18.92.030 Fee required.

As authorized by A.R.S. § 11-821.03, this chapter establishes a process by which potential development associated with one lot or parcel of land may be transferred to another lot or parcel of land in Pima County. The intent of this chapter is to provide property owners in defined "sending areas" with an additional economic use of their lands in order to encourage development to instead occur in defined "receiving areas" that comply with the adopted comprehensive plan. All such transfers of development potential shall be in compliance with the adopted comprehensive plan, as well as all other requirements of Title 18 of the Pima County Code to the extent that the other Code requirements do not conflict with the provisions of this Chapter.

(Ord. 2007-7 § 1 (part), 2007)

18.92.020 Definitions.

A. Definitions: For purposes of this chapter only, the following terms shall mean:

1. Comprehensive plan: The most recent adopted comprehensive plan of Pima County, including but not limited to any adopted amendments to or updates of the comprehensive plan, as well as any adopted special area policies or rezoning policies of the comprehensive plan.

2. Department: The Pima County development services department.

3. Development rights: The maximum development that would be allowed on a lot or parcel in the sending property under the Pima County comprehensive plan or zoning code applicable to the sending property in effect on the date this chapter is adopted, whichever provides greater density or intensity of use, or both, respecting the permitted use, area, bulk or height of improvements made to one or more lots or parcels.

4. Sending area: All those lands designated on the Pima County development rights sending area overlay map attached as Exhibit A to this ordinance. Each lot or parcel, or portion of a lot or parcel, contained within the sending area designated on that map qualifies as one or more of the following types of lands:

a. An "important riparian area", "biological core management area", "special species management area", or "critical landscape connection" designated in the Pima County conservation lands system, each of which qualifies as natural habitat; or

b. A "high noise or accident potential zone" of a "military airport" or an "ancillary military facility", as those three terms are defined in A.R.S. § 28-8461; or

c. A floodplain, geologic feature, recreation area or parkland, or land that has unique aesthetic, architectural or historic value.

5. Sending property: Any lot or parcel, or portion of a lot or parcel, contained in a sending area.

6. Receiving area: All those areas of Pima County designated on the Pima County development rights receiving area overlay map attached as Exhibit B to this ordinance.

7. Receiving property: Any lot or parcel, or portion of a lot or parcel, contained in a receiving area, within which development rights are increased under the comprehensive plan, a specific plan, if any, or the zoning code, whichever provides greater density or intensity of use or, if applicable, both, in effect prior to a transfer of development rights and an amendment to the comprehensive plan, specific plan, zoning code, or a rezoning of the property, whichever is required to implement the increase in development rights.

(Ord. 2007-7 § 1 (part), 2007)

18.92.030 Fee required.

Payment of an applicable development right registration fee in accordance with the adopted fee schedule is required as a condition of registering the sale of development rights severed from a sending property in accordance with this chapter. Payment of an applicable development right use fee in accordance with the adopted fee schedule is required as a condition of using development rights on a receiving property in accordance with this chapter.

(Ord. 2007-7 § 1 (part), 2007)

18.92.040 Calculation of development rights.

A. The number of development rights associated with a parcel shall be calculated as of the initial effective date of this ordinance. An owner of the parcel applies to the department for such a calculation, except as set forth in this section.

B. For purposes of this chapter only, the number of development rights associated with a sending property shall be the larger of:

1. One development right for each residential dwelling that could potentially be constructed on the sending property without a conditional use approval; or

2. One development right for each one hundred and eighty thousand (180,000) square feet of commercial, institutional, or industrial gross floor area that could potentially be constructed on the sending property without a conditional use approval; or

3. If both residential dwellings and non-residential floor area could potentially be constructed on the sending property without a conditional use approval, then the number of development rights shall be based on the mix of potential residential, commercial, institutional, and/or industrial development that could be developed as part of the same project, without a conditional use approval, that would maximize the number of development rights, calculated pursuant to subsections 1 and 2 above, on the sending property.

4. Notwithstanding the provisions of subsections 1, 2, and 3 above, if the owner of a sending property requests an amendment to the comprehensive plan applicable to the parcel in order to allow a higher level of development, the board of supervisors may, in its discretion, approve, deny, or approve the application with a provision that the owner shall not be able to further increase the amount of potential development rights for transfer.

C. For purposes of this chapter only, the amount of residential dwelling units and/or commercial, institutional, or industrial gross floor area that could potentially be constructed on a sending property shall be the larger of:

1. The amount of such potential construction based on the underlying zone as modified by any applicable overlay districts, pursuant to the zoning code; or

2. The amount of such potential construction based on the adopted comprehensive plan; or

3. The amount of such potential construction based on any adopted specific plan for the property.

D. Notwithstanding the provisions of subsection C above:

1. If all or any part of a sending property has been the subject of a prior rezoning for which the board of supervisors has adopted an ordinance and the rezoning was approved with conditions that specifically limit the number of dwelling units or the amount of commercial, institutional, or industrial floor area that can be developed on the property, then the number of development rights on such property shall be calculated in accordance with such conditions. However, if rezoning conditions have not been completed and the board of supervisors closes the rezoning case, the owner may proceed to calculate and transfer development rights pursuant to this chapter.

2. If the board of supervisors has not adopted an ordinance for the approved conditional rezoning, then the owner may withdraw the conditional rezoning, terminate the rezoning case, and proceed to calculate and transfer Development Rights pursuant to this chapter.

E. If the sending property already has development on it, then the calculation of development rights pursuant to subsections B, C and D above shall be reduced to reflect such existing development, so that the resulting calculation reflects only additional potential development available on the property.

F. If the sending property contains sensitive lands or other areas where development would not be permitted pursuant to (1) a past rezoning of the property, or (2) a Specific Plan applicable to the property or (3) requirements of the zoning code, then such areas shall not be counted in the calculations of Development Rights available on the property.

G. The owner of any sending property may request the department to document the total number of development rights associated with the sending property by delivering a written request to the department, and the department shall respond to such request within thirty (30) days.

H. The owner of any receiving property may request the department to document the total number of development rights that may be used on the receiving property, consistent with this chapter, by delivering a written request to the department, and the department shall respond to such request within thirty (30) days. The department's written response shall clarify that all, or none, or some of the development rights may be used on the proposed receiving property due to (1) zoning restrictions, or (2) the provisions of the adopted comprehensive plan applicable to the property, or (3) other conditions previously attached to the property through rezoning, subdivision, or development agreements, or (4) a provision of this chapter.

I. The documentation provided by the department pursuant to subsections G or H above shall be valid for a period of three years, absent further development or restriction of the sending or receiving property by the property owner or if the property owner applies for and receives a rezoning or an amendment to the comprehensive plan. The documentation provided pursuant to subsections G and H shall include a disclaimer reflecting the content of this subsection I.

(Ord. 2007-7 § 1 (part), 2007)

18.92.050 Conditions for severance and use of development rights.

A. In addition to compliance with all other provisions of this chapter, severance and use of development rights shall be subject to the requirements of this chapter. Pima County shall not recognize or register attempts to complete severance or use of development rights that do not comply with the following conditions.

B. Conditions on severance in sending areas

1. Partial transfers of development rights

a. The owner of a sending property may sever some of the development rights from that sending property, provided that the owner identifies the portion of the sending property from which all development rights have been severed, and upon which no future development shall be permitted. In the case of a partial transfer of development rights:

The ratio of A/B must be greater than or equal to the ratio of C/D where:

A = the acreage of the sending property protected from development by restrictive covenant;

B = the total acreage of the sending property;

C = the total number of development rights severed; and

D = the total number of development rights that would have been available on the sending property if no part of it had been developed.

For example, if the owner of a sending property that has 10 development rights, and no development has occurred on the sending property, and the owner chooses to sever only four of those 10 development rights, the owner shall identify at least 40% of the of the sending property as the area from which all development rights have been severed. The restrictive covenant (or notice of anticipated restrictive covenant) required by section 18.92.060(C) shall be applied to the area identified, and no further development of that area shall be permitted.

b. Where the Pima County Code provides that more development rights are available for severance and transfer than for development on the sending property, the ratio of land from which all development rights are removed shall be completed as set forth in subsection a above. The amount of development rights available for development on the remainder of the property shall be calculated without regard to any additional development rights that may have been available for transfer. For example, if a property has 24 development rights available for development, but 30 available for transfer, and the owner chooses to transfer half of the available development rights, the owner may transfer 15 development rights, provided that 50% of the sending property is restricted from further development. On the remaining 50% of the land, the owner may use one half of the development rights that would have been available for development, or 12 development rights.

c. In the case of each transfer of development rights from a sending property that does not include all of the development rights available for severance and transfer, the lands protected from future development through the restrictive covenant shall be located contiguous to either (i) any lands on the same sending property previously protected from development or (ii) any lands on adjacent parcels previously protected from development, if possible. If these contiguity requirements would be required with more than one adjacent area, the owner shall only be required to comply with one of the contiguity requirements, and the owner shall determine which of the contiguity requirements shall apply. In order to ensure that contiguity requirements are met, the County may require the applicant for transferable development rights certificate(s) to provide a title insurance report regarding surrounding parcels of land. If the owner believes that it is not possible to comply with any of the contiguity requirements, the owner may appeal the applicability of the contiguity requirements to the sending property pursuant to section 18.92.100.

d. Land subject to a restrictive covenant must be maintained as undisturbed open space unless the land, at the time of development right severance, is in use as grazing or agricultural land, in which case these uses, and all related ancillary structures, may continue.

2. Rocking K South sending area: No more than 500 development rights may be transferred from the Rocking K South sending area, located south of Old Spanish Trail.

C. Conditions on use in receiving areas: All development applications incorporating the use of transferred development rights shall comply with all development standards and dedication requirements applicable to the most restrictive zone that (1) allows the proposed uses as permitted or conditional uses, and (2) has a maximum development density or intensity equal to or greater than the development density or intensity shown in the application. At the owner's option, if there is another less restrictive zone that would allow the same gross density as the proposed development (including development rights) but would allow smaller individual lots the proposed development may instead comply with the development standards provided that the development is reviewed, based on guidelines in the Pima County Transferable development rights Manual, and approved by the design review committee.

1. All receiving areas: Additional conditions applicable to all receiving areas include the following:

a. Dedication of right-of-way as determined necessary by the Pima County department of transportation.

b. Cultural resources conditions:

i. Prior to ground modifying activities, an on-the-ground archaeological and historic resources survey shall be conducted on the subject property, and submitted to Pima County for review.

ii. Cultural resources mitigation plan for any identified archaeological and historic sites on the subject property shall be submitted to Pima County at the time of, or prior to, the submittal of any tentative plan or development plan. All work shall be conducted by an archaeologist permitted by the Arizona State Museum, or a registered architect, as appropriate.

c. Flood control district conditions:

i. Portions of properties within FEMA floodways and the brawley and black wash flow corridors may not be used for developments utilizing development rights.

ii. Prior to submittal of a subdivision plat or development plan, the property owner shall meet with the Pima County flood control district to determine if the property to be developed in accordance with this chapter is affected by any regulatory floodplains, and if so, what measures or studies may be necessary.

iii. During review of the subdivision plat or development plan, the flood control district may require that the proposed development be redesigned, and if necessary, that the number of proposed residences be reduced.

2. Rural receiving areas: Developments utilizing development rights in biological rural receiving areas must dedicate at least fifty-five percent (55%) of the development as natural open space. All other rural receiving areas must dedicate at least thirty percent (30%) of the development as natural open space. This dedication may also count towards the satisfaction of other open space requirements.

3. Rocking K South vicinity receiving area: No more than 500 development rights can be transferred to the receiving areas adjacent to the Rocking K specific plan, located south of Old Spanish Trail.

D. Notwithstanding the requirements of section 18.92.040 and sections 18.92.050(A), (B) and (C), development rights for an approved, undeveloped golf course that has no approved, underlying uses or zoning within an adopted specific plan may be either converted to residential uses on the golf course property, transferred to land adjacent to the specific plan property if under the same ownership, or may be considered a sending property provided the following requirements are met:

1. The development rights for the approved golf course shall be calculated at 2.5 residences per acres.

2. The dwelling unit cap of the approved specific plan shall not be exceeded.

3. A restrictive covenant must be recorded on the golf course property indicating that the rights to construct a golf course have been severed from the property.

4. All other requirements of this chapter must be adhered to, except that the open space required under Section 18.92.050(B) need not be provided if dwelling units are transferred from the golf course area. A restrictive covenant, as required by Section 18.92.060(C), must be recorded indicating the number of dwelling units transferred from the golf course.

(Ord. 2007-7 § 1 (part), 2007)

18.92.060 Severance and transfer of development rights.

A. Severance. The owner of any sending property may choose to sever one or more development rights from the sending property, and may sell such development right(s) to any person, at any price agreed upon between the buyer and seller, in accordance with the provisions of this chapter. Development rights may only be sold in increments of one (1) development right; fractional development rights may not be sold.

B. Transfer. The owner of a receiving property may choose to purchase one or more development rights from any person in order to increase the amount of development permitted upon the receiving property, at any price agreed upon between the buyer and seller, in accordance with the provisions of this chapter. Development rights may only be purchased in increments of one (1) development right; fractional development rights may not be purchased.

C. Restrictive covenant required

1. No transfer, sale or purchase of any development right shall create any rights to additional development on a receiving property unless and until a restrictive covenant meeting the requirements of this chapter has been recorded with the Pima County Recorder identifying the portion of the sending property restricted from future development and the number of development rights transferred.

2. Each of the owner(s) of the sending property shall execute either (1) the restrictive covenant meeting the requirements of this section, or (2) a notice that the owner(s) are attempting to sell development rights from the sending property, identifying the portion of the sending property from which all development rights will be severed, and that the seller(s) intend to execute a restrictive covenant meeting the requirements of this section no later than the date on which a transaction for the sale of development rights is completed. Each of the owners of the sending property shall execute the restrictive covenant or notice and the restrictive covenant or notice shall be recorded with the Pima County Recorder. No transfer of development rights shall be registered pursuant to section 18.92.070(C)(1) below until the recording of the restrictive covenant has been completed and evidence of such recording submitted to the County.

3. Written consent of lienholders. If all or part of the sending property is subject to one or more recorded liens, each lienholder must sign the instrument of transfer and the restrictive covenant or notice confirming its consent to the transfer of the development right(s) and the restriction of future development on the sending property.

4. The restrictive covenant shall be on a form provided by Pima County, shall be adequate to confirm that the portions of the sending property restricted from future development meet all applicable requirements of this chapter, and shall confirm that the potential development on the sending property has been reduced by an amount equal to the development rights sold. The restrictive covenant form shall, at a minimum, include all of the following clauses: (1) that the restrictions on development are for the benefit of the citizens of Pima County; (2) that the restrictions shall apply in perpetuity; (3) that the restrictions shall be non-revocable without the written consent of the board of supervisors and that consent requires approval by at least four members of the board of supervisors; (4) that the restrictions shall remain in effect notwithstanding any future annexation of any portion of the land by any municipality; and (5) that Pima County approves the restrictive covenant. The form shall be signed by the Director of the Department or his designee, the owner(s) of record for the sending property, and any lien holder(s).

5. The restrictive covenant shall be sufficient to preserve those characteristics of the sending property that made it eligible to be a sending property under A.R.S. § 11-821.03, and to bind the owner of the sending property and every successor in interest to such property to the preservation of those characteristics.

6. The County may require that the restrictive covenant permit entrance onto the property by the County or third parties for purposes of monitoring or documenting compliance with the terms of the restrictive covenant, but shall not require the owner of the sending property to allow public access to the parcel unless the owner consents to such provision.

7. If the County determines that restrictions on future development on the sending property, and enforcement of those restrictions can be accomplished as effectively through the use of plat notes as through a restrictive covenant, the County may authorize the use of plat notes wherever a restrictive covenant would otherwise be required by this chapter, provided that the area to be restricted from development is platted as common area.

8. The restrictive covenant shall be non-revocable without the written consent of at least four members of the board of supervisors.

D. Registration of development rights severed on sending properties. After the sending property owner records the restrictive covenant severing development rights on the sending property, the property owner shall register the severance with the department, which shall maintain a register of all development rights severed. The sending property owner shall present a copy of the signed restrictive covenant and a map, which shall, at a minimum, be drawn to scale and show the entire property and acreage from which development rights have been severed, the area and acreage to be restricted, and the number of development rights severed. If any owner of record for the sending property or any lienholder of record on the sending property fails to sign the restrictive covenant, the County shall not register the severance or issue a development right certificate representing the development rights identified in the restrictive covenant.

E. Issuance of development right certificate.

1. At the time a development right is registered with the County, the department shall issue one numbered development rights certificate for each development right severed.

2. The development right certificate shall contain a section identifying the property where the development right is intended to be used, the owner of the receiving property where the development right is intended to be used, and any lienholders on that receiving property, but this section need not be completed or signed at the time the development right certificate is issued.

F. Restricted lands excluded from calculation of development potential. Once a restrictive covenant has been recorded, any remaining development potential on the lands shall be calculated without regard to lands covered by the restrictive covenant. Land areas covered by the restrictive covenant may not be aggregated with any other lands for purposes of calculating gross development density possible on any remaining unrestricted lands. Lands covered by restrictive covenants cannot be used in calculating requirements for uses under the zoning code.

G. Increased development in receiving areas.

1. Development rights may be used to increase the number of residential dwelling units on a receiving property above the maximum permitted based on the zoning in which the receiving property is located, except as limited by the provisions of this chapter.

2. Each development right purchased shall, if the development application is approved, enable the construction of one (1) additional residential dwelling unit.

H. Maximum increase in development in receiving areas. The potential increase in development shall be limited to the smaller of the following:

1. The maximum amount of development permitted on the receiving property by the adopted comprehensive plan; or

2. The maximum amount of development permitted on the receiving property as a condition attached to a prior rezoning of the property; or

3. The maximum amount of development permitted pursuant to the provisions of section 18.92.050(C) above.

4. Notwithstanding the provisions of subsections 1, 2, and 3 above, if the owner of a receiving property requests an amendment to the comprehensive plan applicable to the parcel in order to allow a higher level of development, the board of supervisors may, in its discretion, approve, deny, or approve the application with conditions limiting the increase in density through the use of acquired development rights.

(Ord. 2008-2 § 1, 2008; Ord. 2007-7 § 1 (part), 2007)

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