59-C-1.394. Development Standards Applicable to the Optional Method of Development.

      (a)   Development under the TDR optional method density provisions of section 59-C-1.332(c) must conform to the development standards and permitted residential uses as indicated in section 59-C-1.395.

      (b)   For TDR densities of 3 or more per acre, the lot sizes and other development standards will be determined at the time of preliminary plan and site plan for conformance with applicable master plan guidelines and in accordance with the purposes and provisions of the PD zone, except as may be specified in section 59-C-1.395.

      (c)   The compatibility requirements of Section 59-C-7.15(b) may be waived by the Planning Board upon a finding that: 1) the immediately adjoining property is recommended for institutional use on the approved and adopted master or sector plan; and 2) the immediately adjoining property will not be adversely affected by the waiver for present or future use.  Under the waiver, the Board may not permit any building other than a one-family detached residence to be constructed within 25 feet of adjoining land for which the area master plan recommends a one-family detached zone.

      (d)   The final density achieved for any property located in a TDR receiving area developed under the optional method procedures must be determined by the planning board at site plan and/or subdivision review and must conform to the site plan provisions (division 59-D-3 of the zoning ordinance) and subdivision regulations (chapter 50 of the Montgomery County Code).

      (e)   In making this determination as to the final density, the planning board will consider whether a proposed plan has the flexibility in design to provide an appropriate range of housing types, taking advantage of existing topography and other natural features, to achieve a mutually compatible relationship between the proposed residential development and adjoining land uses, while implementing the area master plan approved by the district council.

   59-C-1.395. Special provisions for TDR developments. The following development standards for the development of a property under the optional method apply to the TDR density shown on the master plan for that area. Where moderately priced dwelling units are included in accordance with the requirements of chapter 25A of this Code, as amended, the MPDU development standards apply. The increase in density must not exceed 22 percent of the TDR density.

 

TDR Density per Acre Shown on Master Plan

Development Standards and Permitted Residential Uses

 

	Without MPDU’s	With MPDU’s
1	RE-1, RE-1 cluster	Not applicable
2	R-200, R-200 cluster, R-150	R-200 MPDU

		Minimum (Maximum) percentage required1
TDR Density per Acre Shown on Master Plan	Size of Development3	One-Family Detached	One-Family Townhouse and Attached	Multiple Family2 Four-Story or Less4	Green Area
3-5	Less than 800 dwelling units	306	P	NP	35
3-5	800 dwelling units or more	306	P	P(20)	35
6-10		15	P	P(35)	40
11-15	Less than 200 dwelling units	P	P	P	50
11-15	200 dwelling units or more	P	P	35(60)	50
16-28	less than 200 units	P	P	P5	50
16-28	200 dwelling units or more	P	P	255	50

 

P   Permitted but not required.

( )   Maximum percentage permitted.

1   Upon a finding by the planning board that a proposed development is more desirable for environmental reasons or is more compatible with adjacent development than that which would result from adherence to these standards, the percentage requirements for one-family and multiple-family stated herein may be waived.

2   Permitted only where specifically recommended as a unit type in the area master or sector plan for the receiving area. In any instance where the minimum percentage requirement would yield a total of 150 multiple-family dwelling units or less, this requirement does not apply, and no such units are required. Whenever the minimum percentage would yield 151 units or more, the full number must be required except in cases covered by footnote number 1.

3   Total number of dwelling units planned.

4   One-family attached may be substituted for all or part of this requirement.

5   The four-story height limit may be waived upon a finding by the Planning Board that a proposed development can achieve greater compatibility with adjacent development than which would result from adherence to the standards.

6   Development may utilize the R-60/MPDU standards as set forth in Sec. 59-C-1.625(a)(1).

   59-C-1.396. Special Provisions for TDR Developments Approved Prior to April 1, 1987. Any property in the RE-2C, RE-2, RE-1, R-200, R-150, R-90 or R-60 zones which, prior to April 1, 1987, received preliminary plan of subdivision approval, and which contained lots attributable to the TDR regulations as they existed in this chapter prior to April 1, 1987, may continue to be developed in accordance with the requirements of the corresponding TDR zones at a density not to exceed the maximum densities set forth in section 59-C-1.332. Governmental approvals granted prior to April 1, 1987, for developments utilizing TDR's on property zoned in those zones shall remain and be in full force and effect at all times notwithstanding such property's subsequent rezoning to the RE-2C/TDR, RE-2/TDR, RE-1/TDR, R-200/TDR, R-150/TDR, R-90/TDR or R-60/TDR zones respectively. In addition, any building or structure constructed or to be constructed on a building lot in accordance with a TDR preliminary plan of subdivision approved for such property prior to April 1, 1987, shall not be considered nonconforming. Preliminary plan applications duly filed with and accepted as a completed filing by the Maryland-National Capital Park and Planning Commission on or before April 1, 1987, are deemed duly filed.

(Legislative History: Ord. No. 8-53, §§ 3-7; Ord. No. 8-54, §§ 1-4; Ord. No. 8-55, §§ 3-5; Ord. No. 8-58, §§ 2-5; Ord. No. 8-59, §§ 1-6; Ord. No. 68, § 1; Ord. No. 8-71, §§ 1-8; Ord. No. 8-74, § 1; Ord. No. 8-81, §§ 3, 4, 5, 6, 7, 8, 9; Ord. No. 9-2, § 1; Ord. No. 9-9, § 1; Ord. No. 9-15, § 2; Ord. No. 9-16, § 1; Ord. No. 9-20, § 1; Ord. No. 9-32, § 1; Ord. No. 9-58, § 1; Ord. No. 9-62, § 1; Ord. No. 9-63, §1; Ord. No. 9-74, § 3; Ord. No. 9-83, § 1; Ord. No. 9-89, § 1; Ord. No. 10-3, § 1; Ord. No. 10-6, § 3; Ord. No. 10-8, § 1; Ord. No. 10-13, § 4; Ord. No. 10-24, § 2; Ord. No. 10-29, §§ 2, 3; Ord. No. 10-31, § 2; Ord. No. 10-39, § 3; Ord. No. 10-40, § 1; Ord. No. 10-53, § 4; Ord. No. 10-58, § 2; Ord. No. 10-69, § 4; Ord. No. 10-74, § 1; Ord. No. 10-82, § 2; Ord. No. 10-85, § 2; Ord. No. 10-86, § 1; Ord. No. 11-4, §§3--5; Ord. No. 11-6, § 2; Ord. No. 11-14, § 2; Ord. No. 11-29, § 2; Ord. No. 11-33, § 2; Ord. No. 11-34, § 2; Ord. No. 11-36, § 1; Ord. No. 11-38, § 1; Ord. No. 11-40, § 2; Ord. No. 11-41, § 2; Ord. No. 11-42, § 1; Ord. No. 11-43, § 1; Ord. No. 11-61, § 3; Ord. No. 11-65, § 1; Ord. No. 11-67, § 5; Ord. No. 11-70, § 2; Ord. No. 11-72, § 2; Ord. No. 11-73, § 2; Ord. No. 12-1, § 1; Ord. No. 12-4, § 1; Ord. No. 12-22, § 2; Ord. No. 12-40, § 1; Ord. No. 12-43, §§ 1-3; Ord. No. 12-51, § 2; Ord. No. 12-53, § 1; Ord. No. 12-57, § 1; Ord. No. 12-59, § 1; Ord. No. 12-61, § 2; Ord. No. 12-71, § 1; Ord. No. 12-72, § 1; Ord. No. 13-1, § 5; Ord. No. 13-10, § 1; Ord. No. 13-12, § 2; Ord. No. 13-14, § 2, 3; Ord. No. 13-14, § 2; Ord. No. 13-21, § 2; Ord. No. 13-27, § 3; Ord. No. 13-28, § 1; Ord. No. 13-31, § 3; Ord. No. 13-34, § 1; Ord. No. 13-35, § 1; Ord. No. 13-47, § 2; Ord. No. 13-49, § 1; Ord. No. 13-69, §3; Ord. No. 13-75, §1; Ord. No. 13-98, § 5; Ord. No. 13-108, § 2; Ord. No. 13-110, § 2; Ord. No. 13-112, § 1; Ord. No. 14-25, § 2; Ord. No. 14-26, § 1; Ord. No. 14-36, § 1; Ord. No. 14-44, § 2; Ord. No. 14-47, § 1; Ord. No. 14-49, § 1; Ord. No. 14-66, § 1; Ord. No. 15-12, § 1; Ord. No. 15-21, § 3; Ord. No. 15-28, § 3; Ord. No. 15-38, § 1; Ord. No. 15-48, § 1; Ord. No. 15-53, § 3; Ord. No. 15-54, § 3; Ord. No. 15-70, § 1; Ord. No. 15-74, § 3; Ord. No. 15-82, § 1; Ord. No. 16-06, § 3; Ord. No. 16-19, § 1; Ord. No. 16-20, § 2; Ord. No. 16-31, § 3.; Ord. No. 16-50, § 1; Ord. No. 16-59, § 4; Ord. No. 17-07, § 1; Ord. No. 17-15, § 2; Ord. No. 17-28, § 3; Ord. No. 17-51, § 1.)

   Editor's note—Section 59-C-1.3 is cited in Montgomery County v. Rotwein, 169 Md. App. 716, 906 A.2d 959 (2006).  Section 59-C-1.327 is cited in Remes v. Montgomery County, 387 Md. 52, 874 A.2d 470 (2005).  Subsection 59-C-1.393 is cited in Pleasant Investments Ltd. Partnership v. Dept. of Assessments & Taxation, 141 Md. App. 481 (2001).  Section 59-C-1.3 is cited in Renzi v. Connelly School of the Holy Child, 2000 WL 1144595 (filed August 14, 2000).  Section 59-C-1.3, regarding “offices, professional nonresidential,” is cited in Custer Environmental, Inc. v. 9305 Old Georgetown Road Partnership, 345 Md. 284, 691 A.2d 1336 (1997), a landlord- tenant case.  Section 59-C-1.3 [formerly §§111-9 and 111-10] is interpreted in St. Luke’s House, Inc. V. Digiulian, 274 Md. 317, 336 A.2d 781 (1975).  Section 59-C-1.3 [formerly §111-12] is quoted in F & B Development Corporation v. County Council for Montgomery County, 22 Md.App. 488, 323 A.2d 659 (1974) and in Wahler v. Montgomery County Council, 249 Md. 62, 238 A.2d 266 (1968); and cited and described in O. F. Smith Brothers Development Corporation v. Montgomery County, 246 Md. 1, 227 A.2d 1 (1967); and cited in  Malasky v. Montgomery County Council, 258 Md. 612, 267 A.2d 182 (1970) and Bayer v. Siskind, 247 Md. 116, 230 A.2d 316 (1967).  Section 59-C-1.3 [formerly §§59-36, 59-41 and 59-42] is cited in Logan v. Town of Somerset, 271 Md. 42, 314 A.2d 436 (1974).  Section 59-C-1.3 [formerly §§111-9 and 111-10] is cited in Cohen v. Willett, 269 Md. 194, 304 A.2d 824 (1973).  Sections 59-C-1.3 to 59-C-1.6 [formerly §111-7] are quoted and interpreted in Gruver-Cooley Jade Corporation v. Perlis, 252 Md. 684, 251 A.2d 589 (1969); discussed in Leet v. Montgomery County, 264 Md. 606, 287 A.2d 491 (1972); and cited in Cabin John Limited Partnership v. Montgomery County Council, 259 Md. 661, 271 A.2d 174 (1970); in Marathon Builders, Inc. v. Montgomery County Planning Board of the Maryland- National Capital Park & Planning Commission, 246 Md. 187, 227 A.2d 755 (1967); and in Hertelendy v. Montgomery County Board of Appeals, 245 Md. 554, 226 A.2d 672 (1967). Section 59-C-1.3 [formerly §104-5(a)] is quoted in part in Creative Country Day School of Sandy Spring, Inc. v. Montgomery County Board of Appeals, 242 Md. 552, 219 A.2d 789 (1966).  Section 59-C-1.3 [formerly §59-44] is quoted in part in Kanfer v. Montgomery County Council, 35 Md.App. 715, 373 A.2d 5 (1977).  Section 59-C-1.3 [formerly §§111-5(a) and 111-7(a)] is cited in Montgomery County Council v. Kacur, 253 Md. 220, 252 A.2d 832 (1969).  Section 59-C-1.31 is cited in Custer Environmental, Inc. V. 9305 Old Georgetown Partnership, 345 Md. 284, 691 A.2d 1336 (1997).  Section 59-C-1.31(d) is cited in Pan American Health Organization v. Montgomery County, 889 F.Supp. 234 (D.Md. 1994).  Section 59-C-1.31 is cited in Pan American Health Organization v. Montgomery County, 338 Md. 214, 657 A.2d 1163 (1995)—Certified question to Court of Appeals of Maryland from the Fourth Circuit Court of Appeals inquiring whether Montgomery County had the authority to enact the zoning text amendment that had the effect of prohibiting PAHO from locating its headquarters in a residentially zoned area of the County.  The Court of Appeals held that the enactment was within the authority of the District Council to enact under the Regional District Act.  The Court further explained that PAHO was not a publicly owned or publicly operated use that would remain exempt from zoning restrictions, despite its status as a public international organization.  References to ZTA 93014 appear in the Zoning Ordinance at §§ 59-A-2.1, 59-C-1.31, 59-C-2.3, 59-C-4.2(e), 59-C-6.22(a) and (e), 59-C-7.5 and -7.52, 59-C-8.1, 59-C-8.3(a) and (d), and 59-G-2.00.  Section 59-C-1.39 is interpreted in West Montgomery County Citizens Association v. Maryland-National Capital Park and Planning Commission, 309 Md. 183, 522 A.2d 1328 (1987)—The provision in the Zoning Ordinance delineating the creation of transfer of development rights (TDRs) was analyzed by the Court of Appeals and found to involve an invalid exercise of legislative authority.  The provision did not establish the maximum density for the affected properties and violated the division between zoning and planning, procedurally and substantively.  The Court of Appeals invalidated the zoning decision concerning density of residential development because that decision was made by the District Council through the planning process, rather than through the zoning process mandated by State law.

   See County Attorney Opinion dated 4/26/99 explaining that a transfer of development rights easement continues to restrict development even when the underlying zoning of the property is changed.  See County Attorney Opinion dated 10/2/90 explaining that, without a main dwelling or a transferable development right to support it, no farm-tenant house may be constructed.

   Montgomery County's TDR program, now covered in §§ 59-C-1.33, -1.39 and also in §§ 59-C-9 and -10 (formerly treated in § 59-A-6.1 and §§ 59-C-11.1 through -11.5) is referred to in connection with a discussion of the County's growth policy in P. J. Tierney, Maryland's Growing Pains: The Need for State Regulation, 16 U. of Balt. L. Rev. 201 (1987), at p. 224.