OAR 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.