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2009 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 15.2-2316.1 and 15.2-2316.2 of the Code of Virginia are amended and reenacted as follows:
§ 15.2-2316.1. Definitions.
As used in this article, the term:
"Development rights" means the permitted uses and density of development that are allowed on the sending property under any zoning ordinance of a locality on a date prescribed by the ordinance. "Development rights" includes "transferable development rights."
"Receiving area" means an area one or more
areas identified by an ordinance and designated by the comprehensive plan
as an area authorized to receive development rights transferred from a sending
area.
"Receiving property" means a lot or parcel within a receiving area and within which development rights are increased pursuant to a transfer of development rights affixed to the property. Receiving property shall be appropriate and suitable for development and shall be sufficient to accommodate the transferable development rights of the sending property. Development rights may be transferred between receiving properties, as otherwise permitted in the ordinance.
"Sending area" means an area one or more
areas identified by an ordinance and designated by the comprehensive plan
as an area from which development rights are authorized to be severed and transferred
to a receiving area.
"Sending property" means a lot or parcel that a
locality deems necessary to limit future development in accordance with the
ordinance adopted in subsection C of § 15.2-2316.2 or a receiving property that
has received development rights from a sending property within a sending
area from which development rights are authorized to be severed.
"Severance of development rights" means the process by which development rights from a sending property are severed pursuant to this act.
"Transfer of development rights" means the process by which development rights from a sending property are affixed to one or more receiving properties.
"Transferable development rights" means all or that portion of development rights that are transferred or are transferable.
§ 15.2-2316.2. Localities may provide for transfer of development rights.
A. Pursuant to the provisions of this article, the governing body of any locality by ordinance may, in order to conserve and promote the public health, safety, and general welfare, establish procedures, methods, and standards for the transfer of development rights within its jurisdiction. Any locality adopting or amending any such transfer of development rights ordinance shall give notice and hold a public hearing in accordance with § 15.2-2204 prior to approval by the governing body.
B. Any proposed transfer of development rights shall only
be initiated upon application by the property owners of both the sending and receiving
properties. A locality may not require property owners to transfer development
rights as a condition of the development of any property.
C. Prior to any transfer of development rights, In
order to implement the provisions of this act, a locality shall adopt an
ordinance based on findings of public benefit. Such ordinance that shall
provide for:
1. The issuance and recordation of the instruments necessary
to sever development rights from the sending property, to convey development
rights to one or more parties, or and to affix development rights to
the one or more receiving property properties.
These instruments shall be executed by the affected property owners of
the development rights being transferred, and any lienholders lien
holders of such property owners. The instruments shall identify the
development rights being transferred severed, identification
of and the sending property and properties or the
receiving property properties, as applicable;
2. The preservation of the character of the sending
property and assurance Assurance that the prohibitions against the
use and development of the sending property shall bind the landowner and every
successor in interest to the landowner;
3. The severance of transferable development rights from the
sending property and the transfer of development rights to a receiving
property;
4. The purchase, sale, exchange, or other conveyance of transferable development rights, after severance, and prior to the rights being affixed to a receiving property;
5. A system for monitoring the severance, ownership, assignment, and transfer of transferable development rights;
6. A map or other description of areas designated as sending and receiving areas for the transfer of development rights between properties;
7. The identification of parcels, if any, within a receiving area that are inappropriate as receiving properties;
8. The ordinance shall include permitted uses and the
maximum increases in density in the receiving area;
9. The minimum acreage of a sending property and the minimum
reduction in density of the sending property that may be conveyed in a severance
or transfer of development rights;
10. The development rights severed from the sending areas to be equal to the development rights permitted to be attached in the receiving areas;
11. An assessment of the infrastructure in the receiving area that identifies the ability of the area to accept increases in density and its plans to provide necessary utility services within any designated receiving area; and
11. The review of an application by the planning commission
or its agent to determine whether the application complies with the provisions
of the ordinance. The application shall be deemed approved upon the determination
of compliance with the ordinance and upon recordation of the instrument
transferring the development rights in the land records of the office of the
circuit court clerk for the locality; and
12. Such other provisions as the locality deems necessary
to aid in the implementation of the provisions of this article.
12. The application to be deemed approved upon the determination of compliance with the ordinance by the agent of the planning commission, or other agent designated by the locality.
D. The ordinance may provide for the allowance for
residential density to be converted to an increase in the square feet of a
commercial, industrial or other use on the receiving property.
C. In order to implement the provisions of this act, a locality may provide in its ordinance for:
1. The purchase of all or part of such development rights, which shall retire the development rights so purchased;
2. The severance of development rights from existing zoned or subdivided properties as otherwise provided in subsection E;
3. The owner of such development rights to make application to the locality for a real estate tax abatement for a period up to 25 years, to compensate the owner of such development rights for the fair market value of all or part of the development rights, which shall retire the number of development rights equal to the amount of the tax abatement, and such abatement is transferable with the property;
4. The owner of a property to request designation by the locality of the owner’s property as a “sending property” or a “receiving property”;
5. The allowance for residential density to be converted to bonus density on the receiving property by (i) an increase in the residential density on the receiving property or (ii) an increase in the square feet of commercial, industrial, or other uses on the receiving property, which upon conversion shall retire the development rights so converted;
6. The receiving areas to include such urban development areas in the locality established pursuant to § 15.2-2223.1;
7. The sending properties, subsequent to severance of development rights, to generate one or more forms of renewable energy, as defined in § 56-576, subject to the provisions of the local zoning ordinance;
8. The sending properties, subsequent to severance of development rights, to produce agricultural products or forestal products, as defined in § 15.2-4302;
9. The review of an application by the planning commission to determine whether the application complies with the provisions of the ordinance;
10. Such other provisions as the locality deems necessary to aid in the implementation of the provisions of this act; and
11. Approval of an application upon the determination of compliance with the ordinance by the agent of the planning commission.
D. The locality may, by ordinance, designate receiving areas or receiving properties, or add to, supplement, or amend its designations of receiving areas or receiving properties, so long as the development rights permitted to be attached in the receiving areas are equal to the development rights permitted to be severed in the sending areas.
E. Any proposed severance or transfer of development rights shall only be initiated upon application by the property owners of the sending properties, development rights, or receiving properties as otherwise provided herein.
F. A locality may not require property owners to sever or transfer development rights as a condition of the development of any property.
G. The owner of a property may sever development rights from the sending property, pursuant to the provisions of this act. An application to transfer development rights to one or more receiving properties, for the purpose of affixing such rights thereto, shall only be initiated upon application by the owner of such development rights and the owners of the receiving properties.
E H. Development rights made transferable
severed pursuant to this article shall be interests in real property and
shall be considered as such for purposes of conveyance and taxation. Once an
application has been approved and a deed of transferable development rights
created pursuant to this article has been sold, conveyed, or otherwise
transferred by the owner of the sending property, the transfer of development
rights shall vest in the grantee and may be transferred to a successor in
interest. Any transfer of the development rights to a different property in a
receiving area shall be subject to review pursuant to the provisions of the
ordinance adopted pursuant to provision 11 of subsection C. Once a deed
for transferable development rights, created pursuant to this act, has been
recorded in the land records of the office of the circuit court clerk for the
locality to reflect the transferable development rights sold, conveyed, or
otherwise transferred by the owner of the sending property, the development
rights shall vest in the grantee and may be transferred by such grantee to a
successor in interest. Nothing herein shall be construed to prevent the owner
of the sending property from recording a deed covenant against the sending
property severing the development rights on said property, with the owner of
the sending property retaining ownership of the severed development rights. Any
transfer of the development rights to a property in a receiving area shall be
in accordance with the provisions of the ordinance adopted pursuant to this
article.
F I. For the purposes of ad valorem real
property taxation, the value of a transferable development right shall be
deemed appurtenant to the sending property until the transferable development
right is recorded as a distinct interest in real property with the appropriate
tax assessor or the transferable development right is used at a receiving
property and becomes appurtenant thereto. For the purposes of ad
valorem real property taxation, the value of a transferable development right
shall be deemed appurtenant to the sending property until the transferable
development right is severed from and recorded as a distinct interest in real
property, or the transferable development right is used at a receiving property
and becomes appurtenant thereto. Once a transferable development right is
severed from the sending property, the assessment of the fee interest in the
sending property shall reflect any change in the fair market value that results
from the inability of the owner of the fee interest to use such property for
such uses terminated by the severance of the transferable development right.
Upon severance from the sending property and recordation as a distinct interest
in real property, the transferable development right shall be assessed at its
fair market value on a separate real estate tax bill sent to the owner of said
development right as taxable real estate in accordance with Article 1 (§
58.1-3200 et seq.) of Chapter 32 of Title 58.1. The development right shall be
taxed as taxable real estate by the local jurisdiction where the sending
property is located, until such time as the development right becomes attached
to a receiving property, at which time it shall be taxed as taxable real estate
by the local jurisdiction where the receiving property is located.
G J. Approved transfers of development
rights shall become effective upon the recording of the conveyance and the
filing of a certified copy of such recording with the local governing body of
the locality. The owner of a sending property from which development
rights are severed shall provide a copy of the instrument, showing the deed
book and page number, or instrument or GPIN, to the real estate tax assessor
for the locality.
H K. Localities, from time to time as the
locality designates sending and receiving areas, shall incorporate the map
identified in provision 6 of subsection C subdivision B 6 into
the comprehensive plan.
I L. No amendment to the zoning map, nor any
amendments to the text of the zoning ordinance with respect to the zoning
district applicable thereto initiated by the governing body, which eliminate,
or materially restrict, reduce, or modify downzone the uses, or
the density of use uses permitted in the zoning district
applicable to any property to which development rights have been transferred,
shall be effective with respect to such property unless there has been mistake,
fraud, or a material change in circumstances substantially affecting the
public health, safety, or welfare.
J M. A county adopting an ordinance pursuant to
this article may designate eligible receiving areas in any incorporated town
within such county, if the governing body of the town has also amended its
zoning ordinance to designate the same areas as eligible to receive density
being transferred from sending areas in the county. The development right
shall be taxed as taxable real estate by the local jurisdiction where the
sending property is located, until such time as the development right becomes
attached to a receiving property, at which time it shall be taxed as taxable
real estate by the local jurisdiction where the receiving property is located.
K N. Any county and an adjacent city may enter voluntarily
into an agreement to permit the county to designate eligible receiving areas in
the city if the governing body of the city has also amended its zoning
ordinance to designate the same areas as eligible to receive density being
transferred from sending areas in the county. The city council shall designate
areas it deems suitable as receiving areas and shall designate the maximum
increases in density in each such receiving area. However, if any such
agreement contains any provision addressing any issue provided for in Chapter
32 (§ 15.2-3200 et seq.), 33 (§ 15.2-3300 et seq.), 36 (§ 15.2-3600 et seq.),
38 (§ 15.2-3800 et seq.), 39 (§ 15.2-3900 et seq.), or 41 (§ 15.2-4100 et
seq.), the agreement shall be subject to the review and implementation process
established by Chapter 34 (§ 15.2-3400 et seq.). The development right shall
be taxed as taxable real estate by the local jurisdiction where the sending
property is located, until such time as the development right becomes attached
to a receiving property, at which time it shall be taxed as taxable real estate
by the local jurisdiction where the receiving property is located.
1. The terms and conditions of the density transfer agreement as provided in this subsection shall be determined by the affected localities and shall be approved by the governing body of each locality participating in the agreement, provided the governing body of each such locality first holds a public hearing, which shall be advertised once a week for two successive weeks in a newspaper of general circulation in the locality.
2. The governing bodies shall petition a circuit court having jurisdiction in one or more of the localities for an order affirming the proposed agreement. The circuit court shall be limited in its decision to either affirming or denying the agreement and shall have no authority, without the express approval of each local governing body, to amend or change the terms or conditions of the agreement, but shall have the authority to validate the agreement and give it full force and effect. The circuit court shall affirm the agreement unless the court finds either that the agreement is contrary to the best interests of the Commonwealth or that it is not in the best interests of each of the parties thereto.
3. The agreement shall not become binding on the localities until affirmed by the court under this subsection. Once approved by the circuit court, the agreement shall also bind future local governing bodies of the localities.