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DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT









 

DIVISION 28
OREGON TRANSFER OF DEVELOPMENT RIGHTS PILOT PROGRAM

660-028-0010
Definitions
For purposes of this division,
the definitions contained in ORS 197.015 and the Statewide Land Use Planning Goals
(OAR chapter 660, division 15) apply. In addition, the following definitions apply:
(1) “Conservation easement”
has the meaning provided in ORS 271.715.
(2) “Local Government”
means a city, county, metropolitan service district or state agency as defined in
ORS 171.133.
(3) “Receiving area”
means a designated area of land to which a holder of development rights generated
from a sending area may transfer the development rights, and in which additional
residential or other uses or development, not otherwise allowed, are allowed by
reason of the transfer.
(4) “Sending area”
means a designated area of resource land from which development rights generated
from forgone development are transferable, for residential uses or development not
otherwise allowed, to a receiving area.
(5) “Transferable development
right or TDR” means a severable residential development interest in real property
that can be transferred from a lot, parcel or tract in a sending area to a lot,
parcel or tract in a receiving area. This term has the same meaning as “transferable
development credit” under Oregon Laws 2009, chapter 504, section 2(10).
Stat. Auth.: ORS 197.040

Stats. Implemented: 2009 OL
Ch 636, § 6

Hist.: LCDD 1-2010, f. &
cert. ef. 1-28-10; LCDD 6-2012, f. & cert. ef. 2-14-12
660-028-0020
Selection of Pilot Projects
(1) This rule establishes the
process for the commission to select up to three TDR pilot projects from among projects
nominated by one or more local governments, as provided in Oregon Laws 2009, chapter
636.
(2) A proposed TDR pilot project
will be considered by the department and the commission if the local governments
with land use jurisdiction over the proposed sending and receiving areas submit:
(a) A completed application
form;
(b) A letter of interest along
with the owner(s) of at least fifty percent of the land in the proposed sending
area;
(c) A concept plan consistent
with the requirements of OAR 660-028-0030 that describes the proposed TDR pilot
project and that includes:
(A) Proposed amendments to the
local government comprehensive plan and land use regulations necessary to implement
the pilot project, a tentative schedule for adoption of the amendments, and a description
of any other proposed actions intended to implement the proposed TDR pilot project;
(B) Maps and other pertinent
information describing the proposed sending areas and receiving areas;
(C) Proposed transfer ratios
as specified in OAR 660-028-0030(5) and other incentives for participation; and
(D) A letter from a qualified
entity as defined in ORS 271.715 expressing interest in holding and monitoring any
conservation easement or similar restriction to ensure that development rights are
transferred off of the proposed sending area.
(3) The commission may extend
the deadline in section (2) of this rule if it finds that additional time is necessary
to ensure a satisfactory pool of applications for consideration under this program.
(4) The department will review
applications and submit its recommendations for review by the commission within
120 days of the deadline established under section (2) or (3) of this rule. The
department will base its recommendations on its assessment of:
(a) The beneficial qualities
and attributes of the lands in the proposed sending area for forest management and
the degree of risk that those qualities and attributes will be lost in the absence
of the proposed project based on information in the proposal and other available
information provided by the State Forestry Department and others;
(b) The location, attributes,
size and configuration of proposed sending and receiving areas, including the quality
of the forest land intended to be conserved under the proposed TDR pilot project;
(c) The demonstrated intent
and ability of the local government and other participants to implement the proposed
TDR pilot project within a reasonable timeframe; and
(d) The likelihood that the
proposed TDR pilot project will succeed and achieve the purposes and requirements
of the Oregon TDR Pilot Program expressed in Oregon Laws 2009, chapter 636.
(5) Upon review of the applications,
the commission may select up to three qualified TDR pilot projects for inclusion
in the Oregon TDR Pilot Program. In deciding which TDR pilot projects to select,
the commission must consider the department's recommendations, the written applications
and concept plans, and any other available and pertinent information it deems relevant
to its decision.
(6) When selecting a TDR pilot
project the commission must find that the pilot project will comply with the requirements
specified in OAR 660-028-0030 and other requirements of law, and that the pilot
project is:
(a) Reasonably likely to provide
a net benefit to the forest economy or the agricultural economy of this state and
achieve the purposes and requirements of the Oregon TDR Pilot Program expressed
in Oregon Laws 2009, chapter 636;
(b) Designed to avoid or minimize
adverse effects on transportation, natural resources, public facilities and services,
nearby urban areas and nearby farm and forest uses; and
(c) Designed so that new development
authorized in a receiving area as a result of the transferred development rights
will not conflict with:
(A) Significant Goal 5 resources,
including natural, scenic, and historic resources, open spaces and other resources
and resource areas inventoried in accordance with Goal 5 and OAR chapter 660, division
23 or OAR chapter 660, division 16; or
(B) Areas identified as conservation
opportunity areas in the Oregon Department of Fish and Wildlife’s 2006 “Oregon
Conservation Strategy.”
Stat. Auth.: ORS 197.040

Stats. Implemented: 2009 OL
Ch 636, § 6

Hist.: LCDD 1-2010, f. &
cert. ef. 1-28-10; LCDD 6-2012, f. & cert. ef. 2-14-12
660-028-0030
Requirements for TDR
Pilot Projects
(1) At the time the local government(s)
submits an application for a proposed TDR pilot project, the proposed sending area
must be planned and zoned for forest use, may not exceed 10,000 acres, and must
contain four or fewer dwelling units per square mile.
(2) At the time the local government(s)
submits an application for a proposed TDR pilot project, the proposed receiving
area or areas may not be located within 10 miles of the Portland metropolitan area
urban growth boundary. The receiving area or areas must be only the appropriate
size necessary to accommodate the anticipated development rights that will reasonably
be generated and transferred from the sending area, with consideration of uses and
density to be authorized under the proposed amendments to the local government comprehensive
plan and land use regulations to implement the proposed TDR pilot project if it
is selected.
(3) In proposing a receiving
area for a TDR pilot project, the local government must select the area based on
consideration of the following priorities:
(a) First priority is lands
within an urban growth boundary.
(b) Second priority is lands
that are adjacent to an urban growth boundary and that are subject to an exception
to Goal 3 or Goal 4.
(c) Third priority is lands
that are:
(A) Within a designated urban
unincorporated community or rural community; or
(B) In a resort community, or
a rural service center, that contains at least 100 dwelling units at the time the
pilot project is approved.
(d) Fourth priority is exception
areas approved under ORS 197.732 that are adjacent to urban unincorporated communities
or rural communities, if the county agrees to bring the receiving area within the
boundaries of the community and to provide the community with water and sewer service.
(4) With respect to the priority
of receiving areas described in subsection (3) of this rule, the commission may
authorize a local government to select
lower priority lands over higher priority lands for a receiving area in a TDR pilot
project only if the local government has established, to the satisfaction of the
commission, that selecting higher priority lands as the receiving area is not likely
to result in the severance and transfer of a significant proportion of the development
interests in the sending area within five years after the receiving area is established.
(5) The minimum residential density of
development allowed in receiving areas intended for residential development is:
(a) For second priority lands
described in subsection (3)(b) of this rule, at least five dwelling units per net
acre or 125 percent of the average residential density allowed within the urban
growth boundary when the pilot project is approved by the commission, whichever
is greater.
(b) For third priority and fourth
priority lands described in subsection (3)(c) and (d) of this rule, at least 125
percent of the average residential density allowed on land planned for residential
use within the unincorporated community when the pilot project is approved by the
commission. If these lands are within one jurisdiction but adjacent to another jurisdiction,
the written consent of the adjacent jurisdiction is required for designation of
the receiving area.
(6) The ratio of transferable
development rights to severed residential development interests in a sending area
must be calculated to protect lands planned and zoned for forest use and to create
incentives for owners of land in the sending and receiving areas to participate
in the TDR pilot project. The maximum ratio:
(a) May not exceed one transferable
development right to one severed development interest if the receiving area is outside
of urban growth boundaries and outside unincorporated communities, except that
this maximum ratio does not apply to an exception area described in subsection (3)(b)
of this rule provided the TDR pilot project concept plan ensures the inclusion of
the receiving area within an urban growth boundary, either under applicable requirements
of Goal 14 and other laws or the alternative provisions in section (12) of this
rule. The concept plan may allow the transfer of development rights authorized in
this subsection prior to the inclusion of the receiving area in an acknowledged
urban growth boundary provided the amended comprehensive plan and land use regulations
ensure that the transferred rights cannot be exercised at a higher ratio than specified
in this rule until the receiving area is included in the urban growth boundary.
(b) May not exceed two transferable
development rights to one severed development interest if the receiving area is
in an unincorporated community; and
(c) Must be consistent with
plans for public facilities and services in the receiving area.
(7) Within one year after the
commission has approved a proposed concept plan, the local governments having land
use jurisdiction over the affected sending and receiving areas must adopt overlay
zone provisions and corresponding amendments to the comprehensive plan and land
use regulations to implement the concept plan and to identify and authorize the
additional residential development allowed through participation in the pilot project.
The local governments must submit and the commission must review the comprehensive
plan and land use regulation amendments in the manner of periodic review under ORS
197.628 to 197.650. Transfer of development interests may not occur prior to the
commission’s acknowledgment of the comprehensive plan and land use regulation
amendments.
(8) The comprehensive plan and
land use regulation amendments required by section (7) of this rule must specify
the type and density of the additional development to be transferred and allowed
in a receiving area through participation in a TDR pilot project, in accordance
with the concept plan approved by the commission and other applicable requirements
of this rule.
(9) In addition to the requirements
of section (7) of this rule, before any development rights may be exercised in the
receiving area, the participating owners of land in a sending area must grant a
conservation easement pursuant to ORS 271.715 to 271.795 or otherwise ensure on
a permanent basis that additional residential development does not occur in the
sending area.
(10) If the receiving area for
a TDR pilot project is intended for residential development and is within an urban
growth boundary expansion area approved under section (12) of this rule, or is in
an exception area described in subsection (3)(b) and section (11) of this rule,
the amended comprehensive plan and land use regulations required by section (7)
of this rule must authorize a residential density of:
(a) For second priority lands
described in subsection (3)(b), at least five dwelling units per net acre or 125
percent of the average residential density allowed within the urban growth boundary
when the pilot project is approved by the commission, whichever is greater.
(b) For third priority and fourth
priority lands described in subsections (3)(c) and (d), at least 125 percent of
the average residential density allowed on land planned for residential use within
the unincorporated community when the pilot project is approved by the commission.
(11) Notwithstanding contrary
provisions of statewide land use planning Goals 11 and 14 and related rules, and
notwithstanding ORS 215.700 to 215.780, if the commission approves a TDR pilot project,
a local government may amend its comprehensive plan and land use regulations to
allow transferred rights under an approved TDR pilot project to develop as urban
level development, with urban levels of public facilities and services, including
transportation, in a receiving area that consists of land adjacent to an urban growth
boundary or unincorporated community boundary and subject to an exception to Goal
3 or Goal 4, consistent with subsections (3)(b), (c) and (d) and section 10 of this
rule. The concept plan described under OAR 660-028-0020(2)(b) must indicate whether
a local government intends to change comprehensive plan and land use regulations
to allow urban level of development and urban levels of public facilities and services
in the receiving area and, where intended for residential development, must include
an agreement to rezone the receiving area to authorize a residential density as
provided in section (10) of this rule.
(12) Notwithstanding ORS 197.296
and 197.298, statewide land use planning Goal 14 and its implementing rules (OAR
chapter 660, division 24), a local government may amend its urban growth boundary
or unincorporated community boundary to include land that is in a receiving area
of a selected TDR pilot project and that is adjacent to an urban growth boundary
and subject to an exception to Goal 3 or Goal 4. The proposed concept plan described
under OAR 660-028-0020(2)(c) must indicate whether a local government intends to
include adjacent exception lands in a receiving area approved as a pilot project
under this program, and, where intended for residential development, must include
an agreement to rezone the receiving area to authorize a residential density as
provided in section (10) of this rule.
(13) Local governments or other
entities may establish a development rights bank or other system to facilitate the
transfer of development rights.
(14) When development rights
transfers authorized by the pilot project under Oregon Laws 2009, chapter 636, sections
6 to 8, result in the transfer of development rights from the jurisdiction of one
local government to another local government and cause a potential shift of ad valorem
tax revenues between jurisdictions, the local governments may enter into an intergovernmental
agreement under ORS 190.003 to 190.130 that provides for sharing between the local
governments of the prospective ad valorem tax revenues derived from new development
in the receiving area.
Stat. Auth.: ORS 197.040

Stats. Implemented: 2009 OL
Ch 636, § 6

Hist.: LCDD 1-2010, f. &
cert. ef. 1-28-10; LCDD 6-2012, f. & cert. ef. 2-14-12

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