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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)
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)
A. In addition to the process described in section 18.92.070, development rights may be transferred from a sending property to a receiving property by any of the following procedures.
1. Use of development agreements for transfers. At the option of the owner of a sending property and/or a receiving property, development rights may be transferred from a sending property to the receiving property in connection with a development agreement related to the sending or receiving property. To exercise this option, the owner of the sending and/or receiving property shall submit to the County an application for development approval reflecting a restriction on development (in the case of a sending property) or permitting additional residential dwelling units or increased commercial, institutional, or industrial gross floor area (in the case of a receiving property) together with a development agreement offering to transfer or submit development right certificates representing the amount of development being restricted or the amount of additional development being requested. In the event the board of supervisors approves the development agreement, development approvals related to the additional development described in the development agreement shall not become effective until the required development right certificates have been submitted and retired. A development agreement may cover all or a portion of the lands within a sending or receiving property, and may also include lands outside of a sending or receiving area, provided that the provisions relevant to transfer of development rights do not affect the lands outside the sending or receiving area. A development agreement may not be used to achieve transfers of development rights from any area that is not a sending property or transfers of development rights to any area that is not a receiving property.
2. Amendment of existing development agreement. A development agreement executed before the adoption of this chapter may be amended to include provisions for the transfer of development rights, provided that the terms of the development agreement as amended (a) addresses land in a mapped sending area and/or a mapped receiving area, and (b) are consistent with A.R.S § 11-821.03, and (c) are consistent with the terms of this chapter.
3. Simultaneous platting of adjacent receiving and sending properties under common ownership. If the receiving and sending properties are owned by the same entity, provision of necessary documentation identifying the areas to be protected on the sending property may occur at the time of subdivision or development plan review, provided that the property owner submits subdivision plats or development plans for both the receiving and sending properties for review at the same time, or a single plat or development plan for both properties, and the plat or development plan for the sending property identifies the areas to be preserved. Final approval of the subdivision plat or development plan for the receiving property shall not occur until the subdivision plat or development plan for the sending property is approved.
(Ord. 2007-7 § 1 (part), 2007)
A. If a transfer of development rights is completed pursuant to this chapter, all future land use decisions, such as rezonings, amendments or updates to the comprehensive plan, specific plans, variances or other actions that change the development potential of a sending property or receiving property by the County shall be consistent with the intent of the transfer.
B. No development approvals issued for a sending property shall have the effect of permitting development equivalent to or in replacement of any of the development rights previously severed. If a land use decision to allow additional development on the sending property is made following the severance and transfer of development rights, additional development shall be permitted only on those portions of the parcel not subject to the restrictive covenant(s), and the amount of development possible on the property shall be reduced below the amount that would otherwise be available by the amount of any development rights previously severed from the property.
C. No land use decision made after the approval of a transfer of a development right shall affect the owner's right to that transferred development right. For example, if (a) a property is approved for six dwelling units without the use of development rights and for seven dwelling units if a development right is acquired, and (b) the owner has acquired a development right and a development plan for seven dwelling units has been approved, but (c) a later land use decision reduces potential development to three dwelling units without development rights, then (d) the parcel shall still be permitted one additional dwelling unit, for a total of four dwelling units, through the use of the acquired development right.
(Ord. 2007-7 § 1 (part), 2007)
A. Appeal of boundaries or calculation of development rights: Decisions of the department regarding (1) the boundaries of any sending area or receiving area, (2) the estimate or calculation of development rights available for transfer from any sending property, (3) contiguity disputes, as noted in section 18.92.050(B)(1)(c), or (4) the estimate or calculation of development rights that may be used on a receiving property, may be appealed by the owner of any property proposing to sever or use development rights to the board of supervisors. The board of supervisors shall hear any such appeal at a public hearing. Additional information and submittal requirements for appeals may be found in the Pima County Transferable Development Rights Manual.
B. Reduction of required minimum densities: A reduction of the minimum densities for projects using development rights as required by the comprehensive plan may be approved by the board of supervisors if it is found that the receiving property contains environmental constraints such that the required minimum densities cannot be achieved. Applications for such reductions must be submitted by the receiving property owner and must include the information required by the Pima County Transferable Development Rights Manual. Request for such reductions shall be heard at a public hearing.
(Ord. 2007-7 § 1 (part), 2007)
The department is hereby authorized to develop forms and materials necessary to implement this chapter, including without limitation application forms, a form of restrictive covenant to be used on sending properties, and a Transferable Development Rights Manual that may contain material supplementing, and consistent with, the provisions of this chapter.
(Ord. 2007-7 § 1 (part), 2007)
A. Upon approval by the board of supervisors of any sending or receiving areas, the Pima County zoning maps shall be amended as follows:
1. For areas approved as sending areas, the designation "TDR-SA" shall be attached to the applicable zoning district. For example, if the underlying zoning district is RH, then the zoning map shall read "RH (TDR-SA)."
2. For areas approved as receiving areas, the designation "TDR-RA" shall be attached to the applicable zoning district. For example, if the underlying zoning district is SR, then the zoning map shall read "SR (TDR-RA)."
B. For properties on which a restrictive covenant has been recorded in accordance with this chapter: following the distribution of TDR certificates to the property owner severing development rights, the Pima County zoning maps shall be amended by attaching the designation "TDR-RC" to the applicable zoning district on the portion of the property subject to the restrictive covenant. For example, if the underlying zoning district on the land subject to the restrictive covenant is RH, the zoning map shall read "RH (TDR-RC)."
(Ord. 2007-7 § 1 (part), 2007)