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)