Bacon's Rebellion

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Albemarle Explores Transfer Development Rights

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by

James A. Bacon
in

An interesting debate is unfolding in Albemarle County, where Supervisor David Slutzky has proposed a Transfer of Development Rights program to protect most of the countryside from development and steer growth into a concentrated urban district equal to about one percent of the county’s land.

At a news conference earlier this week, Slutzky was accompanied by representatives of the Piedmont Environmental Council, the Southern Environmental Law Center, the Free Enterprise Forum (a pro-business advocacy group), and the Blue Ridge Homebuilders, which all supported the idea of looking into such a program.

Brian Wheeler with the Charlottesville Tomorrow blog summarizes Slutzky’s plan as follows:

– The expansion of Albemarle’s growth areas from 5% of all the County land to 6% to create a receiving area for the transfered development rights. Mr. Slutzky describes this as a boundary area, adjacent to parts of Albemarle’s existing growth areas, where development would be allowed by-right (i.e. no rezonings, no proffers, and no requirements to follow the County’s Neighborhood Model).

– A rezoning of rural land to a minimum of one house per 50 acres (current zoning allows one house per a minimum of 21 acres). However, with a change in state law, a grandfathering system would protect any existing development rights such that they could be transferred into the TDR program AFTER the rural area downzoning.

– A bonus density reward for the landowner purchasing the development rights. For every rural area development right purchased a developer could convert it to two housing units in the boundary area (or three housing units if determined to be “affordable housing” units).

– Mr. Slutzky argues that these aspects of a TDR program would create a market based system that would protect more rural land and generate new property tax revenues.

You can also read the Daily Progress’ account, including responses from members of the community, here.

I like the idea of creating a market-based system for trading development rights — it’s inherently more flexible than a system of government regulations. But I’m concerned whether setting aside only one percent of developable land in Albemarle will be enough to accomodate future growth. As Charlottesville/Albemarle transforms itself into a research-intensive, knowledge-based economy, it is bound to grow in the years and decades ahead. If the one-percent land set aside for TDRs is insufficient, where will growth go? Will it leapfrog into neighboring counties, with all the negative consequences of thousands of people commuting long distances to jobs in the urban core?

I don’t know the answer — I merely ask the question. I will follow this debate with interest.

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12 responses to “Albemarle Explores Transfer Development Rights”

  1. Jim Wamsley Avatar
    Jim Wamsley

    Do the math.
    A thousand acres zoned at 21 acres per house equals 47 houses.
    A thousand acres zoned at 50 acres per house equals 20 houses.
    That means 27 will be transferred in and doubled for regular units or tripled for affordable units.

    At 1%, the receiving area is 10 acres for 54 houses or 81 affordable houses.
    That’s 5.4 houses or 8.1 houses per acre. This is also more then double the number of units with current 21 acre zoning.

    The 1% set aside will be insufficient only if speculators keep it off the market.

  2. Anonymous Avatar
    Anonymous

    Ablemarle County is BIG. I don’t see significant development leaping over to counties like Nelson. Even if that does occur it doesn’t mean that this is a bad policy for Ablemarle, it just means Nelson needs to do the same thing.

    Also, I really don’t see a 1% expansion as being too small. Have you looked at the current development capacity of the growth areas? There’s still a lot of capactiy left.

    All and all this is a great idea. Rural Ablemarle is a beautiful place and is definately worth protecting.

  3. Larry Gross Avatar
    Larry Gross

    I’d be interested in hearing EMR’s “take” on this.

    TDRs are very different critters from PDRs and can be very complicated because of the need to designate “sending” and “receiving” areas.

    They usually.. I think.. also.. have density trading mechanisms.

    I know Spotsylvania has been toying with the idea of granting higher densities in some areas in exchange for TDRs for other areas but they’re not shooting for a buffer boundary but rather to prioritize the presevation of significant historic sites especially those civil war sites that the Park Service has been financially unable to acquire.

    .. oh by the way.. Nelson County ..IS getting… C’ville commuters… who want to work in C’ville and have “Farmettes” in Nelson. 🙂 I know a fella that never picked up a chainsaw in his life.. until his 60th birthday… scary…. 🙂

  4. Ray Hyde Avatar
    Ray Hyde

    “However, with a change in state law, a grandfathering system would protect any existing development rights such that they could be transferred into the TDR program AFTER the rural area downzoning.”

    That’s more like it. At least it recognizes wht is fair and what isn’t. It’s a lot different from Fauquier where they took most of the development rights, and THEN offered to buy some more.

    This is going to blow a hole in the arguments about takings, on both sides. I think that is how you solve or settle an argument: come up with an idea the other side can accept.

    As I understand it, the new recieving area is one percent additional to the five percent that now exists. I can’t imagine that eve six percent is enough, but maybe nothing’s happening down there. On the other hand, Albemarle is BIG: why be so chintzy?

    Once people understand that development rights are real rights that represent valuable property, things will be seen a lot differently, I think. But, wasn’t Albemarle A-3 or something like that at one time? When will you agree to stop stealing? What the start date? If you had a lot more development rights, say based on A-3, they would be worth less, and the resulting homes would cost less. I’m not suggesting any such thing, just thinking aloud.

    You still have another problem. If I have a development right and execute it, the result is worth far more than the development right and may appreciate over time. Otherwise it is just a futures security and once I sell it, it’s gone. It’s only value is what the market will bear, and that market has not been proven in Albemarle. It hasn’t worked very well in most other places.

    So what you wind up with is two guys with fifty acres, one in the development zone and one not. The one not has two development rights which he can sell, or with fifty acres he can use one and sell one. So on a fifty acre lot he winds up with a $2 million dollar property, plus $30,000 for the development right he sold.

    The other guy plunks down $30,000 apiece for a hundred development rights for $3 million. Then he puts up a hundred homes on half acrel lots that sell for $350,000, so in the end his property is worth $32 million.

    If rural Albemarle is a beautiful place worth protecting, you may find you have to offer the guy who owns it a better deal than that.

    Still progress is progress. Maybe someone in Albemarle witll Call Fauquier and give them an ethics lesson.

  5. Larry Gross Avatar
    Larry Gross

    “However, with a change in state law, a grandfathering system”

    what does this mean?

    does it mean that it will take a change in the current law.. in order for land to be grandfathered?

    what law? Specifically, is grandfathering NOT allowed under current law?

  6. Ray Hyde Avatar
    Ray Hyde

    Good question, Larry. It raised a ? with me, too. Some grandfatherin must be allowed because plenty of farms have old auxiliary residences that would not be allowed today.

    I suspect the problem is something like this: you either have a development right or don’t. Therefore, how can you sell one you USED to have?

    No doubt PEC had a hand in this. They wouldn’t want those rights to be usable until after they got the downzoning they want. Probably they figure most of them will just vaproize, be forgooten, or expire, or the market won’t develop.

    Whatever goes wrong won’t matter, because they will have got the downzoning already.

    I have a lot of fun, and a lot of buisiness with people like th guy you described with a chainsaw. It really is scary. I had a neighbor that cut a tree limb off while his ladder was leaning against the base of the limb. When the limb came off the spring back threw him, the ladder,and the saw to the ground. My brother is an EMR, and he describes trying to get a guy out of a tree before he bled to death after a saw accident.

    One neighbor called me and asked how to get rid of a groundhog that was living under the porch. I told him to give the groundhog some grape bubble gum. (I don’t know if this works, but a tbacco chawing local told it to me, so I thought I’d pass it on.)

  7. Ray Hyde Avatar
    Ray Hyde

    When that guy plunks down $30k apiece for 100 development rights, he will have preserved 1050 acres.

    When the rural guy tries to sell his fifty acre, $2 million home, he will have a much harder time than the guy selling a hundred $350,000 homes, I suspect.

    We know and agree that people want to preserve open space. But they are more willing to pay a higher price for their own open space, however small. This is an issue we don’t often consider when we talk about or see polls on what “the people” want, or what is best for the most.

  8. Anonymous Avatar
    Anonymous

    Stupid question – WHY is it that auxilarly housing units are pretty uniformly forbidden now?

    Used to be farms often had at least a couple of houses or apartments on them for folks working on the farm – a farm manager, a hired hand, a horse trainer, or stable help living in a barn apartment.

    Houses often had a garage apartment or a mother in law suite you could rent out.

    What was the logic in eliminating that? Seems like it has many benefits. What was the rationale in making it almost universally unavailable?

  9. Larry Gross Avatar
    Larry Gross

    They’re not forbidden as far as I know – at least where I live in Spotsy.

    What is forbidden is SUBDIVIDING lots for re-sale…. i.e. development…

    In Spotsy… a 5 acre lot that is NOT subdivideable CAN have additional structures if the soils support the additional drainfield needed.

    This, by the way, is the same exact issue over Family Subdivisions – where obstensibly the parents want to slice off a parcel to give to their kids.

    The problem has been that the kids then turn around and sell the land and/or house to non-family members so it can be a “back-door” way to develop large parcels… GOOGLE .. virginia and “family subdivision” to see how different localities handle this issue.

  10. Ray Hyde Avatar
    Ray Hyde

    And that is all I want, an auxiliary unit. Not subdivided. Under the local rules that might be possible, but it is limited to 1000 sq. ft., and it must be for the use of immediate family, of which I have none, or for your fulltime farm manager, which I can’t afford. I’d like to build it on one floor, against the time when I can no longer climb stairs.

    The one guy who tried it recently is still complaining about the grief the county hassled him with. It’s another one of those “Other Methods” of control you talked about. I can’t understand why it is that if you have the right, and the space, the drainfield and other safety issues are met, and the well is sufficient, that the county still feels the need to be so obstreperous, and mean. Why do they feel the need to find some “Other Method” to bust your chops for using the rights they admit you have?

    I can’t understand why its perfectly OK to build on a small parcel, but not on part of a large parcel, given that otherwise the rights are the same. Let’s all gang up on those that have managed to save their land the longest, and then atempt to villify them by claiming they are making a windfall. Come on, that’s just plain shallow. And incorrect.

    It really is sad that family subdivsions are such an issue. It just goes to show what zealots the land preservationists have become. I don’t see that using a back door to get what you need is so bad when the land zealots are so open about using “Other Methods” to achieve what they can’t get directly.

    I know of one case where the parents were elderly, and it wasn’t clear whether the estate tax at that time was going to wipe out the farm. Part of the strategy was to cut out a lot and an old tenant home and give it to the child. This had the effect of reducing the value of the estate, and if things went badly, at least the child would have SOMETHING left.

    As it happened, the estate law was changed enough to get the farm out from under. Even though the subdivided lot was still essentially part of the farm, nothing new was built, and the lot continued as if it was part of the farm as before, the move did have other tax consequences, and it reduced the countable open space on the rest of the farm, which has other future implications.

    The same amount of space and the same structures are there as before, but the family now has to pay more in taxes and fees as a result of trying to protect themselves from something that didn’t happen anyway. Just for another line on the map. No new costs, no new infrastructure, no new residents.

    I knew a family that had enough land for three and three quarters lots, under the rules, and four sons. You can guess what happened. Maybe under something like the Albemarle rules they could have bought another development right, and saved a lot of family grief.

    But, why is it a “problem” that the child eventually sells? Even Habitat for Humanity owners are allowed to sell their property. Peoples lives and situations do change, and the idea that the land will never change is unrealistic.

    If we decide that such a goal is so valuable to us, then we can democratically elect people who are willing to raise the taxes on all, raise the money and buy the land. For about a half million per person we could raise enough money to buy every vacant square inch in the county and be done with it. Then the land could be ours and we could actually enjoy it. We could lease it out to farmers who would then make far more money than they can while owning the land.

    Instead, we have a bunch of overlapping byzantine regulations that allow the majority to place the burden on a few, and get away with it. We think the goal is valuable, just not valuable enough to pay for. Not even valuable enough to insist that we play fair. We’ll just let the ends justify the means.

    One time, I wanted to add a room, but the county said it would count as a bedroom, so I would have to add on to the drainfield. There are still only two of us here: we aren’t going to poop more just because of a new room. So, off to the sewer authority who told me I didn’t have enough land and it didn’t drain well enough. This is nonsense of course, there is both land and drainage aplenty. Some means could be found, but their pre-programmed answer is NO.

    The same day, I went to see about re-excavating what appeared to be an old silted in pond. Nope, I was told. You will need $30,000 worth of engineering and permits, and anyway it won’t work because the soil there drains too fast.

    I’m certain that if I went down there and scooped out a couple of buckets with the backhoe, they would fill with water and and stay full, but what do I know? I’m not an engineer, I just live here.

    Of course there are a couple of problems with the plan for buying open space. You have to raise the taxes. Then the county will own non revenue producing land. The last time this happened in Fauquier, guess what the county did? Sold it to a developer. Guess it depends who’s foot the shoe is on.

    Same thing has happened in Maryland, where the Governor proposed disposing of excess land to raise money. I think it is a dumb and poor planning that the public should have such a need, but I can certainly understand where he is coming from.

    Even so, the idea is beginning to catch on. When the Road Through Hallowed Ground project was originally announced, it was stated that no property rights were intended to be affected and the organization would attempt to buy land that it thought truly worthy of protection. And this is the way the Land Bank works on Martha’s Vineyard. They raise money and buy critical resources, sometimes through easements and sometimes outright.

    The Albemarle plan at least indicates a willingess to work in the right direction. I’ll be curious to see how it works out in practice.

  11. C. P. Zilliacus Avatar
    C. P. Zilliacus

    > At a news conference earlier this
    > week, Slutzky was accompanied by
    > representatives of the Piedmont
    > Environmental Council, the Southern
    > Environmental Law Center, the Free
    > Enterprise Forum (a pro-business
    > advocacy group), and the Blue Ridge
    > Homebuilders, which all supported
    > the idea of looking into such
    > a program.

    I am glad to see such a diverse
    group of interests in TDRs.

    However, unlike the groups
    mentioned above, I have
    DIRECT experience with residing
    in an area that has taken
    thousands of additional residential
    units as a TDR _receiving_ area
    in Montgomery County,
    Maryland – which created its
    TDR program in the 1970’s
    to “save” the county’s so-called
    Agricultural Preserve.

    Bottom line:

    TDRs are great for the _sending_
    areas, which, in the case of
    Montgomery County, has become
    the super-large-lot and mansion
    preserve (much of the county Ag
    Preserve is just across the Potomac
    River from Loudoun County).

    TDRs are _not_ so great for the
    designated receiving areas, for
    the following reasons:

    – public infrastructure (such as
    streets, highways, schools and the
    like are undersized). Because the
    TDR program uses a “base” zone,
    and the requireed infrastructure
    is kept at “base” level even as the
    density from TDRs is packed-in, the
    streets are instantly under-sized.

    – TDRs DO NOT (that’s right, do
    _not_) lead to more mass transit
    patronage. That’s the experience
    in my community, even though the
    county’s master plan (since
    discredited) that allowed
    densification based on TDRs had
    a central theme called “a concept
    of transit serviceability.”

    – In general, TDRs are _profoundly_
    unfair to the areas designated to
    receive them.

    http://www.smartgrowth.umd.edu/research/pdf/CohenPreuss_TDREquity_DateNA.pdf

    “While the Montgomery County
    program has gained a national
    reputation for protecting large
    areas of farmland, the social
    equity analysis finds
    several shortcomings with
    that program’s design and
    operation.”

    “Despite its national reputation,
    the Montgomery County TDR program
    is facing serious challenges.
    The county is running out of
    receiving areas, the price for
    TDRs is falling, and the program
    is facing opposition from residents
    of some receiving areas who
    are resisting increased densities
    from TDR application. In addition,
    as will be argued in this article,
    in actuality the program may not
    be “preserving” farmland in the
    long term.”

    “Similarly, the Fairland/White Oak
    and the Cloverly planning areas
    were under moratoria for 19
    and 12 years, respectively,
    while TDR development was
    taking place. The Fairland policy
    area is projected to be
    under moratorium through 2002.
    Leaders of those communities
    claim, in effect, that tenure
    equity for sending landowners
    took precedence over
    the infrastructure needs of
    their areas.”

  12. Larry Gross Avatar
    Larry Gross

    If Ray is being prevented from merely building a structure on his property – then I’m coming around to his view of how his county is dealing with growth – in a word – on the backs of folks like him.

    I’m amazed.. that the guys in charge are still in office… you’d think over time – they’d make enough enemies to get dumped ….quite easily

    re: TDR’s – I’ve heard similiar shortcomings … and do wonder – from a smarter growth perspective – if TDRs in general are considered a key element of an overall strategy OR… if they are not.

    Clearly – just saying the word TDR does not necessarily lead to what folks think it implies.

    .. another one of those deals where what the public is led to believe about transportation and land-use can have major caveats…

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