6-70 Transferable Development Rights System

(a) Sending Sites

In addition to all other uses available, the following types of land shall have the right to sever development rights, and to transfer those development rights to other areas pursuant to this section.

1. Preservation Sites
   • Lots or parcels, or portions of lots or parcel, in the RR, TR-1, TR-2 zone districts that have not previously used TDRs to remove development potential, and subject to the limitations shown in Table 6-12.
2. Conservation Development PUD (CD-PUD)
   • Lands within the Conservation Development PUD (CD-PUD) zone district that are not developed pursuant to the Residential Development or Commercial Agricultural Development Options.
3. Constrained Sites.
   • Legally created lots or parcels that have been identified as Constrained Sites because the lot or parcel is undevelopable or severely restricted pursuant to the Land Use Code, as determined in the discretion of the Board of County Commissioners.
4. Visually Constrained Sites
   • Legally created lots or parcels that have been identified as Visually Constrained Sites because development would severely impact or destroy a scenic public view plane, as determined in the discretion of the Board of County Commissioners.
5. Limited Development Conservation Parcels
   • Conservation parcels on which limited development is proposed pursuant to Sec. 6-70-40(a)(9); on which a conservation easement for limited development has been executed and recorded; and which have received special review approval from the Board of County Commissioners to sever transferable development rights.
6. Properties Designated to Pitkin County Historic Register
   • Properties that have received approval from the Board of County Commissioners to sever development rights (TDRs) in conjunction with designation to the Pitkin County Historic Register

(Code revised (all sections)by Ord. 014-d-2006, 07-05-0; § 6-50-20 (part) amended by Ord. 021-0, 07-24-07; Ord. 023-07, 08-28-07, 019-09, 06-24-09)

NOTES: In zone districts without FAR limits (RS-35, RS-30, RS-20, and AR-10) where TDRs are available to increase house size, the maximum size of the house after use of the TDRs shall be the maximum size shown in Table 5-1, which is based on Comprehensive Plan for different areas. In zone districts with FAR limits (AR-2, R-30, R-15, R-15A, R-6, and VR) where TDRs are available to increase house size, the maximum allowable floor area of the house shall be limited by the applicable FAR, as shown in Table 5-1. 1. TDRs may not be used to exceed the maximum allowable floor area, but may be used to attain the final maximum gross floor area *Except where parcel is less than 1 acre and does not comply with the criteria specified in Sec. 6-70-40(a)(6). **Except where parcel is designated as a Limited Development Conservation Parcel by Special Review

(a) Sending Sites

This section describes how the number of TDRs available to be severed from Sending Sites is calculated. If the Sending Site contains an existing dwelling unit or other primary structure, the total acreage available for calculation of available TDRs under subsections (1) through (3) below shall be reduced by the minimum lot size for a lot in that zone district. The remainder of the lot or parcel does not need to be divided into individual lots or parcels, through subdivision, lot split, or subdivision exemption, as a pre-requisite to severance and transfer.

(1) RR and TR-1 Zone Districts

In the RR and TR-1 zone districts, one TDR may be severed and sold for every thirty-five (35) acres of each Sending Site, provided that fractions of TDRs shall not be considered. A legally created lot or parcel less than thirty-five (35) acres in size may sever and sell one (1) TDR. The transfer of less than one (1) TDR, or any fractional interest of less than a whole number, is prohibited. The following chart illustrates the number of TDRs by size of the Sending Site:

TABLE 6-13: TDRs Available By Acreage

Acreage of Preservation Site Number of TDRs

• 35 acres or less 1 TDR
• 60 acres 1 TDR
• 70 acres 2 TDRs
• 90 acres 2 TDRs
• 135 acres 3 TDRs
• 140 acres 4 TDRs

(2) TR-2 Zone District

• TDRs may be severed and sold from lands within the TR-2 zone district at the rate of one (1) TDR per ten (10) acres for properties as they were configured as of January 26th, 2005. A legally created lot or parcel less than ten (10) acres in size may sever and sell one (1) TDR. The transfer of less than one (1) TDR, or any fractional interest of less than a whole number, is prohibited.

(3) CD-PUD Zone district

• TDRs may be severed and sold from lands within the CD-PUD zone district at the rate of one (1) TDR per thirty-five (35) acres, excluding the first one hundred sixty (160) acres that are developed pursuant to the standards for the Residential Development or Commercial Agricultural Development Options.

(4) Constrained Sites

• The Board may allow one (1) or more development rights to be severed and transferred from a site, provided the site meets the criteria for Constrained Sites in Sec. 6-70-40(a)(7).

(5) Visually Constrained Sites

• The Board may allow one (1) development right to be severed and transferred from a site, provided the site meets the criteria for Visually Constrained Sites in Sec. 6-70-40(a)(8).

(6) Limited Development Conservation Parcels

• Provided the site meets the criteria for Limited Development Conservation Parcels in Sec. 6-70-40(a)(9), TDRs may be severed and sold at the rate of one (1) TDR per thirty-five (35) acres. In calculating parcel size for purposes of determining number of potential TDRs, seventy (70) acres shall be deducted for each legal dwelling unit that exists on the property. If no dwelling units exist on the property, and the property was legally created before June 12, 1978, the entire parcel acreage can be used for purposes of determining number of potential TDRs.

(a) Criteria for Sending Sites

1. Legally Created Lot or Parcel
   • A Sending Site shall be a legally created Lot or Parcel.
2. Eligible Sending Sites
   • Eligible Sending Sites are specified in Sec. 6-70-20(a). TDRs may be severed and sold from Eligible Sending Sites if the land is subject to a conservation easement granted to Pitkin County in a form approved by the County after the 5th of July, 2006 but before the TDRs have been certified provided the conservation easement specifically reserves the right to certify TDRs. The County, in its discretion, may refuse acceptance of the conservation easement. If the landowner seeking a TDR claims State or Federal Tax benefits for the conservation easement, the landowner must declare any TDRs reserved as an amount received for a bargain sale at their appraised value on IRS Form 8283 signed by the appraiser and acknowledged by the County. TDRs reserved in a conservation easement may not be certified until the County duly executes a restrictive covenant on the property, and takes other action as may be necessary to rezone the property or to designate it as a constrained lot in order to designate the property as a TDR sending site.

3.Aggregation of Acreage

• The acreage of all contiguous parcels in common ownership shall be aggregated for purposes of calculating how many TDRs may be severed from the Sending Site.

4. Restriction on Further Development

• Upon severance of a TDR from a Sending Site, the owner of the Sending Site shall execute and record a restrictive covenant on the parcel that acknowledges that the development right has been severed from the parcel and that all further development, as that term is defined in Chapter 11, is prohibited. The form of the covenant shall be approved by the County Attorney, and shall address (a) what types of activities not involving structures or regular human occupancy may still be conducted upon the land following severance of the TDR, and (b) obligations regarding maintenance of the land (including weed control and fence maintenance) following severance of the TDR.

5. Criteria for Retaining Structure in RR Zone District

• Notwithstanding the severance of TDR(s) from a lot or parcel in the RR zone district, one (1) legally created structure up to one thousand (1,000) square feet in size may be retained, subject to special review approval and the following additional standards and criteria:
  • (a) The structure must pre-date the re-zoning of the parcel to the RR zone district;
  • (b) The structure must be on a least thirty-five (35) acre parcel, or must be on a legally created separate parcel that is substandard in size. Subdivision shall not be permitted to create parcels less than thirty-five (35) acres in size;
  • (c) The structure must be deed restricted as Category or Resident-Occupied employee housing as specified by the Board of County Commissioners;
  • (d) The preservation site must be restricted against all further development, as that term is defined in Chapter 11, in a form acceptable to the County Attorney;
  • (e) The structure may never be expanded, and may only be replaced with a structure of the same mass and bulk with no change to the existing footprint; and
  • (f) The structure may not be subdivided, separately conveyed or otherwise separated from the underlying preservation site.

6. Criteria for Transfer of TDR From a Lot or Parcel Containing Less Than One Acre Within the RR, TR-1 or TR-2 Zone Districts

• If an owner of a parcel of one (1) acre or less in the RR, TR-1 or TR-2 zone districts wishes to be granted a TDR, the following criteria must be met and an administrative approval granted pursuant to Sec. 2-30-20:
  • (a) The applicant must provide the legal description and proof of ownership of the property and a site plan demonstrating that the following can be met:
    1. Required distances between the well location and the onsite wastewater treatment system can be satisfied pursuant to the Pitkin County Environmental Health and Natural Resources regulations;
    2. A onsite wastewater treatment system can be accommodated pursuant to the Pitkin County Environmental Health and Natural Resources regulations;
    3. A footprint of one thousand (1,000) square feet for a structure can be accommodated on the site without interference of subsections (1) and (2) above;
    4. Legal access to the site exists;
    5. Any site with a septic tank must have access for a septic pump truck.

7. Criteria for Constrained Site TDRs

• (a) The lot or parcel shall be located in a zone district other than the RR, TR-1, TR-2, VR, VC, SKI-REC, MHP, AH, AH-PUD, RS-G, B-1, B-2, P-I, T, PUB, I, U or AC/REC-2 zone districts, and shall be undevelopable or severely restricted pursuant to this Land Use Code. Both the availability of Constrained Site TDRs and the amount of TDRs to be awarded, if any, are discretionary with the Board, and shall be considered pursuant to Sec. 6-70-20(a)(3).
• (b) The determination that a property is constrained pursuant to this section is merely a procedure to allow the Board to consider granting a TDR(s) at the request of a property owner, and shall not be considered a final decision as to the beneficial, productive, and/or economically viable uses that may be available to the property.

8. Criteria for Visually Constrained Site TDRs

• (a) The lot or parcel shall be located in a zone district other than the RR, TR-1, TR-2, VR, VC, SKI-REC, MHP, AH, AH-PUD, RS-G, B-1, B-2, P-I, T, PUB, I, U or AC/REC-2 zone district, and shall be determined by the Community Development Department to be visually constrained because development would severely impact or destroy a Scenic View Protection Area, and the Board of County Commissioners shall confirm that determination. The availability of a Visually Constrained Site TDR(s) is discretionary with the Board, and shall be considered pursuant to Sec. 6-70-20(a)(4).
• (b) The determination that property is visually constrained pursuant to this section is merely a procedure to allow the Board to consider granting one transferable development right at the request of a property owner, and shall not be considered a final decision as to the beneficial, productive, and/or economically viable uses that may be available to the property.

9. Criteria for Limited Development Conservation Parcels TDRS

• If a property owner wishes to sever TDRs from a parcel on which no further development is proposed (with the exception of development of one (1) deed restricted caretaker dwelling unit; and /or accessory agricultural buildings) the following criteria must be met in addition to the Special Review criteria in Sec. 2-30-30(h).
  • (a) The parcel shall be located within the AR-10, RS-20,RS-30, RS-35 or RS-160 zone districts.
  • (b) The parcel shall contain a minimum of 160 acres and be configured as it was on December 6, 2006. All residential and accessory structures (with the exception of agricultural buildings) must have existed on the subject property on or before December 6, 2006. All adjacent parcels held in common ownership shall be included for review.
  • (c) If there is no existing development on the property then no further development is allowed.
  • (d) If there is existing development on the property, then further development shall be limited as follows:
    1. An activity envelope and site plan shall be established for all existing development on the property. The size and location of existing structures shall be documented on the site plan.
    2. One existing dwelling unit on the parcel may expand up to a maximum floor area of 5,750 square feet. (Floor area of accessory structures other than agricultural buildings, shall be included in the total floor area allowance of five thousand seven hundred fifty (5,750) square feet.) If a dwelling unit(s) of larger than five thousand seven hundred 50 (5,750) square feet exists, and/or if more than one legal dwelling unit exists on the parcel, then the parcel shall be subject to the replacement and/or non-conforming structure provisions of the Land Use Code.
    3. Agricultural buildings are exempt from floor area as provided in Sec. 5-20-70(j). The location of proposed agricultural buildings shall be established through the activity envelope and site plan process, unless they are determined to be exempt pursuant to Sec. 7-10-30.
    4. One deed-restricted caretaker dwelling unit of up to one thousand (1,000) square feet shall not count as floor area. Other accessory structures including garages, shall count as floor area. Below grade space shall count as floor area.
    5. Neither Growth Management allotments, nor growth management exemptions, including TDRs may be used on-site to increase floor area or to create a new development right(s).
    6. If a deed restricted dwelling unit does not already exist, development of one (1) deed restricted caretaker dwelling unit may be requested and reviewed concurrently with special review for severance of TDRs on the property, subject to the criteria in Secs. 4-30-50 (e) and 6-30-40 (c). The location of the proposed caretaker dwelling unit shall be established through the activity envelope and site plan process. Parcels shall not be eligible to apply for any other new Special Review Uses.
  • (e) A conservation easement prohibiting further development of the property must be approved by the County Attorney, executed and recorded prior to, or concurrent with issuance of TDR Certificates. The following two exceptions to the prohibition of further development may be made for properties with existing development.
    1. Agricultural Buildings may be built to accommodate on-site agricultural operations subject the provisions of Sec.5-20-70(j) and/or
    2. One (1) deed restricted caretaker dwelling unit may be built, if there is an existing principal dwelling unit on the property.
  • (f) TDRs may be severed from the property and transferred off-site to eligible receiver sites based on the following criteria:
    1. The parcel size shall be based upon a survey depicting the property and adjacent parcels held in common ownership, both as configured on December 6, 2006.
    2. The number of TDRs awarded shall be based on one (1) TDR/thirty-five (35) acres.
    3. In calculating parcel size for purposes of determining the number the number of potential TDRs, seventy (70) acres shall be deducted for each legal dwelling unit that exists on the property. If no dwelling units exist on the property, and the property was legally created before June 12, 1978, and is not otherwise restricted against further development, the entire parcel acreage can be used for purposes of determining number of potential TDRs.
    4. If the Applicant chooses to limit the floor area of the principal structure on the property in perpetuity to a maximum of 3,250 square feet then one (1) TDR may be awarded for the 2,500 square foot reduction in the floor area from five thousand seven hundred fifty (5,750) square feet of floor area.
  • (g) Land use approvals on Limited Development Conservation Parcels shall be granted vested property rights pursuant to Section 2-20-170, but the vesting of rights shall be for a period of twenty (20) years, rather than three years.
  • (h) Approval for an Activity Envelope or Site Plan on a Parcel shall remain in effect until the end of the lapsing period according to provisions in Section 2-20-160, except the approval shall lapse (i.e. expire) after a period of twenty (20) years and/or after a period that coincides exactly with the vesting period granted.

10. Criteria for Properties Designated on the Pitkin County Historic Register

• Both the availability of historic register property TDRs and the amount of TDRs to be awarded, if any, are discretionary with the Board, and shall be considered pursuant to Section 6-70-20(a)(6). In making a determination on how many TDRs to award, the Board of County Commissioners shall consider the following factors:
  • (a) Community benefit associated with historic resource, including but not limited to the following considerations:
    1. Value/importance of resource relative to overall County Historic Inventory
    2. Accessibility to the public;
    3. Visibility to the public;
    4. Neighborhood/Caucus Master Plan identification of resource as valuable;
    5. Caucus recommendation regarding value of resource to Caucus area;
    6. Guarantee of long-term preservation of resource through a covenant, development agreement, conservation easement or other instrument acceptable to the Community Development Department and the County Attorney.
  • (b) Cumulative Community impacts associated with the following discretionary incentives in the event that one or more are issued by the BOCC for the property:
    1. Growth Management Quota Exemption;
    2. Subgrade space exemption from floor area calculation;
    3. Exemption from affordable housing mitigation requirements;
    4. Density bonus of one additional house or intensity bonus.
  • (c) Amount of incentive required to effect preservation of historic resource
  • (d) Likely development potential of the property based upon zoned density and intensity, development of comparable properties in the neighborhood, physical characteristics of the land, neighborhood compatibility, and extent to which infrastructure could accommodate potential development.