Article 42 — Transfer of Residential Development Rights

It is the purpose of this article to provide a mechanism to relocate potential development from areas where environmental or land use impacts could be severe to other areas more appropriate for development, to preserve significant open space resource areas within the City, to encourage protection of natural, scenic, recreational and agricultural values of open space lands, to control development and minimize damage in potentially hazardous and flood prone areas, and to implement the policies of the Seismic and Safety, Open Space and Land Use Elements of the Pacifica General Plan and of the Pacifica Local Coastal Land Use Plan, by the transfer of rights to develop from properties in such areas to qualified properties in other parts of the City, while still granting appropriate residential development rights to each property. This method is found to be a reasonable approach to achieve such purposes and is further supported by the following:

(a)

The establishment of a transfer of development rights program was recommended as an appropriate technique by the City of Pacifica Open Space Task Force Report (1988), and the City Council concurs that

such a program is an appropriate method to help accomplish the Open Space Task Force Goals; and

(b)

The establishment of a transfer of development rights program has been incorporated into the Pacifica General Plan and Local Coastal Land Use Plan and is consistent with the goals of the General Plan and Local Coastal Land Use Plan; and

(c)

A transfer of development rights program will assist the City in moving forward to implement its responsibilities under the General Plan and Local Coastal Land Use Plan; and

(d)

The establishment of such a program will promote flexibility and innovation in land use planning so as to encourage existing development potential to occur on lands deemed to be more appropriate; and

(e)

The authority to establish a transfer of development rights program is within the scope of the City's police power established in Article XI, Section 7 of the State Constitution and such a program is necessary and appropriate to the exercise of the City's planning and zoning authority as set forth in the State Planning and Zoning Law, Title 7, Division One, of the California Government Code.

(§ 1, Ord. 539-C.S., eff. December 27, 1989)

(a)

Development rights. The residential building rights permitted to a lot, parcel or area of land under the base density of the General Plan and zoning ordinances of the City, measured in maximum dwelling units per acre based upon gross acreage. In the event of any conflict between the General Plan and zoning ordinance, the density standards of the General Plan shall control. It is not the purpose of this article to create any such potential which would not otherwise exist.

(b)

Sending areas and parcels. An undeveloped area that is designated in this article or by further action of the Planning Commission as one from which it is appropriate to transfer development rights. A sending parcel or site is an undeveloped parcel or site located in a sending area.

(c)

Receiving areas and parcels. An area that is designated in this article or by further action of the Planning Commission as appropriate for residential development beyond its base density through the transfer of development rights. A receiving parcel or site is one located in a receiving area.

(d)

Base density. The number of dwelling units per gross acre permitted by the City's General Plan and zoning ordinances for a parcel in a receiving area without the use of transfer of development rights or a density bonus.

(e)

Transfer units. The additional units of dwellings allowed on a receiving parcel over base density through the use of transfer of development rights.

(§ 1, Ord. 539-C.S., eff. December 27, 1989)

Notwithstanding any other provisions of this Code regarding residential density, including minimum lot size, minimum lot area per dwelling unit, minimum building site area and minimum lot width, the number of dwelling units permitted to be built upon a sending parcel may be transferred and built upon a receiving parcel. In approving a transfer of development rights pursuant to this article, the Planning Commission may find that such a transfer is consistent with the existing General Plan and zoning designation of the receiving parcel. Such a transfer of development rights shall only be permitted to occur under the circumstances and according to the procedures set out in this article. Such a transfer may be in addition to any density bonus for affordable or rental housing granted pursuant to Article 41 of Chapter 4 of this title. However, no density bonus shall be allowed for the sending area or the transfer units.

(§ 1, Ord. 539-C.S., eff. December 27, 1989)

(a)

Designated sending areas. All of the land in the following categories is designated to be sending areas:

(1)

An open space area designated in the 1988 Pacifica Open Space Task Force Report Inventory;

(2)

Any undeveloped area identified as appropriate for density transfer or as containing potential development hazards in the City's General Plan or Local Coastal Land Use Plan;

(3)

Any undeveloped area identified as subject to a Class I-IV landslide in the 1982 Landslide Inventory Map, Appendix A (Howard Donley Associates);

(4)

Any undeveloped area identified as subject to flood hazard in the most currently adopted Flood Insurance Study of the Federal Insurance Administration; or

(5)

Other undeveloped areas specifically designated by the Planning Commission or City Council as set forth herein from which residential development rights may be transferred.

(b)

Designation of other sending areas. In addition to those areas which qualify as sending areas according to the criteria set out in subsection (a) of this section, the Planning Commission may approve additional areas as sending areas. Eligibility for designation of other sending areas shall be determined upon submittal of a transfer of development rights application to the Planning Commission.

(c)

Criteria for eligibility. Criteria used by the Planning Commission for approval of other sending areas shall include:

(1)

Suitability of the area for development;

(2)

Existence of any physical hazards or constraints to development, such as slope, wave action, or erosion;

(3)

Area size; and

(4)

Whether the natural, scenic, recreational, open space or agricultural values of the proposed sending area are such as to warrant preservation.

(§ 1, Ord. 539-C.S., eff. December 27, 1989)

(a)

Designated receiving areas. All of the areas in the following underlying zoning categories are designated to be receiving areas:

(1)

R-2 (two-family - residential district);

(2)

R-3 (multiple-family - residential district);

(3)

R-3-G (multiple-family - residential garden district);

(4)

R-3.1 (multiple-family - residential district);

(5)

P-D (planned development district);

(6)

(Repealed by § 18, Ord. 825-C.S., eff. November 8, 2017);

(7)

No area in the coastal zone which is designated as "Special Area" or "Open Space Residential" in the Pacifica General Plan or Coastal Land Use Plan shall be designated as a receiver site with the exception of the Pacifica Quarry due to its disturbed condition. This prohibition shall not extend to intrasite transfers within such areas.

(b)

Designation of other receiving areas. In addition to those areas which qualify as receiving areas according to the criteria set out in subsection (a) of this section, the Planning Commission may approve additional areas as receiving areas. Eligibility for designation of other receiving areas shall be determined upon submittal of a transfer of development rights application to the Planning Commission.

(c)

Criteria for eligibility. Criteria used by the Planning Commission for approval of other receiving areas shall include:

(1)

Whether the proposed receiving area contains adequate public facilities and infrastructure, including roads, traffic capacity, parking, and storm drainage systems, to accommodate the transfer of development rights;

(2)

Whether the higher density resulting from the addition of transfer units in a receiving area will result in a significant adverse change in the basic character of the adjacent neighborhood, or result in an appropriate pattern of development;

(3)

Whether the transfer of development rights to any particular receiving area will provide a net public benefit and an overall reduction in environmentally damaging consequences and cumulative impacts when compared to the alternative of development in both the sending and receiving areas;

(4)

Whether such increased development is compatible with the goals and policies of the General Plan and Coastal Land Use Plan;

(5)

Whether the proposed receiving area is physically suitable for such a transfer, considering, among other factors, the slope, visibility, geotechnical constraints, and recreational and environmental values of the area.

(§ 1, Ord. 539-C.S., eff. December 27, 1989; § 18, Ord. 825-C.S., eff. November 8, 2017)

Transfer of development rights within one parcel which has more than one zoning or General Plan designation, or between commonly owned parcels which have more than one zoning or General Plan designation and are planned as a unit, may occur upon discretionary approval of the Planning Commission after review of an application for transfer of development rights. The sending and receiving areas in such a proposed transfer shall meet the criteria set forth in this article for designation of such areas and be so designated prior to approval of such transfer.

(§ 1, Ord. 539-C.S., eff. December 27, 1989)

In any transfer of units, the sending parcel or area must transfer all of its development rights to a receiving parcel or parcels, regardless of how many transfer units the owner of the receiving parcel or parcels elects to apply for or use. No partial transfers shall be permitted.

(§ 1, Ord. 539-C.S., eff. December 27, 1989)

(a)

Initiation. An application for transfer of development rights 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 Planning Commission.

(2)

An application for a TDR permit may only be accepted for filing concurrently with an application for the associated development project pursuant to the requirements of Title 9 of this Code.

(3)

The Planning Administrator shall submit the TDR permit application to the Planning Commission for discretionary approval concurrently with the proposed development project according to the procedures of this Code.

(b)

Submittal requirements. All requirements for a TDR permit shall include the following:

(1)

A map showing the location and boundaries of the receiving parcel and sending parcel;

(2)

The acreage of the receiving parcel and sending parcel;

(3)

The zoning and current allowable base density of the receiving and sending parcels;

(4)

Written consent to the transfer from all registered owners of all property subject to the transfer of development rights;

(5)

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. Any fraction of a unit of .50 or greater shall be considered as a whole unit;

(6)

A site plan that demonstrates that all applicable design standards and parking requirements can be met with the additional transfer units;

(7)

A statement of how the sending and receiving parcels fulfill the criteria set forth in this article;

(8)

The Planning Administrator may require the submission of other data, information, or drawings as deemed necessary to accomplish the purposes of this chapter.

(c)

Approval process and criteria.

(1)

The procedures for approval of an application for a TDR permit shall be as set forth in Article 32 of Chapter 4 of Title 9 of this Code. The Planning Commission shall approve a TDR permit only upon making the following findings: (a) that the criteria set out in Section 9-4.4204 (b) herein are met; and, (c) that the transfer will result in the permanent preservation of open space land with natural, scenic, agricultural, or recreational value, or in the preservation of undeveloped land subject to geotechnical hazard or flooding.

(2)

Approval of an application for a TDR permit is discretionary. The Planning Commission or City Council on appeal may approve, deny or conditionally approve such a permit, and may impose such conditions as it deems appropriate to accomplish the goals of this article and to mitigate any adverse impacts of such application.

(d)

Requirements for final approval. Approval of a TDR permit shall not be finalized until such time as the following have been accomplished:

(1)

Final approval of the concurrent development project according to the provisions of this Code;

(2)

Execution of an instrument legally sufficient in both form and content to effect such development rights transfer;

(3)

Recordation of either an open space or conservation easement or deed restriction, as specified by the City, on all of the sending parcels from which development rights are obtained. A copy of the recorded easement or deed restriction shall be submitted to the Planning Administrator, who shall certify that all of the development rights on each sending parcel are removed, and, in the case of an easement, that the easement has been offered to the City or other qualified public agency or nonprofit entity;

(4)

The open space or conservation easement or deed restriction shall be approved as to form and content by the City Attorney. The document shall notify all owners and successors that the transfer and its concomitant restrictions shall run with the land and be binding on all future owners. For all sending parcels, the easement or deed restriction shall be sufficient to retire all development rights upon the sending parcel.

(§ 1, Ord. 539-C.S., eff. December 27, 1989)

(a)

With the exception of those Code requirements set out in Section 9-4.4202 herein, a development project which relies upon a transfer of development rights shall comply with all other applicable requirements of

this 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 City. Such exemption may be appropriate because there is a clear public benefit to be gained through the program in the preservation of valuable environmental, open space and recreational resources. In addition, exemptions from certain City fees will prevent a duplication of requirements for owners of receiving parcels who are providing open space and recreation land through the purchase of transferable development rights. Any such exemptions shall only be granted pursuant to the procedures set out in this section.

(b)

Upon application for TDR permit, the applicant may make application for exemption from park land dedication requirements as set out in Section 10-1.803 of the City's subdivision title. Such a request shall be reviewed according to the procedures set out in Section 10-1.803 and must be approved by the Planning Commission.

(c)

Upon application for a TDR permit, the applicant may also apply for a reduction or exemption from the following fees for the transfer units:

(1)

Capital improvement fees pursuant to Article 2 of Chapter 4 of Title 7 of this Code; and

(2)

Traffic impact mitigation fees pursuant to Title 8 of this Code.

Such reduction or exemption must be approved by the City Council.

(d)

In conjunction with the TDR permit, an applicant may also apply to the Planning Commission for a reduction from open space, setback, coverage, landscaping and parking requirements for the transfer units upon a showing that such will not adversely impact project residents, adjacent residents or the character of the adjacent neighborhood. Any such reduction is discretionary and shall be approved by the Planning Commission in conjunction with its review of the TDR permit and project application.

(§ 1, Ord. 539-C.S., eff. December 27, 1989)