Chapter 20.89
DENSITY TRANSFER PROCEDURE

Sections:

20.89.010    Purpose.

20.89.020    Definitions.

20.89.030    General requirements.

20.89.040    Sending areas.

20.89.050    Receiving areas.

20.89.060    Procedures and requirements for certification and approval of transfer of development rights.

20.89.070    Exemptions from fees and other requirements.

20.89.080    Development rights bank.

20.89.090    Long plats.

20.89.010 Purpose.

The purpose of this chapter is to establish procedures for the transfer of development rights from one property to another. Where the applicable Comprehensive Plan policies and an appropriate overlay zone, or zoning map designation, provide the option for transfer of development rights (TDRs), the rights shall be transferred consistent with the requirements of this chapter, and the requirements of the sending areas and receiving areas as defined in this chapter and identified on the official Whatcom County zoning map.

The transfer of development rights from one property to another is allowed in order to provide flexibility and better use of land and building techniques; to help preserve critical areas, watersheds, and open space; to provide more equalization of property values between various zones than would normally be the case; and to work toward achieving county-wide land use planning goals, the objectives of subarea plans and of this title, and implementation of the goals, policies, and action plans of the Whatcom County Comprehensive Plan. (Ord. 2004-044 § 1; Ord. 2004-007 § 1, 2004; Ord. 2001-001 § 1, 2001; Ord. 99-087, 1999; Ord. 98-083 Exh. A § 60, 1998).

20.89.020 Definitions.

.021 “Development rights” means the residential building rights permitted to a lot, parcel or area of land based on the gross density, established pursuant to the official Whatcom County zoning map and this title, and measured in maximum dwelling units per developable acre. Where land is impacted by critical areas, as defined in WCC Title 16, development potential shall be demonstrated by the owner with consideration given to opportunities for cluster development.

.022 “Sending areas and parcels” means undeveloped or partially developed areas, designated on the official Whatcom County zoning map, or by further action of the county council. A sending parcel or site is one that is located within a designated sending area.

.023 “Receiving areas and parcels” means areas that are designated on the official Whatcom County zoning map, by further action of the county council, or are designated on official city zoning maps, which are eligible for higher density residential development through the transfer of development rights. A receiving parcel or site is one that is located within a designated receiving area. In the event that an area or parcel may be located within a designated receiving area and a designated sending area, that area or parcel shall not be eligible to receive TDRs and may only be eligible to sell/transfer TDRs.

.024 “Transfer units” means the additional number of dwelling units allowed on a receiving parcel, through the use of transfer of development rights.

.025 “In lieu payments” for purchase, sale or transfer of development rights means payment of funds to the development rights bank in lieu of the transfer of development rights from a sending area. The amount for in lieu payments shall be determined by the development rights bank oversight committee. (Ord. 2004-044 § 1; Ord. 2004-007 § 1, 2004; Ord. 2001-001 § 1, 2001; Ord. 2000-005 § 3, 2000; Ord. 99-087, 1999; Ord. 98-083 Exh. A §§ 61, 62, 1998).

20.89.030 General requirements.

.031 Development Rights. The residential development rights shall be considered as interests in real property.

.032 Transfer of Development Rights Permitted. The number of dwelling units certified to be built upon a sending parcel may be transferred and built upon a receiving parcel unless encumbered in a manner that prohibits or limits residential development. In approving a transfer of development rights pursuant to this chapter, the appropriate decision-making body must find that such a transfer is consistent with the Comprehensive Plan designation and zoning regulations of the receiving parcel. Such a transfer of development rights shall only be permitted to occur under the above circumstances, and according to the procedures, set out in this chapter.

.033 Transfer of Units. In any transfer of units, the sending parcel(s) may transfer all or a portion of its development rights to a receiving parcel or parcels, or sell its development rights to an individual, intermediate buyer, development rights bank, or entity. The transfer of development rights is prohibited if the development right is encumbered in a manner that prohibits or limits residential development.

.034 In Lieu Payments. Payments may be accepted by the development rights bank in lieu of the transfer of development rights from a sending area. In lieu payments shall be utilized by the development rights bank for purchase, sale or transfer of development rights. The development rights bank oversight committee shall establish procedures for the acceptance and utilization of in lieu payments. (Ord. 2004-044 § 1; Ord. 2004-007 § 1, 2004; Ord. 2001-001 § 1, 2001; Ord. 99-087, 1999; Ord. 98-083 Exh. A § 63, 1998).

20.89.040 Sending areas.

.041 Designation of Sending Areas. In addition to those areas which qualify as sending areas according to the official Whatcom County zoning map, the county council may approve additional sending areas. Such additional areas may be approved only through the process established for amendments to the official Whatcom County zoning map and pursuant to the procedures and requirements in Chapter 20.90 WCC, Amendments.

.042 Urban Residential (UR) and Rural Residential (RR) Sending Areas. For purposes of determining available TDRs only, parcels located within a designated sending area that are zoned UR, and which do not currently have public water and sewer service, shall be certified TDRs based upon the official zone density for a parcel with public water and sewer, regardless of whether public water and sewer service is currently available to the subject parcels. Sending parcels that are zoned RR, which currently have neither public water or sewer, shall be certified TDRs based upon the official zone density for an RR parcel that does have public water or sewer available. (Ord. 2004-044 § 1, 2004; Ord. 2004-007 § 1, 2004; Ord. 2001-001 § 1, 2001; Ord. 99-087, 1999).

20.89.050 Receiving areas.

.051 Designation of Receiving Areas. In addition to those areas which qualify as receiving areas according to the official Whatcom County zoning map, the county council may approve additional areas as receiving areas.

(1) Designated Receiving Areas. Such additional areas may be approved through the process established for amendments to the official Whatcom County zoning map and pursuant to the procedures and requirements in Chapter 20.90 WCC, Amendments.

(2) Rezones.

(a) Rezone requests for an area or parcel located within a designated urban growth area, that have been submitted pursuant to Chapter 20.90 WCC, shall be required to transfer development from a designated TDR sending area to obtain the requested density as a condition of approval. In order to obtain the requested density, one development right shall be transferred for every three additional dwelling units obtained through rezones within a designated urban growth area. The county council may modify this requirement if a development agreement has been entered into that specifies the elements of development within the rezone area. The development agreement should include, but not be limited to, affordable housing, density, allowed uses, bulk and setback standards, open space, parks, landscaping, buffers, critical areas, transportation and circulation, streetscapes, design standards and mitigation measures.

(b) Exceptions from requiring TDRs: rezones initiated by a government agency, rezone correction of map errors, establishing one zoning district on a property with two or more zoning districts, zoning revisions that are intended to make a nonconforming use a conforming use or rezones where the public interest is served.

(c) Rezones initiated by the county, cities or other agencies shall be subject to review by county and city planning staff, and the appropriate administrative bodies, to determine whether the subject site is appropriate for designation as a TDR receiving area.

(3) Expansion of Urban Growth Areas and Associated Rezones. Comprehensive Plan amendment requests, submitted pursuant to Chapter 20.10 WCC, Comprehensive Plan Amendments, that propose the expansion of an urban growth area boundary shall be required to transfer development rights from a designated TDR sending area.

(a) In order to obtain the requested urban growth area expansion, one development right shall be transferred for every five acres included into UGA. The county council may modify this requirement if a development agreement has been entered into that specifies the elements of development in the expanded UGA. The development agreement should include, but not be limited to, affordable housing, density, allowed uses, bulk and setback standards, open space, parks, landscaping, buffers, critical areas, transportation and circulation, streetscapes, design standards and mitigation measures.

(b) Exceptions from requiring TDRs: urban growth area expansion initiated by a government agency, correction of map errors, properties that are urban in character, or expansions where the public interest is served.

(c) Urban growth area expansions initiated by the county, cities or other agencies shall be subject to review by county and city planning staff, and the appropriate administrative bodies, to determine whether the subject site is appropriate for designation as a TDR receiving area.

(4) Cities. In cooperation with Whatcom County, cities may designate additional TDR receiving areas within their jurisdictional boundaries for the purposes of receiving transferred densities pursuant to this chapter.

Under the above provisions, the designation of additional TDR receiving areas shall be based upon findings that the area/site is appropriate for higher residential densities, is not limited by significant critical areas, and neighboring areas would not be significantly adversely impacted. If such areas are determined to be appropriate for designation as TDR receiving areas/sites, prior to development, parcel owners shall be required to purchase TDRs to attain the maximum gross density requested under the proposed zoning. The purchase of TDRs shall not be required until such time that the requirements of WCC 20.89.060 have been met.

(5) Water Resource Protection Overlay District. Development rights may be transferred within the Water Resource Protection Overlay District for an increase in impervious surface pursuant to Chapter 20.71 WCC.

.052 Receiving Area Eligibility.

(1) Bellingham Subarea Receiving Areas. Only development rights from the Lake Whatcom sending area may be transferred to receiving areas within the Bellingham subarea.

(2) Birch Bay Subarea Receiving Areas. Development rights from any sending area may be transferred to receiving areas within the Birch Bay subarea. (Ord. 2005-002 § 1, 2005; Ord. 2004-044 § 1, 2004; Ord. 2004-007 § 1, 2004; Ord. 2001-001 § 1, 2001; Ord. 99-087, 1999).

20.89.060 Procedures and requirements for certification and approval of transfer of development rights.

.061 Certification for Future Sale or Transfer. A TDR that is not associated with a pending development application and that is not proposed for transfer to another parcel at the time of application may be certified administratively by the Whatcom County planning and development services department. Upon satisfactory application for certification of TDRs for future sale or transfer, the number of TDRs on a sending area parcel shall be certified through the issuance of serially numbered individual certificates for each TDR verified for that parcel. The issuance of TDR certificates shall be recorded in the chain of title for the subject property. All certified TDRs and the value of such rights shall be deemed to be appurtenant to the sending area parcel until such rights are transferred by a recorded deed of transfer and a deed restriction is recorded.

.062 Intermediate Transfer. Certified TDRs may be approved administratively for transfer to another individual, intermediate buyer, development rights bank, or entity who may hold them for a period of time before the TDRs are transferred to a receiving area parcel. Under this provision, however, no certified TDR may be transferred to a receiving parcel and/or used in association with a development project without prior approval under the procedures established in this title for a transfer of development rights permit, and the appropriate WCC Title 21 subdivision regulations, as applicable. An intermediate transfer shall not be approved until the following has been accomplished:

(1) Execution and recording of an instrument legally sufficient in both form and content (using a form provided by the county) to effect such development right transfer. Said instrument shall include at minimum a legal description of the sending parcel(s) and the serial numbers of the certified TDRs being transferred.

(2) Recording of a deed restriction as specified by the county, on all of the sending parcels from which development rights are obtained. A copy of the recorded deed restriction shall be submitted to the planning and development services department who shall certify that all of the transferred development rights on each sending parcel are removed.

(3) The deed restriction shall be approved as to form by the prosecuting attorney. The document shall notify all owners and successors that the transfer and its concomitant restrictions shall run with the land and be binding upon all future owners. For all sending parcels, the deed restriction shall be sufficient to retire all transferred development rights upon the sending parcel in perpetuity.

.063 Initiation. An application for transfer of development rights to a receiving area parcel shall be initiated as follows:

(1) The process of transferring development rights shall be initiated by submittal of an application for a transfer of development rights permit (TDR permit) by the owner of the receiving parcel to the Whatcom County planning and development services department.

(2) An application for a TDR permit shall only be accepted for filing concurrently with an application for the associated development project pursuant to the requirements of the Whatcom County Code.

(3) The planning and development services department shall submit the TDR permit application to the appropriate decision-making body for discretionary approval concurrently with the proposed development project according to the procedures prescribed in the Whatcom County Code.

.064 Submittal Requirements. All requirements for a TDR certification, intermediate transfer or permit shall include the following:

(1) A map showing the location and boundaries of the receiving parcel and sending parcel as applicable;

(2) The acreage of the receiving parcel and sending parcel as applicable;

(3) The zoning and current allowable gross density of the receiving and sending parcels as applicable;

(4) A lot of record confirmation application;

(5) Written and notarized consent to the transfer from all registered owners and lien holders of record of all property subject to the transfer of development rights;

(6) A title report no more than 30 days old;

(7) A calculation of the number of units available to be transferred from the sending parcel and the total number of dwelling units requested to be transferred to the receiving parcel as applicable. Any fraction of a unit of 0.50 or greater shall be considered as a whole unit;

(8) Except for purposes of certification or transfer under WCC 20.89.061, all other submittal requirements for an application for the associated development project pursuant to the requirements of the Whatcom County Code; and

(9) The planning and development services department may require the submission of other data, information, or drawings as deemed necessary to accomplish the purposes of this chapter.

.065 Approval Process and Criteria.

(1) The procedures for approval of a TDR permit shall be the same as for approval of the associated development project pursuant to the requirements of the Whatcom County Code, except as exempted under WCC 20.89.061. The appropriate decision-making body may approve a TDR permit only upon making the following findings:

(a) The purposes and requirements of this chapter have been met; and

(b) The transfer will result in the permanent preservation of open space land; and

(c) The development rights have not been encumbered in a manner that prohibits or limits residential development.

(2) Approval of an application for a TDR permit is discretionary. The hearing examiner, county council, or planning and development services department may approve, deny, or conditionally approve such a permit, and may impose such conditions as it deems appropriate to accomplish the goals of this chapter and to mitigate any adverse impacts of such an application.

.066 Requirements for Final Approval. Approval of a TDR permit shall not be finalized until such times as the following have been accomplished:

(1) Final approval of the concurrent development project according to the provisions of the Whatcom County Code, except as exempted under WCC 20.89.061.

(2) Execution and recording of an instrument legally sufficient in both form and content (using a form provided by the county) to effect such development right transfer. Said instrument shall include at minimum a legal description of both the sending parcel(s) and receiving parcel(s), and the serial numbers of the certified TDRs being transferred.

(3) Recording of a deed restriction as specified by the county, on all of the sending parcels from which development rights are obtained. A copy of the recorded deed restriction shall be submitted to the planning and development services department who shall certify that all of the transferred development rights on each sending parcel are removed.

(4) The deed restriction shall be approved as to form by the prosecuting attorney. The document shall notify all owners and successors that the transfer and its concomitant restrictions shall run with the land and be binding upon all future owners. For all sending parcels, the deed restriction shall be sufficient to retire all transferred development rights upon the sending parcel in perpetuity. (Ord. 2004-044 § 1; Ord. 2004-007 § 1, 2004; Ord. 2001-001 § 1, 2001; Ord. 99-087, 1999).

20.89.070 Exemptions from fees and other requirements.

.071 A development project which relies upon a transfer of development rights shall comply with all other applicable requirements of the Whatcom County Code for such a project. However, in order to encourage the use of the transfer of development rights program, projects containing approved transfer units may be exempted from certain fees and requirements normally imposed by the county. Such exemption may be appropriate because there is a clear public benefit to be gained through the program in the preservation of valuable environmental and/or open space resources. In addition, exemptions from certain county fees will prevent a duplication of requirements for owners of receiving parcels who are providing open space and/or water quality protection through the purchase of transferable development rights. Any such exemptions shall only be granted pursuant to the procedures set out in this section.

.072 Upon application for a TDR permit, the applicant shall be granted a 25 percent reduction for all lot review fees required pursuant to the Whatcom County uniform fee schedule, excluding recording fees administered by the Whatcom County auditor’s office.

.073 In conjunction with the TDR permit, an applicant may also be granted the following reductions/increases: (1) a 30 percent reduction, or total exemption, from the minimum landscaping requirements, as applicable; and (2) a 15 percent increase in total allowable lot coverage, upon showing that such a reduction/increase will not adversely impact project residents, adjacent residents, or the character of the adjacent neighborhood. Any such reduction/increase is discretionary and shall be approved by the appropriate decision-making body in conjunction with its review of the TDR permit and project application. (Ord. 2004-044 § 1; Ord. 2004-007 § 1, 2004; Ord. 2001-001 § 1, 2001; Ord. 99-087, 1999).

20.89.080 Development rights bank.

.081 Whatcom County may create a development rights (DR) bank to facilitate the exchange of development rights. Establishment of a DR bank does not preclude private party transactions.

(1) The DR bank may purchase or sell development rights.

(2) The DR bank may hold TDRs for any length of time.

(3) The DR bank may accept in lieu payments for transfer of development rights.

(4) The DR bank may accept donations of development rights.

.082 A DR bank oversight committee shall be established. The committee shall consist of five members and shall be appointed by the county executive and confirmed by the county council. Each member shall be a resident of Whatcom County and shall represent relevant areas of expertise. The terms of office for the DR bank members shall be four years and be staggered.

(1) The DR bank oversight committee shall establish procedural and substantive rules to govern its powers, duties and functions subject to approval by the county council. The county council may adopt the rules by resolution.

.083 The DR bank oversight committee shall be empowered to make recommendations regarding:

(1) The purchase, sale of DRs and receive or hold DRs.

(2) In lieu payments for transfer of development rights if no development rights are available.

(3) The application for, and acceptance of, grants for the DR bank’s authorized purpose.

(4) The donation of funds or development rights.

(5) Negotiations, a competitive bid process or any other method considered fair and equitable by the oversight committee subject to the approval of county council. The county council may adopt the method by resolution.

(6) Determining the price of development rights purchased from or sold to the DR bank and the amount of in lieu payments to the DR bank. (Ord. 2004-044 § 1; Ord. 2004-007 § 1, 2004).

20.89.090 Long plats.

The following development standards may be modified by the hearing examiner when TDRs are utilized to increase density:

(1) The minimum lot size, lot width and yard requirements of the underlying zone district may be modified provided the project utilizes transferable development rights.

(2) Building Spacing and Setbacks. The spacing between main buildings shall be at least equivalent to the spacing which would be required between buildings similarly developed on separate parcels conforming to the underlying zone district’s setback requirements. This spacing and setback requirement may be reduced when transferable development rights are utilized and when it is demonstrated that:

(a) Compensating design and/or structural measures are used to ensure the protection of the users’ and inhabitants’ (of the development) health, safety and welfare, and compatible with the surrounding neighborhood, including but not necessarily limited to visual and acoustical privacy, structural separations and requirements to meet fire codes and adequate light and air; and

(b) Any perimeter treatment required by WCC 20.85.104 is met.

(3) Maximum Coverage. Building coverage and development coverage of individual parcels may exceed the percentage permitted by the underlying zone if transferable development rights are utilized to increase density; provided, that the overall coverage of the project as a whole does not exceed the percentage permitted by the underlying zone or applicable overlay district.

(4) Lot Width. Where the design is such that adequate light, air and privacy can be provided, especially for living spaces and bedrooms, a narrower lot width may be permitted.

(5) Circulation and access provisions shall be appropriate to the scale of the project and to anticipated traffic characteristics, and consistent with the requirements of Whatcom County road standards unless a reduced standard is approved by the county road engineer and transferable development rights are utilized to increase density.

(6) Driveways and circulation roadways shall be designed to minimize traffic and congestion within the project and where consistent with the standards to minimize the amount of paving.

(7) Parking shall be provided as required in Chapter 20.80 WCC. However, where it can be demonstrated by the applicant that due to nonconflicting hours of operation, design of the circulation and parking plan, or any other factor reasonably related to the need for parking, the total parking requirement can be reduced. The hearing examiner may do so provided legal notice of the application specifies that such reduction has been requested. (Ord. 2004-044 § 1, 2004).