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)