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Washington Township, Berks County, Pennsylvania

Washington Township, population 3,354 (2000), is located in Berks County, Pennsylvania, 35 miles northwest of Philadelphia. It is a rural township surrounding two incorporated villages, the Boro of Bally and the Boro of Bechtelsville. Most of the Township contains prime agricultural land owned for generations by farming families.

Washington Township did not experience intense development pressure, even during the building boom of the 1980s. However, Township officials believe that growth-related problems are inevitable due to the Township’s proximity to Philadelphia and its location on the state highway connecting Pottstown and Allantown/Bethlehem. Consequently, the Township Board of Supervisors aims to preserve farmland by channeling future growth into areas where higher density development is most appropriate.

In 1988, the Pennsylvania Municipalities Planning Code (MPC) officially authorized communities to use TDR. As a result, this technique was of interest to the Washington Township Planning Commission when it began a complete revision of its comprehensive plan and zoning ordinance in 1990. One year later, the Pennsylvania Environmental Council distributed “Guiding Growth”, a publication that included eight characteristics common to successful growth management programs using TDR.

The Township’s land use consultants were initially concerned about the feasibility of using TDR in a municipality with only 15 square miles of land area. But the Township Board, with the assistance of the Planning Commission and the Agricultural Advisory Committee, proceeded to identify the conditions needed for a successful TDR program. This led to the inclusion of a TDR mechanism in the Town’s 1993 zoning code amendments. The provisions, Article XVI Transfer of Development Rights, were removed from the zoning code in 2004. Consequently this profile is discussed in the past tense and refers to a mechanism that is no longer available in Washington Township.

The Board determined that a sewer system was needed since there was already evidence of septic system failure; furthermore, the Board found that a sewer system would not only allow for the concentration of development but would also would reduce the per-household cost of providing sewerage to existing homes and businesses. The Board also countered criticism that TDR encourages growth by observing that TDR was one way of channeling inevitable growth pressures into the most appropriate areas and away from the areas that should remain rural.

The Township’s consultants considered numerous alternatives and a TDR concept eventually evolved with the Township’s agricultural preservation area as the sending site. Under Pennsylvania Town Law, development rights cannot be transferred to other municipalities; consequently, the incorporated boros of Bally and Bechtelsville could not serve as receiving sites. Instead, the receiving area was a valley in the Township lying between the unincorporated villages of Barto and Eshbach. In adopting the 1993 TDR ordinance, the Township identified prime agricultural land as a non-renewable resource and acknowledged that regulations, like zoning, affect the development potential of that resource and, consequently, the viability of farming.

Specifically, the 1993 zoning ordinance established the following five objectives of the TDR program.

  • Encourage continued agricultural activity by offering farmers a way of receiving compensation for the development potential of their land while continuing to use that land for farming.
  • Allow the owners of land in the agricultural district to sever their development rights for transfer.
  • Create a process for transferring development rights.
  • Ensure that transferring development rights will be more advantageous than using these rights to develop the sending site.
  • Provide guidelines to ensure that the increased density allowed to the receiving site development is consistent with the plans and policies of the Township.

Process

In Washington Township, development rights did not need to be transferred immediately to a receiving site; the rights could also be resold or held as an investment by a purchaser. The code specified that the severance of development rights was entirely voluntary, that the use of severed rights on receiving sites was also voluntary and that the buyer of development rights did not need to be the owner of a receiving site. The code also required the Township to render a decision on a request to create or transfer development rights within 90 days of the date that the Planning Commission accepted the plans for review.

Sending sites included all land in the Agricultural District. This two square mile area was located just east of Bally in the northeastern corner of the Township. The Agricultural District allowed residential development according to a sliding scale: one unit per six acres, two per 15 acres, three per 45 acres, four per 90 acres and five units per 175 acres; for each 100 acres over 175 acres, one additional dwelling unit was allowed. About three quarters of the Agricultural District was designated as the “one-acre overlay”.

For sending sites in the one-acre overlay of the Agricultural District, development rights were calculated by subtracting the number of existing units from the number of eligible acres in the tract. To determine eligible acres, gross acreage was reduced by the number of acres prohibited from development by easement or covenant, land situated outside of the Agricultural District and land located in designated wetlands, floodplains and public rights-of-way. For sending sites which were not designated as one-acre overlay, the transferable development rights were calculated by subtracting the number of existing units from the number of eligible acres and dividing by three.

This formula provides a considerable incentive for sending site owners to use TDR rather than building on-site. For example, an undeveloped 15-acre sending site in the one-acre overlay, would be allowed two units on site but could be allowed as many as 15 transferable development rights; a significant transfer ratio of 15:2. The same lot outside the one-acre overlay could generate as many as five TDRs, which is still a substantial transfer ratio of 5:2.

The process for severing rights began when the sending site owner submited a plan of the proposed sending site showing all easements, wetlands, floodplains and rights-of-way as well as the calculation of eligible acreage and existing dwellings. Upon the advice of the Planning Commission and the Township Engineer, the Board of Supervisors approved the number of development rights available for transfer at a public meeting. The development rights were created when the applicant recorded the approved plan with the Berks County Recorder of Deeds.

To transfer development rights, a deed of transferable development rights had to be approved by the Board of Supervisors and recorded along with a declaration which deed-restricted the sending site in perpetuity for the number of development rights transferred. The owner did not need to transfer all transferable development rights from the sending site; however, fractional rights could not be transferred.

A receiving site developer who wished to use TDR had to prove ownership or equitable ownership of the development rights needed for a proposed project. When the project was approved, a new deed had to be recorded attaching the deed of transferable development rights to the receiving site in perpetuity.

Receiving sites for transferred development rights were primarily in the Township’s High Density Residential and Village (HDV) district. This zone, which extended for two miles between the unincorporated villages of Eshbach and Barto, was designed to accommodate higher-density, mixed use development where it could be served by public sewer, water and transportation.

Maximum by-right density in the HDV district was one unit per acre when a lot was not served by public water, public sewer or both. By using transferred development rights, lots served by either public water or sewer could achieve a density of one unit per 37,500 acres. Lots served by both public water and sewer had a maximum by-right limit of one unit per 25,000 square feet; when TDR was used the maximum density increased five-fold to one unit per 5,000 square feet. In other words, this option offered a 400 percent density bonus. Development rights could not be used to increase density on lots which have neither public water or sewer. A formula required about one transferred development right for each additional dwelling unit allowed on the receiving site.

In addition to extra residential units, development rights transferred to the HDV district could be used to allow specified commercial uses. For some of these uses, each transferred development right permitted a specified amount of floor area; for example, one development right allowed 500 square feet of retail, 800 square feet of restaurant, 400 square feet of beauty parlor and 500 square feet of professional office space. In other cases, a transferred development right permited a given use regardless of its size; for example, one development right could allow a school, library or day care center.

TDR could also be used to build shopping centers greater than 30,000 square feet in the Township’s Commercial district, a one-half square-mile area east of the HDV district. In this zone, developers had to acquire one transferred development right for each 500 square feet of shopping center floor area in excess of 30,000 square feet.

In addition to the HDV and Commercial districts, transferred development rights could also be used to increase the density of potential receiving sites in the Suburban Residential (R-2) district. The two-square-mile R-2 district lies east of Bectelsville and the Town’s Commercial district. On R-2 land, the allowable density depended on whether the site was served by on-site water and septic or public water and sewer systems.

TDR could not be used to increase density on a lot that had neither public water or sewer. However, TDR could slightly increase the density of receiving sites with either public sewer or public water systems from one unit per acre to one unit per 40,000 square feet. To achieve this higher density, roughly one development right had to be transferred for each unit proposed at the receiving site. Receiving sites served by both public water and sewer systems could achieve a four-fold density increase to one unit per 10,890 square feet by transferring development rights at the rate of one development right for each additional unit proposed for the receiving site. Alternatively one transferred development right was required for each lot at the receiving site proposed to be less than one acre in size.

Program Status

Soon after the ordinance was adopted, 95 development rights were created when preservation plans for 300 acres of agricultural land on three farms were approved by the Board of Supervisors and recorded. In addition, the Boro of Bally had severed development rights for land it owns within the Township. As of June 1996, the Town had given final plan approval to its first receiving site project: a mini-market/drug store on the Township’s major highway. However, as reported above, the TDR code provisions were repealed in 2004.