Richmond Municipal Code Art. 15.04.611 Transfer of Development Rights

The purpose of this Article is to support the protection of open space and natural resource areas identified in the General Plan by allowing the transfer of development potential and development credits from a site in such areas having a resource deserving protection, land suitable for agriculture and outdoor recreation, land subject to hazards, including landslides and very high fire hazard risk, or otherwise designated by the General Plan as a protected sending area to a site in designated receiving zones requiring less protection. The mechanism for transfer of development rights (TDRs) is used to implement the General Plan, protect farmland and resource areas and/or to provide the owners of property an alternative to development. Payment of fees to a trust fund for use by the City in acquiring property having a resource deserving of protection is an alternative to the purchase or transfer of development rights. The TDR program and the fee-in-lieu option in this Article are voluntary for property owners and provided as a means to further the objectives of the General Plan.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

"Development Rights." The legal rights for development established in zoning regulation, which include the maximum number of dwelling units or square feet of floor area, that are permitted by the zoning district regulations for a specific site, lot or parcel.

"Sending Zone." A geographic area, which may be a zoning district, from which development rights can be transferred. Sending zones may include specified areas where land use and development is restricted by the General Plan and zoning regulations. Once development rights are "sent" to another parcel, they can no longer be used for development in the sending zone.

"Receiving Zone." A geographic area, which may be a zoning district, that is identified as suitable to receive a transfer of development rights from a sending zone, which enable am increase in the density or development intensity above that which is otherwise allowed by the zoning district regulations.

"Transfer of Development Rights (TDRs)." A method for transferring a development right from a sending zone to a receiving zone, which allows an increase in density or development intensity in the receiving zone above the limit established in the zoning regulations that otherwise would apply. This is normally done by a legal instrument in the form of a contract, which is recorded with the title of the property. An easement restricting development in the sending zone also may be required as a condition of allowing a transfer of development rights to occur.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— Ord. No. 06-21 N.S., § II(Exh. A), adopted April 20, 2021, enacted provisions designated as 15.04.611.020 and renumbered prior §§ 15.04.611.020—15.04.611.150 as §§ 15.04.611.030—15.04.611.160.

The City Council, upon a recommendation of the Planning Commission, shall identify Sending Zone(s), as defined in this Article, and assign a specific number of TDRs to each zone unless the General Plan itself and/or the zoning district regulations establishes transferable development rights or credits for a specific area in which case these rights or credits shall be used. These TDRs may be used to obtain approval for development on other parcels of land located in a TDR Receiving Zones, which also shall be identified by the City Council, at a density or intensity of use greater than would otherwise be allowed on those parcels, up to a maximum specified in this Article or in the zoning district regulations.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

Every parcel of land located in a Receiving Zone may be developed at additional density/intensity of use, through the acquisition of TDRs, up to the maximum density/intensity identified in Table 15.04.611.040 below.

Table 15.04.611.040: TDR Receiving Zones Maximum Density/Intensity with Transfer of Development Rights or Credits

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

Development rights assigned to parcels in Sending Zones may be transferred to parcels in Receiving Zones and used to increase the density/intensity on a Receiving Parcel in accordance with the provisions of this Article and the General Plan.

A. Limitations. A development right may not be used in any manner inconsistent with the General Plan, Table 15.04.611.040, and the following provisions of this Article:

1. No development right may be used to increase intensity or density within a Receiving Zone that exceeds the maximum intensity or density set by the General Plan for parcels in the Receiving Zone that can be achieved under the TDR program unless a specific exemption from density limitations has been established in the General Plan for transferable development credits from a specific area to the extent that these limits would bar or make impracticable their construction; and

2. No development right may be derived from land in a Sending Zone that is already precluded from development by nature of a recorded restrictive covenant or easement.

3. No more than two TDR-based dwelling units may be built on a parcel except as authorized by a Specific Plan or a Planned Area District.

B. Intermediate Transfer. A development right may be transferred to a transferee prior to the time when its use for a specific Receiving Parcel has been finally approved in accordance with this Article.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

For purposes of converting residential TDRs to non-residential FAR, one residential TDR unit equals 0.05 non-residential FAR unless an alternative ratio has been set by the City Council for a specific Sending Zone(s).

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

After development rights have been transferred by an original instrument of transfer:

A. The Sending Parcel shall not be further subdivided or developed to a greater density or intensity of use than permitted by the remaining development rights.

B. The Sending Parcel shall not be used in connection with any determination of site area or site capacity, except as may be necessary in determining the number of development rights involved in the transfer.

C. All development rights that are the subject of the transfer, and the value of such rights, shall be deemed for all other purposes, including assessment and taxation, to be appurtenant to the Sending Parcel, until such rights are certified by the Zoning Administrator and have been finally approved for use on a specific Receiving Parcel.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

Between the time of the transfer of a development right by an original transferor and the time when its use on a specific Receiving Parcel is final in accordance with the provisions of this Article, a transferee has only the right to use the development right to the extent authorized by all applicable provisions of Article XV in effect at the time when use of the development right for a specific Receiving Parcel is finally approved. No transfer shall be construed to limit or affect the power of the City Council to amend, supplement or repeal any or all of the provisions of this Article or any other section of Article XV or to entitle any transferor or transferee to damages or compensation of any kind as the result of any such amendment, supplementation or repeal.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

A. Determination. The number of development rights involved in an original instrument of transfer shall be equal to the lesser of (1) "maximum dwelling units" or (2) "number of dwelling units" permitted on the Sending Parcel, as determined in accordance with the procedures for determining site area and residential land use site capacity and floor area in this Code and specific procedures for such calculations as may be established in the General Plan. In making such calculations, "gross site area" shall refer to the gross site area of the Sending Parcel as determined by actual on-site survey.

B. Fractional Rights. Fractional parts of a development right shall be disregarded. No transfer shall include other than a whole number of development rights.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

A. Requirement. No transfer shall be recognized under this Article unless the original instrument of transfer contains the certification of the Zoning Administrator that the number of development rights that are the subject of the transfer represents the number of development rights applicable to the Sending Parcel and is recorded by the Zoning Administrator as provided in this Article.

B. Responsibility. The transferor and the transferee named in an original instrument of transfer shall have sole responsibility to supply all information required by this Article, to provide a proper original instrument of transfer, and to pay, in addition to any other fees required by this Article, all costs of its recordation in the Contra Costa County Clerk-Recorder's Office, County Recorder Division.

C. Application for Certificate. An application for a certificate shall contain such information prescribed by the Zoning Administrator as necessary to determine the number of development rights involved in the proposed transfer. In addition, the application shall include a certificate of title and land survey prepared by a California-registered civil engineer or licensed land surveyor.

D. Issuance of Certificate. On the basis of the information submitted to him or her, the Zoning Administrator shall affix a certificate of his/her findings to the original instrument of transfer. The certificate shall contain a specific statement of the number of development rights that are derived from the Sending Parcel.

E. Effect of Determination. The determination of the Zoning Administrator shall not be construed to enlarge or otherwise affect in any manner the nature, character and effect of a transfer as set forth above.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

An instrument of transfer shall conform to the requirements of this Section and shall contain:

A. The names of the transferor and the transferee;

B. A certificate of title approved by the City Attorney;

C. A covenant that the transferor grants and assigns to the transferee and the transferee's heirs, personal representatives, successors and assigns a specified number of development rights from the Sending Parcel;

D. If the instrument is not an original instrument of transfer, a statement that the transfer is an intermediate transfer of rights derived from a Sending Parcel described in an original instrument of transfer (which original instrument shall be identified by its date, the names of the original transferor and transferee and the book and page where it is recorded in the Contra Costa County Clerk-Recorder's Office, County Recorder Division);

E. A statement of the rights involved in the transfer that are derived from a Sending Parcel and the number of such rights included within the transfer;

F. A covenant by which the transferor acknowledges that he/she has no further use or right of use with respect to the development rights being transferred;

G. Except when development rights are being transferred to the City, a statement of the rights of the transferee prior to final approval of the use of those development rights on a specific Receiving Parcel.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

A. In addition to fulfilling the requirements of Section 15.04.611.100, an original instrument of transfer shall also contain:

1. A legal description of the Sending Parcel, prepared by a California-registered civil engineer or licensed land surveyor and named in the instrument;

2. A covenant by which use of the Sending Parcel is restricted to, and may be used only for open space or agricultural uses as defined in in Article XV;

3. A covenant that all provisions of the instrument of transfer shall run with and bind the Sending Parcel and may be enforced by the City;

4. The certificate of the Zoning Administrator required by this section.

B. Recordation of Original Transfer. After it is properly executed, an original instrument of transfer shall be delivered to the Zoning Administrator, who shall deliver it to the Contra Costa County Clerk-Recorder's Office, County Recorder Division, together with the required fees for recording. The Zoning Administrator shall notify the original transferor and transferee in writing of such recording.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

A. Filing Requirements. The owner of a proposed Receiving Parcel shall file with the Zoning Administrator an application to use transferred development rights with respect to the development on a Receiving Parcel.

B. Contents. The application shall contain such information as may be prescribed by the Zoning Administrator and shall be accompanied by the required fee established in the Master Fee Schedule, and:

1. Original or certified copies of a recorded original instrument of transfer involving the development rights proposed to be used and any intervening instruments of transfer through which the applicant became a transferee of those rights; or

2. A signed, written agreement between the applicant and a proposed original transferor, which contains the survey of a proposed Sending Parcel and other information required by the Zoning Administrator and in which the proposed transferor agrees to execute an original instrument of transfer from the proposed Sending Parcel to the applicant at the time when the use of such rights on the proposed Receiving Parcel is finally approved.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

A. Review of Application. The Zoning Administrator shall review the instrument(s) of transfer or agreement submitted with the application and determine their sufficiency to fulfill the requirements of this Article.

B. Determination. The Zoning Administrator shall determine: (a) the number of development rights that are available for use under the terms of the instrument(s) submitted with the application and (b) the number of such rights that the City Council has determined to be available to be used on the proposed Receiving Parcel, and shall report his preliminary determination in writing to the applicant within 30 days after all information necessary to make such determination has been received.

C. Effect. Any determination of the Zoning Administrator under this Section shall not be final and shall be subject to amendment, modification or rescission until the time when the transfer is final.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

A. When Completed. Transfer from a Sending Parcel to a Receiving Parcel is final at the time when (a) final subdivision approval or final site plan approval with respect to the Receiving Parcel, based upon use of development rights, has been given in accordance with this Article and (b) all development rights upon which such approval was based have been certified by the Zoning Administrator.

B. Required Instruments. Final approval shall not be given to any site plan or final subdivision map that involves the use of development rights transferred under the provisions of this Article until satisfactory evidence is presented that each of the following instruments as may be required to effect transfer of those rights to the Receiving Parcel have been approved as to form and legal sufficiency by the City Attorney. Said instruments shall be recorded in the Contra Costa County Clerk-Recorder's Office, County Recorder Division following final site plan approval or final subdivision map approval, but prior to release of building permits.

1. An original instrument of transfer to a transferee;

2. An instrument of transfer to the owner of the Receiving Parcel; and

3. Instrument(s) of transfer between any intervening transferees.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.

In lieu of purchasing development rights from a Sending Parcel for use in development of a Receiving Parcel, a developer may pay a fee to the City which the City shall hold in a separate Open Space Lands Trust Fund for use in purchasing development rights from Sending Parcels and other related purposes.

A. Fee Schedule. A schedule of the in-lieu fees for the Open Lands Trust Fund shall be established by the City Council on the basis of a nexus study.

B. Administration of Fee-in-Lieu Program. The Zoning Administrator shall administer the Fee-in-Lieu program and establish application requirements and documentation consistent with the requirements of this Article authorizing the fee-in-lieu payer to apply credits received for payments to develop at an additional density or intensity of use on a Receiving Parcel.

C. Use of Funds from Payment of Fees-in-Lieu. Payments received by the City as fees-in-lieu of purchase of development rights from Sending Zones, may be used by the City to purchase development rights, acquire property having a resource deserving of protection, and/or replenish the Open Lands Trust Fund.

(Ord. No. 06-21 N.S., § II(Exh. A), 4-20-2021)

Editor's note— See editor's note to 15.04.611.020.