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<br />the township will waive the preliminary plan
<br />review and go straight to final plan review.
<br />This waiver in effect grants a developer vested
<br />rights in the project.
<br />One way to keep property owners in
<br />receiving areas mollified is to use a form-
<br />based code. Ultimately, a form-based code is
<br />easier to do if the receiving area is a green-
<br />field site. St. Lucie County has incorporated
<br />form-based code elements into its land devel-
<br />opment regulations, which relate to the TOR
<br />.ordinance. The ordinance won an Award of
<br />Excellence from the Florida Chapter of the
<br />American Planning Association in 2006 and
<br />an award from the Form-Based Codes Institute
<br />in 2007.
<br />The county's land development regula-
<br />tions include, for example:
<br />· The development shall incorporate princi-
<br />ples ofTraditional Neighborhood Design,
<br />including a mix of land uses, a mix of building
<br />types, a mix of housing for different income
<br />levels, a pedestrian-friendly block and street
<br />network, and a significant amount of public
<br />open space.
<br />· Neighborhood size shall be scaled upon a
<br />five-minute walk radius (approximately 0.25
<br />mile) or a total area of 125 acres, as measured
<br />from the Neighborhood Center.
<br />. Each neighborhood shall have well-defined
<br />edges, and range from 80 to 150 acres in size.
<br />The shape or form of the neighborhood is fiex-
<br />ible, provided that the 0.25-mile radius
<br />benchmark for scale is maintained.
<br />· A neighborhood shall provide a variety of
<br />dwelling unit types and prices that support a
<br />broad range of family sizes and incomes.
<br />· A neighborhood shall contain at least one
<br />civic building, such as a school, social center,
<br />fire or police station.
<br />· A neighborhood shall contain at least one
<br />local store.
<br />· Blocks shall be scaled to accommodate a
<br />variety of building types.
<br />· A neighborhood shall have an intercon-
<br />nected network of public streets designed to
<br />balance the needs of all users, including
<br />pedestrians, bicyclists, and motor vehicle
<br />operators (Treasure Coast Regional Planning
<br />Council, 2006b).
<br />Warwick Township in Lancaster County,
<br />Pennsylvania, created a dual-zone TOR pro-
<br />gram to preserve farmland in the sending
<br />areas but tied it to the expansion of com-
<br />mercial and industrial space in its receiving
<br />area. The increased development in the
<br />
<br />receiving area thus expands the local prop-
<br />erty tax base without adding school-age
<br />children. This produces a net revenue gain
<br />for the township. The Campus Industrial
<br />Zone receiving area is 167 acres. The town-
<br />ship zoning allows only 10 percent maxi-
<br />mum lot coverage by-right. For each TOR that
<br />a landowner/developer acquires, a~other
<br />4,000 square feet of lot coverage is allowed,
<br />up to a maximum of70 percent coverage.
<br />The township has preserved nearly 1,000
<br />acres offarmland through its TOR program,
<br />which got a major boost when a regional
<br />hospital decided to locate in the Campus
<br />Industrial Zone and needed to purchase
<br />more than 100 TDRs.
<br />Downzoning in sending areas has been
<br />a major obstacle to creating effective TOR
<br />programs. One way that local governments
<br />have attempted to minimize the effects of
<br />downzoning is to create single zones that
<br />serve as both the sending and receiving
<br />areas. In a single-zone TDR, the transfer of
<br />development rights rearranges develop-
<br />ment, often to cluster the development and
<br />maintain some open space. This is primarily
<br />a rural residential strategy. The by-right zon-
<br />ing in a single-zone TOR program generally
<br />uses a density standard, so that one house
<br />lot may be developed for every certain num-
<br />ber of acres. For instance, if the density
<br />standard is one house per five acres and a
<br />landowner has 20 acres, then the landowner
<br />could create four building lots by right. The
<br />landowner could purchase a TOR from
<br />another property and create an additional
<br />lot, for a total of five lots on the 20 acres,
<br />but some ofthe open land, such as 50 per-
<br />cent or 10 acres, would be placed under a
<br />conservation easement restricting future
<br />development. Farmland protection zoning of
<br />one house per 20 acres (or more) is rarely
<br />used in a single-zone TDR.
<br />The single-zone TOR is not a recom-
<br />mended method for several reasons. Rrst, it
<br />encourages more people to move outto the
<br />countryside and live in automobile-dependent
<br />developments. In other words, this new devel-
<br />opment adds to sprawl, though perhaps in a
<br />more attractive setting. Second, the addi-
<br />tional development is likely to lead to
<br />increased conflicts with nearby farm opera-
<br />tions. And third, it encourages greater use of
<br />on-site septic systems, which contribute to
<br />groundwater pollution. In Maryland, for exam-
<br />ple, there are 14 county TOR programs, of
<br />
<br />
<br />THE LEGALITY OF TORs
<br />
<br />The concept of transferable develop-
<br />ment rights came into practice in 15168
<br />when New York City adopted a TOR pro-
<br />gram in the form of transferable air
<br />rights to protect historic landmarks
<br />(Preutz 1997). In 1978, the U.S. Supreme
<br />Court upheld New York City's transfer-
<br />able air rights program and found that
<br />the owners of Grand Central Station
<br />could earn a reasonable profit by trans-
<br />ferring development potential above the
<br />station to another site in the city. That
<br />is, the owners of Grand Central could
<br />build higher than the zoning height limit
<br />would normally allow on another site
<br />(see Penn Central Transp. v. New York
<br />City, 438 U.S. 104 (15178}).
<br />TORs have drawn the interest of
<br />elected local officials because of the
<br />potential to avoid the Fifth Amendment
<br />takings issue that has plagued propos-
<br />als to downzone property as a way to
<br />manage growth. Thus far, the courts
<br />have not given definitive direction on
<br />the legality of using TORs as just com-
<br />pensation. In Suitum v. Tahoe Regional
<br />Planning Agency, 96 U.S. 243 (1997),
<br />the U.S. Supreme Court ruled that the
<br />plaintiff, Mrs. Suitum, did not have a
<br />"ripe" situation because she had not
<br />tried to sell her TORs and had not deter-
<br />mined what they were worth.
<br />In Williamstown County Regional
<br />Planning Commission v. Hamilton Bank
<br />of johns on City, 473 U.S. 172 (198S), the
<br />Supreme Court ruled that "if a State pro-
<br />vides an adequate procedure for seeking
<br />just compensation, the property owner
<br />cannot claim a violation of the Just
<br />Compensation Clause [of the Fifth
<br />Amendment] until it has used the proce-
<br />dure and been denied just compensa-
<br />tion." In short, the role ofTDRs as "just
<br />compensation" has not been fully
<br />resolved by the courts.
<br />
<br />
<br />ZONING PRACTICE 12.07
<br />AMERICAN PLANNING ASSOCIATION I pageS 1
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