|
A
Quiet Victory
Localities
are getting a new tool, Transfer Development
Rights, to protect open space and steer
development where they want it.
By
Bob Burke
Overshadowed
by the chronic political gridlock over
transportation funding, Virginia's General
Assembly has passed some notable legislation this
session to help local governments manage growth.
Most significant is a bill that would give
localities a new tool for shifting development to
districts where key infrastructure already exists.
The
concept is the transfer of development rights, or
TDR – and it has the potential to reduce sprawl
and the expense of building expensive
infrastructure in undeveloped areas. For example,
instead of developing 100 empty acres, a builder
could "buy" those development rights
from the landowner and use them in a
higher-density project in an already developed
area. Once sold, those development rights are gone
for good, protecting open spaces while still
giving the landowner a chance to profit.
Virginia’s
version of TDRs, which started as legislation from
Richmond-area Republican Sen. John Watkins,
R-Midlothian, won easy passage in the General
Assembly. The concept is used already in other
parts of the country – Montgomery County, Md.,
most notably, has a widely praised TDR program in
place.
But
the TDR program that Virginia localities will be
able to adopt is fairly modest. The program is
voluntary for all parties – localities can use
it if they choose to, crafting their own local
version that publicly identifies both a “sending
area” and a “receiving area.” Landowners in
the designated areas aren’t required to use it,
and won’t be forced to transfer development
rights if they choose not to.
One
reason it’s so modest is that lobbyists for the
development and homebuilding industries wanted it
that way. In previous years, TDR bills in the
General Assembly died quickly. “Our industry had
been the impediment to the enactment of those
types of local authorities in the past,” says
Michael Toalson, executive vice president for the
Home Builders Association of Virginia. This year,
instead of killing the bill outright, Toalson and
other industry lobbyists got involved in weaving
in limits.
Previous
TDR bills, says Toalson, left open the possibility
that the program could become mandatory, failing
to guarantee that subsequent government actions
would not strip away development rights that had
already been acquired. The new legislation
addresses those issues, he says. “What we tried
to do is craft a statute that would work.”
The
legislation also gives developers some measure of
certainty in the process. Once a proposal to
transfer development rights is found to be in
compliance with the local ordinance, the deal is
done. No approval by local politicians is needed.
“[That] is designed to create an efficient
application process, and hopefully eliminate some
of the political opposition to changes in local
landscapes,” Toalson says.
Of
course, now comes the interesting part: seeing how
many localities actually adopt a TDR ordinance,
how they craft it, and what response it gets from
residents and the private sector.
Mark
Flynn, director of legal services for the Virginia
Municipal League, says localities will have to
decide if it’s worth it to forego the
traditional process, which would likely include
specific proffers from a developer. “The
question is, if somebody uses the TDR process,
there isn’t any conditional rezoning going on
for the increase in density,” he says. “I
think that’s the real test of this bill.”
Despite
the law’s modest dimensions, Flynn thinks it can
have a significant impact. “In the localities
that do it, it’s going to really change the
dynamics of growth patterns,” he says. Zonings
come and go, but land that goes through the TDR
process will stay that way, he says.
One
key element missing from the law, all sides agree,
is the ability to “bank” development rights.
Under the new authority the transfer of
development rights has to go from one specific
property to another. Which means that without such
an agreement, a property owner couldn’t sell his
development rights until he had a buyer, and vice
versa. Other TDR programs allow the banking
approach, which means landowners could sell their
rights and developers could buy up as many as were
available depending on their needs.
“To
really make the system work you need that,” says
Trip Pollard, an attorney with the Southern
Environmental Law Center, who was also involved in
drafting the legislation. “That was part of the
discussion, and we couldn’t get everyone to sign
off.”
Toalson
says he’s open to supporting a banking
authority, and says it didn’t get done this year
because of the complexity of the issue and the
lack of time. “My hope
would be that this is just the first phase of a
TDR program” that would eventually allow banking
of TDRs. “That’s another piece that we’re
all committed to come back to the table” to work
on, he says.
The
negotiations were a nice change from the normally
contentious exchanges between warring sides,
Toalson says. “It’s one of the first
experiences I’ve had, when I was sitting at a
table with representatives of the environmental
community, local governments and us, where we
didn’t immediately run to the corners.”
Pollard
says the legislation’s success after so many
years of rejection “shows clearly that
transportation and land-use issues are at the
forefront of public discussion and political
debate now. I think it does show that there’s
potential for agreement on some of these
issues.”
Bacon's
Rebellion News Service
March
31, 2006
|
