Building Coalitions Out of Thin Air: Transferable Development Rights and ‘Constituency Effects’ in Land Use Law

Abstract Transferable Development Rights (TDRs) were supposed to be a solution to the intractable problems of land use, a bit of institutional design magic that married the interests of development and preservation at no cost to taxpayers and with no legal risk. Under a TDR program, development is limited or barred on properties targeted for preservation or other regulatory goals, but owners of those lots are allowed to sell their unused development rights to other property owners. In theory, this allows the same amount of development to occur while preserving favored uses without tax subsidies or constitutional challenges. Reviewing their use over the past fifty years, this Article shows that the traditional justifications for TDRs do not work. In practice, TDRs are not necessary to avoid takings litigation, are not costless to taxpayers, and do not balance the interests of preservation and development. Instead, they serve as yet another growth control in metropolitan areas where such controls have caused housing crises and major harms to the national economy. Assessed as a technocratic tool for solving problems in land use, TDRs are a failure. But this Article shows that there is a case for TDRs not as a technocratic but rather as a political tool. By giving valuable development rights to some popular or otherwise politically influential owners of regulated property, a city can build a coalition for re-zonings that might otherwise be politically impossible. The effect of TDRs on politics can be positive to the extent that TDRs strengthen constituencies or land use goals that local politics systematically undercounts, as we show through an analysis of New York City’s Special District Transfer TDR program. In particular, TDRs could help break Not In My Back Yard opposition to new housing by building a competing pro-growth coalition. More generally, using TDRs as an example, the Article shows how land use law is the creator as well as creature of local politics. Existing property law helps cement anti-development coalitions, but savvy leaders could use moments in power to create stable pro-growth coalitions by enacting new laws that help mobilize new pro-growth constituencies. Understanding these “constituency effects” of land use law allows policymakers to redesign entitlements like TDRs to produce a healthier land use policies.

Farmland Preservation and Residential Density: Can Development Rights Markets Affect Land Use?

Agricultural and Resource Economics Review ◽

10.1017/s1068280500008315 ◽

2005 ◽

Vol 34 (2) ◽

pp. 131-144 ◽

Cited By ~ 6

Author(s):

Virginia McConnell ◽

Elizabeth Kopits ◽

Margaret Walls

Keyword(s):

Land Use ◽

Rural Areas ◽

Residential Density ◽

Residential Areas ◽

Farmland Preservation ◽

Land Preservation ◽

Transferable Development Rights ◽

Development Rights

This paper examines transferable development rights (TDRs) policies as a way to preserve farmland and change the density of development. Characteristics of TDR markets are described, including why they might promote efficiency, and the difficulties that arise in implementing them. Evidence from an established TDR program in Calvert County, Maryland, is used to assess the potential for TDRs to influence subdivision density, and to achieve local land preservation goals. The Calvert program has succeeded in creating an active and stable TDR market, and has therefore preserved a large amount of farmland in the region. But we find that the demand for additional density permitted with TDRs occurs mostly in rural areas and not in the higher density town centers and residential areas.

Approaches to Research on Transferable Development Rights Proposals: An Overview

Journal of the Northeastern Agricultural Economics Council ◽

10.1017/s0163548400004659 ◽

1979 ◽

Vol 8 (1) ◽

pp. 48-50 ◽

Cited By ~ 1

Author(s):

Joseph Diamond ◽

Bruce E. Lindsay

Keyword(s):

Land Use ◽

Open Space ◽

Agricultural Land ◽

Control Mechanisms ◽

Practical Application ◽

Transferable Development Rights ◽

Development Rights ◽

Transfer Of Development Rights ◽

Land Use Control

Present land use control mechanisms are seen as inadequate for the preservation of open space, agricultural land, and other “uneconomic” uses of land. Many proposals have been cited as possible solutions to the problems created by present land use control mechanisms. The transfer of development rights (hereafter known as TDR's) is one such proposal. This mechanism for land use control can be of several forms. There are severe theoretical and practical problems, to be discussed, which a transfer of development rights program must overcome if it is to function in practical application.

Reviewing the role of habitat banking and tradable development rights in the conservation policy mix

Environmental Conservation ◽

10.1017/s0376892915000089 ◽

2015 ◽

Vol 42 (4) ◽

pp. 294-305 ◽

Cited By ~ 20

Author(s):

RUI SANTOS ◽

CHRISTOPH SCHRÖTER-SCHLAACK ◽

PAULA ANTUNES ◽

IRENE RING ◽

PEDRO CLEMENTE

Keyword(s):

Land Use ◽

Biodiversity Conservation ◽

Land Use Planning ◽

Social Impact ◽

Policy Instruments ◽

Conservation Policy ◽

Time Lags ◽

Policy Mix ◽

Biodiversity Offsets ◽

Development Rights

SUMMARYHabitat banking and tradable development rights (TDR) have gained considerable currency as a way of achieving ‘no net loss’ of biodiversity and of reconciling nature conservation with economic development goals. This paper reviews the use of these instruments for biodiversity conservation and assesses their roles in the policy mix. The two instruments are compared in terms of effectiveness, cost effectiveness, social impact, institutional context and legal requirements. The role in the policy mix is discussed highlighting sequential relationships, as well as complementarities or synergies, redundancy and conflicts with other instruments, such as biodiversity offsets and land-use zoning.Habitat banking and TDR have the potential to contribute to biodiversity conservation objectives and attain cost-effective solutions with positive social impacts on local communities and landowners. They can also help to create a new mind-set more favourable to public-private cooperation in biodiversity conservation. At the same time, these policy instruments face a number of theoretical and implementation challenges, such as additionality and equivalence of offsets, endurance of land-use planning regulations, monitoring of offset performance, or time lags between restoration and resulting conservation benefits.A clear, enforceable regulatory approach is a prerequisite for the success of habitat banking and TDR. In return, these schemes provide powerful incentives for compliance with regulatory norms and ensure a more equitable allocation of the benefits and costs of land-use controls and conservation. Environmentally harmful subsidies in other policy sectors as well as alternative offset options, however, reduce the attractiveness and effectiveness of these instruments. Thus, the overall performance of habitat banking and TDR hinges on how they are integrated into the biodiversity conservation policy mix and fine-tuned with other sectoral policies.

Planners’ experiences in managing growth using transferable development rights (TDR) in the United States

Land Use Policy ◽

10.1016/j.landusepol.2007.07.004 ◽

2008 ◽

Vol 25 (3) ◽

pp. 378-387 ◽

Cited By ~ 65

Author(s):

Michael D. Kaplowitz ◽

Patricia Machemer ◽

Rick Pruetz

Keyword(s):

United States ◽

The United States ◽

Transferable Development Rights ◽

Development Rights

Financialising space through transferable development rights: Urban renewal, Taipei style

Urban Studies ◽

10.1177/0042098017710124 ◽

2017 ◽

Vol 55 (9) ◽

pp. 1943-1966 ◽

Cited By ~ 8

Author(s):

Daniel You-Ren Yang ◽

Jung-Che Chang

Keyword(s):

Urban Renewal ◽

Housing Prices ◽

Gap Model ◽

Community Based ◽

Physical Deterioration ◽

The Social ◽

Transferable Development Rights ◽

Development Rights ◽

Property Rights Exchange ◽

Monopoly Rent

This research investigated the uneven geography of gentrification and the derived community-based conflicts in Taipei’s urban renewal after 2006, which has chiefly been boosted by transferable development rights (TDR). In this context, we argue that TDR has developed a monetary function, and we introduce the notion of strategic monopoly rent to reconceptualise TDR. Accordingly, we propose an institutionalised rent gap model from the perspective of investigating the institutional increase and social dispossession of the rent gap, which have been boosted by the financialised TDR and strategically structured by the state and developers under the regulation of property rights exchange. This system appreciates the potential ground rent and depreciates the building value institutionally – a practice not related to the actual occurrence of its physical deterioration. Landowners are either encouraged or coerced to participate in the distribution of the enlarged rent gap. Two forms of the social dispossession of ground rent have occurred, including the dispossession of the landowners as a whole by the developer and the dispossession of one landowner by another. We argue that the gentrification system has produced the mal-effects of surging housing prices, enclosure, dispossession, displacement and social antagonism.

A Spatial Equilibrium Analysis of Flexible Zoning and the Demand for Development Rights

Environment and Planning A Economy and Space ◽

10.1068/a130273 ◽

1981 ◽

Vol 13 (3) ◽

pp. 273-284 ◽

Cited By ~ 8

Author(s):

B E Carpenter ◽

D R Heffley

Keyword(s):

Land Use ◽

Spatial Structure ◽

Equilibrium Analysis ◽

Spatial Equilibrium ◽

Metropolitan Government ◽

Spatial Equilibrium Model ◽

Behavioral Constraints ◽

Land Use Controls ◽

Development Rights ◽

Normal Zoning

Certain contemporary land-use controls permit zoning violations in return for various forms of payment. These ‘flexible zoning’ schemes are examined within the context of a spatial equilibrium model of residential location. Behavioral constraints are altered in such a way that households may ‘buy their way out’ of normal zoning restrictions under terms specified by a regional zoning authority. Simulations are used to analyze the demand for constraint violations (‘development rights’) and to illustrate the effects of such programs upon the spatial structure of the economy and upon the fiscal position of the metropolitan government.

Issues at the Rural-Urban Fringe: Land Use -- Agricultural Districts

EDIS ◽

10.32473/edis-fe555-2005 ◽

2019 ◽

Vol 2005 (12) ◽

Author(s):

Rodney L. Clouser

Keyword(s):

Land Use ◽

Agricultural Land ◽

Cooperative Extension Service ◽

Urban Land Use ◽

Urban Fringe ◽

University Of Florida ◽

Long Term Stability ◽

Agricultural Use ◽

Development Rights ◽

Purchase Of Development Rights

This fact sheet is one in a series intended to familiarize readers with land use issues at the rural-urban fringe. Several of the fact sheets specifically address techniques used in various states, including Florida, to encourage the long-term stability of land in agricultural production. Many states use more than one technique in an attempt to prevent land from converting from agricultural to non-agricultural use. Other techniques used to sustain agricultural land, explicitly addressed in forthcoming fact sheets, include Fee Simple Purchase and Purchase of Development Rights, Transfer of Development Rights, Clustering of Development, and Conservation Easements. Other fact sheets addressing rural-urban land use issues are available through the UF/IFAS Electronic Data Information System (EDIS) at http://edis.ifas.ufl.edu. This is EDIS document FE555, a publication of the Department of Food and Resource Economics, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. This document is one of a series entitled "Issues at the Rural-Urban Fringe". Published October 2005.

Transfer of Development Rights: An Analysis of a New Land Use Policy Tool: Reply

American Journal of Agricultural Economics ◽

10.2307/1238824 ◽

1976 ◽

Vol 58 (4_Part_1) ◽

pp. 763-766 ◽

Cited By ~ 1

Author(s):

Richard L. Barrows ◽

Bruce A. Prenguber

Keyword(s):

Land Use ◽

Land Use Policy ◽

Policy Tool ◽

Development Rights ◽

Transfer Of Development Rights