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HomeMy WebLinkAboutTransfer Development documents1 TRANSFER OF DEVELOPMENT SQUARE FOOTAGE, A GROWTH MANAGEMENT STRATEGY FOR WESTLAKE, TEXAS MESA + PLANNING OCTOBER 27, 2015 2 Transfer of Development Intensity: A Growth Management Strategy for Westlake. Assessment of the Issues and Literature Search: Since 1916, Transfer of Development Rights has been employed as a Growth Management Tool throughout the United States. According to the TDR Handbook by Arthur C. Nelson, Rick Pruetz, and Doug Woodruff, New York City’s 1916 Zoning Code included the ability to transfer development rights between properties. The Handbook documents that “it allowed property owners to sell their unused air rights to owners of adjacent lots within the same block; the new owners could then use those air rights even if their buildings exceeded the new height and set back requirements, as long as the average floor area of the effected buildings remained the same”. The 1916 definition of “adjacent” was made much more flexible by later NYC regulation. The redefinition made it possible to move rights between properties across the street and down the block. In 1968, the U.S. Supreme Court made a landmark decision in the Penn Central v. City of New York case. Here, Penn Central claimed that NYC had prevented the construction of a high-rise building atop Grand Central Station and thereby constituting a “taking”. In its decision, the Supreme Court established that the transferable development rights available to Pen Station were sufficient mitigation of any financial burdens imposed by NYC’s Historic Preservation Law. Since this landmark decision, Transfer of Development Rights has gained credibility and use. At the outset of this analysis, it is important to establish that Transfer of Development Rights is not a substitute of zoning but is intended to work within an environment established by zoning. It is the context of zoning and the development rights it both grants and limits that makes a Transfer of Development Rights program workable. If, through zoning, a party were able to increase development rights or have higher development rights than they would use in a particular location, then there would be no need for the importation of those rights from another property within the transfer context. Therefore, a basic exchange appropriate environment is established when the use of zoning as a way to increase development intensity is limited. Westlake, through its planned development ordinances formulated to limit height and density, is 100 % zoned and thereby has created an optimum environment for transfer of development square footage. Therefore, if future zoning is discouraged (because additional traffic volumes generated by such additional entitlement would certainly surpass any future thoroughfare capacity) and future increases in development intensity are achieved through redistribution of existing entitlements (thereby staying within the thoroughfare capacity), then, Westlake is well positioned to pursue such a program. The following overview and literature search investigates this opportunity further. To better design/ formulate a Transfer of Development Square Footage Program (hereinafter TDSF) for Westlake, it is important to address several issues surrounding the design, implementation, and management of such a program. More specifically, these issues are: 1. Enablement: By 2010, there were 25 States that had adopted enabling legislation. However, not all states with active Transfer of Development Rights Programs have such legislation, and Texas is one of 3 those states. Despite the lack of enabling legislation in Texas, there are three example cities with active TDR programs (article in Sustainable Places Blog):  Dallas: The City of Dallas uses transfer of development rights to provide an incentive to restore landmark buildings or contributing buildings within historic districts. If a landmark building or contributing building within a historic district has been restored within the last five years and the restoration exceeds 50% of the pre-restoration value, development rights for a minimum of 20,000 square feet may be transferred to building sites in CA-1(A) or CA-2(A) districts. The maximum floor area ratio may be increased by no more than 4.0 through the development rights transfer process. Accessed August 31st 2007 at: http://www.downtowndallas.org/invest_incen.asp  Austin: The City of Austin uses transfer of development rights as part of the Barton Creek Watershed Ordinance. The transfer of development rights program incentivizes clustering development and leaving the most environmentally sensitive areas of the watershed undeveloped. The watershed is divided into three zones. First, the Critical Water Quality Zone is limited to open space and essential utilities and is excluded from the TDR program. Instead, the City reserves the right to purchase this area from subdivision applicants. The second and third zones are the Lowland Water Quality Zone and the Upland Water Quality Zone. For every one acre of land in the Lowland Zone left undeveloped, the applicant is entitled to three additional housing units in the Upland Zone. Also, transferring from one area of the Upland Zone to another entitles applicants to one additional housing unit. Alternatively, a housing unit development credit can be traded for 6,000 square feet of impervious cover in a commercial development. In exchange for a density bonus in the Upland Zone, the land from the Sending Area is preserved indefinitely through a deed restriction that is carried with the land. Transfers are restricted to land within one mile of the Sending Area or within contiguous parcels with the same property owner. Transfers must be filed concurrently with the subdivision application. Accessed May 12, 2014 at: http://www.cityofaustin.org  San Marcos: The City of San Marcos use transfer of development rights as part of its aquifer recharge, rivers and springs protection ordinances. For each acre of land in the recharge zone permanently set aside as open space, the impervious cover amounts plus residential density bonuses are given to upland sites. For each 5,000 square feet of impervious cover that could be legally constructed on the sending site, but instead is transferred to a receiving site, the following bonuses are allowed: either (1) two single family homes, duplexes or townhouses or (2) three apartment units. Accessed August 31st 2007 at: www.ci .san- marcos.tx.us/departments/planning/docs/Edwards_Ordinance_122302.pdf The authority of such programs in states that have no enabling legislation is derived (according to the TDR Handbook) from precedents set through case law and powers delegated through a state’s home rule. According to Nelson, Pruetz, and Woodruff, “The term home rule refers to the delegation of power from the state to its sub-units of government (including counties, municipalities, towns or townships, and villages). That power is limited to specific fields and 4 subject to constant judicial interpretation.” Nelson, Pruetz, and Woodruff also state that “Home rule states differ from Dillon Rule States. In the former, local government has inherent powers to advance the public health, safety, and general welfare even if a state’s constitution or legislation does not enable or prescribe such powers.” Texas is a home rule state. A question to be investigated here regards any limitations placed by State Law upon General Law Municipalities that would prevent them from exercising the police powers mentioned above. A quick review of the Texas Local Government Code Chapter 43 reveals this condition related to General Law Cities: Sec. 51.012. ORDINANCES AND REGULATIONS. The municipality may adopt an ordinance, act, law, or regulation, not inconsistent with state law, that is necessary for the government, interest, welfare, or good order of the municipality as a body politic. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. When the State Law is silent on the matter of TDR and other municipalities in Texas have, in the absence of state enablement, established Transfer of Development Rights Programs (upheld in court), is it possible for a General Law City to also establish such a program in the interest of and for the welfare of “the municipality”? This is a matter for the Town Attorney to express an opinion. It would seem that the lengthy Comprehensive Planning Process (concluded with the adoption of the Plan by Ordinance), which sets up the framework for, thresholds for, and calls for a Transfer of Development Rights Program in Westlake, would establish that such a program is in the interest of, and for the welfare of, the municipality and therefore establish a basis for moving forward. However, the Town Attorney must render an opinion at this point. Of the 35 States, nationally, that have Transfer of Development Rights Programs, nine have such Programs in the absence of State enabling legislation. Many of these states (such as Montana) have many very small communities where the Program is being carried out. In many such instances, the county is the implementing authority because the county (in states like Montana) has zoning authority. It can be said that whether county or city, the TDR program is part of a jurisdiction’s normal zoning activities. As such, General Law Cities in Texas are authorized to Zone, making TDR something that General Law Cities can undertake. San Antonio accomplishes its TDR through the use of a “conditional zoning” classification (a zoning suffix) which further establishes the relationship between zoning and TDR. An equally important legal issue centers around the possibility of TDR being implemented as a text change within a city’s zoning ordinance rather than a map change, which requires further public hearing. The cities of Texas that have TDR programs accomplish the transfer without a zoning hearing, thereby leaving the underlying/base zoning in place. 2. Accomplishing the Transfer without Re-opening the Planned Development Ordinances: An important legal issue is the notion of increasing development intensity through TDR without modifying the base zoning. In Westlake, the great majority of zoning is accomplished through 5 Planned Development Ordinances. These documents specify permitted uses, FAR, and in some cases, permitted square footage as well as other spatial regulation of the development within the development lot. The Planned Development Ordinances have been refined and adjusted over the years since 1992 (when most of them were first put in place) and contain permitted development conditions/ rights that the land owners would like to keep at this moment in time. Also, the documents predate newer regulations and policies of the Town, thereby, establishing vested rights in the ordinances applicable at the date of the Planned Development Ordinance adoption. Landowners generally fear that reopening the Planned Development Ordinances would lead to recalibration of the permitted conditions contained within their documents exposing them to mandatory compliance with regulations and policies adopted after passage of their respective Planned Development Ordinances. Therefore, it is desirable on the part of the major land owners to participate in Westlake’s Transfer of Development Square Footage Program if such participation and transfer of additional development square footage to their property (located within a Receiving Area) can be accomplished without amendment of the Planned Development Ordinance under which they operate. Development rights are property rights and become property rights when they are recognized by law, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion. Nelson, Pruetz, and Woodruff (TDR Handbook) describe property rights as a bundle of sticks, meaning that property is simply a combination of things one can do with the land (e.g. develop, occupy, exclude others, extract resources, cultivate and use airspace). Each of these rights can be separated from the fee and sold or given to another individual/property. It is this “property right” recognition of the development potential of land within a “Sending Area” that allows it to be severed from a Sending Area parcel to a “Receiving Area” property owner and attached to their land therein. It would seem that identification of a zone as a Receiving Area (as done in the Comprehensive Plan) would (through general ordinance) qualify those properties as appropriate places to import development square footage that has been severed from tracts within a Sending Area (also in accordance with the Comprehensive Plan). It is important that this transfer be accomplished without rezoning as the development conditions contained within the various Planned Development Ordinances of Westlake are valued by the property owners and such property owners are justifiably fearful that opening up the Planned Development Ordinances (through a rezoning-process) could lead to revision of the valued conditions. It is equally important that the Town discourages further zoning requests as a means of addressing emerging opportunities for increased density and, in so doing, avoid the burden of increased traffic volumes on a future thoroughfare system barely able to accommodate trip volumes flowing from existing entitlement. If density could be increased through re-zoning then the Town would be assaulted with potential up-zoning requests that would further burden future roadways with traffic that it cannot accommodate. The Comprehensive Plan established that there is an ultimate capacity within the possible future roadway system of Westlake that is substantially consumed by the total trip generation of 6 entitlements currently permitted within the Town. Therefore, further up-zoning without also down-zoning another property would overwhelm the saturated system making the Town gridlocked (effecting both residential and commercial values). The limited roadway alternatives and the immense amount of entitlement in place actually provides Westlake with justification for capping the total permitted development at-or-near the capacity of the maximum potential roadway system (such capacity is generally accepted by Institute of Transportation Engineers as a Level of Service D). Therefore, both the Town and the property owners have an interest in accomplishing density increases (where merited) without rezoning. It is this no-rezoning environment that makes the transfer of development square footage mechanism workable. This environment creates a true commodity out of the square footage currently in place. Working within the limits set by roadway capacity, which is fully consumed by trip volumes flowing from, and to, the existing total square footage permitted by current/ in-place entitlement, a transfer of development square footage from a Sending Area to a Receiving Area does not really change the total entitlement; it only reconfigures it. Receiving Areas are identified in the 2015 Comprehensive Plan as zones within Westlake where the visual/ environmental impacts of increased development can be tolerated without negatively affecting those cherished aspects of Westlake’s visual and environmental quality. Typically, these areas are where traffic capacity and infrastructure opportunity is, or will be, greatest; and/or where existing topographic features can conceal more intense/greater development from the general view; and/or where value opportunities supportive of a higher level of development capture already exist. Moving development square footage out of more visually and environmentally sensitive areas (called Sending Areas, described below) into areas, such as those described above, for the purposes of visual and environmental protection (as well as management of traffic encroachment) is in the best interest of the municipality. Sending Areas are identified in the Westlake 2015 Comprehensive Plan as areas where view exposure, environmental sensitivity, proximity to residential use and public uses makes commercial development above certain FAR levels (which are typically lower FAR levels currently permitted by the “in-place” zoning and identified in the Comprehensive Plan) undesirable and potentially disruptive. Therefore, the Sending Area is an area from which development rights would be authorized to be severed. Once severed, they can be relocated to a Receiving Area: areas authorized to receive development square footage transferred from a Sending Area. Such authorization would be established by ordinance, thereby, making the transfer program a general ordinance, not a rezoning. The zoning, for reasons stated above, needs to remain the same and thereby define the potential severability (the amount of square footage currently entitled, which is a property right, above the desired square footage necessary to accomplish the stated public purposes of the Westlake Comprehensive Plan…also called the Yield Plan) and define the potential transfer capacity (the amount of base line square footage upon which additional square footage can be added to a point where the maximum thresholds are attained, such as height), which is brought to the property through a transaction process spelled out in the TDSF Ordinance. In summary, a constant zoning background defines the 7 sending potential (Yield Plan) and the receiving capacity (Site Plan), thereby determining the configuration of the transfer marketplace. The aspect of development that most constitutes a “visual or environmental encroachment” is “development square footage”, more so that the land use or the general spatial envelopes associated with those land uses (such as setback). Therefore, the development square footage potential of each Planned Development Ordinance and each categorically zoned parcel must be viewed apart from the other aspects of entitlement. At present, development square footage is defined in a variety of ways, including: a. A Statement of Maximum Square Footage: Some of the Planned Development Ordinances clearly state the permitted square footage of a land use with a simple number (e.g. 1,200,000 square feet of retail). b. Inferred Square Footage for a Land Use based on FAR: Many Planned Development Ordinances use a Floor Area Ratio (FAR) as the mechanism by which permitted development square footage can be calculated. This is open to some measure of interpretation as land use portions of some parcels are not fixed by legal boundary descriptions. c. Inferred Square Footage based on a Percent of Total Land Area: Developments like Solana (PD #1) use an approach to determination of permitted development square footage where the aggregate amount of building (regardless of use) cannot exceed a maximum percent of land area. These varying methods for determination of the permitted development square footage creates a complicated regulatory landscape for Westlake and can make the proposed Transfer of Development Square Footage Program open to challenge. It is essential that the total square footage available to each Planned Development parcel and each categorically zoned tract be set as an absolute number. Therefore, a Master Tabulation of all entitled development square footage available for transfer must be created. This Master Tabulation will become the base of Westlake’s Transfer of Development Square Footage Program (TDSF). Once the development square footage is isolated by use, portions of it can be severed from a tract (located within a Sending Area) and moved to another tract (located in a Receiving Area). It should also be possible to move square footage around within the Receiving Area, but in no case can development square footage be moved from a Receiving Area to a Sending Area. In this way, development square footage is separated from all other conditions of a Planned Development or zoning category and becomes a true commodity (as referred to above). In addition, a focus on square footage (and not other aspects of the PD, such as land use) can be viewed as a variance. Each tract from which development square footage is exported and to which development square footage is imported is obligated thereafter to a Special Site Plan Process as all development subsequent to the transfer transaction could (and likely will) require a variance 8 from the spatial conditions of the Planned Development Ordinance or zoning category in place. Any proposed importation of development square footage into a tract located within a Receiving Area will require a Special Site Plan that must be approved by Council action before any such transfer can be effected. The Council action for approval constitutes an approved “variance” to the spatial conditions of the Planned Development or Zoning Category for any parcel/ tract/site referenced by the Special Site Plan. The Special Site Plan must show usage of the transferred development square footage for the subject parcel/tract/site as well as document the Sending Area from which the square footage is being imported and the amount of additional square footage being added to the parcel/ tract/site (over that already permitted by the base zoning in place). All other parcels of the Planned Development or categorically zoned land area not included in the Special Site Plan for a parcel/tract/site remain unchanged and unaffected by the variance granted through the Site Plan process. Therefore, specific variance granted upon approval of the parcel/tract/site specific Special Site Plan is only a variance and not an amendment to the Planned Development Ordinance or base zoning category. In order to accomplish this, the following steps need to be taken: a. Establish the TDSF Option (it is a voluntary program) and administrative provisions within the municipal zoning ordinance (Chapter 102). b. Establish the “Sending Area” (described above). c. Determine the transferable square footage allowable to each parcel in a Sending Area…or…identify a process by which that will be determined on a tract-by-tract basis for properties within a Sending Area. This means preservation of entitlement for a lesser (and preferred) square footage within the various portions of the Sending Area. These preferred square footage levels will be set for each Community Type (as described in the Westlake Comprehensive Plan) located within the Sending Area (as identified in the Westlake Comprehensive Plan). Exportation of development square footage from a parcel/tract/site within a Sending Area that would result in potential development rights of the Planned Development of categorically zoned land area being less than the preferred level of development for that Land Use Community (as described in the Westlake Comprehensive Plan) would be prohibited unless the land area effected is to be used for a public purpose (roadway, open space, landform preservation, trail, or public facility). d. Establish a process for severance of the transferable square footage (see Severance Deed or Deed of Transferable Development Rights, below). e. Establish a procedure for permanent protection of the land from which development square footage has been severed. f. Establish the “Receiving Area” (described above). 9 g. Establish the Special Plan submittal requirements for a Receiving Area development using the transferred development square footage severed from a parcel/tract/site within a Sending Area. This must include a means of establishing the maximum building envelope attainable in any Receiving Area. The Building Envelope will be expressed as a maximum building height and FAR. This means that a portion of the Receiving Area may only receive such Development Square Footage as can be accommodated within the “Maximum Building Envelope”. These Building Envelopes will be set for each Community Type specified in the Westlake Land Use Plan. h. Establish a process for consideration of the Special Site Plan and recordation of the transfer (see Deed of Transfer below). Through this process, a land owner located within a Receiving Area would seek use of the transferred square footage within a development project, and such use would be approved through the site plan or subdivision process (as described above). Thereby, the transferee would be able to use the imported development square footage for a project density or intensity greater than would otherwise be allowed on the land (by the PD) up to a maximum density established by the Town as the threshold envelope for all, or a particular portion of, the Receiving Area. San Antonio accomplishes its transfer with a zoning suffix identifying a Conditional Zoning District. More specifically, the San Antonio program requires: “Conditional Zoning District. No development rights shall be used in the Receiving Site until a Conditional Zoning District has been approved as provided herein. The Conditional Zoning District shall include a provision requiring recordation of a deed in accordance a requirement of subsection 2 below.” This approach will not work for Westlake as it requires that the boundaries of the Receiving Area/ Sending Area be coterminous with Parcel Boundaries. Since Westlake’s definition of Sending and Receiving Areas is a function of view sheds and natural features/systems, it will be essential to define Sending and Receiving Areas through an overlay mechanism. Austin, Texas uses overlays for this very reason. Among the Sending Areas in Austin are areas called “Critical Water Quality Zones”. These zones are defined by natural boundaries as follows: “The boundaries of a Critical Water Quality Zone shall coincide with the boundaries of the 100 year flood plain calculated under fully developed conditions…” Therefore, Chapter 102 of the Westlake Code of Ordinances should be amended to include an overlay mechanism for Sending Areas and an overlay mechanism for Receiving Areas with appropriate procedures, requirements, restrictions, and standards for each. It may be preferable to have a separate Chapter for the TDSF Program that is referenced in Section 102. The text of Chapter 102 would be revised to: 10 a. Describe the special conditions under which further up zoning would be deemed appropriate. These conditions should relate to traffic infrastructure capacity, establishment of land uses not currently available to Westlake, impact on the “preferred level of development and/or the “Building Envelope” available to the TDSF Program, and consistency with the character of the community type as defined within the Westlake Comprehensive Plan. Unless certain justifying conditions prevail, zoning as a means of intensifying levels of development is hereafter discouraged and the use of Transfer of Development Square Footage is preferred. b. Identify the process by which all categorical zoning will be transitioned into a Planned Developments. c. Identify the means by which the permitted development square footage will be set as an absolute number instead of an FAR or percent of total land area. d. Set up the Special Site Plan Variance Process applicable to Transfer of Development Square Footage. 3. The Difference of Transfer of Development Rights and Development Square Footage: Throughout this document the terms Transfer of Development Rights (TDR) and Transfer of Development Square Footage (TDSF) have been used somewhat interchangeably. It is recommended that the Westlake Program refer clearly to the Transfer of Development Square Footage, only. As alluded to above, there are two reasons for this: a. Zoning in Westlake is predominately accomplished through Planned Development Ordinances which contain many variances from, and amendments to, various development standards and requirements of the Town. Therefore, the development rights contained within a Planned Development Ordinance are often much more than land use and density. Transferring variances and amendments would be difficult to manage in an equitable way. Further, it is the density that is the preservation issue for Westlake, not the variances and amendments embodied within the Planned Development instruments. When development square footage is transferred to a Receiving Area, certain development standards and restrictions held within the Planned Development Ordinance may need to be modified in order to accommodate the additional development intensity. Necessary modifications to certain standards and restrictions (such as height, coverage, setbacks) can be modified by the Site Plan Process described above. These modifications are unique to the design, site, and magnitude of the transfer; therefore, it is not necessary to also transfer variances and amendments embodied in the Planned Development Ordinance of a Sending Site that may be inappropriate for the aggregate of existing entitlement and transferred square footage. b. It is important to preserve the land use integrity of Westlake; therefore, any rights transferred pursuant to this Program only authorizes an increase in maximum density or maximum floor area ratio and shall not alter certain designations within a Receiving 11 Area (e.g. flood plains, wetlands, etc.), nor shall it allow a land use otherwise prohibited or not permitted within the Receiving Area. Therefore, commercial square footage transferred from a Sending Area to a Receiving Area may be used for any permitted commercial use within the Receiving Area. The same shall be true for retail and industrial use if such is permitted within the subject Receiving Area. It can be viewed that the purpose of density in the zoning instruments is to establish ownership of development square footage available for transfer. In light of these important aspects of the proposed Westlake TDSF Program, it is essential that the commodity transacted in the transfer is clearly identified…Transfer of Development Square Footage (TDSF). 4. Purpose and the Importance of the Comprehensive Plan: Throughout the literature search conducted in preparation for establishing the Westlake TDSF Program, it is clear that the strength of the Program is greatly enhanced when the City or Town’s Comprehensive Plan identifies Sending Areas and Receiving Areas. Virginia’s enabling statute for Transfer of Development Rights states that Receiving Areas are defined as “one or more areas identified by ordinance and designated by the Comprehensive Plan as an area authorized to receive Development Rights transferred from a Sending Area…” In the TDR Handbook (by Nelson, Pruetz, and Woodruff), the importance of the Comprehensive Plan is described as follows: “Too many communities simply do not consider how they will implement their land use goals until they have adopted Comprehensive Plans. It is not uncommon, for example, for a community to adopt a traditional land use plan containing an implementation section that calls for future adoption of a TDR Ordinance. Typically, the newly adopted plan establishes the maximum-density limits planned for each land use designation…ideally, the Comprehensive Plan should identify Receiving Areas and establish maximum densities [attainable]…the plan should clearly state that a future zoning code amendment will require acquisition of TDR’s to achieve the plan’s maximum densities…In order to enable use of TDR’s, a Comprehensive Plan requires linkages between it and the implementing devices, such as zoning and subdivision codes – and, of course, a TDR Ordinance.” Clearly Nelson, Pruetz, and Woodruff see the Comprehensive Plan as an instrument that gives the TDR Program particular substance and legal strength. The Comprehensive Planning Process allows the citizenry of a city or town to weigh-in on the establishment of Sending and Receiving Areas, meaning that the public purposes served by making these distinctions are supported by the public. In addition, the public interests served through use of a municipality’s home rule authority is well established and documented, thereby, giving use of the Transfer of Development Square Footage mechanism as a way to serve those interests more justification. The purpose of the Comprehensive Plan as it relates to the creation of a Transfer of Development Square Footage Program is to: 12 a. Identify Sending Areas as areas where certain matters of importance to the public interest can be served by less development intensity. Such identification is made through a process of public participation and public hearing. b. Identify Receiving Areas as areas where an increase of development intensity does not detract from, or depreciate, those matters of importance to the public interest and disposition of additional square footage in a Receiving Area enhances the municipality. Such identification is established through process of public participation and public hearing. c. Identify desired levels of development in Sending Areas and allowable levels of development in Receiving Areas through a process of public participation and public hearing. d. Establish the reason for growth management through TDSF instead of zoning as it relates to total traffic volume capacity. Such establishment is achieved through a public participation process and public hearing. Based on the accomplishments of the Comprehensive Plan as listed above, a solid basis is set for creation of a TDSF Program. In this way, the TDSF Program is an outgrowth of the Planning Process established for the Comprehensive Plan. 5. The Operational Structure of a TDSF Program: In order for the Transfer of Development Square Footage Program to function, it must have certain essential processes, forms, and organizational elements. These include: a. Legal establishment within the Westlake Code of Ordinances. This includes a Chapter for the TDSF Program and amendment of Chapter 102 (the Zoning Chapter) to set certain limits on future zoning and set uniformity across Westlake with regard to the definition of development square footage that any parcel/tract/site possesses as a result of its current entitlement. Also, amendment of Chapter 102 should establish the possible transition of current categorical zoning into a comparable Planned Development, making all zoning within Westlake one category. While not a requirement, it would strengthen the program. b. Finally, the amendment of Chapter 102 should describe the Special Site Plan Variance Process. Identify Sending Areas and Receiving Areas in the TDSF Chapter based on those identified in the Westlake Comprehensive Plan. c. Create documentation of potential yield (from Sending Areas) by Land Use Community Type and permitted Building Envelope (within Receiving Areas) by Land Use Community Type. d. Create a Deed of Severance that records the development square footage exported from a parcel/tract/site within a Sending Area e. Create a Deed of Transfer that records the development square footage being imported to a Receiving Area. f. Create a staff procedure for review and tracking. g. Establish minimum submittal requirements. 13 h. Establish a review and approval process that brings the Special Variance Site Plans to a public hearing before Council. i. Establish a procedure of recording the Transfer Transaction in perpetuity. Conclusion: This literature review established that Westlake can establish a Transfer of Development Square Footage Program as an extension of its zoning authority. In addition, it establishes that development square footage can likely be transferred through a Special Site Plan Variance Procedure from a Sending Area to a Receiving Area without re-zoning or opening up the Planned Development Ordinances now in place. Further, it establishes that: a. Future zoning must be discouraged so that a development square footage commodity can be created and so that the traffic capacity of the future roadway system is not exceeded. b. Certain documents, procedures, and organizational elements are needed. c. The varied regulatory landscape of Westlake needs to be more uniform. d. Designation of Sending and Receiving Areas through the Comprehensive Plan process greatly strengthens Westlake’s ability to execute a TDSF Program. e. A Sending Area Yield Plan and Receiving Area Development Envelopes must be established.