A. Development rights shall only be transferred pursuant to the procedures provided in this chapter, or to the optional procedures described in section 18.92.080 below. Application materials and forms required for these procedures are set forth in the Pima County Transferable Development Rights Manual, which is available from the department.
B. Written consent of sellers. Each of the owner(s) of the sending property shall execute an instrument provided by Pima County which conveys an interest in real property, and shall identify one or more development rights as the property interest being transferred, and shall include a legal description of the sending property and the number of development right(s) being transferred.
C. Sale or transfer transactions
1. Registration of transfer. The owner or purchaser of a development right shall present the signed instrument of transfer together with (1) a copy of the signed restrictive covenant required by section 18.92.060(C), showing the recording information and (2) evidence of ownership of the sending property, to the department, which shall maintain a register of all development rights sold. If any owner of record for the sending property, or any lienholder of record on the sending property, fails to sign the instrument of transfer or the restrictive covenant or notice, the County shall not register the sale representing the development rights identified in the instrument of sale.
2. Third parties and intermediaries. The buyer of a development right need not be the owner of a receiving property on which the development right will be used. Persons may purchase development rights for resale to owners of receiving properties, or in anticipation of the purchase of a receiving property, or for future resale, or to retire them from use.
3. Registration of each sale required. Upon the issuance of a development right certificate(s), that certificate shall represent the development right(s) severed from the sending property. A buyer of a development right(s) may sell or transfer that development right(s) to owners of receiving properties, or to third parties, through the sale and transfer of the development right certificate to the buyer. In order to track the purchase, sale, transfer and use of development rights, each successive purchaser of a development right certificate shall register the sale with the department as described in this section. Failure to register the resale of a development right certificate shall not invalidate the development rights associated with the certificate.
D. Use on receiving property
1. Eligibility of receiving property. When an owner of a development right(s) intends to use those development right(s) on a specific receiving property, the owner shall notify the department, and the department shall respond in writing within thirty (30) days to confirm whether the development rights may be used on the proposed receiving property. At the same time, the department shall review the register of development rights and confirm that the numbered development right certificates to be submitted have not been invalidated or replaced pursuant to subsection J below, and shall notify the applicant if there is any question as to the validity of the certificates proposed to be used on the receiving property. The Pima County Transferable Development Rights Manual may establish requirements for submission of information in order to determine eligibility for transfer.
2. Eligibility does not constitute development approval. The department's response shall not constitute development approval for the proposed development on the receiving property, and shall not obligate the County to approve development using some or all of the development rights requested by the owner. The proposed development using the transferred development rights must obtain all required development approvals, and conditions attached to those development approvals may prevent the use of all of the development rights requested.
3. Must use subdivision plat or development plan process.
a. Acquired development rights may be used only through the subdivision plat or development plan approval process. Building permits shall not be issued for construction through the use of acquired development rights on lots created through the lot split process unless a plat or development plan is approved for the use of the development rights. As part of any approval of a plat or development plan reflecting the use of acquired development rights, the County may require that the owner of the receiving property waive its rights to apply for lot splits on any lands included within the application.
b. Subdivision plats shall include a plat note prohibiting the creation of additional lots without replatting the entire subdivision. Development rights certificates for the additional lots must be submitted to the department and the subdivision shall conform to the comprehensive plan.
c. Development plans shall include a note prohibiting the creation of additional dwelling units without submitting a new development plan for the entire development. Development rights certificates for the additional units must be submitted to the department, the development plan shall conform to the comprehensive plan, and the development plan shall be recorded.
4. Submission of application materials. The owner of the receiving property shall submit all required applications for a plat or a development plan for the receiving property, and shall indicate the numbers of the development rights being used to increase the number of dwelling units above the amount otherwise permitted on the property.
5. In addition to the application materials otherwise required, the owner of the receiving property shall submit the development right certificate for each development right proposed to be used in the development, with the section identifying the owner(s) and lienholder(s) of the receiving property completed and signed by both the owner(s) and lienholder(s).
6. Submission of copy of recorded restrictive covenant. In addition to other materials required, the owner of the sending property shall submit a copy of the recorded restrictive covenant required by section 18.92.060(C).
E. Notice. At the time an application for development including transferred development rights is approved for a receiving property, the County shall notify each owner of a property adjacent to the receiving property. The notice shall identify the receiving property, the type of development approved in the application and the amount of development being accomplished through the use of transferred development rights.
F. Review and approval. The procedures for review and approval of an application including the use of transferred development rights shall be the same as those procedures that would apply if no transferred development rights were being used. A rezoning of the receiving property shall not be required for use of development rights consistent with the provisions of this chapter. In the event that the County approves the proposed development, the documentation of the approval shall include the numbers of the development right certificates used to support the number of residential dwelling units in the development.
G. Re-platting or re-approval for additional development. If the owner of a receiving property receives a plat or development plan approval including the use of development rights, and the owner subsequently wishes to file an application for a new plat or development approval to accommodate additional development on the receiving property (within the limits established in this chapter), the owner shall first provide written notice of the proposed application to the owners of lands located within the receiving property covered by the prior approval and who purchased their properties following the prior approval, and shall submit evidence of such notice with the new application.
H. Retirement of development right certificates. After all required development approvals have been obtained, and the full number of development rights used on the receiving property is known or upon the request of the owner of a development right certificate, the County shall retire those development right certificates by retaining those certificates and stamping them with the word "retired", by indicating in the register of development rights that the specific numbered development rights are no longer valid, and by identifying any receiving property development on which they were used.
I. Return of unused development certificates. Any development right certificates submitted with the application that are not approved for use on the receiving property shall be returned to the applicant within thirty (30) days of a final decision on the development application, and may be used or transferred for use on another eligible receiving property. In addition, if an applicant obtains approval of a plat or development plan incorporating development rights, and the owner of the land covered by that plat or development plan subsequently obtains approval for a revised plat or development plan incorporating less development, the County shall return to the applicant for such revised plat or development plan one development right for each dwelling unit that was previously approved, but that will no longer be developed under the revised approval.
J. Lost, destroyed, or stolen certificates. If a development right certificate is lost, destroyed, or stolen, the person appearing in the County register as the last owner of the development right certificate may apply to the County for the issuance of a replacement certificate. Upon receipt of the request, the County shall place a notice in a newspaper of general circulation at least one (1) time before taking action on the request. The notice shall inform the public of the numbers of the development right certificates alleged to have been lost, destroyed, or stolen, and that such development right certificates will be invalidated unless the department receives written information contesting the loss, destruction, or theft of those development right certificates within thirty (30) days after the date of the first newspaper notice. If written notice contesting the loss, destruction, or theft of the certificate(s) is received within such period, or the County receives other information questioning the loss, destruction, or theft of the certificate(s), the department shall refer the matter to the director of the department for determination of the ownership of the development right certificates involved. If no written notice is received within the required time, and if the County does not otherwise receive information questioning the loss, destruction, or theft of the development right certificate(s) within the thirty (30) days, the County shall invalidate the development right certificate(s) alleged to have been lost, destroyed, or stolen, through an entry in the County's register, and shall issue replacement development right certificates with different numbers to the person making the claim of loss, destruction, or theft.
K. Nothing in this chapter shall be construed to prohibit the severance and transfer of development rights from a sending property to a receiving property under common ownership or control.
L. Expiration of rights.
1. If this ordinance or the enabling statute is repealed, then the rights associated by the development rights certificates shall be effective for five (5) years after repeal under the terms of this ordinance.
2. The County shall notify registered development rights certificate owners of the repeal.
(Ord. 2007-7 § 1 (part), 2007)