Board of Supervisors Meeting Date:

Planning Commission


December 9, 2004

Staff Lead:



W. Todd Benson, Assistant Zoning Administrator


Community Development



An Ordinance Adopting a Text Amendment to the Zoning Ordinance to Create a Purchase of Development Rights Incentive District Within Service Districts


Topic Description:


The proposed text amendment creates a new overlay district which provides the opportunity for residential development, only within designated service districts, to apply for a density bonus through the special exception process in exchange for agricultural preservation, historic preservation, open space/park creation, and/or transportation corridor protection.  The incentive bonus will be available only within service districts, excluding the village service districts of Calverton, Catlett and Midland.  Total density, with the bonus, is limited to that established by the Comprehensive Plan. 


Requested Action of the Board of Supervisors:


Consider adoption of the attached Ordinance.


Financial Impact Analysis:



Summary Staff Report:


On November 10, 2004, the Board of Supervisors postponed action until its December meeting to allow the public further opportunity to review the proposed refinements to the Zoning Ordinance Text Amendment.


The actual proposed ordinance language subject to the Planning Commission’s public hearing is attached with new language, subject to the Board’s public hearing underlined accordingly. Recommended changes added after the Board of Supervisors’ October 14, 2004 public hearing are indicated in red in the attached proposed ordinance. 


The text amendment would establish a new overlay district which applies to all service districts except for the village service districts of Calverton, Catlett and Midland.  The purpose of the Purchase of Development Rights Incentive Overlay (PDRI) is to preserve agricultural resources, historic resources, open space and parks, and opportunities for future transportation improvements.  The provision provides an incentive for residentially zoned properties within designated Service Districts to contribute to the stated objectives through the purchase of development rights, subject to standards and procedures established by the provision.


The total density bonus for the project cannot exceed the number of development rights extinguished, nor can it exceed thirty percent of the base density, nor can the total density of the project, with bonus, exceed the maximum density established by the comprehensive plan.  Specific standards and procedures for the density bonus special exception are established in the ordinance.


On August 26, 2004, the Planning Commission held a public hearing on the proposed ordinance and voted unanimously to recommend favorably the proposed ordinance to the Board of Supervisors.  Following the public hearing and discussion at the work session, staff and the County Attorney's office recommended the addition of Subsection (4) of Section 4-805 which provides that the subdivision shall be clustered and provides guidelines for reduction of open space to accommodate the additional density.  The added language is underscored in the attached ordinance.


Staff also recommended that the title of the overlay district be changed as follows:  Conservation Easement Purchase of Development Rights Incentive Overlay District.  Conservation easements are well known and well understood in Virginia; conservation easements are favored public policy.  Since a purchased development right is reflected through an easement, either title is accurate.  But only one is embraced as favored public policy.


At the October 14, 2004 public hearing before the Board of Supervisors, a number of issues were raised.  A principal concern was whether an easement could extinguish some, but not all, development rights.  For example, could an easement be used to extinguish (and used elsewhere) 10 of 20 development rights on a parcel.  It is likely that any Board may want to reduce most or all, but the final decision will be on a case by case basis. As presented at the November 10, 2004 work session, this is accomplished by a new Subsection 2 added to Section 4-803 as follows:  “The easement and a deed restriction limiting the potential remaining developmental density, if any, allowed on the property providing the easement shall be in a form acceptable to the Board.”


This language resolves two problems.  First, it allows the Board to determine how many, if any, rights remain within the easement. Second, it allows the Board to ensure the proper reduction of development rights are recorded on a parcel not wholly encumbered by an easement.


To encourage developers to place an easement on entire parcels, staff further recommends allowing the banking of development rights as follows:  “Not all extinguished development rights need be used at once.  A developer may bank them and use them within ten years  for another qualifying project or projects or sell them to a third party who may use them for another qualifying project or projects within the same  ten year period.”


A concern also was raised on how to measure the development rights extinguished through a conservation easement.  There are a number of ways this can be handled but, fundamentally, it is a legislative decision for the Board. One way is to give a basic credit using the same formula now used by the County in its Subdivision Potential Worksheet and its Purchase of Development Rights program.  This option was in the prior draft seen by the Board and remains in this draft. 


As also discussed at the November work session, another option is to require field studies to ensure only real (as opposed to potential) development rights are extinguished.  Credits would be based upon “the same factors limiting developmental density as provided in the Fauquier County Zoning Ordinance as well as the suitability of the soil for drainfields.However, Option 1 (Subdivision Potential Worksheet) was selected over the latter method, which had been described as Option 2 in the work session text.


Chairman Atherton requested changes on December 2, 2004.  These changes are reflected in the draft ordinance in green.

Identify any other Departments, Organizations or Individuals that would be affected by this request:


Property Owners






  1. Extinguished Development Right Example
  2. Proposed Ordinance