Introduction
State and local governments around the country continue
to experience demand for both development and the protection
of open space, agricultural land, and historic sites. Numerous
municipalities have enacted transfer of development rights
(TDR) programs to address both the need to for growth and
environmental concerns. In recent years, states have started
to recognize the success of these programs in lowering administrative
costs and relieving the burden of current zoning regulations.
As public officials become more skeptical of land use regulations
that often decrease property values, planners seek alternatives.
Programs to protect open space are especially difficult
to support in those terms. Planners are therefore experimenting
with TDR as a way to compensate owners for putative losses
with payments from those who obtain the transferred rights.
TDR programs are effective tools in creating smart growth
plans, balancing development, and protection of land for
future public enjoyment. Below is a list of current and
proposed legislation.
Enacted Legislation
Arizona
Arizona’s zoning enabling statute (ARS
§9-462.01) includes a provision authorizing the use
of TDR. TDR ordinances must authorize local governments
to purchase and resell development rights, require recordkeeping
of severed and transferred development rights, and have
procedures to ensure development that violates the transfer
does not occur on the sending parcel. The statute also requires
all TDR transactions be preceded by a notice and hearing,
and both the owners of the sending and receiving parcels
consent to the TDR.
Colorado
Colorado statute 30-28-401
states a process should be available for residential development
that fulfills the county’s goals to preserve open space,
protect wildlife habitat and critical areas, and enhance
and maintain the rural character of lands with contiguity
to agricultural lands suitable for long-range farming and
ranching. Transfer of development rights are enumerated
as one of the possible process options.
Connecticut
Connecticut’s general zoning statute (Conn.
Gen. Stat. Chapter 124 Section 8-2) grants authority
for the creation of a TDR program and to vary density limits
in the receiving areas. A separate provision requires the
owners of the sending and receiving parcels to jointly apply
in order to transfer development rights. Chapter
124 Sections 8-2e and 8-2f enable two (or more) municipalities
to execute an agreement such that transfers of development
rights can occur across the boundaries of the municipalities
that are party to the agreement.
Status: Signed into law in 1985.
Florida
Title
XI Chapter 163.3177 recognizes transfer of development
rights programs as an effective tool to preserve historic
buildings and create public open space in an urban area.
Florida law allows for the transfer of density credits from
historic properties and public open spaces to areas designated
for high-density development. The state provides technical
assistance to local governments in order to promote the
transfer of development rights within urban areas for high-density
infill and redevelopment projects.
Status: Signed into law on June 24, 2004.
Georgia
SB 86 was enacted early in the spring of 2003. As Official
Code of Georgia Section
36-66A-1, the legislation enables municipalities and
county governments to public health, safety, and the state’s
general welfare by adopting ordinances that provide for
transfer of development rights.
Status: Signed by Governor Perdue on June 24, 2003.
Illinois
Illinois’s enabling statute (65
ILCS 5/11-48.2) is based on the Chicago Plan. Municipalities
are authorized to designate landmarks, and may use TDRs
to implement the designation. Municipalities are also authorized
to create a development rights bank. Under the Illinois
County Historic Preservation Law (55
ILCS 5/5-3001 - 30022), counties may employ TDR if an
owner of a landmark property is seeking permission to alter
or demolish the landmark, and can provide specific evidence
being denied permission will cause economic hardship.
Idaho
Title
67-6515A authorizes any city or county government to
pass an ordinance to create development rights and establish
procedures authorizing landowners to voluntarily transfer
those rights.
Status: Signed into law on March 25, 1999.
Kansas
Kansas
Statute No. 12-755 authorizes governing bodies to adopt
zoning regulations which may include the Transfer of Development
Rights.
Status: Signed into law July 1, 1991.
Kentucky
KRS
§100.208 grants local governing bodies the ability
to develop ordinances that enable local governments to restrict
or prohibit development from parcels that have transferred
developments rights, and to allow local governments to increase
development density on parcels where development rights
have been transferred. Transfer of development rights must
be voluntary under the ordinance.
Status: Signed into law July 15, 2002.
Maine
Title
30-A Chapter 187 § 4328, an amendment to Maine Public
Law, enables local governments to adopt TDR programs to
prevent incompatible development. It also allows two or
more municipalities to transfer development rights between
the municipalities.
Status: Signed into law in 2001.
Maryland
Article
66B § 11:01 of the Maryland Code gives local legislative
authorities the power to establish transfer of development
rights programs to encourage the preservation of natural
resources and facilitate orderly growth in the state.
Status: Signed into law in 1986, amended in 2000.
Massachusetts
Title
VII Chapter 40A of the General Laws of Massachusetts
enables zoning ordinances to authorize permits for the transfer
of development rights within or between districts, in order
to protect open space, preserve farmland, promote housing
for low income citizens, or other reasons that are in the
community interest.
Minnesota
Chapters 394.25
and 462.357
of the Minnesota Statutes provide for the transfer of development
rights for the purpose of preserving areas considered desirable
by local zoning boards and the transfer of development rights
from those areas to areas the governing body considers more
appropriate for development.
New Hampshire
HB
761 enables municipalities to adopt subdivision and
site plan review regulations that require innovative land
use controls, including transfer of density and development
rights. The bill grants local governments more regulatory
authority to administer local land use, and allows them
to require innovative last use controls if they are supported
by the master plan. This bill expands upon the existing
statute, Chapter 674 (last amended July 2002), which listed
the transfer of development rights as an innovative land
use control.
Status: Signed into law on June 6, 2004.
New Jersey
HB
1287 creates a statewide TDR program granting municipalities
the flexibility to adopt a program that meets their specific
growth and preservation needs. The development plans are
subject to county planning board approval to assure that
regional planning needs are also taken into consideration.
Status: Signed into law on March 29, 2004.
New Mexico
New Mexico Statutes §
5-8-43 provides counties and municipalities with guidelines
to regulate the transfer of development rights in accordance
with comprehensive land planning and encourage the conservation
of ecological, agricultural, and historical land.
Status: Signed into law in 2003.
New York
New York cities, towns, and villages can enact TDR ordinances
to protect natural, scenic, and agricultural values of open
land, areas of historical or cultural significance, and
areas of special economic value (N.Y.
Gen. City Law §20-f; N.Y.
Town Law §261-a; N.Y.
Village Law §7-701. The TDR procedure must be the same
as that prescribed for zoning ordinances. TDR ordinances
can only be enacted in accordance with a local comprehensive
plan. The local legislature must find that the receiving
district has adequate public facilities to accommodate TDRs,
adjustments must be made for the impacts of TDRs on low-
and moderate-income housing, and an environmental impact
statement must be produced by the local government for the
receiving area. The statute also authorizes TDR banks.
North Carolina
Cities and counties are authorized to use “severable development
rights” in connection with dedicating a corridor for a street
or highway indicated on a plan as an alternative to requiring
dedication of the corridor as a condition of subdivision
plat approval (N.C.
Gen. Stat. § 136-66.10 - .11). Through the zoning ordinance,
the local legislature must indicate the receiving districts.
Pennsylvania
Pennsylvania Municipalities Planning Code §
10619.1 authorizes local governments to enact TDR ordinances,
and does not allow TDRs in the absence of such an ordinance.
Development rights cannot be transferred across municipal
lines, except when there is a joint zoning ordinance between
the municipalities where the sending and receiving parcels
are located.
Rhode Island
RIGL §
45.24.33 establishes a system for the transfer of development
rights within or between zoning districts.
Status: Signed into law July 13, 2001.
Tennessee
Under Tennessee Code Annotated §
13-7-402, counties and municipalities may establish
a voluntary transfer of development rights program to preserve
historic districts, or significant environmental or agricultural
areas. Only counties with a metropolitan government can
have a TDR program (Tennessee Code Annotated §
13-7-101(a)(2)). Any TDRs must be voluntary and by contract.
Status: Signed into law in 1982, amendments in 1987 and
2004 (SB 2446).
West Virginia
WVC §
7-1-3mm authorizes counties designated as growth counties
to establish a transfer of development rights program, in
order to preserve natural resources, protect scenic, recreational,
and agricultural qualities of open lands, and facilitate
measured growth. Establishment of a transfer of development
rights program must be approved by the majority of voters
in a growth county.
Proposed Legislation
Arizona
HB
2687 would prohibit a city, town, or county from affecting
the existence of a conservation easement through a zoning,
rezoning, or other ordinance or regulation. A TDR program
is one specific part of the bill that would enable county
and local governments to protect conservation easements.
Status: Retained on calendar for the beginning of next session,
3/15/04.
Delaware
HB
540 would establish a voluntary transfer of development
rights program and banking system operated by a board. TDR
transactions approved by the board would be administered
and enforced by the Delaware Agricultural Lands Preservation
Foundation. The purpose of the program is to deter sprawl,
preserve farmland and open space, and promote the development
of well-designed communities that use infrastructure more
efficiently. Counties and municipalities that choose not
to participate in the TDR program could conduct their own
programs.
Status: Referred to the House Land Use and Infrastructure
Committee on 6/6/02.
Hawaii
HB
454 would establish a land evaluation and site assessment
rating system; require the land use commission to establish
the boundaries of the important agricultural lands district,
the conservation district, and the other lands district;
and, abolish urban, rural, and agricultural districts. This
legislation aims to conserve and protect agricultural lands
by enabling local governments to adopt TDR programs. Only
agricultural land could be considered for proposed sending
areas.
Status: Carried over to 2004 Regular Session, 8/21/03.
Indiana
SB
125 would enable local governments to establish procedures
for the voluntary transfer of development rights through
zoning ordinances. Ordinances would enable local governments
to restrict or prohibit development from parcels that have
transferred developments rights, and allow local governments
to increase development density on parcels where development
rights have been transferred.
Status: Referred to Committee on Agriculture and Small Business,
1/10/00.
North Carolina
HB
1546, introduced in May 2004, would authorize the transfer
of development rights into the urban area of the town of
Chapel Hill in association with conservation easements purchased
in rural areas of Orange County. However, the bill, as introduced,
contains no provisions to extend the TDR program to other
areas of the state.
Status: Referred to State House Committee on Local Government,
5/20/04.
Oregon
HB
3998, introduced in 2001, would create a system to compensate
owners of lands zoned for agriculture or forestry in specified
instances when land use regulation restricts property use.
This bill would establish a transfer of development rights
system. However, the bill frames land use planning in terms
of “taking” development rights away from individual land
owners, and the transfer of development rights functions
as a compensation program for individual property owners
so that local and state land use planning objectives can
be met.
Status: Referred back to Committee on Land Use and Regulatory
Fairness, 7/7/01. |
