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<br /> <br />thatTDRs have been severed and purchased <br />from a property in the sending area. A conser- <br />vation easement is a legally binding contract <br />between the landowner and the local govern- <br />ment, stating the restrictions (for example, <br />agricultural, forestry, or open space land uses) <br />that apply to the property. The property is still <br />privately owned, and there is usually no right <br />of public access. <br />In sum, a local government creates a mar- <br />ket for TORs by assigning a certain number of <br />TORs to landowners in sending (or preservation) <br />areas and requiring developers who want to <br />build at higher than by-right densities in receiv- <br />ing (or growth) areas to purchase TORs from <br />landowners in the sending areas. The price of <br />the TORs is established through negotiations <br />between a willing buyer and a willing seller, like <br />an ordinary real estate transaction. A key feature <br />of successful TOR programs is continued <br />demand for TORs from developers who see <br />potential profits from purchasingTDRs and <br />using them to develop projects in the receiving <br />areas. One reason that TDR programs have not <br />worked well in rural areas is that there is often <br />insufficient development activity and little <br />demand from developers forTDRs. <br />An overall rule of thumb is that at the <br />start of a TDR program there should be twice <br />as many receiving sites for TORs as there are <br />TORs to send from the sending areas. This will <br />help ensure that TORs have a value. Another <br />reason that TOR programs have a poor track <br />record in rural areas is that there are usually <br />many more TORs in the sending areas than <br />there are places to use them in the receiving <br />area. This oversupply ofTORs drives down <br />prices and discourages landowners in the <br />sending areas from selling TORs. <br /> <br />PUTTING THE TOR PROGRAM IN THE <br />ZONING ORDINANCE <br />The local government can create a separate <br />TOR o'rdinance, but a better approach is to <br />include it as part of the local zoning code. <br />Because a comprehensive plan sets the legal <br />foundation for the zoning ordinance orTOR <br />program, a local government should first <br />amend its comprehensive plan to reflectthe <br />identified sending and receiving areas. <br /> <br />Although developers may prefer by-right <br />zoning for the use ofTORs, the conditional use <br />process allows the governing body to impose <br />conditions for approval to address development <br />impacts that may affect the community. The <br />conditional use process also allows the local <br />government greater discretion than simply sub- <br />jecting a TOR receiving area development to <br />subdivision and land development standards. <br />In short, the zoning ordinance can require a <br /> <br />A local government creates a market for <br />TDRs by assigning a certain number ofTDRs to <br />landowners in sending areas and requiring <br />developers in receiving areas to purchase TORs <br />from landowners in the sending areas. <br /> <br />To add a TOR program to the zoning ordi. <br />nance involves several changes. First, new <br />definitions must be added to reflect the lan- <br />guage of the TOR program, such as definitions <br />for transferable development rights, sending <br />area, receiving area, deed of transferable <br />development rights, and deed of easement. <br />Next, the TOR option must be added to the list <br />of permitted uses in the zoning districts that <br />are the deSignated sending areas, along with <br />the minimum size parcel eligible forTDRs, the <br />TOR allocation method, and the procedures <br />for legally severing TOR and using a conserva- <br />tion easementto permanently preserve the <br />sending area property. Then the TOR option <br />must be added to the list of permitted uses, <br />special exceptions, or conditional uses within <br />the zoning districts that comprise the receiv- <br />ing areas. <br /> <br />conditional use process for new developments <br />that use TORs in the receiving areas, and <br />describe the process for approval of a develop- <br />ment that uses TORs. For instance, once a condi- <br />tional use permit has been granted, a local gov- <br />ernment could waive the preliminary land <br />development plan and go straight to the final <br />plan stage. This in effect grants the developer <br />vested rights in the development, and final <br />approval is mainly a formality. <br />The zoning ordinance should include: <br />a. a purpose clause, explaining the reason for <br />establishing the TOR ordinance; <br /> <br />b. the authorization for the TOR ordinance in <br />the state enabling legislation, and a basic <br />explanation ofthe TOR program; <br /> <br />c. the procedure for sale ofTDRs from a send- <br />ing area, including a definition of the send- <br /> <br />ZONINGPRACTICE 12.07 <br />AMERICAN PlANNING ASSOCIATION I PQ~ <br />