) nor beyond the density or number of dwelling units recommended for such
property by the land use plan of the applicable master plan approved by the district
council.
(d) A property developed with the transfer of development rights shall conform
to the requirements of chapter 25A of the Montgomery County Code requiring MPDU's.
The applicability of chapter 25A and the MPDU density increase provided by section 59-
C-l .6 shall be calculated after the base density of a property has been increased by a
transfer of development rights. The density increase provided by section 59-C-l .6 may be
made without the acquisition of additional development rights.
59-C-1.393. Development Approval Procedures Under the Optional Method of
Development.
(a) A request to utilize development rights on a property under the optional
method must be in the form of a preliminary subdivision plan submitted in accordance
with the subdivision regulations contained in chapter 50 of the County Code.
(b) Such a preliminary plan must include at least two-thirds of the number of
development rights permitted to be transferred to the property under the provisions of the
applicable master plan approved by the district council. However, upon a finding by the
planning board that for environmental or compatibility reasons it would be desirable to
permit a lower density, the two-thirds requirement may be waived.
(c) A site plan shall be submitted and approved in accordance with the
provisions of division 59-0-3.
(d) The planning board must approve a request to utilize development rights if
the request:
(1) Does not exceed the limitation on the density or number of dwelling units
permitted in the zone and in the applicable master plan approved by the district council;
(2) Is in accordance with the provisions of this chapter;
(3) Is in accordance with chapter 50, title "Subdivision of Land;"
( 4) ls consistent with other recommendations of the master plan approved by
the district council; and
(5) Achieves a desirable development compatible with both site conditions
and surrounding existing and future development.
( e) Prior to recordation of a final record plat for a subdivision using transferred
development rights, an easement to the Montgomery County Government in the form
required by Section 59-C-1.392(a) limiting future construction of dwellings on a property
in the RDT zone by the number of development rights received must be recorded among
the land records of Montgomery County, Maryland.
(f) A final record plat for a subdivision using transferred development rights
shall contain a statement setting forth the development proposed, the zoning classification
of the property, the number of development rights used, and a notation of the recordation
of the conveyance required by Section 59-C-l.392(b).
59-C-1.394. Development Standards Applicable to the Optional Method of
Development.
(a) Development under the TDR optional method density provisions of section
59-C-l.332(c) must conform to the dev elopment standards and permitted residential uses
as indicated in section 59-C-1.395.
(b) For TDR densities of 3 or more per acre, the lot sizes and other development
standards will be determined at the time of preliminary plan and site plan for
conformance with applicable master plan guidelines and in accordance with the purposes
and provisions of the PD zone, except as may be specified in section 59-C-1.395.
(c) The compatibility requirements of Section 59-C-7.15(b) may be waived by
the Planning Board upon a finding that: 1) the immediately adjoining property is
recommended for institutional use on the approved and adopted master or sector plan;
and 2) the immediately adjoining property will not be adversely affected by the waiver
for present or future use. Under the waiver, the Board may not permit any building other
than a one-family detached residence to be constructed within 25 feet of adjoining land
for which the area master plan recommends a one-family detached zone.
( d) The final density achieved for any property located in a TDR receiving area
developed under the optional method procedures must be determined by the planning
board at site plan and/or subdivision review and must conform to the site plan provisions
(division 59-D-3 of the zoning ordinance) and subdivision regulations (chapter 50 of the
Montgomery County Code).
(e) In making this determination as to the final density, the planning board will
consider whether a proposed plan has the flexibility in design to provide an appropriate
range of housing types, taking advantage of existing topography and other natural
features, to achieve a mutually compatible relationship between the proposed residential
development and adjoining land uses, while implementing the area master plan approved
by the district council.
59-C-1.395. Special provisions for TDR developments. The following development
standards for the development of a property under the optional method apply to the TDR
density shown on the master plan for that area. Where moderately priced dwelling units
are included in accordance with the requirements of chapter 25A of this Code, as
amended, the MPDU development standards apply. The increase in density must not
exceed 22 percent of the TDR density.
TDR Density per Acre Shown on Master Development Standards and Permitted Residential
Plan Uses
Without MPDU's With MPDU's
1 RE-1 , RE-1 cluster Not applicable
2 R-200 , R-200 cluster, R-150 R-200 MPDU
Minimum (Maximum) percentage required1
TDR Density Size of One-Family One-Family Multiple Famil/
per Acre Development3 Detached Townhouse and Four-Story or
Shown on Attached Less4
Master Plan
3-5 Less than 800 306 p NP
dwelling units
3-5 800 dwelling units 306 p P(20)
or more
6-10 15 p P(35)
11-15 Less than 200 p p p
dwelling units
11-15 200 dwelling units p p 35(60)
or more
16-28 less than 200 units p p pS
16-28 200 dwelling units p p 25 5
or more
P Permitted but not required.
( ) Maximum percentage permitted.
I Upon a finding by the planning board that a proposed development is more desirable
for environmental reasons or is more compatible with adjacent development than that
which would result from adherence to these standards, the percentage requirements for
one-family and multiple-family stated herein may be waived.
Green Area
35
35
40
50
50
50
50
2 Permitted only where specifically recommended as a unit type in the area master or
sector plan for the receiving area. In any instance where the minimum percentage
requirement would yield a total of 150 multiple-family dwelling units or less, this
requirement does not apply, and no such units are required. Whenever the minimum
percentage would yield 151 units or more, the full number must be required except in
cases covered by footnote number 1.
3 Total number of dwelling units planned.
4 One-family attached may be substituted for all or part ofthis requirement.
5 The four-story height limit may be waived upon a finding by the Planning Board that
a proposed development can achieve greater compatibility with adjacent development
than which would result from adherence to the standards.
6 Development may utilize the R-60/MPDU standards as set forth in Sec. 59-C-
1.625(a)(l ).
59-C-1.396. Special Provisions for TDR Developments Approved Prior to April 1,
1987. Any property in the RE-2C, RE-2, RE-I, R-200, R-150, R-90 or R-60 zones which,
prior to April 1, 1987, received preliminary plan of subdivision approval, and which
contained lots attributable to the TDR regulations as they existed in this chapter prior to
April 1, 1987, may continue to be developed in accordance with the requirements of the
corresponding TDR zones at a density not to exceed the maximum densities set forth in
section 59-C-1.332. Governmental approvals granted prior to April 1, 1987, for
developments utilizing TDR's on property zoned in those zones shall remain and be in
full force and effect at all times notwithstanding such property's subsequent rezoning to
the RE-2C/TDR, RE-2/TDR, RE-1/TDR, R-200/TDR, R-150/TDR, R-90/TDR or R-
60/TDR zones respectively. In addition, any building or structure constructed or to be
constructed on a building lot in accordance with a TDR preliminary plan of subdivision
approved for such property prior to April 1, 1987, shall not be considered
nonconforming. Preliminary plan applications duly filed with and accepted as a
completed filing by the Maryland-National Capital Park and Planning Commission on or
before April 1, 1987, are deemed duly filed.
(Legislative History: Ord. No. 8-53, §§ 3-7; Ord. No. 8-54, §§ 1-4; Ord. No . 8-55, §§ 3-5;
Ord. No. 8-58, §§ 2 -5; Ord. No. 8-59, §§ 1-6; Ord. No. 68, § 1; Ord. No. 8-71, §§ 1-8;
Ord. No. 8-74, § 1; Ord. No. 8-81, §§ 3, 4, 5, 6, 7, 8, 9; Ord. No. 9-2, § 1; Ord. No. 9-9, §
1; Ord. No. 9-15, § 2; Ord. No. 9-16, § 1; Ord. No. 9 -20, § 1; Ord. No. 9-32, § 1; Ord .
No. 9-58, § 1; Ord. No. 9-62, § 1; Ord. No. 9-63, § 1; Ord. No. 9-74, § 3; Ord. No. 9-83, §
1; Ord. No. 9-89, § 1; Ord. No. 10-3, § 1; Ord. No. 10-6, § 3; Ord. No. 10-8, § 1; Ord.
No. 10-13, § 4; Ord. No. 10-24, § 2; Ord. No. 10-29, §§ 2, 3; Ord. No. 10-31, § 2; Ord.
No. 10-39, § 3; Ord. No. 10-40, § 1; Ord. No. 10-53, § 4; Ord. No. 10-58, § 2; Ord. No.
10-69, § 4; Ord. No. 10-74, § 1; Ord. No . 10 -82, § 2; Ord. No. 10-85, § 2; Ord. No. 10-
86, § 1; Ord. No. 11-4, §§3--5; Ord. No. 11-6, § 2; Ord. No. 11 -14, § 2; Ord. No. 11-29, §
2; Ord. No. 11-33, § 2; Ord. No. 11 -34, § 2; Ord. No. 11 -36, § 1; Ord. No. 11-38, § l;
Ord. No. 11-40, § 2; Ord. No. 11-41, § 2; Ord. No. 11-42, § 1; Ord. No. 11-43, § 1; Ord.
No. 11-61, § 3; Ord. No. 11-65, § 1; Ord. No. 11-67, § 5; Ord. No. 11-70, § 2; Ord. No.
11-72,§2;0rd.No.11-73,§2;0rd.No.12-1,§ l;Ord.No.12-4,§ l;Ord.No.12-22,§
2; Ord. No. 12-40, § 1; Ord. No. 12-43, §§ 1-3; Ord. No. 12-51, § 2; Ord. No. 12-53, § 1;
Ord. No. 12-57, § 1; Ord. No. 12-59, § 1; Ord. No. 12-61, § 2; Ord. No. 12-71, § 1; Ord.
No. 12-72, § 1; Ord. No. 13-1, § 5; Ord. No. 13-10, § 1; Ord. No. 13-12, § 2; Ord. No.
13-14, § 2, 3; Ord. No. 13-14, § 2; Ord. No. 13-21, § 2; Ord. No. 13-27, § 3; Ord. No. 13-
28, § 1; Ord. No. 13-31, § 3; Ord. No. 13-34, § 1; Ord. No. 13-35, § 1; Ord. No. 13-47, §
2; Ord. No. 13-49, § 1; Ord. No. 13-69, §3; Ord. No. 13-75, §1; Ord. No. 13-98, § 5; Ord.
No. 13-108, § 2; Ord. No. 13-110, § 2; Ord. No. 13-112, § 1; Ord. No. 14-25, § 2; Ord.
No. 14-26, § 1; Ord. No. 14-36, § 1; Ord. No. 14-44, § 2; Ord. No. 14-47, § l; Ord. No.
14-49, § 1; Ord. No. 14-66, § 1; Ord. No. 15-12, § l; Ord. No. 15-21, § 3; Ord. No. 15-
28, § 3; Ord. No. 15-38, § 1; Ord. No. 15-48, § 1; Ord. No. 15-53, § 3; Ord. No. 15-54, §
3; Ord. No. 15-70, § 1; Ord. No. 15-74, § 3.)
Editor's note-Subsection 59-C-1.327 is cited in Remes v. Montgomery County, 387
Md. 52, 874 A.2d 4 70 (2005). Subsection 59-C-1.393 is cited in Pleasant Investments
Ltd. Partnership v. Dept. of Assessments & Taxation, 141 Md. App. 481 (2001). Section
59-C-1.31 is cited in Renzi v. Connelly School of the Holy Child, 2000 WL 1144595
(filed August 14, 2000). Section 59-C-1.31, regarding "offices, professional
nonresidential," is cited in Custer Environmental, Inc. v. 9305 Old Georgetown Road
Partnership, 345 Md. 284, 691 A.2d 1336 (1997), a landlord-tenant case. Section 59-C-
l.3 [formerly §§ 111 -9 and 111-1 O] is interpreted in St. Luke's House, Inc. V. Digiulian,
274 Md. 317, 336 A.2d 781 (1975). Section 59-C-l.3 [formerly §111-12] is quoted in .E
& B Development Corporation v. County Council for Montgomery County, 22 Md.App.
488, 323 A.2d 659 (1974) and in Wahler v. Montgomery County Council, 249 Md. 62,
238 A.2d 266 (1968); and cited and described in 0. F. Smith Brothers Development
Corporation v. Montgomerv County, 246 Md. 1, 227 A.2d 1 (1967); and cited in
Malasky v. Montgomery County Council, 258 Md. 612, 267 A.2d 182 (1970) and Bayer
v. Siskind, 247 Md. 116, 230 A.2d 316 (1967). Section 59-C-1.3 [formerly §§59-36, 59-
41 and 59-42] is cited in Logan v. Town of Somerset, 271 Md. 42, 314 A.2d 436 (1974).
Section 59-C-l.3 [formerly §§ 111-9 and 111-1 O] is cited in Cohen v. Willett, 269 Md.
194, 304 A.2d 824 (1973). Sections 59-C-l.3 to 59-C-l.6 (formerly §111 -7] are quoted
and interpreted in Gruver-Cooley Jade Corporation v. Perlis, 252 Md. 684, 251 A.2d 589
(1969); discussed in Leet v. Montgomery County, 264 Md. 606, 287 A.2d 491 (1972);
and cited in Cabin John Limited Partnership v. Montgomery County Council, 259 Md.
661, 271 A.2d 174 (1970); in Marathon Builders, Inc. v. Montgomery County Planning
Board of the Maryland -National Capital Park & Planning Commission, 246 Md. 187,
227 A.2d 755 (1967); and in Hertelendy v. Montgomery County Board of Appeals, 245
Md. 554, 226 A.2d 672 (1967). Section 59-C-1.3 [formerly§ 104-5(a)] is quoted in part in
Creative Country Day School of Sandy Spring, Inc. v. Montgomery County Board of
Appeals, 242 Md. 552, 219 A.2d 789 (1966). Section 59-C-1.3 [formerly §59-44] is
quoted in part in Kanfer v. Montgomery County Council, 35 Md.App. 715, 373 A.2d 5
(1977). Section 59-C-1.3 [formerly §§111-5(a) and 111-7(a)] is cited in Montgomery
County Council v. Kacur, 253 Md. 220, 252 A.2d 832 (1969). Section 59 -C-1.31 is cited
in Custer Environmental, Inc. V. 9305 Old Georgetown Partnership, 345 Md. 284, 691
A.2d 1336 (1997). Section 59-C-1.3l(d) is cited in Pan American Health Organization
v. Montgomery County, 889 F.Supp. 234 (D.Md. 1994). Section 59-C-1.31 is cited in
Pan American Health Organization v. Montgomery County, 338 Md. 214, 657 A.2d 1163
(1995)-Certified question to Court of Appeals of Maryland from the Fourth Circuit
Court of Appeals inquiring whether Montgomery County had the authority to enact the
zoning text amendment that had the effect of prohibiting P AHO from locating its
headquarters in a residentially zoned area of the County. The Court of Appeals held that
the enactment was within the authority of the District Council to enact under the Regional
District Act. The Court further explained that P AHO was not a publicly owned or
publicly operated use that would remain exempt from zoning restrictions, despite its
status as a public international organization. References to ZTA 93014 appear in the
Zoning Ordinance at §§59-A-2.1, 59-C-1.31, 59-C-2.3, 59-C-4.2(e), 59-C-6.22(a) and
(e), 59-C-7.5 and -7.52, 59-C-8.l, 59-C-8.3(a) and (d), and 59-G-2.00. Section 59-C-
1.39 is interpreted in West Montgomery County Citizens Association v. Maryland-
National Cap ital Park and Planning Commission, 309 Md. 183, 522 A.2d 1328 (1987)-
The provision in the Zoning Ordinance delineating the creation of transfer of
development rights (TDRs) was analyzed by the Court of Appeals and found to involve
an invalid exercise of legislative authority. The provision did not establish the maximum
density for the affected properties and violated the division between zoning and planning,
procedurally and substantively. The Court of Appeals invalidated the zoning decision
concerning density of residential development because that decision was made by the
District Council through the planning process, rather than through the zoning process
mandated by State law.
See County Attorney Opinion dated 4/26/99 explaining that a transfer of development
rights easement continues to restrict development even when the underlying zoning of the
property is changed. See County Attorney Opinion dated 10/2/90 explaining that,
without a main dwelling or a transferable development right to support it, no farm-tenant
house may be constructed.
Montgomery County's TDR program, now covered in§§ 59-C -1.33, -1.39 and also
in §§ 59-C-9 and -10 (formerly treated in § 59-A-6. l and §§ 59-C-11.1 through -11.5) is
referred to in connection with a discussion of the County's growth policy in P. J. Tierney,
Maryland's Growing Pains: The Need for State Regulation, 16 U. ofBalt. L. Rev. 201
(1987), at p. 224.
59-C-2.43. Transferable development r ights zones.
59-C-2.431. Method of development. The following 2 methods of development are
possible in each of the TDR zones:
(a) Standard method of development. Development under the standard method
for TDR zones must comply with the requirements for development and density
limitations contained in the corresponding zones as identified in section 59-C-2.41. In
addition, standard method development may be approved under the procedures for
development including moderately priced dwelling units, as contained in section 59-C-
2.42 , if the property satisfies the minimum requirements for these development options.
(b) Optional method of development. Under the optional method of
development for the TOR zones, greater densities may be permitted up to the maximum
density established in the development standards of section 59-C-2.432 of the zone, but
development must also conform to the special regulations for optional method
developments using transferable development rights as contained in section 59-C-2.44.
The special regulations require compliance with the density, numerical limitations, and
other guidelines contained in the applicable master or sector plan approved by the district
council.
R-30 R-20
TDR TOR
59-C-2.432. Development Standards-Transferable
Development Rights Zones:
(a) Land uses. Uses allowed in the TDR zones are those uses R-30 R-20
allowed in the following zones:
(b) Development standards-Standard method: Density R-30 R-20
limitations for MPDU development (section 59-C-2.42) apply to
similar development in the standard method TOR zones:
All other development must be in accord with the R-30 R-20
development standards applicable to the following zones:
(c) Development standards-Optional method of development:
-Maximum density of development (maximum number of 40 50
dwellings per acre):
-All other development standards as specified in the special
regulation provisions of section 59-C-2.44.
59-C-2.44. Special regulations for optional method development using transferable
development rights.
59-C-2.441. Applicability. The following procedures and regulations apply to the
transfer of development rights from land classified in the rural density transfer zone
(RDT) to land classified in the transferable development rights (TDR) zones. The
Planning Board may approve subdivision of such land at densities not to exceed the
maximum density permitted in the applicable TDR zone and conforming to the guidelines
contained in the applicable master or sector plan approved by the district council. Any
increase in density above the density applicable to the standard method of development
must be based on a ratio of two multi-family dwelling units for each transferable
development right (TDR), except within a designated Metro station policy area, where a
R-10
TDR
R-10
R-10
R-10
100
ratio of three multi-family dwelling units for each TDR and two one-family detached
units for each TDR applies.
59-C-2.442. General provisions.
(a) A development right must be created, transferred and extinguished only by
means of documents, including an easement and appropriate releases, in a recordable
form approved by the Planning Board. The easement must limit the future construction of
one-family dwellings on a property in the RDT zone to the total number of development
rights established by the zoning of the property minus all development rights previously
transferred in accordance with this section, the number of development rights to be
transferred by the instant transaction, and the number of existing one-family detached
dwellings on the property.
(b) The transfer of development rights must be recorded among the land records
of Montgomery County, Maryland.
( c) The development density of a property under the TDR optional method may
not be increased above the maximum density permitted in the zone (section 59-C -2.432)
nor beyond the density or number of dwelling units recommended for such property by
the land use plan of the applicable master or sector plan approved by the district council.
( d) A property developed with the transfer of development rights must conform
to the requirements of chapter 25A of the Montgomery County Code requiring MPDU's.
The applicability of chapter 25A and the MPDU density increasedprovided by section 59-
C-2.42 must be calculated after the base density of a property has been increased by a
transfer of development rights. The density increase provided by section 59-C-2.42 may
be made without the acquisition of additional development rights.
59-C-2.443. Development approval procedures under the optional method of
development.
(a) A request to utilize development rights on a property under the optional
method must be in the form of a preliminary subdivision plan submitted in accordance
with the subdivision regulations contained in chapter 50 of the County Code.
(b) Such a preliminary plan must include at least two-thirds of the number of
development rights permitted to be transferred to the property under the provisions of the
applicable master or sector plan approved by the district council. However, upon a
finding by the Planning Board that for environmental or compatibility reasons it would be
desirable to permit a lower density, the two-thirds requirement may be waived.
(c) A site plan must be submitted and approved in accordance with the
provisions of division 59-D-3.
(d) The Planning Board must approve a request to utilize development rights if
the request:
(I) does not exceed the limitations on the density or number of dwelling units
permitted in the zone and in the applicable master or sector plan approved by the district
council;
(2) is in accordance with provisions of this chapter;
(3) is in accordance with chapter 50, title "Subdivision of Land";
(4) is consistent with other recommendations of the master or sector plan
approved by the district council; and
(5) achieves a desirable development compatible with both site conditions
and surrounding existing and future development.
( e) Prior to Planning Board approval of a final record plat for a subdivision using
transferred development rights, an easement to the Montgomery County Government in
the form required by subsection (a) above limiting future construction of dwellings on a
property in the RDT zone by the number of development rights received must be
recorded among the land records of Montgomery County, Maryland.
(f) A final record plat for a subdivision using transferred development rights
must contain a statement setting forth the development proposed, the zoning
classification of the property, the number of development rights used, and a notation of
the recordation ofthis conveyance required by section 59-C-2.442(b ).
59-C-2.444. Development standards applicable to the optional method of
development.
(a) Development under the TDR optional method density provisions of section
59-C-2.432(c) must conform to the development standards and permitted residential uses
as indicated in section 59-C-2.445.
(b) The final density achieved for any property located in a TDR receiving area
developed under the optional method procedures must be determined by the Planning
Board at site plan and/or subdivision review and must conform to the site plan provisions
(division 59-D-3 of the Zoning Ordinance) and subdivision regulations (chapter 50 of the
Montgomery County Code).
(c) In making the determination as to the final density, the Planning Board will
consider the following factors:
( 1) provides an appropriate range of housing types;
(2) preserves environmentally sensitive and priority forest areas, and
mitigates unavoidable impacts on the natural environment;
(3) facilitates good transit serviceability and creates a desirable and safe
pedestrian environment;
( 4) achieves compatibility with surrounding land uses; and
(5) conforms to the relevant master or sector plan approved by the district
council.
59-C-2.445. Special provisions for TDR developments. The following
development standards for the development of a property under the optional method
apply to the TDR density shown on the master or sector plan for that area. Where
moderately priced dwelling units are included in accordance with the requirements of
chapter 25A of this Code, as amended, the MPDU development standards apply. The
increase in density must not exceed 22 percent of the TOR density.
Minimum Percentage Requirei
TDR Size of One-Family One-Family Multiple Over
Density Development1 Detached Townhouse Famill-4-StOQ:'.
12er Acre and Four-Story
Shown on Attached or Less4
Master Plan
16-30 Less than 200 p p pS 50
units
16-30 200 units or more p p 25 5 50
35-50 Less than 200 p p 25 50
units
35-50 200 units or more p p 35 50
60-100 Less than 200 NP p p p
units
60-100 200 units or more NP p p p
P Permitted but not required.
( ) Maximum percentage permitted.
Green
Area
(Percent of
gross area}
40
40
30
30
30
30
Upon a finding by the Planning Board that a proposed development is more desirable
for environmental reasons or is more compatible with adjacent development than that
which would result from adherence to these standards, the percentage requirements for
one-family and multiple-family stated herein may be waived.
2 Permitted only where specifically recommended as type in the area master or sector
plan for the receiving area. In any instance where the minimum percentage requirement
would yield a total of 150 multiple-family dwelling units or less, this requirement does
not apply, and no such units will be required. Whenever the minimum percentage would
yield 151 units or more, the full number is required except in cases covered by footnote
number 1.
3 Total number of dwelling units planned.
4 One-family attached may be substituted for all or part of this requirement.
5 The four-story height limit may be waived upon a finding by the Planning Board that
a proposed development can achieve greater compatibility with adjacent development
that would result from adherence to the standards.
(Legislative History: Ord. No. 8-54, § 5; Ord. No. 8-55, § 6; Ord. No. 8-58, § 6; Ord. No.
8-59, § 7; Ord. No. 9-40, § 1; Ord. No. 9-41, § 1; Ord. No. 9 -74, § 5; Ord. No. 9-83, § 2;
Ord. No. 10-6, § 3; Ord. No. 10-30, § I; Ord. No. 10-31, § 4; Ord. No. 10-32, § 2; Ord.
No. 10-53, § 10; Ord. No. 10-88, § l; Ord. No. 11-38, § 4; Ord. No. 12-1, § l; Ord. No.
12-71, § 2; Ord. No. 13-71, §§2 and 3; Ord. No. 13-103, § 1; Ord. No. 15-34, § 1.)
59-C-9.23. Jntent of the Rural Density Transfer zone.
The intent of this zone is to promote agriculture as the primary land use in sections of the
County designated for agricultural preservation in the General Plan and the Functional
Master Plan for Preservation of Agriculture and Rural Open Space. This is to be
accomplished by providing large areas of generally contiguous properties suitable for
agricultural and related uses and permitting the transfer of development rights from
properties in this zone to properties in designated receiving areas.
Agriculture is the preferred use in the Rural Density Transfer zone. All agricultural
operations are permitted at any time, including the operation of farm machinery. No
agricultural use can be subject to restriction on the grounds that it interferes with other
uses permitted in the zone, but uses that are not exclusively agricultural in nature are
subject to the regulations prescribed in this division 59-C -9 and in division 59-G-2,
"Special Exceptions-Standards and Requirements."
59-C-9.584. Optional method of development using transferable development
rights.
59-C-9.584.1. Applicability. The following procedure and regulations apply to
the transfer of development rights from land classified in the Rural Density Transfer
(RDT) Zone to land classified in the RNC/TDR Zone. A subdivision approved for
development under the optional method must not exceed the maximum density permitted
in the RNC/TDR Zone and must conform to the guidelines contained in the applicable
master plan. Any increase in density above the density applicable to the standard method
of development must be based on a ratio of one single-family dwelling unit for each
transferable development right (TDR).
59-C-9.584.2. General Provisions.
(a) A development right must be created, transferred and extinguished only
by means of documents, including an easement and appropriate releases, in a recordable
form approved by the planning board. The easement must limit the future construction of
one-family dwellings on a property in the RDT zone to the total number of development
rights established by the zoning of the property minus all development rights previously
transferred in accordance with this section, the number of development rights to be
transferred by the instant transaction, and the number of existing one-family detached
dwellings on the property.
(b) The transfer of development rights must be recorded among the land
records of Montgomery County, Maryland.
( c) The development density of a property under the TDR optional method
may not be increased above the maximum density permitted in the zone nor beyond the
density or number of dwelling units recommended for such property by the land use plan
of the applicable master plan approved by the district council, except as required to
provide MPDU·s.
( d) A property developed with the transfer of development rights must
conform to the requirements of chapter 25A of the Montgomery County Code requiring
MPDU's. The applicability of chapter 25A and the MPDU density increase provided by
59-C-9.574 must be calculated after the base density of a property has been increased by
a transfer of development rights. The density increase provided by 59-C-9.574 may be
made without the acquisition of additional development rights. The density of
development, including the provision ofMPDU's must not exceed 1.22 dwelling units
per gross acre.
59-C-9.584.3. Approval Procedures Under the Optional Method of
Development.
(a) Standards for approval under the Optional Method are as provided in 59-
C-9.574 for the Rural Neighborhood Cluster Zone. These standards include the
minimum area of development, the standards for diversity of lot sizes and house sizes,
development standards, common open space requirements, standards for the use of
private streets, sewage treatment requirements, and rural open space guidelines.
(b) A request to utilize development rights on a property under the optional
method must be in the form of a preliminary subdivision plan submitted in accordance
with the subdivision regulations contained in Chapter 50.
(c) A site plan must be submitted and approved in accordance with the
provisions of Division 59-D-3.
( d) The Planning Board must approve a request to utilize development rights
if the request:
( 1) Does not exceed the limitation on the density or number of dwelling
units permitted in the zone and in the applicable master plan approved by the district
council;
(2) Is in accordance with the provisions of this chapter;
(3) Is in accordance with chapter 50, title ·'Subdivision of Land;''
(4) Is consistent with other recommendations of the master plan approved
by the district council: and
(5) Achieves a desirable development compatible with both site conditions
and surrounding existing and future development.
( e) Prior to recordation of a final record plat for a subdivision using
transferred development rights, an easement to the Montgomery County Government in
the form required by 59-C-1.392(a) limiting future construction of dwellings on a
property in the RDT zone by the number of development rights received must be
recorded in the land records of Montgomery County, Maryland.
(f) A final record plat for a subdivision using transferred development rights
must contain a statement setting forth the development proposed. the zoning
classification of the property, the number of development rights used, and a notation of
the recordation of the conveyance required by 59-C -9.584.2(b).
59-C-9.584.4. Reserved.
59-C-9.584.5. Reserved.
59 -C-9.584.6. Off-street parking. Parking must be provided in accordance
with the provisions of 59-C-9.75 for the Rural Neighborhood Cluster zone.
(Legislative History: Ord. No. 10-69, § 5; Ord. No. 11-70, § 3; Ord. No. 13-13, § 1; Ord.
No. 13-45, § 1; Ord. No. 13-94, § I; Ord. No. 15-31, § 1; Ord. No. 15-38, § 2; Ord. No.
15-69, § 1; Ord. No. 15-73, § 1.)
-·-----·· -·--·--·------······. -. -.
Sec. 59-C-9.6. Transfer of density-Option in Rural Density Transfer zone.
In accordance with section 59-C-1.39 and in conformance with an approved and adopted
general, master, sector, or functional plan, residential density may be transferred at the
rate of one development right per 5 acres minus one development right for each existing
dwelling unit, from the Rural Density Transfer zone to a duly designated receiving zone,
pursuant to section 59-C-1.39. The density transfer provisions are not applicable to
publicly owned rights-of-way for roads, streets, alleys, easements, or rapid transit routes
classified in the Rural Density Transfer zone. The following dwelling units on land in the
ROT zone are excluded from this calculation, provided that the use remains accessory to
a farm. Once the property is subdivided, the dwelling is not excluded:
(a) A farm tenant dwelling, farm tenant mobile home, or guest house as defined in
section 59-A-2.1, title "Definitions."
(b) An accessory apartment or accessory dwelling regulated by the special
exception provisions of divisions 59-G-1 and 59-G-2.
(Legislative History: Ord. No. I 0-69, § 5; Ord. No. 10-75, § 3; Ord. No. 11-4, § 6; Ord.
No. 12-61, § 4; Ord. No. 15 -69, § 1.)
Editor's note-See County Attorney Opinion dated 4/26/99 explaining that a transfer
of development rights easement continues to restrict development even when the
underlying zoning of the property is changed. See County Attorney Opinion dated
8/11 /98 descri bing the effect of annexation of land into Town of Poolesville on
transferable development rights existing on the land prior to annexation. See County
Attorney Opinion dated I 0/2/90 explaining that, without a main dwelling or a
transferable development right to support it, no farm-tenant house may be constructed .
59-C-9. 74. Exem pted lots an d parcels-Rural Density Transfer zone.
(a) The number of lots created for children in accordance with the Maryland
Agricultural Land Preservation Program must not exceed the development right s assigned
to the property.
(b) The following lots are exempt from the area and dimensional requirements of
section 59-C-9.4 but must meet the requirements of the zone applicab le to them prior to
their classification in the Rural Density Transfer zone.
(1) A recorded lot created by subdivision, if the record plat was approved for
recordation by the Planning Board prior to the approval date of the sectional map
amendment which initially zoned the property to the Rural Density Transfer Zone.
(2) A lot created by deed executed on or before the approval date of the sectional
map amendment which initially zoned the property to the Rural Density Transfer Zone.
(3) A record lot having an area of less than 5 acres created after the approval
date of the sectional map amendment which initially zoned the property to the Rural
Density Transfer Zone by replatting 2 or more lots; provided that the resulting number of
lots is not greater than the number which were replatted.
( 4) A lot created for use for a one-family residence by a child, or the spouse of a
child, of the property owner, provided that the following conditions are met:
(i) The property owner can establish that he had legal title on or before the
approval date of the sectional map amendment which initially zoned the property to the
Rural Density Transfer Zone;
(ii) This provision applies to only one such lot for each child of the property
owner; and
(iii) Any lots created for use for one-family residence by children of the
property owner must not exceed the number of development rights for the property.
(Legislative History: Ord. No. 10-69, § 5; Ord. No. 12-1 , § 1; Ord. No. 12-76, § 1; Ord.
No. 13-13 , § 1.)
Editor's note--See County Attorney Opinion dated 4/26/99 explaining that a transfer
of development rights easement continues to restrict development even when the
underlying zoning of the property is changed.
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St. Mary's County Comprehensive Zoning Ordmance
Article 2. ADMINJSTRA TJON
CHAPTER 26 TRANSFERABLE DEVELOPMENT RIGHTS (TDRS)
Sections:
26.1 Purpose.
26.2 Right to Transfer Development Rights.
26.3 TDR Sending Zones: Assignment of Transferable Development Rights.
26.4 Maximum Residential or Non-Residential Density/Intensity Allowed in Receiving Zones.
26.5 Effect of Transfer.
26.6 Rights of Transferees.
26. 7 Cenification by Director of Planning and Zoning and County Attorney.
26.8 Instruments of Transfer.
26.9 Approval of the Development Using Transferable Development Rights.
26.10 Fee in Lieu for Open Lands Option.
26.11 Exempted lots from TDR requirements.
26.12 Uses allowed after TDRs have been severed from the sending area.
26.13 Grandfathering.
26.1. Purpose.
I. The Transferable Development Rights (TDR) program in this chapter is voluntary for propeny
owners and is provided as a means to funher the objectives of the Comprehensive Plan. The
chapter provides flexibility to encourage the protection of fannland and resource protection areas
by allowing the transfer of developmenc potential from a site that has resources deserving
protection to a site in a designated receiving zone.
2. In order co protect agricultural areas and give !he o>wners of such propeny an alcernative to
development, or a means to recover some of the value from an undevelopable residential lot,
TDRs are established.
26.2. Right to Transfer Development Rights.
I. Removing Development Rights from the Land. Each landowner of a parcel in a sending area
("transferor") has the right to remove all or a portion of the right to develop from the parcel (!he
"sending parcel'"), and to hold, sell, trade or baner these rights to another person or legal entity
("transferee"').
2. l/sing Development Rights. The transferee may retire the development rights, resell them, or
apply them to land in a receiving area (the "receiv ing parcel ") in order to obtain approval for
development at a density or intensity of use greacer than would otherwise be allowed on the land,
up to the maximum density or intensity indicated in Schedule 32.1, subject to the following:
a. No development right may be used to increase density within the Critical Area if such
right is derived from a ponion of a sending parcel that is outside the Critical Arca, nor
may a development right be transferred from land within an Intensely Developed Area
(IDA) or Limited Development Area (LDA) to a Resource Conservation Area (RCA), or
from an IDA to an LOA, nor may any development right be transferred to land in the
RCA from any RCA lot of record thac is less than 20 acres in size.
b. Land zoned RPD which is designated as a Rural Legacy Area by the Maryland Rural
Legacy Board shall not be developed to a density greater than one (I) dwelling unit per
five (5) acres of gross area.
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St Mary 's County Comprehensive Zonmg Ordinance
Article 1. ADM/NJSTRA TJON
No use of a development right shall result in a reduction of resource protection land
required by this Ordinance on a receiving parcel.
No development nght may be derived from land ma sending zone that is already
expressly prohibited from transferring development rights by virtue of a recorded
restrictive covenant or agricultural or environmental easement. Development rights may
be derived from property subject to the St. Mary's County Agriculture Land Tax Credit
Program between the owner and the Board of County Commissioners.
Except for transfer of rights from lots of record that cannot be developed for residential
purposes, no development right may be derived from land in a sending area that is part of
a subdivision that has no available density remaining in the parent tract. Where density is
available, the rights shall be assigned based on the unused density avai lable in the
subdivision.
26.3. TDR Sending Z on es; Assig nme nt of T r a nsfera ble Develo pme nt Ri g hts.
I. Designation. Rural Preservation Districts c·RPD") shall be TDR sending areas and ma> be
receiving areas subject to Schedule 32.1.
2. Det ermination. Each parcel of land in the RPD shall have one (I) transferable development r ight
for each five (5) acres of land based on the gross acreage within the parcel, as determined by the
transferor·s recorded deed. In the event the gross acreage cannot be ascertained from the recorded
deed, the gross acreage of the parcel shall be determined by the most recent records of the
Maryland Department of Assessments and Taxation. In any event, at the transferor's option, the
gross acreage may be determined by a metes and bounds survey of the parcel prepared, signed and
sealed by a duly licensed professional land surveyor or professional property line surveyor, which
determination shall take precedence over the gross acreage determined by the recorded deed or the
assessment records. One (I) TDR shall be deducted for each existing dwelling and one (I) TDR
shall be deducted for each proposed dwelling for which a building permit has been duly issued by
the Department of Land Use and Growth Management for the parcel prior to July 24. 2007.
3. Fractional R ights . Fractional parts of a development right shall be disregarded. No transfer shall
include other than a whole number of development rights.
4. E ffect of Prior Transfer. Each TDR reserved by an .. original instrument of transfer" pnor to
adoption ofth1s Ordinance and not yet utilized on a receiving parcel shall be equivalent to one (I)
TDR under this Ordinance. Provided, however, that TDRs which have been previously removed
from a sending parcel and are still held by the original transferor shall. in the discretion of the
transferor, be recalculated and re-certified by the Planning Director using the gross acreage
formula set forth above in the Section 26.3 . Upon such re-certification, a revised original
instrument of transfer shall be recorded among the land records, and the initial original instrument
of transfer shall be deemed void and of no further effect.
26.4 . M aximum R esidential o r Non-Reside ntial De nsity/Inte nsity A ll owed in R eceivi ng Zone s.
I. Zoning Districts RNC (in growth areas only), RPO, RL, RH, RMX, VMX, TMX, and CMX are
receiving zones for TD Rs for increased residential density. The RPO, RSC, RCL, RL, RMX.
VMX, TMX, DMX, CMX CC, OBP and I are receiving zones for TD Rs for increased non-
residential intensity of approved uses in the respective zones.
2. Land located in a receiving zone may be developed at additional density or intensity of use
through the acquisition of TD Rs , up to the maximum density or intensity indicated in Schedule
32.1 . With the exception of the RPO, the residential density for land within a receiving zone may
be increased at a rate of one (I) additional dwelling unit for each TOR, up to the maximum
number permined in Schedule 32.1. Each parcel of land within the RPO existing as a parcel of
record on the date of this Ordinance shall be considered as a single residential lot, with no
requirement for the use ofTDRs for any existing residential dwellings that exist on the parcel or
for which a valid building permit has been issued as of the date of this Ordinance. Such existing
dwellings or dwellings for which a valid bui lding permit has been issued may be subdivided from
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St. Marys County Comprehensive Zonmg Ordinance
Article 2. ADMTNISTRA TION
the receiving parcel as separate lots without the use ofTDRs. lfno residential dwelling exists on
the parcel or for which a valid building permit has been issued as of the date of this Ordinance.
one (I) single-family residential dwelling may be constructed on the parcel without the use of
TD Rs.
-For a receiving parcel in the RPO, one (I) TOR shall be required for each additional residential
lot or dwelling, provided the parcel density does not exceed one (I) residential lot or dwelling for
each five (5) acres of gross area, rwo (2) TORs shall be required for each additional residential lo t
or dwelling in excess of I dwelling unit per 5 acre density, provided the parcel density does not
exceed one (I) residential lot or dwelling for each four (4) acres of gross area, and three (3) TORs
shall be required for each additional res1denual lot or dwelling in excess of I dwelling unit per 4
acre density, provided the parcel density does not exceed one (I) residential lot or dwelling for
each three (3) acres of gross area.
The number ofTDRs required per residence is based on the density of the property as developed
July 24, 2007 m accordance with the following schedule.
Density (number of units per acre)
Less than I dwelling unit per 5 acres
I dwelling unit per 5 acres
More than I dwelling unit per 5 acres
and less than or equal to I dwelling
unit per 4 acres
More than I dwelling unit per 4 acres
and not to exceed I dwelling umt per
3 0 acres
Number ofTDRs
I TOR per lot
I TDR per lot
2 TDRs per lot
3 TDRs per lot
26.5. E ffect of Transfer.
I. After development rights have been transferred by an instrument of original transfer, the sending
parcel shall not be further subdivided or developed to a greater density or intensity of use than
permitted on the remaining acreage. Once development rights have been transferred from a lot or
parcel of record. that lot or parcel of record shall not later become a receiving parcel.
2. The portion of the sending parcel from which development rights have been transferred may be
used only for the uses listed in 26.12.
3. All development rights that are the subject of an .. instrument of original transfer," described m
Section 26.8, shall be deemed removed from the sending parcel when such rights have been
severed from the property by recording of the ··instrument or original transfer" in form and content
approved by the County Attorney.
26.6. Rights o f Transfe r ees.
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 chapter. a transferee has only
the right to use the development right to the extent authorized by all applicable provisions of the Ordinance
in effect at the time when use of the development right for a specific receiving parcel is fi n ally approved.
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 chapter or any other section of this Ordinance or 10
entitle any transferor or transferee to damages or compensation of any kind as the result of any such
amendment. supplementation or repeal.
26.7. Cer t ifica tio n by Direct o r of Planning a nd Zoning a nd County A tto rney.
I. R equirem ent. The Planning Director shall certify that the development rights proposed fo r
transfer are available for transfer from the sending parcel. No transfer shall be recognized under
this chapter unless the instrument of original transfer contains the Planning Director's
certification.
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St. Mary's County Comprehensive Zoning Ordinance
Article 2. ADM!NISTRA T!ON
2. Application for Certificate. An application for a certificate shall contain a certificate of title by
an attorney duly licensed to practice law in the State of Maryland and a description of the
proposed sending parcel from which development rights are being removed. Applicable fees and
any additional information the Planning Director deems necessary to determine the number of
development rights involved in the proposed transfer shall also be required.
3. Responsibility. The transferor and the transferee named in an instrument of original transfer shall
ha\e sole responsibility for supplying all information required by this chapter, providing a proper
instrument of original transfer, and paying. in addition to any other fees required by this chapter,
any applicable recording costs.
4. Issuance of Certificate. On the basis of the information submitted to him o r her, the Planning
Director shall affix a certificate of his or her findings to the instrument of original transfer and
shall assign to each development right a distinct serial number based on a registration system
developed and approved by the Planning Director, which number shall be used to track each
development right. The certificate shall contain a specific statement of the number, if any, of
development rights that are derived from any portions of the sending parcel within the Critical
Area The Planning Director's certification, the title certificate and the instrument of original
transfer shall be reviewed and approved by the County Attorney for legal sufficiency.
5. Effect of Determination. The determination of the Planning Director and the County Attorney
shall not be construed to enlarge or otherwise affect in any manner the nature, character, and effect
of a transfer as set forth in Section 26.5.
26.8. Instruments of Transfer.
I . An instrument of transfer shall conform to the requirements of this section. There shall be three
types of instruments of transfer, all of which shall be on forms approved and developed by the
County Attorney: (i) an instrument of original transfer which shall be used to sever the
development right from the property and which shall be executed by the owner of the property
from which the development right is being severed as both grantor and grantee: (ii) an instrument
of intermediate transfer which shall be used to transfer the development right between
intermediate O\~ners of the development right: and (iii) the instrument of final transfer which shall
be used to convey the development right to the Board of County Commissioners of St. Mary's
County by which the development right is extinguished and used for the purposes of development
on the receiving parcel.
2. Requinments of All Instruments. All instruments of transfer shall contain:
a.
b.
c.
d.
e.
f.
The names of the transferor and the transferee:
A certificate oftitle for the rights to be transferred certified to by an attorney licensed to
practice la\\ in Maryland in a form approved by the County Attorney ;
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 sending parcel:
If any rights involved in the transfer are derived from portions of the sending parcel
within the Critical Area, a specific statement of the number of such rights included within
the transfer:
A covenant by which the transferor acknowledges that he or she has no further use or
right of use with respect to the development rights being transferred;
A statement of the rights of the transferee prior to final approval of the use of those
development rights on a specific parcel, as set forth in Section 26.2, except when the
development rights are being transferred to the Board of County Commissioners in
accordance with this chapter: and
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St. Mary's County Comprehensive Zoning Ordmancc
Article 2. ADM!NISTRA TION
A covenant that at the time \,hen any development rights mvolved in the transfer are
finally approved for use on a specific receiving parcel, such rights shall be transferred to
the Board of County Commissioners for no consideration.
The serial number of each development right being transferred pursuant to the instrument
of transfer.
R equirements of Instruments of Original Tran sfer. An •·instrument of original transfer," which
1s required when a development right is initially removed from the sending parcel, shall also
contain:
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A descripuon of the property from which the development right is being removed, either
from the recorded deed or at the tranferor's option, from the boundary survey of the
sending parcel, prepared, signed and sealed by a duly licensed surveyor, or professional
property line surveyor, provided that if a boundary survey 1s used the instrument shall
also reference the deed recording reference.
A covenant that the sending parcel may not be subdivided to a greater extent than
permitted by the remaining development rights and that such subdivision shall be in
accordance "'ith the zoning and s ubdivision regulations in place at the time of the request
for subdivision.
A covenant that the sending parcel is restricted to and may be used only for agricultural
uses and those uses allowed in Section 26 .12 of this chapter and such residential uses as
are permitted by the remaining development rights.
A covenant that all provisions of the instrument of transfer shall run with and bind the
sending parcel and may be enforced by the Count) Commissioners, the Planning Director
and their respecuve designees.
The certificate of the Plarming Director required by Section 26 .7.
Requirements for Instruments of Intermediate Transfer. An instrument of intermediate
transfer shall include:
a .
b.
c.
A statement that the trans fer is an intermediate transfer of rights derived fro m a sending
parcel described m an instrument of original 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 St Mary's County)
A list of all previous .. mterrnediate instruments of transfer" identified by their date, and
the book(s) and page(s) where the documents are recorded among the land records of St.
Mary ·s County affecting the development rights being transferred.
A statement o f the actual cons ideration paid or to be paid by the transferee for the
development rights.
Requirements for lnstrumenlf of Final Transfer. An instrument of final transfer shall include:
a . A statement that the transfer is a final transfer of rights derived from a sending parcel
described in an instrument o f original 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 St. Mary's County).
b.
c .
d .
The instrument of original transfer and all previous intermediate instruments of transfer
idenufied by their date, and the book(s ) and page(s) \\here the documents are recorded
among the land records of St. Mary 's County affecting the development rights being
transferred.
A statement of the actual consideratio n paid or to be paid by the transferee for the
development rights.
A current certificate of title.
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St. Mary's County Comprehensive Zoning Ordinance
Article 2. ADMJNJSTRA TJON
6. Recordation of All Instruments ofTransfer/Delivery to DECO and Planning Director. After
it has been properly executed, an original instrument of transfer or intermediate instrument of
transfer shall be recorded by the transferor or the transferee among the land record of St. Mary's
County, and a copy thereof shall be promptly delivered to the Planning Director and the
Department of Economic and Community Development ("DECO"). After it has been reviewed
and approved for legal sufficiency by the County Attorney, and executed by the transferor and the
Planning Director. on behalfofthe County. a final instrument of transfer shall be recorded by the
Planning Director in the land records of St. Mary's County, and a copy of the recorded instrument
shall be promptly delivered by the Planning Director to the transferor.
26.9. Approval of the Development Using Transferable Development Rights.
I. Initial Request for l'se ofTDR in a Development Project. The request to use development
rights on a proper!) in the receiving area shall be in the form of a concept or preliminary
subdivision plat, a site plan, or other application for development submitted in accordance with the
requirements of this Ordinance. In addition to any other information required by thi s Ordinance,
the application shall be accompanied by a statement of intent to transfer development rights to the
property and a statement of the number of development rights intended to be transferred.
2. Preliminary approvals. The County may grant preliminary subdivision or concept site plan
approval for the proposed development conditioned upon proof of ownership of the necessary
TDRs or a contract to purchase said TDRs being presented LO the County as a prerequisite to final
subdivision or site plan approval.
3. Final Subdivision or Site Plan Approval of a Development l'sing TD Rs.
4.
a.
b.
Proof of ownership ofTDR 'sand proof of deed restriction No final plat shall be
approved and no zonmg permits shall be issued for development involving the use of
TDRs until and unless the applicant has demonstrated to the County that:
(I)
(2)
(3)
The applicant is the bona fide owner of all TD Rs that will be used or redeemed
for the construction of additional dwellings or the creation of additional lots;
An instrument of transfer for the TDRs proposed for the development has been
recorded in the chain of title of the parcel ofland from which the development
rights has been transferred and that such instrument restricts the use of that
parcel m accordance with this chapter; and
The TDRs proposed for the development have not been previously used. Proof
must be in the form of a current title certificate issued by a licensed attorney.
Required instruments. The following instruments, which may be required to effect
transfer of development rights to the receiving parcel, shall be approved as to form and
legal sufficiency by the County Attorney. Said instruments shall be recorded among the
land records of St. Mary's County when the subdivision record plat is recorded o r
subsequent to final site plan approval but before building permits are released.
(I)
(2)
(3)
An instrument of original transfer.
All intermediate instruments of transfer between any intervening transferees,
including the owner of the receiving parcel.
A final instrument of transfer to the Board of County Commissioners.
When Completed. Transfer to a receiving parcel 1s final when the approved final subdivision plat
or approved final site plan for the receiving parcel has been recorded or approved, as applicable, in
accordance with this Ordinance and when the development right has been transferred by a final
instrument of transfer to the Board of County Commissioners at no cost to the County.
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26.10. Fee in Lieu for Open Lands Option.
Sr Mary 's County Comprehensive Zonmg Ordinance
Article 2. ADMINISTRATION
In lieu of purchasmg development rights from a sending parcel for use tn development of a receiving
parcel, a person may pay a fee to the County, which I.he County shall hold in a separate Open Lands Trust
Fund for use in purchasing development rights from owners of sending parcels and other related purposes
as defined in I.he subsections belO\~
I . Fee Schedule. A schedule oflhe .. m lieu of' fees for the Open Lands Trust Fund shall be
established annually. The fee m lieu for each TOR shall be one hundred twenty percent (120%) of
the average fair market value paid forTDRs in "arms-length'' mtennediate transactions in I.he
previous fiscal year, as calculated by the DECO Director. The DECO Director shall make public
I.he fee in lieu calculations no later than thirty (30) days followmg I.he end of I.he fiscal year. The
Board of County Commissioners shall reserve the nght to increase or decrease I.he fee in lieu
wilhin the lhirty (30) day period following I.he DECO Director 's annual detennmation. after which
such detenninat,on shall remam in effect until I.he following fiscal year.
2 . Administration of Fee in Lieu Program. The DECO Director shall administer the fee in lieu
program and coordinate the necessary forms and documentation consistent with the requirements
ofth1s chapter. Those applicants "'ho pay the fee in lieu may apply credits received for said
payments to develop land ma receiving parcel at an addiuonal density or intensity of use through
the same provision as for TD Rs contained herein.
3. l 'se of Funds from Payment of Fees in Lieu. Payments received by the County as fees in lieu of
purchasing development rights from sending zones shall be used by the St. Mary's County
Agricultural Preservation Commission to acquire property having a resource deserving of
protection or replenish the Critical Farms Programs. Such purchase of development rights may be
resold by the County
26.11. Exempted lots from T DR requirements.
A maximum of2 lots may be created for conveyance to children (natural or legally adopted) wnhout the
use of a TOR subject to the follow mg:
a. The conveying property owner owned the land in the RPO zone as of May 13, 2002;
b . The lots created pursuant to this exemption comply with the I to 5 acre base density of the
RPO:
c. A maximum of2 exempt lots for children may be subdivided from the parcel of land:
d A child shall not receive more than one exempt lot in I.he RPO zone;
e . The property owner must submit a subdivision plan pnor to May 13, 2009 and record the
subdivision plat prior to May 13, 2012;
f. The property owner creating the lot must enter mto an agreement with the County that:
I) contains the grantor's obligations under this section;
2) is recorded in the land records of St Mary's County;
3) is noted on the subdivision plat: and
4) prohibits the grantee from transferring the conveyed lot to a third party for at least seven
years from the date of final approval of the family conveyance, except in a case of severe
hardship, as determined by the Director of Land Use and Growth Management.
g. Compliance with all remaining applicable regulations of the Zoning Ordinance and
Subdivision Ordinance.
26.12. Uses allowed after TDRs have been severed from the sending area.
The following uses may be allowed on land in the RPD zone after TDRs have been severed from the
sending area. All uses must comply with other applicable regulations in the Zoning Ordinance.
-Agricultural Industry, minor (on-the-farm processing, e .g. small grain mills, dairy processing)
-Animal Husbandry
-Aquaculture (raising finfish , shellfish, aquatic plants)
-Crop production and horticulture e.g. (typical ro\\ & field crops, orchards, nursel))
-Farmers' market (locall) produced goods, sales by 2 or more sellers)
-Auction House (wholesaling of locally produced goods)
Page26-7
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-Roadside stand
-S1lviculture
-Bunal grounds (fam1l} plots only)
-Day Care. family, home
-Rural medical practice
-Bed and breakfast (m ex1stmg d\velhngs)
St. Marys County Comprehensive Zonmg Ordinance
Article 2. ADMIN!STRA T!ON
-Personal improvement service (accesso!) to principle residence)
-Extractive industry (mining, gravel pits)
-Production indusl!), custom (small scale. hand manufactured e.g. blacksmith, welding,
carpentry)
-Communication towers, commercial and public
-Regional flood and stonnwater management fac1ht}
-Uulities. minor
-V ar1ous accesso!)' uses
-Various temporary events
26.13. G r a ndfath e ring.
For Major Subdivisions, Minor Subdivisions, MaJor Site Plans. Mmor (Simplified) Site Plans and a request
for TDR certification per Chapter 26, for which a complete application has been subm,ned to the Technical
Evaluation Committee ( .. TEC") prior to July 24, 2007. and Phasing Plans w h1ch have been approved prior
to Jul:,, 24, 2007. the Applicant shall have the option to proceeding with development pursuant to the
provisions of Chapter 26. Schedule 32.1 and 32.2 ofth1s Ordinance as they existed on the date for which
the complete application was submitted to the TEC or the Phasing Plan was approved. or as the same was
previously grandfathered b) this Ordinance. or pursuant to the provisions of Chapter 26, Schedule 32.1 and
Schedule 32.2 as revised on Jul) 24. 2007.
Page26-8
WASHINGTON COUNTY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER 12, 2007
AppendixC-
Sample Agreement to Transfer Development Rights
PAGE480F49 II
1 uK mma1 1 ransrer instrument
Page 2 of2
FIFTH: The Transferees acknowledge and covenant that at the time any development rights
involved in this transfer are finally approved for use on a specific receiving parcel, such rights shall be
transferred to the Board of County Commissioners for no consideration.
SIXTH: The Transferors acknowledge and covenant that the development rights being
transferred herein represent all/a portion of the development rights with respect to the transferor parcel
under the existing or any future Zoning Ordinance or other similar ordinance regulating the use of land in
St. Mary's County.
SEVENTH: The Transferors acknowledge and covenant that the transferor parcel may not be
subdivided to a greater density than permitted by the remaining development rights.
E IGHTH: The Transferors acknowledge and covenant that the transferor parcel is restricted to,
and may be used only for, agricultural uses or such residential uses as are permitted with respect to the
remaining development rights.
NINTH: The Transferors acknowledge and covenant that all provisions of this instrument shall
run with and bind the sending parcel and may be enforced by the County Commissioners, the Planning
Director, and their respective designees.
W ITNESS the hands and seals of the parties on the date fi rst written above.
WITNESS:
____________ (SEAL)
Transferor
___________ (SEAL)
Transferor
___________ (SEAL)
Transferee
_____________ (SEAL)
Transferee
STATE OF MARYLAN D, St. Mary's County, to wit:
I HEREBY CERTIFY that on this da y of , 200_,
before the undersigned , a Notary Public of the s tate a nd coun ty aforesaid , personally
appea red and ,
Transferors, and they acknowledged the aforegoing Agree ment to Transfer Development
Ri ghts to be their vo lunta ry act.
WITNESS my hand and notarial seal.
NOTA RY PUBLIC
My Commission expires:
WASHINGTON COUNlY, MARYLAND
FINAL TOR FRAMEWORK REPORT
DECEMBER t 2. 2007
AppendixD-
Sample TDR Deed Restriction
PAGE490F49 II
particularly described in Exhibit A].
The terms, conditions and restrictions, of this Easement are these:
1. This Easement shall be perpetual. It is an easement in gross, and as such, is
inheritable and assignable and runs with the land as an incorporeal interest in the Property
enforceable with respect to the Property by the Grantee, and its successors and assigns, against
the Grantor and his heirs, successors, and assigns.
2. The term ''one-family dwelling" includes mobile, manufactured, or similar
dwelling, but excludes farm tenant dwelling permitted by Chapter 59, Montgomery County
Code, as amended.
3. A one-family dwelling may not be constructed, occupied, or maintained on the
Property unless one Development Right is retained with the Property for each one-family
dwelling constructed, occupied, or maintained.
4. The restrictions imposed by this Development Rights Easement shall operate
independently of the restrictions imposed by the zoning of the Property.
5. The Property contains a total of acres, more or less. [Previous
Development Rights Easements recorded at Liber Folio among the
land records of Montgomery County, Maryland limited the number of one-family dwellings that
may be constructed on or maintained on the Property to and authorized the
conveyance of Development Rights numbered through
_____ .] There are existing one-family dwellings on the Property. As a
result of this Easement, the Parties intend that Grantor may convey [an additional] -----
Development Rights numbered through . [Or, ''No previous
Development Rights Easements have been conveyed by Grantor from this Property."] From this
date forward, no more than a total of one-family dwellings may be constructed on the
Property. This may not be interpreted to permit additional dwellings inconsistent with the
zoning of the Property or to prevent the reconstruction of existing one-family dwellings which
complied with the terms of this Easement in the event such dwellings may be destroyed or
damaged.
6. Grantee, its successors and assigns, may, with reasonable notice, enter the
Property from time to time, for the sole purpose of inspection and enforcement of the terms,
conditions and restrictions of this Easement. This right of inspection does not include the
interior of dwellings.
7. Nothing herein may be construed to convey to the public a right of access or use
of the Property , and the Grantor, its heirs, successors and assigns, retain exclusive right to such
access and use, subject only to the provisions of this Easement.
8. The parties agree that monetary damages would not be adequate remedy for
breach of any of the terms, conditions and restrictions herein contained, and, therefore, in the
event that the Grantor, its heirs, successors and assigns, violate or breach any of such terms,
conditions and restrictions, herein contained, the Grantee, its successors and assigns, may
institute a suit to enjoin by ex parte, preliminary and/or permanent injunction such violation and
to require the restoration of the Property to its prior conditions. The Grantee, its successors and
2
[FOR A BUSINESS ENTITY]
STATE OF MARYLAND
COUNTY OF MONTGOMERY
*
*
*
I HEREBY CERTIFY that on this __ day of , 200_, before me, the
subscriber, a Notary Public in and for the aforesaid jurisdiction, personally appeared NAME ,
TITLE of BUSINESS ENTITY , and did acknowledge that (s)he executed the
foregoing Transfer of Development Rights (TDR) Easement for the purpose contained therein,
and further acknowledged the foregoing Transfer of Development Rights (TDR) Easement to be
the act and deed of BUSINESS ENTITY .
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
My commission expires:
STATE OF MARYLAND
COUNTY OF MONTGOMERY
Notary Public
*
*
*
I HEREBY CERTIFY that on this day of 200 , before me,
the subscriber, a Notary Public in and for the aforesaid jurisdiction, personally appeared
TIMOTHY L. FIRESTINE, Chief Administrative Officer of Montgomery County, Maryland,
who executed the foregoing Transfer of Development Rights (TDR) Easement on behalf of
Montgomery County, Maryland, for the purposes therein contained, and further acknowledged
the foregoing Transfer of Development Rights (TDR) Easement to be the act and deed of said
Montgomery County.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My Commission Expires: ______ _
4
ATTORNEY CERTIFICATE
THE UNDERSIGNED, a member of the Bar of the Court of Appeals of Maryland,
hereby certifies that the foregoing instrument was prepared by or under the supervision of the
undersigned.
RELEASE OF LENDER:
(If Lender is involved)
THIS INSTRUMENT IS INSURED BY:
(If applicable)
PARCEL IDENTIFICATION NUMBER(S):
GRANTOR'S ADDRESS:
GRANTEE 'S ADDRESS: MONTGOMERY COUNTY, MARYLAND
101 Monroe Street, 3rd Floor
Rockville, MD 20852
AFTER RECORD A TION, PLEASE RETURN TO:
I:\GJ\Gaulv\TDRs\TDRs Easement.doc
5
DEED OF TRA NS FER OF DEVELOPMENT RIGHTS (TDR)
THIS DEED, made this ____ day of _____ , 200 __ by and between
(include full name and address), hereinafter, "Granter," and (include full name and address),
hereinafter, "Grantee."
RECITALS
Chapter 59 of the Montgomery County Code defines "Development Right" as: "The
potential for the improvement of a parcel of real property, measured in dwelling units or units of
commercial or industrial space, existing because of the zoning classification of the parcel," and
sets forth a procedure for the transfer of Development Rights for the purpose of preserving
agricultural land. An Easement granted to Montgomery County, Maryland , pursuant to Chapter
59 of the Montgomery County Code and recorded at Liber ____ Folio ___ among the
land records of Montgomery County, Maryland, restricts the number of one-family dwellings
that may be constructed, occupied or maintained on property hereinafter described situate in the
Rural Density Transfer Zone, ____ Planning Area, Montgomery County, Maryland, and
thereby authorizes the conveyance of Development Rights.
NOW, THEREFORE , in consideration of _______________ , and
other good and valuable considerations, the receipt of which is hereby acknowledged, Granter
does grant and convey to Grantee, his/her heirs, successors and assigns, ____ _
Development Rights, numbered ___________ originally attached to property
situate in the Rural Density Transfer Zone, Planning Area, Montgomery County,
described as:
(Insert description of sending parcel , including street address, if any.)
6
(Being the same Development Rights conveyed by ___________ to
____________ by a deed recorded at Liber _____ Folio ___ _
among the land records of Montgomery County, Maryland)
AND. Grantor covenants that it will warrant specially the property hereby conveyed, that
it will execute such further assurances of said property as may be requisite and that is has the
right to convey the property.
IN WITNESS WHEREOF, their hand and seals in the day and year above written.
SIGNATURES
ACKNOWLEDGMENTS
THE UNDERSIGNED, a member of the Bar of the Court of Appeals of Maryland,
hereby certifies that the foregoing instrument was prepared by or under the supervision of the
undersigned.
RELEASE OF LENDER (If Lender Involved)
THIS INSTRUMENT IS INSURED BY (Name of Title Insurer, if any.)
Parcel Identifier ~-------------------------
County Tax Account # (if any. and if different from parcel identifier)
I:\GJ\Gaulv\ TDRs\tdrtransfer _ mnppc.doc
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