AN INTRODUCTION TO TRANSFERABLE DEVELOPMENT RIGHTS 

Transferable Development Rights (TDRs) provide a land owner in one part of Berkeley County the opportunity to sell the rights to develop a parcel of land to a buyer in another part of the County.  How a land owner can use TDRs is based on where a person lives and where the development is planned.  Berkeley County’s Zoning Ordinance, which will go before the voters in May 2008, limits the amount of development in areas not served by public water to one dwelling for every three acres.  These areas are identified in the Zoning Ordinance as Rural Residential (R-R) and a portion of Low Density Residential (R-1).  Those portions of the County served by public water are permitted a greater density in terms of number of dwellings per acre.  The TDR Ordinance allows a land owner in areas not served by public water to sell their development rights to a buyer in an area served by public water.  TDRs can only be used in conjunction with a Zoning Ordinance and would not be available should Zoning fail to pass.  

The intent of this TDR Ordinance is to preserve farming, agriculture, natural resources, and facilitate orderly growth.  The TDR Ordinance establishes a fair method for the selling and buying of the TDRs.  The transfer of development rights must be both voluntary and price driven by individual parties. 

The determination of the number of development rights for a property involves first taking the acreage of the property and dividing by three (since one development right per three acres is allowed in R-R and a portion of R-1), round to the nearest whole number and then subtract the number of dwelling units already on the property.  A property owner can also obtain a Certificate of Development Rights from the Planning Department, as described in Section 102 of the TDR Ordinance, which verifies the number of TDRs allowed on a property. Once a property is determined eligible to transfer development rights, the property owner can than make a transaction with another party to sell those rights.  The person who sells those rights is called the “Transferor” and the Transferor’s property is then considered the “Sending Parcel”. 

The Berkeley County Zoning Ordinance designates areas throughout the County that can achieve a higher density with the purchase of TDRs. For example, in the High Density Residential (R-3) District nine dwelling units per acre is allowed but with the purchase of TDRs an additional nine and half units can be built.  The advantage of doing so is several.  It is less expensive to build to a higher density, concentrates growth to smaller areas, and places less stress on our infrastructure, i.e. roads, schools, and water.  When a TDR is sold, the party buying these rights is the “Transforee”, and the parcel which then uses the rights sold to increase density* is called the “Receiving Parcel”. This transaction of selling development rights is recorded in a deed called an “Instrument of Transfer” that is described in Section 103.d of the DRAFT TDR Ordinance and of which Appendix A provides an example. 

Once the transaction is complete, or the deed is recorded, the “Sending Parcel” is subject to all covenants and restrictions of the zoning district in which it resides.  Since the right to develop on the “Sending Parcel” has been sold and transferred elsewhere, covenants then restrict the property from further subdividing the property for development, but allows the property the right to be used for agriculture and/or conservation purposes, including agricultural or conservation subdivisions (See Section 103.d of the DRAFT TDR Ordinance). The property where the development rights were transferred to, or the “Receiving Parcel” can then proceed to develop at a higher density based upon the number of development rights that were purchased, but not more than allowed by the Zoning Ordinance.  Upon approval of the subdivision plans, the process of transferring development rights has been completed.  Figure 1 illustrates how the development rights from a “Sending Parcel” are utilized on a “Receiving Parcel”. Any development on the Receiving Parcel is subject to all applicable requirements set forth in the Subdivision Regulations. 

* Density can be increased for residential purposes OR square footage of commercial structures can be increased with the purchase of TDRs depending on the zoning district.  For further information consult the Proposed Berkeley County DRAFT November 2007 Zoning Ordinance.

Appendix A

DEED OF TRANSFERABLE DEVELOPMENT RIGHTS (TDR)

THIS DEED OF TRANSFERABLE DEVELOPMENT RIGHT made this _________ day of ________, 20__, by and between ___________________, herein referred to as GRANTOR and __________________ herein referred to as GRANTEE.

WHEREAS, pursuant to §7-1-3mm, Code of West Virginia, 1931, as amended, Berkeley County, West Virginia has established a transferable real property rights program and this instrument is the original instrument of transfer in that program.

THEREFORE,WITNESSETH, that for and in consideration of the sum of _______________ ($____), cash in hand paid, and/or other good and valuable consideration, the receipt and sufficiency of all which are hereby acknowledged, the said Grantor does hereby grant, bargain, sell and convey, with covenants as listed below, unto the Grantee, his/her/their heirs, personal representatives, successors and assigns those certain development rights, numbered _________and certified as set forth in Exhibit A, Certificate of Development Rights, for attachment to uses and in conjunction with the development of Grantee’s property situate in (name of receiving tax district), Berkeley County, West Virginia.  The development rights are originally attached to property situate in the (name of sending tax district), Berkeley County, West Virginia, described as:

METES and BOUNDS DESCRIPTION

AND being all of the real estate which was conveyed to ______________ by deed dated __________ from ______________ and recorded in the Office of the Clerk of the County Commission of Berkeley County, WV in Deedbook _______ Page ________.

The Grantor hereby acknowledges and covenants that upon this transfer, the Grantor’s property (sending parcel) is subject to the following covenants:

1.                  Grantor has no further use or right of use with respect to the development rights hereby transferred;

2.                  No further subdivisions of the sending parcel are permitted unless the subdivision is for agricultural or conservation purposes;

3.                  The sending parcel is restricted to and may be used only for conservation or agricultural uses, other than farm dwellings;

4.                  All provisions of the instrument of transfer shall run with and bind the sending parcel and may be enforced by the Berkeley County Planning Commission.