East Nantmeal, population 1,803 (2010), is a 15-square mile township located in northern Chester County, Pennsylvania, 35 miles west of Philadelphia. The Township is predominantly rural and has not as yet experienced large-scale development. But the Board of Supervisors is concerned that, sooner or later, East Nantmeal will undergo increased growth pressures due, perhaps, to its proximity to large metropolitan areas and its location on the Pennsylvania Turnpike.
In the early 1990s, East Nantmeal participated in an updating of its zoning ordinance with the assistance of planning consultant Wayne Grafton, who also prepared the zoning/TDR ordinance for London Grove Township in southern Chester County. In studying alternative land preservation strategies, Grafton kept in mind a Pennsylvania case which held that low-density zoning could only be based on health, safety and welfare issues such as water supply, suitability of land for septic systems and preservation of prime agricultural farmland.
In 1994, the Township adopted a zoning code amendment which declares the preservation of farmland and agricultural activities to be of the greatest importance to the Township. This ordinance created an Agricultural Preservation district which changed the maximum density of much of the Township from one unit per two acres to one unit per ten acres. To mitigate economic hardships for the owners of land in the Agricultural Preservation district, the ordinance includes a TDR component designed to offer compensation to these owners by allowing them to transfer development rights to other areas in the Township suitable for development. The following description comes from Beyond Takings and Givings, published in 2003.
Potential sending sites include all Class I Prime Agricultural land within the Township’s Agricultural Preservation (AP) District. The AP District covers approximately 13 square miles of land, or almost 90 percent of the land area of the Township. The development requirements of the AP district differ depending on the soil classification of the site. Class I lands are limited to agriculture and limited residential development at a maximum by-right density of one dwelling unit per ten acres.
By conditional use permit, owners of Class I land in the AP district may also use a Cluster Development option. The use of Cluster Development is voluntary for subdivisions less than 40 acres in size and mandatory for subdivisions greater than 40 acres. However, Cluster Developments must be served by centralized water and sewer. In the Cluster Development option, the base density of one unit per ten acres of net land area can be increased three-fold if 70 percent of the gross tract is permanently preserved for agricultural or passive recreation uses.
The East Nantmeal ordinance clarifies that property owners are not required to sell or buy these rights in order to develop their land. Also, the ordinance specifies that the Township is not obligated to determine the number of rights available to any tract until the owner submits an application to use these rights.
To determine the available development rights, the gross tract acreage is computed by excluding all land outside the Agricultural Preservation district. This gross tract acreage must then be converted to “Net TDR Acreage” by deducting the following: acreage precluded from development by easements and deed restrictions; land containing an existing dwelling; land used for non-agricultural purposes; acreage occupied by nonconforming uses; and 50 percent of the land area within the Water Hazard District. Development rights may be transferred at the rate of one TDR per two acres; when compared with the by-right density allowed in the AP District, this represents a transfer ratio of five to one.
The East Nantmeal ordinance identifies two receiving areas: Class II land in the Agricultural Preservation District and land in the Agricultural Residential (AR) District. Class II land in the AP District has a by-right density of one unit per two acres without the use of TDR. But using TDRs from Class I land in the AP, these receiving sites can achieve a density of five units per acre, 10 times the density achievable under the baseline zoning, or a 900 percent density bonus.
The other receiving site for TDRS are properties in the Agricultural Residential (AR) district, a zone which covers approximately two square miles at the far eastern and western edges of the Township. As a matter of right, single family residential homes are allowed in the AR district at a maximum density of one unit per 1.5 acres of land. Alternatively, owners of land in the AR district may seek a conditional use permit for one other density-increasing procedure other than TDR. Under a procedure known as “Density Residential Development”, developers of tracts at least 40 acres in size may achieve a density of four units per acre as long as no less than 50 percent of the development is maintained as open space for the residents of the development. This represents a six-to-one increase in density.
Using the TDR option, receiving site developers can achieve a maximum density of five dwelling units per acre, a 7.5-to-one increase over the baseline density of one unit per 1.5 acres. Each development right transferred to the AR district can be used to build one extra dwelling unit in a receiving site project. With the exception of density, receiving site projects must comply with all development standards applicable in the AR District.
The East Nantmeal zoning ordinance spells out five requirements for transferring development rights.
- The conditional use permit application for using TDR must be accompanied by a title certificate showing restrictions on the sending site and either a deed for the development rights needed on the receiving site or an Agreement of Sale for these rights.
- The Zoning Officer and Township Engineer examine these documents for adequacy.
- The sending site owner must certify that the development rights are available for transfer and have not been previously conveyed.
- Within 30 days of the approval of the receiving site project, a deed must be recorded permanently restricting the sending site acreage from which the development rights were transferred.
- Development rights can only be held by either the owners of sending sites or the developers of receiving sites; TDRs cannot be bought, sold or held by any other parties.
The East Nantmeal ordinance has many of the features found in successful TDR programs. The five-to-one transfer ratio provides a substantial motivation for sending site owners to transfer rather than build on site at relatively low densities. Likewise, the owners of potential receiving sites achieve as much as ten times the density allowed by the baseline zoning, or a 900 percent density bonus.
However, as a possible deterrent to transfers, TDR is not the only way for the owners of sending sites to achieve higher densities by building on site; by using the Cluster Development option, these owners can way for receiving site owners to obtain additional development under the East Nantmeal ordinance. Using the Density Development option, the maximum density of land in the Agricultural Preservation District can be three times the baseline density as long as 70 percent of the site is retained for agricultural uses. Sending site owners may prefer this option to selling TDRs since it does not require them to find a buyer who will pay a reasonable price.
Another potential for deterring transfers may occur because the receiving site owners also have non-TDR options for achieving higher density. The maximum density of land in the Agricultural Residential District can increase from one unit per 1.5 acres to four units per acre without using transferred development rights. Even though projects using TDR can be granted more density, (five units per acre), the Density Development option may appeal to many property owners since it does not require the purchase of development rights.
In a January 2001 update, consultant Wayne Grafton reported that the TDR program was languishing because many preservation-minded landowners were in a higher financial bracket and preferred to donate conservation easements to public agencies or conservation organizations for the tax reduction benefits.