Whatcom County, population 229,247 (2019), stretches from the Straight of Georgia to the Cascade Mountains just south of the Canadian border. Its original TDR ordinance was never used. In December 1999, the County expanded the original ordinance. The stated goals of the new ordinance are: to provide flexibility and better use of land; to help preserve critical areas, watersheds, and open space; to provide for equalization of property values between zones; and to work toward achieving the objectives of the County’s land-use plan. But the amendment was primarily designed to focus on the goal of preserving the watershed of Lake Whatcom.
Whatcom County’s TDR program aims to preserve land in the watershed of Lake Whatcom, which supplies drinking water to much of the County.
Lake Whatcom is a multi-purpose reservoir that supplies drinking water to half the population of Whatcom County including the City of Bellingham and several smaller water districts. In addition to water supply, Lake Whatcom is used for boating, fishing, and swimming. Although the Lake Whatcom watershed is currently primarily forested, residences currently exist and many more could be added. However, the potential build-out of the watershed was recently reduced from about 10,000 to 6,000 home sites as a result of several efforts. 1) A watershed protection ordinance was adopted for the portion of the watershed that lies within the City of Bellingham. 2) The County rezoned a portion of the watershed from one unit per two acres to one unit per five acres. 3) A large development community pledged to eliminate 1,400 lots. Approximately one-third of the parcels in the watershed do not have sewer service. Other uses include small farms, limited commercial, public facilities, and private as well as public parks.
In 2000, various concerns about the program were raised by citizens and County staff including the transfer ratios from the UR and RR sending areas, the need for additional receiving areas, and extra developer incentives. Amendments addressing these concerns were adopted in January 2001. Other amendments to the TDR code were subsequently made in 2004 and 2005, as discussed below.
Sending sites are those areas that qualify as sending sites according to the County’s zoning map. The December 1999 amendment designated a sending area that included the entire watershed for Whatcom Lake, an area approximately 45-square miles in size. Almost half this land area, 46 percent, is in public ownership as state forest. Another 23 percent is in commercial forests.
In January 2000, the County Council excluded Sudden Valley from the sending area. Sudden Valley is a recreational community approximately three square miles in size and is located on the western shore of Lake Whatcom. It was excluded from the sending area because it was pursuing its own lot-elimination campaign designed to retire 1,400 lots, bringing the potential build-out of Sudden Valley from 4,600 to 3,200 houses.
The code allows additional sending areas to be created through the process of amending the zoning map. Consequently, Whatcom County can expand the goals of its TDR program without necessarily having to make further amendments to its TDR ordinance.
The mapped sending areas have a wide variety of zoning designations. Much of the watershed is zoned for commercial forestry, which allows very little development potential. Other rural zones in the watershed allow on-site development ranging from one unit per ten acres to one unit per two acres. These rural zones offer a one-to-one transfer ratio; the number of TDRs that can be transferred equals the number of dwelling units that can be built on-site. However, the code makes an exception for land in the watershed in the Urban Residential (UR) and Rural Residential (RR) zones. In these zones, TDRs can be certified at the densities that would only be allowed to on-site development with sewer and/or water. For example, a five-acre site zoned UR 3 would only be allowed one TDR per five acres without public water and sewer service. However, TDRs could be certified at the three-unit-per-acre density that would be allowed if public sewer and water were available. This amounts to a transfer ratio of 15 to one.
Receiving areas are also depicted on the County zoning map. The County can create additional receiving areas by amending the zoning map following a determination that the subject site is appropriate for designation as a TDR receiving area. As the ordinance existed in 2002, when allowable density in an area increased due to a rezoning or expansion of an urban growth area, the County was to review the area to determine whether it is appropriate as a TDR receiving site. After amendments in 2004, these rezoned areas and expanded urban growth areas are to automatically become receiving areas. The county ordinance also allows incorporated cities, in cooperation with Whatcom County, to designate TDR receiving areas if the sites are appropriate for higher densities, not limited by significant critical areas, and unlikely to cause significant adverse impacts.
As of 2002, three areas in the City of Bellingham’s growth area zoned URMX were depicted as receiving sites on the zoning map. This zone provides a baseline density of four dwelling units per acre. With TDR, the maximum density can increase to six units per acre, a density bonus of 50 percent. Density can go as high as ten units per acre when developers provide development features and amenities.
Developers wishing to use TDRs must apply for a transfer of development rights permit. Decisions on the TDR permit are made concurrently with decisions needed for the receiving site project. The permit may be approved if the transfer achieves the purposes and requirements of the TDR provisions and if the transfer will result in the preservation of open space. Approval of an application for a TDR permit is discretionary.
Prior to final approval of a TDR permit, the County must approve the concurrent development project and record a legal instrument to effect the transfer. This instrument must include legal descriptions of the sending and receiving parcels and the serial numbers of the TDRs being transferred. The County must also verify that a deed restriction on the sending site has been recorded.
To encourage the use of TDR, Whatcom County allows applicants to apply for exemptions from certain fees and requirements. Specifically, the applicant must be granted a 25 percent reduction for all lot review fees. In addition, projects using TDRs may be granted reductions or exemptions from minimum landscape requirements and a 15 percent reduction in lot coverage if these exceptions will not adversely affect project residents, adjacent residents or the character of the neighborhood.
In a 2004 amendment, the County added cash in-lieu payments as a way for developers to comply with the TDR requirements. This amendment also authorized Whatcom County to create a development rights bank and a DR bank oversight committee; however, as of 2020, the bank had not been formed. In 2017, the county added a density credit program to the zoning code allowing receiving site developers wanting density bonus in the Resort Commercial Zone in the Birch Bay Urban Growth Area to obtain density credits by making a cash payment of $4,000 per extra dwelling unit.
A 2018 study reported that 247 TDRs had been certified but only 18 had transferred due to low demand for higher density, lack of relevant incentives, limited county receiving sites, lack of inter-jurisdictional participation (except from the City of Bellingham), the uncertainty/complexity of a discretionary approval process, an inactive cash-in-lieu option, the additional development cost of TDRs, and concern about the legality of requiring TDR for land added to urban growth boundaries. The study urged focusing on the density credit option due to its simplicity and expanding the density credit program to include small cities, additional areas of the Birch Bay Urban Growth Area, certain rural areas, and accessory dwelling units.