§ 35-361. Transfer of Development Rights.
STATEMENT OF PURPOSE
It is the policy of the city that landowners subject to development restrictions in the sending zones, or as the result of regulations protecting critical areas, should be provided regulatory incentives to permanently restrict such lands from urbanization. V.T.C.A. Local Government Code § 211.003 authorizes the city to control the density of population through zoning. While such regulations may be legally imposed where they further a legitimate public purpose and are reasonable, the transfer of development rights provides a vehicle to enable the private market to allocate economic benefits to landowners in the restricted areas, thereby enhancing the viability of businesses in the sending areas and avoiding potential legal disputes between the private landowners and the city. This section establishes procedures for transferring densities from sending to receiving parcels. At the voluntary request of the landowners in the sending areas and the receiving areas, the city may increase densities in the receiving areas and reduce densities in the sending areas.
The TDR system is based on the theory of carrying capacity. In other words, a finite amount of development is permitted in the areas within the sending and receiving zones. The city is indifferent as to who does the development. Instead, it lets the market decide the price. A purchase of transfer development rights does not increase the total amount of development possible in these areas. Accordingly, the accumulation of transfer rights is related to the overall purpose of preserving resources in the area.
(a)
Sending Areas Created.
(1)
Severable development rights are hereby created in the sending areas designated below. Sending areas may be located in the unincorporated areas of Bexar County or another municipality within Bexar County if the landowner has recorded a conservation easement, or reserved rights-of-way, in accordance with the provisions of this section. All sending areas are assigned development rights at the following ratios:
A.
Critical Areas. Fifty (50) percent of the development potential of critical areas, as defined in subsection (3), below, may be transferred.
B.
Agricultural Preservation. One hundred (100) percent of the development potential of agricultural areas, as defined in subsection (4), below, may be transferred.
C.
Transportation Corridors. Any land area within a designated right-of-way.
(2)
For purposes of this subsection, "development potential" means: (1) for areas within the incorporated boundaries of the city, the density permitted by the underlying zoning district, and (2) for areas within the extraterritorial jurisdiction of the city, one (1) dwelling unit per five (5) gross acres, and (3) for areas within the unincorporated areas of Bexar County, one (1) dwelling unit per ten (10) acres.
(3)
For purposes of this subsection, a "critical area" means any natural resource or environmentally sensitive area which is:
A.
Subject to the standards set forth in article V, division 4 of this chapter in order to protect the public health, safety and general welfare, and
B.
Protected by a conservation easement; and
C.
Physically developable at the development potential described in subsection (2), above, as certified by a registered professional engineer.
(4)
For purposes of this subsection, an "agricultural area" means any tract or parcel:
A.
Which has a valid, unexpired agricultural appraisal approved by the chief appraiser of the Bexar Appraisal District pursuant to the "Assessments of Lands Designated for Agricultural Use" authorized by the Texas Constitution, article VIII, section 1-d and described in V.T.C.A. Tax Code §§ 23.41 through 23.47; or which has a valid, unexpired agricultural appraisal approved by the chief appraiser of the Bexar Appraisal District pursuant to the "Open-Space Land" methods authorized by Texas Constitution, article VIII, section 1-d-1 and further described in V.T.C.A. Tax Code §§ 23.51 through 23.59 of the; and
B.
Is protected by a conservation easement; and
C.
Is not used as a concentrated animal feeding operation, as defined in 40 C.F.R. Part 122, which contains more than one thousand (1,000) animal units.
Commentary: For useful descriptions of the agricultural tax appraisal methods, see Texas Real Estate Center Publication 1361, "Ag Use Exemption: Fact or Fiction," and Bexar Appraisal District, "Agricultural and Livestock Guidelines" (June 10, 1998).
(5)
For purposes of this subsection, a "transportation corridor" means any proposed right-of-way for an arterial street, thoroughfare, or light rail line as designated in the thoroughfare plan, and which is dedicated to and accepted by the city, TXDOT, or VIA.
(6)
Documentation of compliance with the requirements for eligibility as a sending area shall be submitted with the application for development approval requesting an increase in density in the receiving area provided, however, that the proposed development in the sending area may be approved subject to completion of such requirements including, but not limited to, recordation of a conservation easement or approval of an agricultural or open space land tax appraisal, as a condition of development approval.
(7)
Floodplains and other unbuildable areas shall not qualify as TDR sending areas.
(b)
Receiving Districts Designated. No severable development rights shall be exercised in conjunction with the development or subdivision of any parcel of land that is not located in a receiving district. A parcel of land which receives developments rights pursuant to this section shall be referred to as a "receiver site." The following districts are hereby designed as receiving districts for purposes of transferring severable development rights:
"TND" = Traditional neighborhood development district
"TOD" = Transit-oriented development district
"IDZ" = Infill development zone
(c)
Timing. Development rights allotted to a sending area may be transferred to any person at any time and shall be deemed, for taxation and all other purposes, to be appurtenant to the land from which the rights are transferred until a development order is issued authorizing use of the development rights at a receiver site, at which time they shall attach to the receiver site for all purposes.
(d)
Recordation of Transfer of Development Rights.
(1)
Conditional Zoning District. No development rights shall be used on the receiving site until a conditional zoning district has been approved as provided herein. The conditional zoning district shall include a condition requiring recordation of a deed in accordance with the requirements of subsection (2), below.
(2)
Right-of-Way Dedication. Prior to issuance of a building permit, the owner of the transferor parcel has recorded a deed in the chain of title of the transferor parcel expressly restricting the use of the land in perpetuity to open space, agricultural lands (excluding feedlots/concentrated animal feeding operations) or street/road right-of-way. The deed restriction shall be expressly enforceable by the city council and the director, and a boundary plat for the transferor parcel shall be recorded reflecting the restriction. Within ten (10) days after the approval of the subdivision plat or issuance of the building permit, the director shall convey to the dedicator a deed for the severable development rights that are attributable to the right-of-way area dedicated. If the deed for the severable development rights conveyed to the dedicator is not recorded in the office of the register of deeds within fifteen (15) days of its receipt, the deed shall be null and void.
(e)
Evidence of Restriction Required For Development Approval. A developer of a receiver site must submit, in conjunction with his application for development approval, evidence that the transferor parcel has been restricted to non-development uses and that a boundary plat has been recorded in accordance with the above provisions. No plat for a subdivision in conjunction with which severable development rights are exercised shall be recorded by the register of deeds, and no new building, or part thereof, or addition to or enlargement of an existing building, that is part of a development project in conjunction with which severable development rights are exercised shall be occupied, until documents have been recorded in the office of the register of deeds transferring title from the owner of the severable development rights to the city council and providing for their subsequent extinguishment.
(f)
Severable Development Treated Interest In Real Property. Once a deed for severable development rights has been transferred by a city or county to the dedicator and recorded, the severable development rights shall vest and become freely alienable.
(g)
Notice and Hearing Requirements. Any proposed transfer of development rights from the sending property or to the receiving property shall be subject to the notice and hearing requirements of V.T.C.A. §§ 211.006 (Procedures Governing Adoption of zoning Regulations and district Boundaries), and 211.007(planning commission) for rezoning (see section 35-403 of this chapter).
(h)
Preceding Transfer of Development Rights. Prior to any transfer of development rights, the city council shall adopt an ordinance providing for:
(1)
The issuance and recordation of the instruments necessary to sever development rights from the sending property and to affix development rights to the receiving property. These instruments shall be executed by the affected property owners and lien holders.
(2)
The preservation of the character of the sending property and 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 delayed transfer of development rights to a receiving property.
(4)
The purchase, sale, exchange or other conveyance of transferable development rights 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)
The right of the city council to purchase development rights and to hold them for resale.
(Ord. No. 96564 § 3)