Douglas County, population 285,465 (2010) begins 15 miles south of downtown Denver, Colorado. With the exception of new suburbs close to Denver, the County largely consists of plains to the east and the front range of the Rocky Mountains on the west, including hundreds of square miles of land in the Pike National Forest.
The County is interested in preserving areas that are valuable for wildlife habitat, water conservation and scenic resources. As a result, the County reacted favorably to two development proposals which offered to preserve open space. In one proposal, the developer offered to preserve 600 acres adjacent to a state park, relinquishing over 1,000 buildable lots, in return for being able to build additional lots within an area provided with urban services. In the second instance, another developer offered to preserve land in an area designated for open space in the County’s general plan in return for being able to construct additional units in an area designated for development.
In both of the cases cited above, the County was reluctant to call the process a transfer of development rights out of a concern that the County code did not expressly allow TDR. However, after these two applications were approved, the County adopted a transfer of development credits program to provide an approved process for these types of proposals to follow in the future. The ordinance was amended in 2009 as discussed in the following section.
The Douglas County code allows density transfers between non-contiguous parcels of land on a case-by-case basis when the proposed transfer would be consistent with County goals and policies. The sending sites could be any properties that result in open space. The high cost of building on development-constrained sending sites provides the primary motivation for sending site owners to participate.
Section 213.02 specifically prohibits transfers to result in a net increase in dwelling units. However in 2009, a code amendment clarified that the County can downzone land in the nonurban area to achieve consistency between the zoning code and the Douglas County Master Plan and to create a public benefit such as protecting wildlife habitat, preserving the natural landscape or preserving a view corridor identified on the Douglas County Master Plan Open Space Land Opportunities Map.
The development credits are created when the sending parcel is preserved in perpetuity by a conservation easement or some other restriction acceptable to the County. Douglas County does not allow development credits to be treated as a commodity; when a sending site owner creates development credits, these credits must be transferred concurrently with the rezoning of the receiving site. The net density of the receiving site after the transfer must be in conformance with the County Master Plan and Zoning Resolution.
As discussed above, two development proposals led to the adoption of Douglas County’s TDC program. In the first case, 1,000 substandard lots existed in an antiquated, 600-acre subdivision adjacent to Roxborough State Park. The park is designated as a Colorado Natural Area and a National Natural Landmark due to its dramatic red-rock formations. The owner of most of the land in this subdivision proposed to buy out 30 smaller property owners, transfer the deed to the land to the County, and build 141 extra lots at another location in an area designated for urban services. The transfer ratio was less than one-to-one: 1,000 lots were being forfeited next to the park while only 141 extra lots were being created in the urban services area by way of a rezoning to the planned development designation. Some residents adjacent to the development site were concerned about the additional density. However, the County approved the project. The County then turned the 600-acre site over to the State of Colorado and the site was added to Roxborough Park.
In the second case, one owner held title to two adjacent properties. One site was designated in the County’s general plan for preservation even though it was inconsistently zoned for residential development at a density of four units per acre. The adjacent property was designated in the general plan for urban development but the zoning allowed only one dwelling unit per 2.5 acres. The County ultimately approved an agreement in which the land designated in the general plan for preservation was deed-restricted as open space while the land designated for urban development was rezoned for development at double the density allowed by the original zoning.
In both of these cases, the County declined to refer to this process as a transfer of development rights since the code did not specifically permit TDC. The code was ultimately amended to permit the TDC process described above. No transfers have occurred since the code amendment was adopted in 1996.
In a January 2001 update, Betty Allen, Assistant Director of Planning & Zoning, reported that the County was working with cities and towns to create intergovernmental agreements that might provide for transferring units from rural county areas to receiving areas within the cities and towns. By 2005, Ms. Allen reported that the inter-governmental agreements signed by the cities and the county did not ultimately provide for inter-jurisdictional transfers of TDRs. At that time, she also mentioned that the receiving areas have adequate zoning capacity to accommodate future development, possibly until the year 2025. The resulting lack of receiving area demand has stymied the program even though some sending areas in the rural parts of the County have been downzoned. As a result, as of 2005, the program had generated no transfers.