2006 Code of Virginia § 15.2-2316.2 - Localities may provide for transfer of development rights

15.2-2316.2. Localities may provide for transfer of development rights.

A. Pursuant to the provisions of this article, the governing body of anylocality by ordinance may, in order to conserve and promote the publichealth, safety, and general welfare, establish procedures, methods, andstandards for the transfer of development rights within its jurisdiction. Anylocality adopting or amending any such transfer of development rightsordinance 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 uponapplication by the property owners of both the sending and receivingproperties. A locality may not require property owners to transferdevelopment rights as a condition of the development of any property.

C. Prior to any transfer of development rights, a locality shall adopt anordinance based on findings of public benefit. Such ordinance shall providefor:

1. The issuance and recordation of the instruments necessary to severdevelopment rights from the sending property and to affix development rightsto the receiving property. These instruments shall be executed by theaffected property owners and lienholders. The instrument shall identify thedevelopment rights being transferred, identification of the sending propertyand the receiving property;

2. The preservation of the character of the sending property and assurancethat the prohibitions against the use and development of the sending propertyshall bind the landowner and every successor in interest to the landowner;

3. The severance of transferable development rights from the sending propertyand the transfer of development rights to a receiving property;

4. The purchase, sale, exchange, or other conveyance of transferabledevelopment rights prior to the rights being affixed to a receiving property;

5. A system for monitoring the severance, ownership, assignment, and transferof transferable development rights;

6. A map or other description of areas designated as sending and receivingareas for the transfer of development rights between properties;

7. The identification of parcels, if any, within a receiving area that areinappropriate as receiving properties;

8. The ordinance shall include permitted uses and the maximum increases indensity in the receiving area;

9. The minimum acreage of a sending property and the minimum reduction indensity of the sending property that may be conveyed in a transfer ofdevelopment rights;

10. An assessment of the infrastructure in the receiving area that identifiesthe ability of the area to accept increases in density and its plans toprovide necessary utility services within any designated receiving area;

11. The review of an application by the planning commission or its agent todetermine whether the application complies with the provisions of theordinance. The application shall be deemed approved upon the determination ofcompliance with the ordinance and upon recordation of the instrumenttransferring the development rights in the land records of the office of thecircuit court clerk for the locality; and

12. Such other provisions as the locality deems necessary to aid in theimplementation of the provisions of this article.

D. The ordinance may provide for the allowance for residential density to beconverted to an increase in the square feet of a commercial, industrial orother use on the receiving property.

E. Development rights made transferable pursuant to this article shall beinterests in real property and shall be considered as such for purposes ofconveyance and taxation. Once an application has been approved and a deed oftransferable development rights created pursuant to this article has beensold, conveyed, or otherwise transferred by the owner of the sendingproperty, the transfer of development rights shall vest in the grantee andmay be transferred to a successor in interest. Any transfer of thedevelopment rights to a different property in a receiving area shall besubject to review pursuant to the provisions of the ordinance adoptedpursuant to provision 11 of subsection C.

F. For the purposes of ad valorem real property taxation, the value of atransferable development right shall be deemed appurtenant to the sendingproperty until the transferable development right is recorded as a distinctinterest in real property with the appropriate tax assessor or thetransferable development right is used at a receiving property and becomesappurtenant thereto.

G. Approved transfers of development rights shall become effective upon therecording of the conveyance and the filing of a certified copy of suchrecording with the local governing body of the locality.

H. Localities shall incorporate the map identified in provision 6 ofsubsection C into the comprehensive plan.

I. No amendment to the zoning map, nor any amendments to the text of thezoning ordinance with respect to the zoning district applicable theretoinitiated by the governing body, which eliminate, or materially restrict,reduce, or modify the uses, or the density of use permitted in the zoningdistrict applicable to any property to which development rights have beentransferred, shall be effective with respect to such property unless therehas been mistake, fraud, or a change in circumstances substantially affectingthe public health, safety, or welfare.

J. A county adopting an ordinance pursuant to this article may designateeligible receiving areas in any incorporated town within such county, if thegoverning body of the town has also amended its zoning ordinance to designatethe same areas as eligible to receive density being transferred from sendingareas in the county.

(2006, c. 573.)