Transfer of development rights and the comprehensive plan

Abstract

Although the concept of the Transfer of Development Rights (TDR) has been proposed and implemented to a limited extent, there are some serious, unresolved questions regarding the interface of this new concept with the theory and practice of classic comprehensive planning. It has been used primarily as a land use tool in conjunction with the preservation of landmark historical structures, open space, and farmlands in the United States; however, attempts also have been made to transfer general development assets such as specific land uses and densities Many problems are associated with the use of the concept of Transfer of Development Rights because of the confusion created by close similarity between it and the concepts of easements, incentive zoning, bonus zoning, and the transfer of Floor Area Ratio (FAR) rights. Because of the confusion engendered by these similarities, and because each of the aforementioned concepts better serves the need that it was designed for than does transferring development rights, the utility of this concept in the administration of local general purpose government is minimal. Its validity, even its constitutionality, are further weakened in light of Alfred Bettman's classic statement of the purpose of zoning and the comprehensive plan written in response to the Euclid Village Case of 1926. These considerations, combined with the litigation that has already occurred in relation to Transfer of Development Rights, make it an unlikely tool for future land use or development planning.