A. Purposes. In addition to serving the overall purposes of this chapter, this section is intended to:

(1) Encourage the permanent preservation of important farmland and environmentally sensitive areas.
(2) Provide a voluntary method for landowners to be compensated by the free market to preserve their land.

B. Definitions. See § 215-32B.

C. Subdivision and land development approval. The development rights shall be transferred only following final approval of a subdivision or land development plan. The approval of a preliminary plan shall be conditioned upon compliance with this section. As part of a preliminary and final plan application, the applicant shall present a draft conservation easement on the sending property and a written, signed and notarized agreement by the owner of the sending property acknowledging and agreeing to the application. The application to develop the receiving property at a higher density shall be treated in the same manner as any other subdivision or land development application.

D. Conservation easement.

(1) Effect. The required conservation easement shall be drafted so that it is binding if the receiving property is granted final plan approval. The conservation easement shall be recorded at the same time as, or prior to, the final plan for the receiving property. If a final plan is recorded in phases, the conservation easement may be recorded in corresponding phases.
(2) Form. The form of the conservation easement shall be acceptable to the Borough Council, based upon review by the Borough Solicitor and Planning Commission. In the case of agricultural land, the standard language for an agricultural conservation easement used by the County Agricultural Land Preservation Board may be used.
(3) Permanency. Once a conservation easement is established under a transfer of development rights, it shall be permanent, regardless of whether the receiving property is developed.

E. Location. A sending property shall be within an R-1or R-2 District and shall have a minimum area of five acres, and a receiving property shall be within an R-2, R-3, C-1, or C-2 District.

F. Owners' agreement and responsibility. The owners of the sending property and receiving property shall voluntarily commit to participate in the transfer of development rights. Once the required conservation easement is established, it shall be binding upon all current and future owners of the sending property. The applicant for the receiving property shall be responsible to negotiate with, and pay compensation to, the owner of the sending property for the conservation easement. Such transaction shall occur privately, the value shall be determined by the private market, and the Borough shall be under no obligation to pay the owner of the sending property.

G. Donations or intermediaries. The development rights of a sending property may be purchased by or donated to the Borough, the county or an established, incorporated, nonprofit organization whose mission includes preservation of agricultural land or natural features. A permanent conservation easement shall be established on the sending property at the time of such purchase or donation. In such case, the right to develop such dwelling units may be held for a maximum of 10 years before being used on a receiving property(ies).

H. Determination of density; development process.

(1) Yield plans. The applicant shall, as part of the subdivision and land development review process, present a yield plan for the receiving property and for the sending property. Such yield plans shall be a level of detail typically found in a sketch plan. Such yield plans shall be prepared to determine the number of new dwelling units that could be lawfully constructed on each property under Borough regulations without any transfer of development rights.
(2) Borough review. Such yield plan shall be reviewed by the Planning Commission, with advice by the Borough Engineer, to determine whether each represents an accurate determination of the number of dwelling units possible on each site, both physically and legally. If such determination is ascertained by the Planning Commission to not be accurate, the applicant shall be required to revise the yield plan.
(3) Dwelling unit transfer. Based upon acceptance by the Council of the yield plans, the right to develop some or all of the dwelling units may be transferred from the sending property to the receiving property, depending upon the amount of land affected by the permanent conservation easement. (For example, if under current zoning, five dwelling units would be possible on the western portion of a lot and six dwelling units on the eastern portion, the owner may choose to transfer the right to develop five dwelling units by placing a permanent conservation easement on the western portion. The owner would then still have the right to develop the eastern portion under the zoning in effect at the time of a future development application for the eastern portion.)

(a) If only a portion of a parcel would be affected by the conservation easement, the applicant shall prove that the conservation easement would permanently preserve a contiguous area of rectangular (or similar regular) shape that would relate to the number of dwelling units that would otherwise be allowed on such portion of the lot.
(b) Where a conservation easement is proposed to be established in phases over time, each phase must be contiguous with a previous conservation easement, unless the applicant proves to the satisfaction of the Council that there is a valid public purpose for the easement to not be contiguous.

(4) Receiving property. The development of the receiving property shall comply with all other requirements of this chapter, except for the maximum density. The receiving property shall be permitted to include an increased total number of dwelling units above the number that would otherwise be permitted, based upon the yield plan. However, in no case shall the following densities in § 215-23: Single-family residential subdivisions and multifamily projects be exceeded, and the open space preserved on the sending property may be used to meet the minimum conservation open space required by § 215-23: Single-family residential subdivisions and multifamily projects.
(5) Utilities. To receive a transfer of development rights, all lots of less than one acre on the receiving property shall be served by Borough-approved central sewage disposal system sewerage and central water supply.