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Transfer of Development Rights Update |
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Rick Pruetz, AICP
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© & Author Info |
Transfer of development rights (TDR) is a market based technique that encourages the voluntary transfer of growth from places where a community would like to see less development (called sending areas) to places where a community would like to see more development (called receiving areas). The sending areas can be environmentally-sensitive properties, open space, agricultural land, wildlife habitat, historic landmarks or any other places that are important to a community. The receiving areas should be places that the general public has agreed are appropriate for extra development because they are close to jobs, shopping, schools, transportation and other urban services.
TDR is driven by the profit motive. Sending site owners permanently deed-restrict their properties because the TDR program makes it more profitable for them to sell their unused development rights than develop their land. Developers buy the development rights and use them to increase the density of receiving site projects; they do that because these larger projects are more profitable than the smaller projects allowed when development rights are not transferred. In addition to making property owners and developers happy, TDR solves a seemingly intractable dilemma for communities: it gives them a way to achieve critical land use goals using little or no public funding.
The author provided case studies of 112 TDR programs in the 436-page book Saved By Development: Preserving Environmental Areas, Farmland and Historic Landmarks With Transfer Of Development Rights. Since that book was published, in November 1997, the 12 additional TDR programs discussed below have been identified. None of the following 12 TDR programs are as successful as those of Montgomery County, Maryland, The New Jersey Pinelands, the Tahoe Regional Planning Agency or many of the other 107 communities discussed in Saved By Development. In fact, transfers have been confirmed in only the first six communities listed below (in alphabetical order.) Nevertheless, all 12 case studies reconfirm the components needed to create a successful TDR program.
Fremont County, ID, population 11,000, is located in eastern Idaho, bordered by Montana to the north and Wyoming to the east. About half of the County's land area consists of portions of Yellowstone National Park and Targhee National Forest. In 1992, the County adopted a TDR program aimed at preserving farmland and environmental areas.
Sending sites must be parcels with productive farmland, wetlands, wildlife habitat, stream corridors or visually-sensitive areas. The allowable on-site density in sending areas varies from an average of one unit per 40 acres of farmland and one unit per 25 acres of wetland to one unit per ten acres of stream corridor or steeply-sloped land. When sending site owners use TDR, they can transfer twice the number of development rights that they could use to build on site, a transfer ratio of two-to-one. Using TDR, the density of receiving site projects can increase from one unit per 2.5 acres to a maximum of one unit per acre, a density bonus of 150 percent.
The TDR program has been used twice, preserving over 80 acres of dry farmland. However, the program is somewhat constrained by the fact that there is strong demand in the County for 20-acre estate lots.
Harford County, MD, population 182,000, lies 15 miles northeast of Baltimore, just south of the Pennsylvania border. In addition to saving farmland, the County's zoning protects agricultural activities by assuring farmers the right to operate farm machinery at any time. In the Agricultural District, on-site development is allowed at a density of one unit per ten acres. Development rights in this zone can be transferred between two lots in this zone if they are within 500 feet of each other. The transfer ratio is one -to-one and the maximum density allowed on the receiving site is one unit per acre. This 900-percent density bonus is exceeded only by one program examined in Saved By Development.
The County's Chief of Comprehensive Planning reports that some subdivisions have used the current program and that the County may consider refining its TDR program in the future.
Howard County, MD, population 187,000, lies 20 miles southwest of Baltimore and 30 miles north of Washington, D.C. The County encourages farmland preservation using programs known as the Density Exchange Option (DEO) and the Cluster Exchange Option (CEO).
Sending sites are zoned Rural Conservation, which allows an on-site density of one unit per 4.25 acres. When parcels at least 50 acres in size are permanently deed-restricted, development rights can be transferred at a one-to-one ratio under CEO or 1.4-to-one under DEO. Receiving sites under the DEO must be less than 50 acres in size and adjacent to lots that are ten acres or less in size. Receiving site projects using transferred rights can increase from a baseline density of one unit per 4.25 acres to one unit per two acres, a density bonus of 112.5 percent. As of 1995, the DEO and CEO programs combined had permanently preserved 868 acres of farmland within at least five separate parcels.
King County, WA, population 1.5 million, includes the Seattle metropolitan area on the west and the Cascade Mountains and Wenatchee National Forest on the east. The County currently uses two different transfer of residential density credit ordinances to encourage private property owners to preserve open space, wildlife habitat, woodlands, shoreline access, community separators, trails, historic landmarks, agricultural land and park sites.
Under the original program, receiving sites are in several residential or commercial zones within the unincorprated portions of the County. A density bonus of up to 150 percent of the baseline zoning can be achieved through TDR. Unless a hearing is needed for some other component of project approval, the transfer is approved by conditional use permit. Connie L. Blumen, TDR Planner for the King County Department of Natural Resources, reports that one transfer has occurred so far under the original ordinance, resulting in the preservation of a 1.25-acre sending site as a trail corridor.
In 1998, King County approved a TDC bank. According to Kamuron Gurol former Senior Policy Analyst for King County, the bank is expected to begin buying credits in 1999 and selling them in the year 2000.
In 1998, King County also adopted a second TDR ordinance sometimes referred to as the "TDR Pilot Project Program". For a three-year trial period, this new ordinance allows transfers from rural portions of King County to incorporated cities within the County. For example, Seattle Mayor Paul Schell is promoting a pilot TDR program for Denny Triangle, a neighborhood in downtown Seattle. Under the current proposal, developers would be able to buy the right to build up to six extra floors of development at a cost of $120,000 per floor. Half of this amount, or $60,000 would be used to buy three development credits in rural King County. The other $60,000 would create improvements within Denny Triangle such as transit enhancements, pocket parks and pedestrian/transit-friendly Green Streets. Amendments to the Denny Triangle Neighborhood Plan must be adopted before this pilot project can begin.
Redmond, WA, located just outside of Seattle, has a TDR program in which the sending areas are lands zoned Agriculture or Urban Recreation or lands classified as critical wildlife habitat. When a sending site is not classified as critical habitat, the transferable development is simply the amount of development allowed by the site's zoning once wetlands and other unbuild able areas have been excluded from the calculation. But when sending sites contain critical habitat, 13 separate transfer factors increase the transferable rights based on development potential as determined by the site's zoning. Receiving sites are parcels in any of seven zoning districts. TDRs can be used to add extra density, waive parkland requirements, increase impervious surface limitations, exceed building height limitations and surpass maximum parking space maximums. According to Tim Trohimovich, Comprehensive Planning Division Manager, the TDR program has experienced four transfers to date; in the largest transaction, 100 TDRs were used to allow a parking structure to exceed the maximum parking limits.
Summit County, CO, population 13,000, surrounds the popular Breckenridge ski resort in central Colorado. The County offers TDR in four separate districts. In the Lower Blue and Ten Mile planning areas, TDR is designed to encourage the transfer of density from sending sites with development constraints to receiving sites with fewer constraints. Under this program, the density bonus is determined on a case-by-case basis depending on the receiving site's location, surroundings and planning designation.
In the Snake River Planning Area, TDR is intended to encourage adopted land use patterns. In the Upper Blue Basin Planning Area, transfers are primarily designed to control traffic growth and, secondarily, to preserve environmental resources and scenic vistas. To achieve these goals, the County Board of Commissioners can approve rezonings that transfer development rights within, but not between, these two planning areas.
Transfers have occurred under the Upper Blue Basin and Snake River programs. In addition, the County is now exploring a new TDR program, similar to one adopted by Pitkin County/Aspen, Colorado. This program would encourage owners to sever development rights from abandoned mining claims in remote, back country locations and transfer them to receiving sites either in the Town of Breckenridge or on county land likely to be annexed by Breckenridge..
Douglas County, NV, population 28,000, extends from the shores of Lake Tahoe to the valley between the Sierra Nevada Mountains of California and the Wassuk Range of western Nevada. The portion of the County within the Lake Tahoe basin is regulated under the TDR program of the Tahoe Regional Planning Agency. In 1996, the County adopted its own TDR program for the eastern portion of the County designed to preserve forests, agricultural land, open space and rural character.
Sending sites are allowed a maximum on-site density of one residential unit per 19 acres. In the forest-protection zone, one development right can be transferred per 19 acres of land, or a transfer ratio of one-to-one. In the agricultural zone, transfer ratios of up to two-to-one can be achieved. The density bonuses allowed to projects that use TDRs vary according to the regulations of the receiving sites indicated in the 1996 master plan.
Larimer County, CO, population 186,100, lies 80 miles north of Denver, bordering Wyoming. In September 1998, the County adopted a TDR program designed to preserve agriculture, rural open space, scenic vistas, natural features, recreation lands and environmental resources.
The County allows transferable development units, or TDUs, to be transferred from sending sites at a basic rate of 114.5 percent of the density allowed on site by the underlying zone. However, the County Board can increase or decrease this base rate depending on the extent to which protection of the proposed sending site would achieve the goals of the program. For the first two years of the program, Larimer County also allows an additional transfer ratio in which 1.5 units are permitted at receiving sites for each TDU transferred.
Lee, NH is located in eastern New Hampshire, twelve miles west of Portsmouth and 20 miles west of the Atlantic Coast. Its TDR ordinance is designed to preserve farmland, open space, forests, watershed and other significant natural resources as well as the Town's rural character. The sending sites and receiving sites must be contiguous. The amount of density that can be transferred from a sending site is equal to the development rights allowed to that site under baseline zoning, a one-to-one transfer ratio. The amount of development allowed on the receiving site through TDR is the total density permitted on both the sending and receiving sites under the baseline zoning. The Planning Board has the right to decide transfer applications on a case-by-case basis taking into consideration the specific natural characteristics and resource values of the two sites.
Thurston County, WA, population 161,000, surrounds the Washington State Capital of Olympia at the southern end of Putget Sound. In 1995, the County adopted a TDR ordinance designed to preserve agricultural land.
Similar to the Montgomery County, Maryland program, Thurston County down zoned land in its Long-Term Agricultural District from a prior density of one unit per five acres to a new density of one unit per 20 acres. As compensation, development rights can be transferred from these sending sites at the rate of one TDR per five acres.
The receiving sites are parcels in two residential zones. With the use of TDR, density is allowed to increase from five to six units per acre in one zone and from 15 units to 16 units per acre in the other zoning district.
Townsend Township, MA, population 1,200, borders New Hampshire, 40 miles northwest of Boston. Its TDR program, adopted in 1991, is designed to preserve the banks of the Squannacook River, an aquifer recharge area and open space in general.
Transferable development credits are assigned to the sending sites at the rate of 1.2 credits for each build able lot, or a transfer rate of 1.2 to 1. Receiving site projects incorporating TDCs must be approved in conjunction with a subdivision plan and a rezoning to a zoning district that allows exemptions from density, minimum lot frontage and minimum lot area as long as a substantial portion of the site is preserved as open space.
. Whatcom County, WA, population 128,000, stretches from the Straight of Georgia to the Cascade Mountains just south of the Canadian border. Its TDR ordinance is designed to provide flexibility and implement land use goals, particularly the preservation of environmentally-sensitive areas and open space.
The County allows severed development rights to be sold regardless of whether or not a receiving site has been identified; this feature facilitates transfers by allowing TDRs to be treated as a commodity. Through TDR, the density of a receiving site can be increased up to 25 percent.
This TDR ordinance has not been used to date. However, TDR may play a more prominent role in a forthcoming plan that focuses on the protection of Lake Watcom, which provides the water supply for Bellingham, WA.
Community representatives have reported additional transfers, amendments and overall status in the following 23 TDR programs originally studied in Saved By Development. These status reports are organized as they appear in that book.
Boulder County, CO had used its intra-jurisdictional TDR program five times between 1989 and 1997. In 1995, Boulder County adopted an inter-jurisdictional program in which development rights are transferred from sending sites in unincorporated portions of the County to receiving sites in three incorporated cities within the County using inter-jurisdictional agreements. Saved By Development reported that no transfers had occurred as of 1997 under the inter-jurisdictional program. Since then, Planning Manager Peter Fogg reports that the County now has inter-jurisdictional agreements with four more cities, allowing development rights to be transferred from County land to sites within seven incorporated cities. Furthermore, the inter-jurisdictional program has now been used on four transfers and two more projects were in the review process as of the end of 1998. If these two projects are approved, between 2,730 and 3,470 acres will be permanently protected so far depending on whether or not the sending sites retain their water rights.
Calvert County, MD has a TDR program that requires sending site owners to request a rezoning to the Agricultural Preservation District. Saved By Development reported that Calvert County had preserved 5,000 acres of farmland by 1997. Gregory A. Bowen, Deputy Planning Director, reports that the County has now permanently saved over 7,000 acres.
Long Island Pine Barrens, NY has a TDR program that allows transfers between three townships in Suffolk County. Since the program was only adopted in 1995, Saved By Development reported no transfers as of 1997. According to John Bredin's PAS Memo for November 1998, 228 parcels in the core preservation area have now been awarded transferable development credits.
Montgomery County, MD has the most successful TDR program in the country. In 1997, Saved By Development stated that the County had permanently preserved 29,000 acres of farmland using TDR. As reported by John Bredin in the November 1998 PAS Memo, the County has now preserved over 38,000 acres.
New Jersey Pinelands, NJ, adopted in 1980, is the most ambitious TDR program in the country, encompassing one million acres of land and allowing transfers between 60 different municipalities. In 1997, Saved By Development stated that the program had preserved 12,000 acres. John Stokes, Assistant Director of The Pinelands Commission, recently reported that the total area preserved through severance increased to 15,768 acres as of the end of 1997. Mr. Stokes also reports that Pinelands Development Credits (PDCs) are now being used in association with waivers and variances and that the Pinelands Commission has identified six additional ways of potentially enhancing PDC use.
New York, NY became the first community in the United States to adopt TDR provisions when it approved its Landmarks Preservation Law in 1968. According to John Bredin, writing in the November 1998 issue of the PAS Memo, the City adopted a new TDR program in 1998 designed to prevent the demolition or conversion of live-performance theaters in the Broadway theater district.
San Luis Obispo County, CA adopted a TDR program in 1986 which, after ten years, had preserved 230 substandard residential lots in an area that serves as habitat for the Cambria Pine. A second County-wide program was adopted in 1996 but immediately became the subject of a lawsuit. As recently reported by Kami Griffin, Senior Planner, in 1996, the County Supervisors will be considering various amendments to the County-wide ordinance including: more narrowly defining where sending credits can be obtained for specific receiving sites, adding methods of determining numbers of sending site credits, clarifying the voluntary nature of the program and lowering the density bonus allowed on receiving sites.
Seattle, WA allows the sale of TDRs from sending site projects that restore historic landmarks, provide low income housing or offer compatibly-scaled infill development. The first transaction under the 1985 program occurred in 1986, when over 40,000 square feet of floor area were transferred to the Washington Mutual Tower. Since then, the City's TDR bank has facilitated all transactions. To date, the City's TDR bank has purchased development rights from eight sending sites, including the Paramount Theater and Eagles Auditorium projects discussed in Saved By Development. In addition, the City has approved the purchase of TDRs from two more sending sites. TDRs from the City's bank have been transferred to two projects, ( a hotel and the YMCA); a proposed mixed-use project would use another 218,000 square feet of banked rights. As of November 1998, the TDR bank balance was 24,960 square feet. Laura Hewitt Walker, Planning and development Specialist, adds that the City of Seattle also has 423,000 square feet of Major Performing Arts Facility TDRs which will be sold to finance the new Benaroya Symphony Hall located in downtown Seattle.
Tahoe Regional Planning Agency, CA/NV adopted four transfer mechanisms in 1987 designed to abate further degradation of Lake Tahoe's clarity. TRPA approves from 25 to 35 transfers per year, making it one of the most successful programs in the country. In October 1998, TRPA adopted three program amendments. Residential units can now be transferred between sensitive lands within community plan areas when there is a 1200 square foot per unit reduction in land coverage on the sending or receiving parcel. Secondly, the amendments allow for conversions of residential units to commercial floor area when such conversions would achieve important goals such as protection of sensitive lands or elimination of nonconforming uses. And, finally, TRPA now allows for the transfer of commercial floor area displaced by public service uses.
Belmont, CA has a hillside residential ordinance that reduces the maximum floor area of homes based on the slope of the lot. To encourage preservation of these hillside properties, Belmont allows floor area to be transferred from lots that are either deed-restricted or merged with other lots. Saved By Development stated that eleven transfers had occurred under this program. Community Development Director Daniel Vanderpriem reports that TDR has recently been used to merge eight lots into four lots resulting in the preservation of another hillside acre.
Irvine, CA adopted its first TDR program to encourage housing within its commercial core. A second TDR program, adopted in 1993, allows transfers of vehicle trips in order to allow appropriate developments to exceed the 0.25 FAR density limit while maintaining overall growth within the capacity of the transportation system. In 1998, two transactions were approved under the new program, transferring a total of 313 average daily vehicle trips. According to Sheri Vander Dussen, Director of Community Development, the City's TDR program is accomplishing its goal.
Monroe County, FL, population 78,000, includes all of the Florida Keys and large portions of the Everglades National Park and Big Cypress National Preserve. Saved By Development stated that the Monroe County program had transferred the development rights for 25 homes. David Kyogle, Senior Comprehensive Planner, sent an update stating that the County had authorized 93.8 TDRs to date. Most of these TDRs came from environmentally-sensitive sending sites in the middle and lower Keys. These TDRs have primarily been used at receiving sites in the middle and upper keys for the expansion of a hotel and for platting single-family home sites that would not otherwise meet density limitations.
Palm Beach County, FL, population 864,000, is located 60 miles north of Miami on Florida's Atlantic Coast. Saved By Development stated that the County had preserved 640 acres of environmentally-sensitive land under its 1980 TDR program but had not yet experienced transfers from its revised program, adopted in 1992. In a 1998 memo, Aimee Craig, County Planner II, reported that the new program so far has resulted in the approval of transfers to five receiving site projects representing a total of 448 TDRs. These TDRs were purchased from the County's TDR bank which contains 6,400 TDRs acquired through the purchase and preservation of 2,321 acres of environmentally-sensitive land.
Queen Anne's County, MD adopted a TDR program in 1987 with a one-to-one transfer ratio and amended that program in 1994 to offer a two-to-one ratio. Since Saved By Development was published, deed-restricted land increased from 1,480 to 1,509 acres in the Agriculture zone. Faith Elliott Rossing, Assistant Planner, also reports that the number of TDRs lifted in the Countryside zone has increased from 36 to 62 TDRs, representing a total of 746 acres under permanent deed restriction.
St. Petersburg, FL adopted TDR provisions in 1977 in conjunction with the creation of a Preservation zoning district for marshes, forests, mangrove swamps, hammocks, beaches and floodplains. Saved By Development reported that approximately 100 units had been transferred by 1997. David S. Goodwin, Planning Programs Manager, recently reported that another 50 units have been transferred in the past year. He added that the TDR program is hampered by the lack of suitable receiving parcels and the City is considering additional transfer opportunities related to reducing density in the coastal high hazard zone and providing density bonuses for redevelopment target areas.
Talbot County, MD adopted a TDR program designed to preserve rural character. Saved By Development reported that one transfer had preserved 100 acres by 1997. Since then a second transfer has been approved saving another 480 acres. Frank Hall, Assistant Planning Officer, reports three reasons for the relatively slow rate of transfers in Talbot County: 1) little development pressure, 2) the need to install water and sewer service to use the density bonus allowed by TDR and 3) the fact that many property owners are initiating shoreline protection measures without using the TDR incentives.
Brisbane, CA uses TDR to encourage the preservation of the higher elevations of its hillside area. Tim Tune, Planning Director, reports that no transfers have occurred yet but that interest in developing the lower portions of the hillside has increased along with the improving economy.
Claremont, CA has TDR provisions designed to protect sensitive hillside areas. To date, there have been no transfers. As recently explained by Lisa Prasse, City Planner, the hillside plan appears to be hampered by the fact that a market value has not been placed on the development credits.
Douglas County, CO adopted a TDR ordinance in 1996 designed to preserve open space. Betty Allen, Assistant Director of Planning and Zoning, recently reported that receiving sites are scare since baseline zoning allows so much development that developers have no need to gain added density. The County will be considering refinements to its program in early 1999.
Oakland, CA has a TDR program designed primarily, but not exclusively, to promote historic preservation. When Saved By Development went to print, Oakland city planners were exploring amendments to the TDR ordinance largely in response to the adoption of a historic preservation element that recommended further use of TDR to protect landmarks, particularly in the downtown. According to Debra Diamond, adoption of TDR ordinance amendments have been superseded by a comprehensive zoning code overhaul designed to make the zoning code consistent with the newly-adopted land use/transportation element. Since the City is now just starting what is expected to be a three-year project, it is too early to tell whether or not the TDR provisions will be expanded or altered in the zoning code amendments which finally get adopted.
St. Mary's County, MD adopted a TDR ordinance in 1990 to preserve farmland and resource protection areas. Mike Paone, Planning Director, recently noted that the County's first transfer has saved 160 acres. The County is also considering proposed code amendments which would expand the number of zoning districts which can serve as sending and receiving areas.
Teton County, WY adopted a provision in about 1985 that allowed the density to be transferred between non-contiguous properties. In 1994, the Town of Jackson and Teton County adopted new provisions that again allowed non-contiguous parcels to be developed as one project with transfers of density at a one-to-one basis. Teresa deGroh, Senior Planner, reports that the first transaction has occurred, resulting in the transfer of 21 units and the preservation of 211 acres of canyon land for wildlife habitat, scenic views and recreation.
Windsor, CT, population 28,000, was one of the 107 communities studied in Saved By Development. Mario Zavarella, Town Planner, recently called to report that the Town has experienced its first transfer. The sending site is a 4.5-acre parcel of land along the Connecticut River which the Town will use for a future riverfront walking trail and other recreation. In return for this transfer, the owners of an existing industry were allowed to exceed the density limits normally allowed on this receiving site.
Rick Pruetz, AICP
Chief Assistant Community Development Director/City Planner
City of Burbank, California