The. TDR Handbook. Designing and Implementing Transfer of Development Rights Programs

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1 Foreword by Dwight H. Merriam The TDR Handbook Designing and Implementing Transfer of Development Rights Programs Arthur C. Nelson, Rick Pruetz, and Doug Woodruff with James C. Nicholas, Julian Conrad Juergensmeyer, and Jonathan Witten

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4 the tdr handbook arthur c. nelson, faicp rick pruetz, faicp doug woodruff, rla with james c. nicholas julian conrad juergensmeyer jonathan witten foreword dwight h. merriam, faicp

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6 The TDR Handbook Designing and Implementing Successful Transfer of Development Rights Programs Arthur C. Nelson, FAICP Rick Pruetz, FAICP Doug Woodruff, RLA With James C. Nicholas Julian Conrad Juergensmeyer Jonathan Witten Foreword Dwight H. Merriam, FAICP Washington Covelo London

7 2012 Island Press All rights reserved under International and Pan-American Copyright Conventions. No part of this book may be reproduced in any form or by any means without permission in writing from the publisher: Island Press, Suite 300, 1718 Connecticut Ave., NW, Washington, DC ISLAND PRESS is a trademark of the Center for Resource Economics. Library of Congress Cataloging-in-Publication Data The TDR handbook : designing and implementing successful transfer of development rights programs / Arthur C. Nelson... [et al.]. p. cm. Includes bibliographical references and index. ISBN-13: (cloth : alk. paper) ISBN-10: (cloth : alk. paper) ISBN-13: (pbk. : alk. paper) ISBN-10: (pbk. : alk. paper) 1. Development rights transfer United States. 2. Development rights transfer United States Case studies. 3. Land use United States Planning. 4. Environmental protection United States Case studies. 5. Historic preservation United States Case studies. I. Nelson, Arthur C. HT169.9.D4T dc Printed using Electra Text design and typesetting by Karen Wenk Printed on recycled, acid-free paper Manufactured in the United States of America The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or the Section of State and Local Government unless adopted pursuant to the bylaws of the Association. Nothing contained herein is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only. Keywords: affordable housing, density transfer charge, downtown revitalization, farmland preservation, habitat conversation, historic preservation, land use law, land use planning, model ordinance, neighborhood preservation, purchase of development rights (PDR), state enabling statutes, transit-oriented development, urban infill, wetland preservation

8 We dedicate this book to the pioneers of modern transfer of development rights practice, in particular but in no particular order: B. Budd Chavooshian John Costonis Madelyn Glickfeld Royce Hanson Don Hagman John Stokes Richard Tustian with sincere apologies for overlooking everyone else who has helped move this important and evolving planning innovation into the mainstream of practice.

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10 contents acknowledgments foreword prologue: a simple concept xi xiii xix PART 1 1 Chapter 1 How TDRs Work 3 Chapter 2 Comparing TDRs to Other Preservation Solutions 15 Chapter 3 The Economics of TDRs 27 Chapter 4 Purchase of Development Rights 41 Chapter 5 Density Transfer Charges 45 PART 2 51 Chapter 6 TDRs and the Planning Connection 53 Chapter 7 The Seven Steps of TDR Planning 63 Chapter 8 Designing Sending Areas 75 Chapter 9 Designing Receiving Areas 85 PART 3 93 Chapter 10 Legal Issues 95 Chapter 11 A Review of State Statutes 105 Chapter 12 TDR Program Administration 119 PART Chapter 13 Programs by Purpose 131 Chapter 14 Farmland Preservation Case Studies 141 Chapter 15 Farmland and Environmental Preservation Case Studies 159

11 Chapter 16 Environmental Preservation Case Studies 179 Chapter 17 Rural Character Preservation Case Studies 193 Chapter 18 Historic Preservation Case Studies 207 Chapter 19 Urban Design and Revitalization Case Studies 217 Epilogue: The Promise and Future of TDRs 229 appendix a: a model tdr ordinance 241 appendix b: sample tdr form 253 appendix c: state listings of tdr programs 259 glossary 285 notes 287 references and selected bibliography 295 about the authors 303 contributors 305 index 307

12 acknowledgments We gratefully acknowledge that much of the information in this book originated with colleagues with whom many of us have collaborated on plans, studies, presentations, and publications, including Mike Pelletier, Chris Duerksen, Noah Standridge, Bill Fulton, Chris Williamson, Aaron Engstrom, Donald Berger, Tom Daniels, Cindy Nickerson, Michael Kaplowitz, Patricia Machemer, Jeff Dorfman, and Jamie Baker Roskie. In addition, numerous planners and others have contributed to the profiles in this book, including (in no particular order): John Zawitoski, Jeremy Criss, and Judy Daniel, Montgomery County, Maryland Gregory A. Bowen and Veronica A. Cristo, Calvert County, Maryland Susan Craft, Amada Gottsegen, and Mark Remsa, Chesterfield Township, Burlington County, New Jersey Dan Zimmerman, Warwick Township, Lancaster County, Pennsylvania Marc Roberts and Susan Frost, Livermore, California John Stokes, John Ross, and Richard Osborn, New Jersey Pinelands Russell Legg, Larry Timm, and Steve Ryder, Larimer County, Colorado Jennifer Madgic and Randy Johnson, Gallatin County, Montana Mimi Ross, John Doughty, and Pete Wysocki, Douglas County, Nevada Patrick Rutter, Susan Miller, and Kathleen Gerard, Palm Beach County, Florida Gabby Barrett and Lyn Barnett, Tahoe Regional Planning Agency, California/Nevada; John Gussman, Bruce Eisner, and Gerry Willmett, California Tahoe Conservancy Michael Bosi, Joseph Thompson, Noah Standridge, and Ronald F. Nino, Collier County, Florida Stefanie Edmondson, Malibu, California; Steve Harris and M. Elizabeth Wiechec, Mountains Restoration Trust Raymond Corwin and Timothy Hopkins, Long Island Pine Barrens, New York Ray Belknap, Land Conservancy of San Luis Obispo County, California; Kami Griffin and Karen Nall, San Luis Obispo County, California xi

13 xii Acknowledgments Peter Fogg, Boulder County, Colorado Suzanne Wolff, Cindy Houben, and Ellen Sassano, Pitkin County, Colorado Dewitt Pennypacker, Susan Craft, Amada Gottsegen, and Mark Remsa, Chesterfield Lumberton Township, Burlington County, New Jersey Angela Threadgill, Dan DiBartolo, and Lawrence Badiner, San Francisco, California Ellen Ittelson and Jennifer Moulton, Denver, Colorado Richard Barth, Tony Levy, Khalid Afzal, and Pares Bhattacharji, New York City, New York David Riccitiello, Allyne Winderman, Frank Quon, and Robert Sutton, Los Angeles, California Dennis Meier, Laura Hewitt Walker, Jane Voget, Vince Lyons, and Diane Althaus, Seattle, Washington Darren Greve and Michael Murphy, administrators of King County, Washington s TDR program Peter Fogg, manager, Long Range Policy Team, Boulder County Land Use Department Trent McCorkell, Rice County, Minnesota Don Dressen, administrator, and Isnarda Machuca, planning and zoning, Payette County, Idaho Paul W. Goldstein, development review specialist, Washington, DC, Office of Planning We also acknowledge Jeannette Benson at the University of Utah, whose management of the City and Metropolitan Planning Department helped to make this book possible. This book would not have been possible without the incredible support we received from Island Press, especially from Heather Boyer, Courtney Lix, Sandy Sabo, and Sharis Simonian. Lastly, Arthur C. Nelson acknowledges the support of his wife, Monika; Rick Pruetz acknowledges the memory of his father, Eric Pruetz, and the support of his family, Adrian, Jean, Jay, Gena, Erica, Jeromy and Joshua; and Doug Woodruff acknowledges the support of his father and mother, Roger and Dawna Woodruff. Our sincerest apologies to anyone we should have acknowledged. Arthur C. Nelson, FAICP Salt Lake City, Utah Rick Pruetz, FAICP Hermosa Beach, California Doug Woodruff, RLA Salt Lake City, Utah

14 foreword If you picked up this book knowing nothing of the subject matter perhaps not even knowing what TDR stands for let s just say that TDR is like clustering, except that the open space goes to noncontiguous properties. The notion is simple (but sufficiently nettlesome to result in the substantial handbook before you): Development rights from one parcel are lifted up and placed on another. This transfer protects the first parcel from further development and causes the other parcel to carry the new, additional load of the transferred density in the form of more building area, more units, or some combination of the two. Most anyone in the business of land use planning, regulation, development, and preservation has to be a fan of TDR. Think about it: TDR seemingly lets us put the development where we really believe it should be where sufficient infrastructure, the need for density, the advantages of economies of scale, and so forth exist. At the same time, TDR promises to let us save what we must wetlands, vistas, farmland, wellhead protection, you name it without paying a nickel, with no Kelo-esque angst of eminent domain, and with the pleasure of watching the property owner smile all the way to the bank. It should make us sing out in Gullah Kumbaya, my Lord, kumbaya planners and property owners swaying rhythmically back and forth, arm in arm. So is TDR the alchemy of property rights made real or is it three-card monte that leaves suckers with empty pockets and destroyed dreams? Turns out, it s a little of each. I fell fast for the siren song of TDR while a second-year law student. I already had a master s in planning and became intrigued by the clever legal mechanics of TDR and how they made planned preservation work. Space Adrift: Landmark Preservation and the Marketplace (1974) by Professor John J. Costonis was an exciting find for me. I spent a semester researching and writing a paper later published under the title Making TDR Work, which lockstep-listed the issues and then tried to map out what TDR programs xiii

15 xiv Foreword needed to succeed. Only a second-year law student tainted with a graduate planning degree would be so foolish as to take on that impossible job. As I read The TDR Handbook while looking back forty-something years to that time in the late 1960s and early 1970s when TDR seemed to come into the world virtually fully formed, like Athena, from the forehead of Zeus, armed with weapons I can only think of the old French proverb The more things change, the more they stay the same. The TDR issues of today hardly differ from yesterday s. Then again, you will learn from this handbook that the concept of TDR, now residing in two hundred communities, has learned a few new tricks as it has become an old dog. The epilogue, which summarizes a survey by Kaplowitz and colleagues (2008), says essentially what we came to recognize at the outset: that orchestrating techniques such as including a purchase of development rights component to take and extinguish development rights can make these programs both work better. TDR banks, the authors conclude, can help avoid market failure during weak market conditions as well as provide a sense of security, credibility, and confidence. Call it the federal reserve of development rights. But, wait, there s more as a marketer might say about TDR. Something new, the authors have discovered, is that state enabling legislation may not help and could hinder flexibility and adaptability to changing conditions. Most of us previously thought that even if we didn t like the constraints and compromises of enabling legislation, the education and encouragement outweighed those shortcomings. Also, it was found that if TDR had two or three not one or four or more initiating proponents, success was more likely. It is right that the authors call this a handbook, and ironic, too. Checking my Merriam-Webster (where else would I look?), I find that handbook is defined as a book capable of being conveniently carried as a ready reference and a concise reference book covering a particular subject. This handbook is indeed that. You can jump in at any chapter and find just what you need theory, economics, planning, the law, a model ordinance, and some interesting case studies of TDR. Calling this a handbook is also apt given this second dictionary definition: a bookmaker s book of bets; a place where bookmaking is carried on. TDR is about betting: betting on the size of the areas to be preserved and those to which the development rights will be transferred with build-out at higher densities, betting there will be demand, betting a developer s brother-in-law doesn t become mayor and eviscerate the TDR program through zoning amendments, betting the neighborhoods receiving the density from the preserved areas don t sue claiming the transfers create an unreasonable burden for them, and betting the development rights bank doesn t go bust. Wouldn t it be swell to see a failing TDR bank at the center of a remake of It s a Wonderful Life? Still, the promise is so great and, when it works, TDR is magnificent. I

16 Foreword xv haven t given up on it, not by a long shot. This handbook makes me even more hopeful that we can make TDR work. All for the Good Henry Wadsworth Longfellow made up a little rhyme for his daughter, Edith, when she refused to submit to the application of a curling iron. The little poem might as well describe TDR: There was a little girl Who had a little curl Right in the middle of her forehead; And when she was good, She was very, very good But when she was bad she was horrid. It goes on for twelve more lines. Look it up it s fun to read and endearing. For sure, you will learn from this handbook that when TDR is good, it is very, very good. It has the power to cut through that Gordian knot of property rights versus preservation in one fell swoop, with the land itself finally set free of the overlay of property rights we put there. It wasn t that way, of course, before the white settlers arrived in the New World. Chief Massasoit, the Great Sachem of the Wampanoag Federation in what is now Rhode Island and Massachusetts, once said: What is this you call property? It cannot be the earth, for the land is our mother, nourishing all her children, beasts, birds, fish and all men. The woods, the streams, everything on it belongs to everybody and is for the use of all. How can one man say it belongs only to him? We are the children of an Anglo-American real property system. The private ownership of property helps us advance in many ways, economically and otherwise. At the same time, it fundamentally fetters us in our efforts to do the right thing when it comes to land use. TDR, like the less-desirable government ownership of land, enables us to move those property rights around the landscape, to make them more fungible, to even monetize them so they can be separated from the land itself. In so doing, TDR gets the right use in the right place. Yet problems remain. How do we delineate the areas to be preserved? What does preservation mean when some areas are building facades and others are open spaces? Preserving land does not mean preserving the use. Farmland preservation saves the land but no more means that farmers will keep farming than it does that too-eager rural industrial development authorities will get new factories if they put up a sign saying East Podunk Industrial Park Build Here and Build a Future with Us. Sometimes a field of dreams is just a field of dreams.

17 xvi Foreword What is to be preserved must be so desirable for development that the property s owners will be courted by every rapacious developer in town to sell their development rights. Yet the areas we often want to preserve are often not all that developable wetlands, ridge tops, and the like. As for the receiving areas, if they are so desirable, why aren t the developers encamped on the city hall steps with rezoning applications in hand, seeking upzonings, downzonings, or whatever you might call it for more density, larger land coverage, and taller buildings? Is there sufficient demand? And why, tell me, should I buy a development right when a good land use lawyer, expensive as one might be to hire, could get me the development rights cheaper and faster with a rezoning? One of my most beloved developer clients, who became a friend along the way, hired me twenty-five years ago to get his property rezoned from an essentially industrial and commercial use to multifamily residential. It was in a high-amenity area. The fee, with a lawsuit or two, plus federal, state, and local permits, came to about $100,000. The client worked hard himself and had put much sweat equity in the property over the years. The property increased in value by $7.5 million with the permits we received. He eventually sold out and retired, quite fortuitously before the 1990 recession. Why would he ever buy development rights? Transaction costs are like methicillin-resistant Staphylococcus aureus (MRSA) to TDR they will kill a deal in days. There s a deal to be negotiated, lawyers to hire, documents to draft, a closing to schedule, plus taxes, adjustments, title searches, and title insurance. It is all a big real estate deal, on top of getting approvals for the higher density at the receiving site with neighbors who are anything but a local chapter of the TDR Welcome Wagon. Sellers of development rights often overvalue those rights. For instance, the farmer who owns a back forty near a proposed interstate is bound to think the next McDonald s will go in right at the interchange, which is sure to be built on his property. In the farmer s mind, the price of his land can only go up and up. Besides the obvious need to make money, developers want just two things: certainty and speed. TDR offers neither, unless you are willing to fast-track permitting in return for taking the TDR deal. And don t forget banks. Who trusts banks of any type, least of all the First National Bank of TDR? Do you get an ATM card to pull out a few development rights to throw up a small subdivision? Banks can help, yes indeed, but the overhead in institutional and other support infrastructure is substantial. Few small towns or rural counties are able open a bank to help the process. Assuming a deal is done and the development completed, now what? Does the status quo remain forever? Hardly. Restrictions can be and are set aside. And think how absurdly presumptive it is of us to require that something remain the same in perpetuity. Perpetuity is a very long time. When I do restrictive easements and other such controls, I sometimes challenge the parties to consider something more time limited than perpetuity. Not only

18 Foreword xvii do I think it inappropriate for us to tie the hands of future generations, but also I believe that a court will be less likely to bust a restriction where the term is for some reasonable period, say fifty or a hundred years. This is not to say that some restrictions shouldn t apply forever, but too many pocket-park open spaces and buffers are set aside forever; two hundred years from now, I will say, I told you so. There is a fundamental conundrum when it comes to receiving areas. On the one hand, we need to have a site-specific discretionary process to approve increased density on those sites. We cannot allow negative externalities to take property rights away from abutters. On the other hand, we must provide incentives to close TDR deals. One way to do that is make development at the receiving sites as-of-right or close to it or at least highly expedited. I don t want to be caught in that policy crossfire. One modest approach, pioneered in New Jersey in the 1970s, is the transfer of development credits (TDC). TDC basically is clustering with noncontiguous lands. Conventional clustering, amazingly still suspect in some places after more than a half century, maintains the overall, gross density of a parcel but places the development say, single-family homes on smaller lots with shorter roads and utility lines, thus saving development costs and leaving useful areas of open space. That s the theory. The reality is that clustering sometimes saves open space that is simply the dregs of the site and ultimately serves only as a convenient place for neighbors to dump yard clippings. Clustering may be as-of-right or discretionary, as by a special permit. TDR works exactly the same except that the open space, or part of it, can be on other land in the same ownership no negotiation, no closing on the transfer of the development rights, no bank. A developer buys a parcel in a potential receiving area and also buys a developable parcel in the preservation area. The developer might develop just a small portion of the parcel in the preservation area with clustered mansion homes, where the positive externalities you ll get plenty of that planner-economist speak in this handbook can pour over into the value of those mansion lots. The open space left over is credited to the density in the distant parcel in the receiving area, where the developer builds some much-needed cottage homes and live-work units on lots of just a few thousand square feet. Another problem with TDR, overcome in most cases with TDC, is that it takes sophisticated professional staff and citizen planners to analyze these deals and decide what to approve. Not enough local governments have adequate professional staff. Indeed, many places under development pressure and being destroyed by haphazard land conversion don t have any professional help. I have worked in backwater communities and college towns and wealthy suburbs, one in particular where the joke is the chair of the planning commission never saw a subdivision she liked. The only difference among them all is that the public officials were more outspoken in what some people might perceive as the less sophisticated places. Towns with more than

19 xviii Foreword their fair share of really smart, highly educated people make just as many mistakes and seem to understand cutting-edge regulatory techniques no better than other places. Planning for, implementing, and administering TDR is simply beyond the capacity of many places. But don t let me discourage you. Like little Edith Longfellow, TDR can be very, very good. This handbook will help you make the best of it. Just don t think this is a quick fix. You need to orchestrate the techniques presented on the following pages; they will not work without tuning. Don t be surprised if the transfers are few and far between, at least until the program has stabilized. The overarching key to success is a strong comprehensive plan and a commitment legal, cultural, and moral to consistency of land use decisions made in accordance with that plan. When landowners, developers, and the neighbors all see and believe in a long-term, steadfast dedication to a future landscape and when they don t make backdoor deals to increase density that would otherwise come from transfers then you will see TDR work. As planners, our most important constituents are those with no voice the people who live elsewhere, those who are disenfranchised, and future generations who will inherit the earth from us. What we do as planners is for them, and they will thank us, though we may never hear it, if we do our job right. TDR can help in some way, in some places, at some times, and under some conditions and this handbook will serve you well in making TDR work. Dwight H. Merriam, FAICP

20 prologue: a simple concept Communities across the nation struggle with preserving open spaces, historically significant buildings and sites, farmland, and other local assets from development. They also seek ways to steer development away from areas with little or no infrastructure and toward areas where public services already exist or can be efficiently provided. Such communities may find a solution in the transfer of development rights (TDR) from a site or area to be preserved to an area targeted for development. The TDR concept is quite simple. Think, for example, of residential clustering. Instead of placing one house on a one-acre lot, clustering allows smaller lots, groups the houses together, and sets aside substantial areas of open space for public or private use. Residential clustering moves the development potential (the development rights) from the area to be preserved as open space into the area proposed for the cluster. The density of development in the open space is reduced down to as low as zero, while the density of development in the residential cluster becomes greater perhaps considerably than one house per one acre. This is the essence of transferring development rights. Clustering, however, typically occurs on one parcel while TDR involves transfers between two or more properties, as described below. When all is said and done, as long as a one-to-one transfer ratio is maintained, the overall density in the community or region does not change through TDR, because the density is merely being transferred from one place to another. As a result, areas capable of somewhat higher densities receive those densities, and areas of special interest for preservation can be preserved. TDR programs are a novel planning tool because they use market mechanisms to implement and finance the redistribution of development rights in ways that planning and zoning cannot. 1 In general, TDR programs result in landowners severing their development rights from properties in sending areas and selling them to others to use in receiving areas. Sending areas can range from farmland and other open spaces in the rural countryside to xix

21 xx Prologue: A Simple Concept Figure 0.1. TDR sending and receiving areas. Figure by Doug Woodruff. historically significant buildings and sites to established neighborhoods or any other landscape intended for preservation. The development rights then transfer to receiving areas, where developers can exceed a baseline level of development provided in the zoning code and supported by the community s comprehensive plan (see figure 0.1). TDR programs take a voluntary, market-driven approach to preserving targeted landscapes or sites and directing development to areas targeted for growth. TDR programs are also incentive based: property owners in both sending and receiving areas benefit from participation. For these reasons, TDR programs tend to be well accepted by the public. The Historical Context TDR programs exist, essentially, as a supplement to zoning, and their history parallels the history of zoning.

22 Prologue: A Simple Concept xxi In the United States, New York City adopted the first comprehensive zoning act in 1916, partly in response to public opposition to skyscrapers that blocked sunlight from neighboring properties. It was also enacted, in part, to prevent future warehouses and factories from encroaching on the city s fashionable retail and residential areas. New York s zoning ordinance established height and setback requirements and separated such incompatible uses as factories and residences. New York City s 1916 zoning code included the ability to transfer development rights between properties. For instance, it allowed property owners to sell their unused air rights to owners of adjacent lots within the same block; the new owners could then use those air rights even if their buildings exceeded the new height and setback requirements, as long as the average floor area of the affected buildings complied with zoning limits. The city changed this provision in 1968 to allow transfers between lots several blocks away, provided the properties met a tortured definition of the term adjacency that included lots across streets or connected by a contiguous chain of properties under common ownership (Johnston and Madison 1997). This definition applied especially to historically significant properties, which led to the 1978 landmark Supreme Court case Penn Central v. City of New York. The city had prevented Penn Central from building an office tower on top of Grand Central Station. Penn Central claimed a taking, but the Supreme Court found that Penn Central s rights were, in fact, not taken, because the railroad company did not have to build an office tower on top of Grand Central Station to enjoy reasonable economic return from its investment. Significantly, the Supreme Court s decision added that the transferable development rights available to Penn Central might not have constituted just compensation if a taking had occurred but that those rights nevertheless mitigated any financial burdens caused by the New York City Preservation Law. With this brief mention, the U.S. Supreme Court gave the TDR concept considerable credibility as a means of mitigating the impacts of regulation (see chapter 10). Figure 0.2 illustrates the issues in the Penn Central case. A Policy Overview At their heart, TDR programs provide local governments with another tool to control land use as well as compensate landowners for land use restrictions that may reduce a property s market value. Some people believe TDR programs would not be needed if planning and zoning were done right to begin with or improved to effect the right outcomes. In other words, if an area is more suitable for farming than for other uses, it ought to be planned and zoned as such; if other areas are more suitable for development, they ought to be developed. For instance, Barrese

23 xxii Prologue: A Simple Concept Figure 0.2. Grand Central Terminal TDR process. Figure by Doug Woodruff.

24 Prologue: A Simple Concept xxiii (1983) argues that TDRs are not superior to traditional zoning, because TDRs depend on voluntary exchanges to achieve desired land use outcomes whereas zoning can achieve those outcomes more efficiently upon implementation. Johnston and Madison (1997) echo this sentiment, arguing that TDR programs are not as effective as zoning in achieving the scale of land preservation needed for agricultural and environmental protection. These arguments, however, suggest that TDR is a substitute for zoning. In fact, TDR works with zoning. TDR can help make zoning more effective, and strong zoning is essential for a successful TDR program. Oregon, for instance, did not enable TDRs during its statewide land use planning process from the middle 1970s into the twenty-first century because, ostensibly, its planning and zoning practices arranged for the most appropriate land uses. Farmland and other open spaces were downzoned. (Downzoning reduces the development density or intensity of a property, such as from one dwelling unit for every two acres to one unit for every forty acres; it also tends to reduce property value.) In court, affected property owners nearly always failed in their claims for damages and takings. Eventually, those owners prevailed at the ballot box in the 2000s, when Oregonians passed amendments to statewide land use laws that allowed for certain remedies. Those new laws have since been refined, including enabling TDRs in all Oregon planning jurisdictions. The lesson from Oregon s experience is that while planning and zoning aim to designate land for its most appropriate uses, changes that substantially reduce value even while meeting constitutional tests may impose a burden on those whose rights have been changed. TDRs offer one way to make appropriate land use planning changes while providing adversely affected parties with an opportunity for compensation. TDR programs are thus a pragmatic solution to achieving broad planning goals. Effective TDR programs create a market that compensates property owners whose development rights have been changed to preserve such public goods as open space, agriculture and forestry (or other working landscapes), historic sites or buildings, and affordable housing. They also help make these preservation efforts equitable and politically palatable by compensating landowners whose property value is reduced because of those efforts. In addition to helping make stronger land use regulations politically feasible and providing landowners affected by these regulations with a means of compensation, TDR typically leads to the permanent preservation of important community resources, such as green infrastructure, farmland, and historic landmarks. One school of thought holds that good zoning alone should be sufficient to protect these resources indefinitely or at least as long as the community considers them vital. But, in reality, zoning in many U.S. communities is as permanent as the next election or perhaps the next meeting of the county board. This creates uncertainty for the owners of resource lands,

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