TOWN OF
TRANSFER OF
DEVELOPMENT RIGHTS PROGRAM
Revised Draft for
Review
October 29, 2004
Prepared by the
Town of Berry
Finance/TDR
Committee
Dietmar Olesch, Chair
Peter Manke
Chris Upper
Carla Wright
Sue Studz
TABLE OF CONTENTS
1.
Objectives
2.
Scope
3.
Sending
Areas
a.
Criteria
b.
Proposed
4.
Receiving
Areas
a.
Criteria
b.
Proposed
5.
Residential
Subdivisions
6.
Transfer
of Development Rights Ratio
7.
Nature
of Rights (Contingencies)
8.
Process
9.
Cost
to Town (Tax)
10.
Implementation Guidelines (Pilot)
Appendix A: TDR Program Procedures
1. Objectives:
Support land use plan (see Land Use
Plan attachment A, Rural Development Guidelines)
Preserve farmland (& open
spaces), protect the Town’s woodlands and other natural features,
Plan for a supply of developable
land for housing
in areas
consistent with desired development trends, and
of
densities and types consistent with the Town’s rural setting.
2. Scope:
Provide for the voluntary transfer
of development rights (TDR) associated with one or more parcels of land
(sending areas) designated for preservation to another parcel of land
designated for development (receiving area).
3. Sending Areas
Criteria
Groups I
and II farmland, wood lots, wetlands, flood plains, hydric soils, soils with low
or very low potential for dwellings with basements, slopes greater than 20%,
and possibly slopes between 12% and 20%, locations for proposed public or
“common” space;
Proposed sending areas (refer to map 5 of
comprehensive plan):
Agriculture
land vulnerable to development as a consequence of Highway 12 expansion;
Lands
within the Ice Age Trail Corridor that have been acquired by public agencies,
e.g.
4. Receiving
Area
Criteria
Land the
development of which will not result in property or environmental damage or
impair rural character or agricultural operations;
Land where
development already exists;
Land where
new development “pays its own way” for the facility and service demands it
generates. Density must be great enough to support road maintenance and
contribute a proportionate share to Town government. The Town of
Locations
that:
a. protect residential areas from infringement by incompatible land
uses;
b. promote connectivity of roadway systems;
c. preserve contiguity of environmental systems;
d. preserve rural character;
Land where
new development could be sited in ways to be visible to as few
Proposed receiving
areas (see map 5):
Land near
existing clusters of development, e.g. near or adjacent to Village of Cross
Plains (transition areas)
Marxville (commercial and residential)
Residential
subdivisions
5. Residential Subdivision
A Residential Subdivision can be
used and may be the most effective means to achieve the objectives of the land
use plan.
§
A subdivision helps preclude
unplanned development
§
A subdivision contributes to
the development of neighborhood/community
§
A subdivision helps manage
land use and promotes design standards
§
A subdivision increases the
viability of a TDR program
§
A subdivision provides
benefits to both town and developer
§
Potential receiving areas for
a subdivision include
6.
Transfer of Development Rights Ratio
For the purpose of the initial
launch of this program and for the purpose of a pilot project, a 1:1 transfer
ratio is established.
One residential development right
will be granted within a receiving area for each development right purchased
from a sending area. This transfer ratio
(1:1) is estimated to provide the minimum incentive required for purchase of
development rights by a developer. This ratio is based on current market prices
for rural residential lots. The transfer
ratio will be reviewed by the Town Board and Plan Commission annually or as
deemed necessary by the board.
7. Nature of Rights
NATURE OF RIGHTS
The Transfer of Development Rights (TDR) program process involves three parties: seller, buyer and town/county. All must be in agreement before any of the parts of the process are finalized.
Figure 1. The tripartite relationship in transferring
development rights.
Seller: receives payment for divesting
himself/herself of an agreed number of development rights. Property of the
seller is encumbered by an easement or other instrument showing that the “sold”
development right has been permanently severed from the seller’s property.
Buyer: pays for an agreed number of seller’s
development rights and receives necessary zoning approval and other permits to
build a residence in a receiving area, subject to restrictions or requirements
imposed by the town.
Town: receives planned development appropriate
under its comprehensive plan, including siting, general location, and plat
design and grants zoning approval and other necessary permits for the agreed
upon development. County concurs with
town recommendations. The Town assumes
obligation for enforcement of the easement.
8.
Process (Steps)
The process for implementing the transfer of development rights shall conform to the steps outlined in Appendix A.
9. Cost to Town
The development must support initial
and ongoing road costs including direct construction, renewal and maintenance,
and a proportional share of indirect road costs including salaries, repairs,
supplies and capital equipment.
In addition to road expenses, the
development must also support a proportional share of all other Town government
services, including administrative costs for the program.
The Town will realize initial and ongoing costs including notifications, public meetings, materials such as brochures, and attorney fees to establish the program.
10. Implementation
· Review draft with Town of Berry Plan Commission for feedback.
· Review draft with Town of Berry Board for feedback.
· Conduct public hearing
· Revise draft as appropriate
· Seek Town Board approval in principle
· Draft program as a formal revision to the comprehensive land use plan
· Conduct a second public hearing
· Secure Town Board approval
· Secure County approvals as necessary
· Develop pilot program
Appendix A
TOWN OF BERRY*
TRANSFER OF DEVELOPMENT
RIGHTS (“TDR”)
PROGRAM PROCEDURES
*(model
adapted from Town of Cottage Grove)
FOR PROPERTY IN THE SENDING
AREAS:
1. List Maintained for
Owners Interested in Selling Development Rights
To
assist the TDR process, the Town is willing to compile a list of property
owners in the sending areas who are willing to participate in the TDR Program.
To be placed on this list, the property owner must submit the following to the
Town Clerk:
a. Property Summary Sheet (to
confirm general information). See Exhibit A, which is attached and incorporated
by reference
b. Density Study from Dane
County (to confirm the number of splits available to the property), If
requested by Plan Commission.
This
list will be available to owners of property in the receiving areas upon
request. The list is not exclusive and is being maintained solely as a
courtesy.
Although
the list may facilitate the transfer of development rights, all negotiations
regarding such transfers shall be conducted between the individual property
owners involved.
2. Grant of Limited
Conservation Easement, Conveyance of Development Rights a and Deed Restrictions
(“TDR Easement”)
To assure that the
conveyance of development rights is properly tracked on the Sending Area
Property, the development rights are in fact conveyed from the owner to the
developer and the developer’s property
is deed restricted as necessary, a TDR Easement shall be executed by the parties.
It is the intent of this TDR
program that land use restrictions contained in conservation easements
associated with development right transfers not be inconsistent or more
restrictive than equivalent land use restrictions arising out of the
utilization of development rights pursuant to the Town of Berry’s land use
plan.
`
a. The TDR Easement shall be in
the form set forth on Exhibit B, which is attached and incorporated by
reference.
b. The TDR Easement shall be by
and between the Owner, Town and County.
c. The TDR Easement shall be
recorded at the Dane County Register of Deeds. A cover letter shall be provided
with the TDR easement requesting that the TDR easement be noted on the zoning
map and made available for determination of density standards.
FOR
PROPERTY IN THE RECEIVING AREAS:
Procedure
1. Notice . Developer contacts the Town Plan Commission and advises
Plan Commission of developer’s interest in developing property in the receiving
area. Plan Commission advises developer of need for rezoning, land division and
TDR program.
2. Rezoning.
a. Developer applies for
rezoning of the property, if necessary.
b. If request is acceptable,
Plan Commission recommends and Town Board conditionally approves rezoning.
Approval shall be “conditional,” meaning that approval shall not be effective
until all conditions are met.
c. Rezone is submitted to
County. If request is acceptable, Zoning and Land Regulation, County Board and
County Executive conditionally approve rezoning.
d. Conditions shall include,
but are not limited to, the following:
i.
Land
division approval.
ii.
Deed
restriction as to number of housing units, if appropriate.
iii.
TDR
Easement. (See above for TDR Easement requirements.)
3. Land Division
a. Developer applies for
preliminary plat approval or preliminary certified survey map approval, if
necessary.
b. If request is acceptable,
Plan Commission recommends and Town Board conditionally approves land division.
For plats, conditional preliminary plat approval is granted. For certified
survey maps (“CSMs”), conditional preliminary survey map approval is granted.
c. Approval shall be
“conditional,” meaning that approval shall not be effective until all
conditions are met. Conditions shall include, but are not limited to, the
following:
i.
Appropriate
conditional zoning.
ii.
TDR
Easement. (See above for TDR Easement requirements.)
d. Land division is submitted
to County. If request is acceptable, Land Division Review conditionally
approves CSM and Zoning and Land Regulation, County Board and County Executive
approve plat.
e. Final land division approval
shall not be granted by the Town and the Town shall not sign final plat or CSM
until the following is received from the developer with respect to the TDR
Easement:
i.
Binding
offer to purchase/sell development rights (“Purchase Contract”) with the sole
condition being approval of the final plat. The Purchase Contract shall be in
substantially the same form as on the attached Exhibit C, which is incorporated
herein by reference. The Purchase Contract shall include a provision that the
Town and County are third-party beneficiaries who have the right to enforce the
Purchase Contract in accordance with its terms and conditions, and that a
letter of credit is being provided as additional security for performance (see
below).
ii.
Letter
of credit to assure that developer will purchase development right upon
approval of the final plat. The letter of credit is required to confirm that
the buyer of development rights will perform in accordance with the Purchase
Contract and will provide a signed and recorded TDR easement to the Town.The
letter of credit will be released by Town at such time as developer provides
Town Clerk with a fully executed original of the TDR Easement that is suitable
for recording. Letter of credit must be in a form satisfactory to Town and must
include provision that letter of credit cannot be terminated unless lender
provides at least 6 weeks written notice to the Town Clerk. Exhibit D, which is
attached and incorporated herein by reference, includes a letter of credit form
that is satisfactory to the Town.
iii.
Written
acknowledgment from developer that no zoning permit will be issued by the
County and no building permits will be issued by the Town until the TDR
Easement is recorded
4.
Miscellaneous.
a. County Zoning Approval:
Recommended Language for Conditional Approval Referrals by the Town to the County for rezoning shall
recommend that the County’s approval contain the following:
i.
The
rezone is approved conditionally, with one condition being that the applicant
must secure a TDR easement with a ratio established by resolution of the Town
Board from a sending area designated in the Town Land Use Plan. For rezoning
purposes, this condition shall be deemed satisfied if the following conditions
are met:
1. The Town has received a
binding offer to purchase/sell development rights (“Purchase Contract”) with
the sole condition being approval of the final plat. The Purchase Contract
shall include a provision that the Town and County are third-party
beneficiaries who have the right to enforce the Purchase Contract in accordance
with its terms and conditions, and that a letter of credit is being provided as
additional security for performance (see below).
2. The Town has received a
letter of credit to assure that developer will purchase development right upon
approval of the final plat. The letter
of credit is required to confirm that the buyer of development rights will
perform in accordance with the Purchase Contract and will provide a signed and
recorded TDR easement to the Town. The letter of credit will be released by
Town at such time as developer provides Town Clerk with a fully executed
original of the TDR easement that is suitable for recording. Letter of credit
must be in a form satisfactory to Town and must include provision that letter
of credit cannot be terminated unless lender provides at least 6 weeks written
notice to the Town Clerk.
3. The Town has received
written acknowledgment from developer that no zoning permit will be issued by
the County and no building permits will be issued by the Town until the TDR
easement is recorded.
b. Phased Development.
In phased developments, the developer can only plat and rezone that portion for
which the developer has obtained development rights.