H. B. No. 471 As Introduced

As Introduced

128th General Assembly

Regular Session

2009-2010

H. B. No. 471

Representative Chandler

Cosponsors: Representatives Hagan, Foley, Stebelton, Letson, Yuko

A BILL

To enact sections 303.024, 307.071, 505.708, 519.023,

713.16, and 713.17 of the Revised Code to permit

townships, counties, and combinations of

townships, counties, and municipal corporations to

establish transfer of development rights programs.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 303.024, 307.071, 505.708, 519.023,	6
713.16, and 713.17 of the Revised Code be enacted to read as	7
follows:	8

Sec. 303.024. (A) As used in this section:

(1) "Agricultural easement" and "conservation easement" have	10
the same meanings as in section 5301.67 of the Revised Code,	11
except that the easement also shall be a permanent easement	12
granted under section 5301.68 of the Revised Code and transferred	13
to an entity specified in section 5301.69 of the Revised Code.	14

(2) "Development right" means a specified right assigned to a	15
parcel of property in a sending area that may be transferred from	16
that property for application and use on property located in a	17
designated receiving area. "Development right" includes any of the	18
following:	19

(a) A variation in the height, bulk, number of stories, and	20
size of buildings, in the density of population, or in the square	21
footage of buildings or other structures allowed in a receiving	22
area under applicable zoning or subdivision regulations;	23

(b) A variation in the number of parking spaces required in a	24
receiving area under applicable building or parking space	25
regulations;	26

(c) A variation in the size of lots, set-back building lines,	27
or the size of yards and courts of buildings and other structures,	28
in percentages of lot areas that may be occupied by buildings and	29
other structures, or in open space requirements allowed in a	30
receiving area under applicable zoning or subdivision regulations;	31

(d) A variation in utility service tap-in fees or other	32
utility fees and charges charged in a receiving area by the	33
county;	34

(e) A variation in open space requirements in local laws	35
applicable to a receiving area;	36

(f) Any other right that varies the density or intensity of	37
development in a receiving area or that makes development in a	38
receiving area economically beneficial.	39

(3) "Receiving area" means an area of land in the	40
unincorporated area of a county where development rights	41
transferred from a sending area may be applied and used.	42

(4) "Sending area" means an area of land in the	43
unincorporated area of a county from which assigned development	44
rights can be transferred for use in a receiving area.	45

(B) A board of county commissioners may establish a transfer	46
of development rights program whereby the owner of real property	47
in a designated sending area in the unincorporated territory of	48
the county may agree to have the owner's real property placed in	49
an agricultural or conservation easement in exchange for an	50
assignment of development rights to that property that the owner	51
may transfer for application and use on real property in a	52
designated receiving area in the unincorporated territory of the	53
county. The program may be established only after the board of	54
county commissioners conducts a study and adopts a plan based upon	55
the results of that study. The study and resulting plan together	56
shall do all of the following:	57

(1) Determine the purpose for which the program should be	58
created, which shall be one or more of the following:	59

(a) Protection of the natural, scenic, agricultural, or open	60
space qualities of land, or the preservation of natural resources;	61

(b) Enhancement of sites and areas of special character or	62
historical, cultural, aesthetic, or economic interest or value;	63

(c) Encouragement of development in areas deemed appropriate	64
by the county;	65

(d) Protection and management of land, water, and other	66
natural resources.	67

(2) Determine the best location for sending areas and	68
receiving areas to accomplish the purposes of the program and to	69
manage development;	70

(3) Include a resource assessment to determine which areas	71
should be preserved or developed to further the purposes of the	72
program;	73

(4) Determine what incentives may be used in sending and	74
receiving areas to make the program more effective;	75

(5) Determine the nature and number of development rights	76
that may be severed from each sending area and then attached to a	77
parcel of real property in a receiving area;	78

(6) Estimate the population and economic growth during the	79
next ten years in the unincorporated territory of the county and	80
estimate the development potential of each proposed sending area	81
and receiving area;	82

(7) Consider the density and intensity of development allowed	83
under applicable zoning, building, and other regulations prior to	84
the implementation of the program;	85

(8) Estimate the existing and proposed infrastructure	86
capacity, including services and facilities, in each proposed	87
receiving area;	88

(9) In terms of infrastructure, services, and land	89
availability, ensure that a receiving area is able to accommodate	90
the density and intensity of development associated with the	91
number of development rights that may be applied to it;	92

(10) Ensure that the program is consistent with the	93
comprehensive land use plan that is the basis of the county's	94
zoning regulations.	95

(C) The board of county commissioners may establish a	96
transfer of development rights program by adopting a zoning	97
resolution or amending an existing zoning resolution. An amendment	98
establishing the program may be initiated only under section	99
303.12 of the Revised Code by motion of the county rural zoning	100
commission or by the passage of a resolution by the board of	101
county commissioners directing the county rural zoning commission	102
to propose an amendment.	103

The zoning resolution or amendment establishing the program	104
shall include procedures for when and how the program's provisions	105
will be applied to property and the procedures to be used by	106
property owners for the actual transfer of development rights from	107
property in a sending area to property in a receiving area. The	108
regulations imposed by the zoning resolution or amendment	109
establishing the program need not be uniform for each class or	110
type of building or other structure or for each use of property	111
throughout any sending or receiving area, but may vary in order to	112
accommodate development and provide adequate incentives to	113
encourage participation in the program.	114

The zoning resolution or amendment establishing the program	115
may designate an administrative board to administer transfers of	116
development rights, which board may be the county rural zoning	117
commission, the county board of zoning appeals, a county or	118
regional planning commission, the board of county commissioners,	119
or a newly created board appointed by the board of county	120
commissioners. If a new board is created to be the administrative	121
board, the board shall consist of an odd number of members, not to	122
exceed five, who shall serve staggered terms of office.	123

If the board of county commissioners is the administrative	124
board for a transfer of development rights program, the board's	125
actions to effectuate the actual transfer of development rights	126
are adjudicative, not legislative, actions that may be appealed	127
under Chapter 2506. of the Revised Code.	128

(D) The zoning resolution or amendment establishing a	129
transfer of development rights program may allow for the creation	130
of an overlay to the zoning map that identifies specific areas in	131
the unincorporated territory of the county that may be designated	132
as sending areas and as receiving areas. Alternatively, the zoning	133
resolution or amendment itself may designate specific sending	134
areas or receiving areas as an overlay to the zoning map. A	135
property owner who desires to have the owner's property designated	136
as a sending area or a receiving area consistent with the plan	137
required by division (B) of this section may apply to have the	138
zoning resolution amended under section 303.12 of the Revised Code	139
to include such an overlay to the zoning map.	140

A designation as either a sending area or a receiving area on	141
an overlay to the zoning map does not affect the underlying base	142
zoning, and a property owner retains all rights, privileges, and	143
obligations related to that underlying base zoning.	144

(E)(1) The zoning resolution or amendment establishing a	145
transfer of development rights program may create a transfer of	146
development rights bank, to be known as a TDR bank, managed by an	147
advisory board, known as the TDR bank advisory board. The TDR bank	148
advisory board may be configured in any manner the board of county	149
commissioners chooses. If the board of county commissioners	150
creates an administrative board to administer transfers of	151
development rights, it may designate that administrative board	152
also to act as the TDR bank advisory board.	153

(2) If the zoning resolution or amendment creates a TDR bank,	154
it also shall authorize the TDR bank, through the TDR bank	155
advisory board, to do the following:	156

(a) Oversee development and implementation of the transfer of	157
development rights program;	158

(b) Purchase development rights, and sell or convey any	159
development rights it possesses, as directed by the board of	160
county commissioners;	161

162

(d) Receive donations of development rights;

163

(e) Facilitate transactions between property owners in	164
sending and receiving areas through technical assistance and	165
education;	166

(f) Monitor conservation or agricultural easements in the	167
sending area;	168

(g) Receive funding from the county, proceeds of sales of	169
development rights, and donations;	170

(h) Manage the TDR bank fund described in section 307.071 of	171
the Revised Code;	172

(i) If directed to do so by the board of county	173
commissioners, establish a selling price for development rights it	174
possesses, based on local market forces, and extinguish	175
development rights in its possession in the absence of a buyer in	176
the receiving area.	177

(F) The establishment of a transfer of development rights	178
program and the designation of specific areas as sending areas or	179
as receiving areas are legislative acts subject to section 303.12	180
of the Revised Code. All actions undertaken under an established	181
transfer of development rights program are adjudicative actions	182
subject to appeal under Chapter 2506. of the Revised Code.	183

(G) If any sending area or receiving area designated in a	184
county transfer of development rights program includes	185
unincorporated territory in which no township zoning regulations	186
or county zoning regulations apply, the board of county	187
commissioners shall provide written notice to the boards of	188
township trustees in the townships in which that territory is	189
located to inform the townships that a county transfer of	190
development rights program has been created that will affect	191
territory in them.	192

If any sending area or receiving area designated in a county	193
transfer of development rights program includes unincorporated	194
territory in which township zoning regulations apply, the program	195
cannot be implemented in that territory until a majority of the	196
board of township trustees adopts a resolution approving the	197
program in the territory, and the resolution is sent to and	198
received by the board of county commissioners.	199

Sec. 307.071. A board of county commissioners that creates a	200
transfer of development rights program under section 303.024 of	201
the Revised Code may establish, as a separate fund in the county	202
treasury, a TDR bank fund that shall consist of all moneys	203
received in connection with the county's transfer of development	204
rights program. If a TDR bank fund is established, the board of	205
county commissioners shall have responsibility for the expenditure	206
of all moneys in the fund in accordance with the program's	207
provisions, and the board also shall appoint a TDR bank advisory	208
board that shall make recommendations to the board of county	209
commissioners on the purchase and sale of development rights under	210
the transfer of development rights program and perform the other	211
functions enumerated in division (E) of section 303.024 of the	212
Revised Code.	213

Sec. 505.708. A board of township trustees that creates a	214
transfer of development rights program under section 519.023 of	215
the Revised Code may establish, as a separate fund in the township	216
treasury, a TDR bank fund that shall consist of all moneys	217
received in connection with the township's transfer of development	218
rights program. If a TDR bank fund is established, the board of	219
township trustees shall have responsibility for the expenditure of	220
all moneys in the fund in accordance with the program's	221
provisions, and the board also shall appoint a TDR bank advisory	222
board that shall make recommendations to the board of township	223
trustees on the purchase and sale of development rights under the	224
transfer of development rights program and perform the other	225
functions enumerated in division (E) of section 519.023 of the	226
Revised Code.	227

Sec. 519.023. (A) As used in this section:

228

(1) "Agricultural easement" and "conservation easement" have	229
the same meanings as in section 5301.67 of the Revised Code,	230
except that the easement also shall be a permanent easement	231
granted under section 5301.68 of the Revised Code and transferred	232
to an entity specified in section 5301.69 of the Revised Code.	233

(2) "Development right" means a specified right assigned to a	234
parcel of property in a sending area that may be transferred from	235
that property for application and use on property located in a	236
designated receiving area. "Development right" includes any of the	237
following:	238

(a) A variation in the height, bulk, number of stories, and	239
size of buildings, in the density of population, or in the square	240
footage of buildings or other structures allowed in a receiving	241
area under applicable zoning or subdivision regulations;	242

(b) A variation in the number of parking spaces required in a	243
receiving area under applicable building or parking space	244
regulations;	245

(c) A variation in the size of lots, set-back building lines,	246
or the size of yards and courts of buildings and other structures,	247
in percentages of lot areas that may be occupied by buildings and	248
other structures, or in open space requirements allowed in a	249
receiving area under applicable zoning or subdivision regulations;	250

(d) A variation in utility service tap-in fees or other	251
utility fees and charges charged in a receiving area by a township	252
that has adopted a limited home rule form of government under	253
Chapter 504. of the Revised Code;	254

(e) A variation in open space requirements in local laws	255
applicable to a receiving area;	256

(f) Any other right that varies the density or intensity of	257
development in a receiving area or that makes development in a	258
receiving area economically beneficial.	259

(3) "Receiving area" means an area of land in the	260
unincorporated area of a township where development rights	261
transferred from a sending area may be applied and used.	262

(4) "Sending area" means an area of land in the	263
unincorporated area of a township from which assigned development	264
rights can be transferred for use in a receiving area.	265

(B) A board of township trustees may establish a transfer of	266
development rights program whereby the owner of real property in a	267
designated sending area in the unincorporated territory of the	268
township may agree to have the owner's property placed in an	269
agricultural or conservation easement in exchange for an	270
assignment of development rights to that property that the owner	271
may transfer for application and use on real property in a	272
designated receiving area in the unincorporated territory of the	273
township. The program may be established only after the board of	274
township trustees conducts a study and adopts a plan based upon	275
the results of that study. The study and resulting plan together	276
shall do all of the following:	277

(1) Determine the purpose for which the program should be	278
created, which shall be one or more of the following:	279

(a) Protection of the natural, scenic, agricultural, or open	280
space qualities of land, or the preservation of natural resources;	281

(b) Enhancement of sites and areas of special character or	282
historical, cultural, aesthetic, or economic interest or value;	283

(c) Encouragement of development in areas deemed appropriate	284
by the township;	285

(d) Protection and management of land, water, and other	286
natural resources.	287

(2) Determine the best location for sending areas and	288
receiving areas to accomplish the purposes of the program and to	289
manage development;	290

(3) Include a resource assessment to determine which areas	291
should be preserved or developed to further the purposes of the	292
program;	293

(4) Determine what incentives may be used in sending and	294
receiving areas to make the program more effective;	295

(5) Determine the nature and number of development rights	296
that may be severed from each sending area and then attached to a	297
parcel of real property in a receiving area;	298

(6) Estimate the population and economic growth during the	299
next ten years in the unincorporated territory of the township and	300
estimate the development potential of each proposed sending area	301
and receiving area;	302

(7) Consider the density and intensity of development allowed	303
under applicable zoning, building, and other regulations prior to	304
the implementation of the program;	305

(8) Estimate the existing and proposed infrastructure	306
capacity, including services and facilities, in each proposed	307
receiving area;	308

(9) In terms of infrastructure, services, and land	309
availability, ensure that a receiving area is able to accommodate	310
the density and intensity of development associated with the	311
number of development rights that may be applied to it;	312

(10) Ensure that the program is consistent with the	313
comprehensive land use plan that is the basis of the township's	314
zoning regulations.	315

(C) The board of township trustees may establish a transfer	316
of development rights program by adopting a zoning resolution or	317
amending an existing zoning resolution. An amendment establishing	318
the program may be initiated only under section 519.12 of the	319
Revised Code by motion of the township zoning commission or by the	320
passage of a resolution by the board of township trustees	321
directing the township zoning commission to propose an amendment.	322

The zoning resolution or amendment establishing the program	323
shall include procedures for when and how the program's provisions	324
will be applied to property and the procedures to be used by	325
property owners for the actual transfer of development rights from	326
property in a sending area to property in a receiving area. The	327
regulations imposed by the zoning resolution or amendment	328
establishing the program need not be uniform for each class or	329
type of building or other structure or for each use of property	330
throughout any sending or receiving area, but may vary in order to	331
accommodate development and provide adequate incentives to	332
encourage participation in the program.	333

The zoning resolution or amendment establishing the program	334
may designate an administrative board to administer transfers of	335
development rights, which board may be the township zoning	336
commission, the township board of zoning appeals, a county or	337
regional planning commission, the board of township trustees, or a	338
newly created board appointed by the board of township trustees.	339
If a new board is created to be the administrative board, the	340
board shall consist of an odd number of members, not to exceed	341
five, who shall serve staggered terms of office.	342

If the board of township trustees is the administrative board	343
for a transfer of development rights program, the board's actions	344
to effectuate the actual transfer of development rights are	345
adjudicative, not legislative, actions that may be appealed under	346
Chapter 2506. of the Revised Code.	347

(D) The zoning resolution or amendment establishing a	348
transfer of development rights program may allow for the creation	349
of an overlay to the zoning map that identifies specific areas in	350
the unincorporated territory of the township that may be	351
designated as sending areas and as receiving areas. Alternatively,	352
the zoning resolution or amendment itself may designate specific	353
sending areas or receiving areas as an overlay to the zoning map.	354
A property owner who desires to have the owner's property	355
designated as a sending area or a receiving area consistent with	356
the plan required by division (B) of this section may apply to	357
have the zoning resolution amended under section 519.12 of the	358
Revised Code to include such an overlay to the zoning map.	359

A designation as either a sending area or a receiving area on	360
an overlay to the zoning map does not affect the underlying base	361
zoning, and a property owner retains all rights, privileges, and	362
obligations related to that underlying base zoning.	363

(E)(1) The zoning resolution or amendment establishing a	364
transfer of development rights program may create a transfer of	365
development rights bank, to be known as a TDR bank, managed by an	366
advisory board, known as the TDR bank advisory board. The TDR bank	367
advisory board may be configured in any manner the board of	368
township trustees chooses. If the board of township trustees	369
creates an administrative board to administer transfers of	370
development rights, it may designate that administrative board	371
also to act as the TDR bank advisory board.	372

(2) If the zoning resolution or amendment creates a TDR bank,	373
it also shall authorize the TDR bank, through the TDR bank	374
advisory board, to do the following:	375

(a) Oversee development and implementation of the transfer of	376
development rights program;	377

(b) Purchase development rights, and sell or convey any	378
development rights it possesses, as directed by the board of	379
township trustees;	380

381

(d) Receive donations of development rights;

382

(e) Facilitate transactions between property owners in	383
sending and receiving areas through technical assistance and	384
education;	385

(f) Monitor conservation or agricultural easements in the	386
sending area;	387

(g) Receive funding from the township, proceeds of sales of	388
development rights, and donations;	389

(h) Manage the TDR bank fund described in section 505.708 of	390
the Revised Code;	391

(i) If directed to do so by the board of township trustees,	392
establish a selling price for development rights it possesses,	393
based on local market forces, and extinguish development rights in	394
its possession in the absence of a buyer in the receiving area.	395

(F) The establishment of a transfer of development rights	396
program and the designation of specific areas as sending areas or	397
as receiving areas are legislative acts subject to section 519.12	398
of the Revised Code. All actions undertaken under an established	399
transfer of development rights program are adjudicative actions	400
subject to appeal under Chapter 2506. of the Revised Code.	401

Sec. 713.16. (A) As used in this section:

402

(1) "Agricultural easement" and "conservation easement" have	403
the same meanings as in section 5301.67 of the Revised Code,	404
except that the easement also shall be a permanent easement	405
granted under section 5301.68 of the Revised Code and transferred	406
to an entity specified in section 5301.69 of the Revised Code.	407

(2) "Development right" means a specified right assigned to a	408
parcel of property in a sending area that may be transferred from	409
that property for application and use on property located in a	410
designated receiving area. "Development right" includes any of the	411
following:	412

(a) A variation in the height, bulk, number of stories, and	413
size of buildings, in the density of population, or in the square	414
footage of buildings or other structures allowed in a receiving	415
area under applicable zoning or subdivision regulations;	416

(b) A variation in the number of parking spaces required in a	417
receiving area under applicable building or parking space	418
regulations;	419

(c) A variation in the size of lots, set-back building lines,	420
or the size of yards and courts of buildings and other structures,	421
in percentages of lot areas that may be occupied by buildings and	422
other structures, or in open space requirements allowed in a	423
receiving area under applicable zoning or subdivision regulations;	424

(d) A variation in utility service tap-in fees or other	425
utility fees and charges charged in a receiving area by a	426
political subdivision;	427

(e) A variation in open space requirements in local laws	428
applicable to a receiving area;	429

(f) Any other right that varies the density or intensity of	430
development in a receiving area or that makes development in a	431
receiving area economically beneficial.	432

(3) "Receiving area" means an area of land that is within the	433
territory of one or more political subdivisions participating in a	434
joint transfer of development rights program where development	435
rights transferred from a sending area may be applied and used.	436

(4) "Sending area" means an area of land that is within the	437
territory of one or more political subdivisions participating in a	438
joint transfer of development rights program from which assigned	439
development rights can be transferred for use in a receiving area.	440

(B) The legislative authority of one or more municipal	441
corporations, the board of county commissioners of one or more	442
counties, and the board of township trustees of one or more	443
townships may enter into a joint agreement to create a joint	444
transfer of development rights program whereby the owner of real	445
property in a designated sending area may agree to have the	446
owner's property placed in an agricultural or conservation	447
easement in exchange for an assignment of development rights to	448
that property that the owner may transfer for application and use	449
on real property in a designated receiving area. The joint	450
agreement shall establish the parameters of the program and the	451
responsibilities of each party to the agreement.	452

(C) If any sending area or receiving area designated in a	453
joint transfer of development rights program includes	454
unincorporated territory in a township that is not participating	455
in the program and in which no township zoning regulations or	456
county zoning regulations apply, the parties to the joint	457
agreement shall provide written notice to the boards of township	458
trustees in the townships in which that territory is located to	459
inform the townships that a joint transfer of development rights	460
program has been created that will affect territory in them.	461

If any sending area or receiving area designated in the joint	462
transfer of development rights program includes unincorporated	463
territory in which township zoning regulations apply, and that	464
township is not a political subdivision participating in the	465
program, before the program can be implemented in that territory,	466
a majority of the board of township trustees of that township must	467
adopt a resolution approving the program in that territory.	468

(D) If a joint transfer of development rights program	469
agreement cannot be implemented without changes to the laws of a	470
party to the agreement, including changes to a zoning code, that	471
party may make those changes in accordance with the laws of that	472
political subdivision if initiated by its legislative authority.	473
Nothing in the agreement, however, can compel such changes. If	474
zoning regulations are changed in order to implement the program,	475
those regulations need not be uniform for each class or type of	476
building or other structure or for each use of property throughout	477
any sending or receiving area, but may vary in order to	478
accommodate development and provide adequate incentives to	479
encourage participation in the program.	480

(E) A joint transfer of development rights program agreement	481
shall not be in derogation of the powers granted to municipal	482
corporations by Article XVIII of the Ohio Constitution or any	483
other provisions of the Ohio Constitution or of a municipal	484
charter. A joint transfer of development rights program agreement	485
entered into under this section is in addition to any other	486
agreements authorized by law between municipal corporations and	487
counties or between municipal corporations and townships.	488

Sec. 713.17. (A) One of the parties to a joint transfer of	489
development rights agreement entered into under section 713.16 of	490
the Revised Code shall establish a separate fund in its treasury	491
that is designated as a TDR bank fund. The fund shall consist of	492
all moneys received in connection with the joint transfer of	493
development rights program. Expenditures from the fund shall be	494
made only as provided in the joint agreement establishing the	495
program.	496

(B)(1) The agreement establishing a joint transfer of	497
development rights program shall provide for a transfer of	498
development rights bank, to be known as a TDR bank. The TDR bank	499
shall be managed by a TDR bank advisory board, which may be a	500
municipal, county, or regional planning commission, a zoning	501
commission, a board of zoning appeals, or a combination of those	502
entities, or it may be a newly created, appointed board configured	503
in any manner designated in the agreement.	504

(2) A TDR bank, through the TDR bank advisory board, shall	505
make recommendations to the legislative authorities of the parties	506
to the joint agreement on the purchase and sale of development	507
rights under the program, and may do any or all of the following:	508

(a) Oversee development and implementation of the joint	509
transfer of development rights program;	510

(b) Purchase development rights, and sell or convey any	511
development rights it possesses, as directed jointly by the	512
parties to the joint agreement;	513

514

(d) Receive donations of development rights;

515

(e) Facilitate transactions between property owners in	516
sending and receiving areas through technical assistance and	517
education;	518

(f) Monitor conservation or agricultural easements in the	519
sending area;	520

(g) Receive funding from the parties to the joint agreement,	521
proceeds of sales of development rights, and donations;	522

(h) Manage the TDR bank fund;

523

(i) If directed to do so by the parties to the agreement	524
acting jointly, establish a selling price for development rights	525
it possesses, based on local market forces, and extinguish	526
development rights in its possession in the absence of a buyer in	527
the receiving area.	528