Chapter 18.36
TRANSFER OF DEVELOPMENT RIGHTS (TDR)

Sections:

18.36.010    Purpose.

18.36.020    Sending sites.

18.36.030    Granting and measuring development rights.

18.36.040    Sending site future development limitations.

18.36.050    Eligible receiving sites.

18.36.060    Procedure overview.

18.36.070    Certificate of development rights.

18.36.080    TDR conservation easement.

18.36.090    Deed of transfer of development rights.

18.36.100    Extinguishment document.

18.36.110    Transfer process.

18.36.120    Public notice.

18.36.130    Documentation of restrictions.

18.36.140    Administration of TDR program.

18.36.150    Administrative rules.

18.36.160    Expiration of TDR program.

18.36.170    Effective date.

18.36.010 Purpose.

The purpose of the city of North Bend TDR program is to provide a voluntary, incentive-based process to purchase and sell private residential and commercial development rights from lands that provide public benefit. Landowners who sell development rights receive a financial benefit without having to develop or sell the land itself. The permanently preserved land is then protected through conservation easements or additional restrictions. The development rights are transferred from the property that is preserved, known as a “sending site,” to a second property, known as a “receiving site.” The TDR provisions are intended to protect critical areas, to supplement land use regulations, and to increase residential and commercial development density where it can be accommodated with the fewest impacts on the environment and existing public services by:

A. Providing an effective and predictable incentive process for property owners of critical areas in order to preserve these lands for the public benefit; and

B. Providing an efficient and streamlined administrative review process to ensure that transfers of development rights to receiving sites are evaluated in a timely manner, are balanced with city goals and policies, and are adjusted to the specific conditions of each receiving site. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.020 Sending sites.

A. The “sending site” means the portion of a lot or lots qualified under subsections (B)(1) through (B)(4) of this section. If the sending site consists of more than one tax lot, the lots must be contiguous. For purposes of this section, lots divided by a street are considered contiguous if the lots would share a common lot line if the street were removed.

B. Sending sites shall be qualified to transfer development rights if the sending site is in private ownership and is designated in the North Bend comprehensive plan under one of the following criteria:

1. Critical areas and their buffers as required by the municipal code including rivers, streams, floodways, channel migration zones, and wetlands;

2. Agricultural land;

3. Forest land;

4. Within the urban separator overlay zone and land zoned LDR or NB.

C. Urban separator and resource land sending sites, excluding critical areas on the site, may transfer density consistent with a zoning classification as follows:

1. Low-density residential (LDR) equals four dwelling units per acre.

2. High-density residential (HDR) and cottage residential (CR) equals eight dwelling units per acre.

3. Downtown commercial (DC) equals 12 dwelling units per acre.

4. Interchange commercial (IC) equals 12 dwelling units per acre.

5. Interchange mixed use (IMU) equals 10 dwelling units per acre.

6. Neighborhood business (NB) equals eight dwelling units per acre.

7. Employment park one (EP-1) equals 12 dwelling units per acre.

8. Employment park two (EP-2) equals 12 dwelling units per acre.

D. Critical area sending sites, including critical area portions of urban separator and resource land sending areas, may transfer 25 percent of the density consistent with their zoning classification as outlined above.

E. For purposes of transfer of development rights, the transferable area of a sending site property shall be determined by subtracting from the total area of the sending site the areas of the sending site occupied by:

1. All existing and proposed structures including accessory structures;

2. Areas encumbered by easements;

3. The minimum lot area including required minimum setbacks;

4. Septic system and reserve areas;

5. Parking areas;

6. Storm drainage areas;

7. Compensatory flood storage;

8. Landscaping areas per zoning code; and

9. Submerged lands.

F. Sending site properties shall retain a minimum lot size of 5,000 square feet and a minimum of one dwelling unit (DU) of development on a parcel to provide an opportunity for continuing or future use of the site to provide a mechanism to maintain the property. The requirement to retain one dwelling unit (DU) on a parcel will be waived if:

1. The site consists exclusively of critical areas as defined in NBMC 14.05.020; or

2. The site is dedicated to a public or nonprofit agency for ownership and/or maintenance as open space; or

3. The parcel is combined with another parcel that does retain one dwelling unit (DU) via a lot line adjustment.

G. Sending site properties within the urban separator overlay district and the interchange mixed use (IMU) zoning district may transfer density consistent with the zoning classification as shown on the current city of North Bend official zoning map, subject to the limitation that all undeveloped density rights on a parcel shall be transferred, except as provided in subsections E and F of this section.

H. For the purposes of the TDR program, “acquisition” means obtaining fee simple rights in real property, or a less than a fee simple right in a form that preserves in perpetuity the public benefit supporting the qualification of the property as a TDR sending site.

I. A sending site property shall be eligible to transfer development rights if it is in private ownership and meets all of the following criteria:

1. The land is undeveloped, vacant, or used for agricultural or forestry, other than one dwelling unit, if required by subsection F of this section; and

2. The development rights have not been sold, transferred, or limited by easements, deed restrictions, or similar measures, as outlined in subsection E of this section.

J. Critical area sending sites shall be maintained in an undisturbed state subject to an approved native growth protection easement, except where modified to enhance the beneficial function of the critical area pursuant to an approved mitigation plan developed in compliance with the critical area ordinance. Agricultural or forest resource land sending sites designated in the comprehensive plan shall be maintained as resource lands subject to an approved resource management plan. Sending sites within the urban separator overlay zone shall be maintained in an undeveloped state subject to an approved open space plan.

K. If a sending site has any outstanding code violations, the person responsible for code compliance shall resolve these violations, including any required abatement, restoration, or payment of civil penalties, before a TDR sending site may be qualified. However, the community services director may qualify and certify a TDR sending site with outstanding code violations if the proposal is in the public interest. (Ord. 1464 § 1 (Exh. A (part)), 2012; Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.030 Granting and measuring development rights.

A. Sending Site – Calculation of Gross Acreage.

1. The total available development rights from the sending site property are based upon the gross acreage of the site and the gross acreage of critical areas present on the site that limit any development.

2. The sending site property owner shall receive the number of development rights (per gross acre of the property) based upon the development rights factor of the sending site property. For each fraction of a gross acre of land that meets the requirements for qualified sending site properties, the owner shall receive a fraction of the development rights in the same proportion that the fraction of an acre makes upon the gross acre of the property, with any adjustments. The following formula shall be used to calculate the number of development rights:

D = N × F + S (.25)

D    =    The number of development rights the sending site property owner shall receive.

N    =    Total net acres (including a fraction of an acre) of land meeting the requirements of eligible sending site properties. The net acres are the gross acres less the critical areas acres.

F    =    Development rights factor set for the type of zoning in which the property is located. The property classification development rights factor (F) for each gross acre of land within each zoning district as established in NBMC 18.36.020(C).

S    =    Total critical areas acres. The critical area acres are the gross acres less the net acres.

(.25)    =    Critical areas factor.

B. Sending Site Calculations.

1. The number of residential development rights that a sending site is eligible to send to a receiving site shall be determined by applying the TDR sending site base density established in NBMC 18.36.020(C) to the area of the sending site after the following has been deducted:

a. Any portion of the sending site already encumbered as defined in NBMC 18.36.020(E) and (F).

b. Other areas required by the city of North Bend to remain undeveloped.

2. Any fractions of development rights determined pursuant to subsection (A)(2) of this section shall only be applicable to use on commercial properties.

3. For purposes of calculating the amount of development rights a sending site can transfer, the amount of land contained within a sending site shall be determined as follows:

a. If the sending site is an entire tax lot, the square footage or acreage shall be determined:

i. By the King County department of assessments’ records; or

ii. By a survey that has been prepared and stamped by a surveyor licensed in the state of Washington;

b. If the sending site is a portion of a tax lot, the square footage or acreage shall be determined by a survey that has been prepared and stamped by a surveyor licensed in the state of Washington; and

c. If the sending site consists of a lot that is divided by a zoning boundary, the square footage or acreage shall be calculated separately for each zoning classification. The square footage or acreage within each zoning classification shall be determined by the city of North Bend record of the action that established the zoning. When such records are not available or are not adequate to determine the square footage or acreage within each zoning classification, the city of North Bend shall determine the square footage or acreage from a survey, provided by the applicant that has been prepared and stamped by a surveyor licensed in the state of Washington.

4. A sending site shall be entitled to send at least one development right for every legal lot created on or before July 1, 2003, if one development right is greater than the number of development rights determined under subsection A of this section.

5. A residential dwelling unit may be converted to a commercial or industrial use at a ratio of one dwelling unit (residence) to authorize an additional 2,000 square feet of building area for commercial or industrial use. Commercial or industrial square footage may be converted to residential dwelling units at a ratio of one dwelling unit per 2,000 square feet of floor area.

6. Development rights from one sending site may be allocated to more than one receiving site and one receiving site may accept development rights from more than one sending site.

7. A determination of the number of residential development rights a sending site has available for transfer to a receiving site shall be valid for transfer purposes only, shall be documented in a TDR certificate letter of intent, and shall be valid for a specific term set forth on the certificate. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.040 Sending site future development limitations.

Following the transfer of development rights from a sending site, the portion of the lot or lots not designated as a sending site may accommodate development on the buildable portion of said lots, consistent with the zoned base density provisions in the NBMC and other city of North Bend development regulations. For sending sites in the urban separator zone, the subdivision potential remaining after a density transfer may only be actualized through a clustered subdivision, short subdivision, or binding site plan that creates a permanent preservation tract as large or larger than the portion of the subdivision set aside as lots. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.050 Eligible receiving sites.

A. The city of North Bend eligible receiving sites are those designated areas of the city where new growth is encouraged under the Growth Management Act and the city of North Bend comprehensive plan goals and policies. The receiving sites have existing facilities and services or will have public investments in facilities and services in the near future. The eligible receiving site properties shall be limited in the TDR program to properties designated as receiving sites on the attached map (Exhibit A).

B. Except as provided in this chapter, receiving site developments shall comply with all applicable zoning code provisions for the receiving zone site.

C. Receiving sites may accept development rights from one or more sending sites up to the maximum density permitted as follows:

1. Low-density residential (LDR) equals 10 dwelling units per acre.

2. High-density residential (HDR) equals 24 dwelling units per acre.

3. Downtown commercial (DC) equals 24 dwelling units per acre.

4. Interchange commercial (IC) equals 24 dwelling units per acre.

5. Interchange mixed use (IMU) equals 20 dwelling units per acre.

6. Neighborhood business (NB) equals 16 dwelling units per acre.

7. Employment park one (EP-1) equals 24 dwelling units per acre.

8. Employment park two (EP-2) equals 24 dwelling units per acre.

D. Purchase of a TDR is not a guarantee of use; the use is subject to all other applicable development regulations. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.060 Procedure overview.

The process of acquiring, conveying, and recording development rights includes:

A. The issuance of certificates of development rights with assigned serial number by the community services director;

B. The approval by the community services director and recording of a TDR conservation easement;

C. The recording of a deed transferring ownership of the development rights; and

D. The recording of an extinguishment document. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

Exhibit A

18.36.070 Certificate of development rights.

A. Certificate. The community services director, upon request of the sending site property owner, may issue a certificate of development rights to the landowners for the eligible land meeting the standards of this chapter.

B. The community services director shall be responsible for determining the qualification of sending sites. Determinations on sending site certifications made by the community services director may be appealed per Chapter 20.06 NBMC to the hearing examiner. The decision of the hearing examiner shall be final. The community services director shall be responsible for preparing a written report on the sending site determination and documenting the review and decision on the sending site qualification. The community services director shall issue a TDR certification letter in a timely manner after submittal of a completed sending site certification application.

C. Responsibility for preparing a completed application rests exclusively with the applicant.

D. Written Request. The property owner of a qualified sending site shall prepare a written application for a certificate of development rights. The community services director shall review said application. Application for sending site certification shall include:

1. A legal description of the site;

2. A title report;

3. A brief description of the site resources and public benefit, as defined by NBMC 18.36.020(B), to be preserved;

4. A critical area study prepared pursuant to Chapter 14.05 NBMC that identifies those critical areas defined in NBMC 18.36.020(B). The community services director may administratively waive the critical area study upon a written finding that it is not necessary to satisfy the objective of the TDR code;

5. A site plan prepared, stamped, and signed by a surveyor duly licensed by the state of Washington, showing property lines, the zoning classification, the proposed conservation easement area, all areas required by NBMC 18.36.020(E) and (F) to accommodate the existing or proposed uses;

6. Installation of signs of demarcation per NBMC 14.05.135 and 14.05.140 may be required for critical area easements or to identify critical area tracts;

7. Assessor’s map or maps of the lot or lots;

8. A statement of intent indicating whether the property ownership, after TDR certification, will be retained in private ownership or dedicated to the city of North Bend or another public or private nonprofit agency;

9. Any or all of the following written in conformance with criteria developed pursuant to NBMC 18.36.150:

a. For critical area sending sites, a plan for maintenance in an undisturbed state subject to a native growth protection easement; if, however, a critical area is severely degraded, the application shall include a plan to enhance the beneficial function of the critical area via a mitigation plan developed in compliance with the critical area ordinance;

b. For agricultural or forest resource lands designated in the comprehensive plan, a plan to maintain the resource lands in resource use subject to a resource management plan;

c. For sending sites within the urban separator overlay zone, a plan to maintain the land in an undeveloped state subject to an approved open space plan;

10. A completed density calculation worksheet for estimating the number of available development rights; and

11. An application fee consistent with the city fee schedule.

E. Quantity. The certificate of development rights shall state the quantity of development rights allocated to the sending property. The calculation of the quantity of development rights allocated to a sending site shall be based upon the existing use and condition as of the date of application.

F. Sale. Prior to or concurrent with development rights being offered for sale, lands with transferable development rights shall have a certificate of development rights issued. Upon receipt of the certificate of development rights, the property owner may transfer the development rights to any person or legal entity. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.080 TDR conservation easement.

A. When an agreement has been reached between the seller and buyer of the development rights, the seller shall in writing inform the community services director of the pending sale.

B. Prior to the transfer of the development rights, the seller shall record a TDR conservation easement approved by the city of North Bend on the property from which the development rights are being sold. The TDR conservation easement shall include a legal description of the property from which the development rights will be transferred, be approved by the community services director and the city attorney, and be executed by the owners of the eligible sending area property. The approved TDR conservation easement shall be recorded in King County’s real property records by the buyer with evidence of same transmitted to the city clerk of the city of North Bend.

C. After granting the TDR conservation easement to the city of North Bend the development and use of the property on which the TDR conservation easement is recorded shall comply with the TDR conservation easement. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.090 Deed of transfer of development rights.

A. The deed transferring development rights, as approved by the community services director, shall be executed by the selling and purchasing parties and recorded with the King County records and elections division. The purpose of the deed is to confirm that a developer or investor has purchased the development right. A copy of the recorded document shall be filed with the King County assessor’s office and the city of North Bend city clerk.

B. The deed shall include the recording number(s) of the TDR conservation easement for the rights being transferred, and a legal description of the land from which development rights are taken.

C. The deed may verify the transfer of the development rights to a receiving parcel in lieu of the requirement for an extinguishment document. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.100 Extinguishment document.

A. The extinguishment document shall identify the development rights relinquished by sending property and the development rights acquired by receiving property.

B. The extinguishment document may be combined with the deed of transfer if the receiving site and project are identified. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.110 Transfer process.

Development rights shall be transferred using the following process:

A. Following review and approval of the sending site application by the community services director as described in this chapter, the director shall issue a TDR certificate letter of intent, agreeing to issue a TDR certificate in exchange for the proposed sending site conservation easement. The sending site owner may then market the TDR sending site development rights to potential purchasers. If a TDR sending site that has been reviewed and approved by the community services director changes ownership, the TDR certificate letter of intent may be transferred to the new owner if requested in writing to the community services director by the person or persons that owned the property when the TDR certificate letter of intent was issued; provided, that the documents evidencing the transfer of ownership are also provided to the director of community services.

B. An application for approval of a receiving site shall include one of the following:

1. A TDR certificate letter of intent or certificate issued in the name of the applicant; or

2. A TDR certificate letter of intent or certificate issued in the name of another person or persons and a copy of a signed option to purchase those TDR sending site development rights.

C. An application for a receiving site shall be reviewed and approved or denied by the community services director.

D. When the receiving site development proposal requires a public hearing under this title or NBMC Title 20 or its successor, the reviewing authority shall have the sole authority to approve or deny the application for use of TDRs in conjunction with development of the receiving site. Any appeals of the TDR application shall be reviewed under the same appeal procedures applicable to the underlying development proposal.

E. When the development proposal does not require a public hearing under this title or NBMC Title 20, the TDR application shall be considered along with the development proposal, and any appeals of the TDR application shall be considered under the same appeal procedures applicable to the underlying development proposal.

F. Development rights from a sending site shall be considered transferred to a receiving site when a final decision is made on the TDR receiving area development proposal, the sending site is permanently protected by a completed and recorded land dedication or conservation easement, notification has been provided to the King County assessor’s office and a TDR extinguishment document has been provided to the community services director for the city of North Bend.

G. Following land use permit approval on the receiving site, the TDR certificate shall be presented at the time of building permit application. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.120 Public notice.

Public notice for land use decisions involving parcels which are TDR receiving sites shall be provided consistent with the provisions of the NBMC for the underlying land use or construction permit. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.130 Documentation of restrictions.

A. Following the transfer of development rights from a sending site, deed restrictions documenting the development rights transfers shall be recorded by the city of North Bend at the King County assessor’s office and notice of the new development restrictions shall be noted on the title of the sending site parcel.

B. A conservation easement approved by and granted to the city of North Bend shall be required for land contained in the sending site. A map shall document the conservation easement. The conservation easement may be placed on the entire lot or lots or only the portion of the lot or lots that is qualified as the sending site. The conservation easement shall indicate the portion of the lot or lots restricted from future residential development, or limitations on future residential and nonresidential development within the conservation easement, whether or not the land is dedicated, as follows:

1. A conservation easement, which contains the easement map, shall be recorded on the entire sending site to indicate development limitations on the sending site;

2. For a sending site qualifying as critical area, the conservation easement shall be placed on the portion of the lot or lots needed for habitat protection. The conservation easement shall allow for restoration, maintenance, or enhancement of native vegetation. A present conditions report shall be required to document the location of native vegetation. If residential development will be allowed on the site under the conservation easement, the present conditions report shall be used to guide the location of residential development; and

3. For a sending site that is designated agricultural or forest land, the conservation easement shall encumber the entire sending site. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.140 Administration of TDR program.

The community services director shall administer the TDR program fund and execute purchases and sales of development rights in a timely manner consistent with policy set by the TDR program. These responsibilities include, but are not limited to:

A. Keeping records of the dates, amounts and locations of private development rights purchases and sales;

B. Assisting private development rights purchases and sales and approve conservation easements; and

C. Providing annual summary reports of TDR program activity. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.150 Administrative rules.

The department of community development shall have the authority to adopt administrative rules not inconsistent with Chapters 14.05 through 14.12 NBMC and this chapter as necessary to implement the provisions of this chapter. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.160 Expiration of TDR program.

The transfer of development rights (TDR) program will expire five years from the time of exit of the water moratorium. Any development rights transferred in the TDR program shall be permanent. The TDR program shall be reviewed as part of the 2004 comprehensive plan and development regulation amendments. At any time prior to expiration, the TDR program can be reviewed and changed. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).

18.36.170 Effective date.

The TDR provisions in this chapter shall only apply to TDR receiving site development proposals submitted on or after July 1, 2003, and applications for approval of TDR sending sites submitted on or after July 1, 2003. (Ord. 1256 § 1 (part), 2006: Ord. 1189 § 1 (part), 2003).