Criteria for retaining and landing development rights
(1) Future building of retained development rights in the sending area. Once an applicant has received a certificate of retained development rights for a parcel, the rights may only be developed on that parcel, and before construction may commence, the applicant shall submit a new application to the planning commission. The planning commission may combine the master plan and preliminary plan phases of the application process where an applicant proposes to develop fewer than ten (10) development rights. In addition to all applicable zoning ordinance standards and standards within the subdivisions and land development regulations, the planning commission or director of planning and development shall use the following criteria for approving the building of retained development rights:
(a) The preserved area that was identified as part of the TDR sending area land development application is not encroached upon by the proposed development.
(b) The location of new structures and impervious surfaces shall preserve on site resources to the maximum extent practicable. These resources may include wetland areas, buffers, habitat, mature forest, soils suitable for agricultural use, historic resources, and scenic vistas.
(c) Final plan approval shall not be granted until all deed restrictions are in place for designated preservation areas.
(2) Approved subdivision or land development plans. Any party that has received master, preliminary or final plan approval for a parcel in the sending area overlay district and has not commenced construction may apply to the director of planning and development for a certificate of development rights to convert the approved property yield into transferable and/or retained development rights under the following conditions.
(a) The approved development plan shall only include single family detached homes in a residential district or office space in a commercial district.
(b) Where the applicant proposes to retain a portion of the development rights, he or she shall provide a development plan showing the delineation of a conceptual building envelope including the general location of where the retained development rights will be constructed. The applicant shall bear the burden of proof as to whether the retained development rights can be developed within the designated area. The director of planning and development shall have the discretion to request further information as is reasonable and necessary to demonstrate the feasibility of future development of retained rights. Information requested by the director of planning and development shall not exceed those requirements set forth in the sending area land development plan, master plan review checklist.
(c) Approval of an area for future development of retained development rights by the director of planning and development in no way guarantees approval of future plan submittals for this site. Additional information and unforeseen circumstances related to the site may further limit the amount of development that can actually occur.
(d) Preserved non-agricultural lands shall be contiguous and shall be connected with open space on the subject parcel and adjacent parcels to the greatest extent practicable.
(e) In the case of proposed agricultural lands, the RAV score for the entire site shall not exceed the weighted average RAV score for the proposed retained tract by more than ten percent based on a review of existing soils maps.
(f) Development of any retained development rights shall follow the procedures outlined in subsection (1) of this section.
(3) Criteria for amending the restrictions associated with retained development rights. The planning commission may allow for amendments to the originally approved plans associated with retained development rights including, but not limited to, the proposed location for future development of those retained development rights only if the proposed amendment:
(a) Is in the interest of the residents of the town;
(b) Will not result in any degradation to significant viewsheds;
(c) Will not result in the degradation of sensitive wildlife habitat;
(d) Will not result in the degradation of areas in the groundwater recharge and wellhead protection overlay district;
(e) Will not result in the loss of prime agricultural lands that have historically been used for agricultural activities;
(f) Will not fragment existing tracts of forested lands; and
(g) Is consistent with applicable local, state and federal regulations.
(4) Receiving area bonuses. Once the number of development rights has been approved by the planning commission and certified by the director of planning and development, the development rights may be transferred to a receiving area. The planning commission shall determine the relationship between the number of certified development rights and the receiving area yield according to the transfer of development rights schedule provided in the subdivisions and land development regulations. Applicants may propose to use density bonuses exclusively for additional residential or commercial development or for a combination of the two uses. The maximum density bonuses allowable for receiving areas are listed in the provisions for each receiving area zoning district as applicable (e.g., Post Road district, etc.).
(5) Units in the receiving area that require TDR. The number of units that require a development right transfer shall not include the number of units that may already be allowed by-right, that may already exist on site in a manner that conforms with current building regulations, or any units that may be required to be affordable as defined in section 21-22 and specified in section 21-94.C.(1)(c).
Sample calculation for one acre of land:
Allowable number of units in PR district (receiving area) with TDR = 30 units
Requirements for affordability in PR district utilizing TDRs = 4.5 (rounded to 5) units (15%)
By-right allowance in PR district = 4 units
Number of pre-existing units on site = 2 units
Number of units requiring TDR: 30 - 5 - 4 - 2 = 19 units
(Ord. No. 10-06, § 9, 4-26-2010; Ord. No. 11-02, § 5, 1-10-2011)