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

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.

KAJIAN PENERAPAN KONSEP TDRs SKEMA KOMPENSASI NON FINANSIAL PADA KAWASAN KUMUH DI KELURAHAN SEKAYU

Handling of slum areas, especially “Kampung Kota”, should no longer be carried out by conventional means. Gentrification in kampung kota often occurs because of limited land in urban areas. Vertikal land consolidation which as one of Transferable Development Right with a non-financial compensation scheme expected as the solution on slums handled in urban areas. Apart from being able to help the government because of budget constraints, it can also help achieve better, organized and directed urban planning. Kampung Sekayu, as one of kampung kota in Semarang, which as a slum area that experienced gentrification and increasingly caught up in the development around it. This study aims to examine whether the concept of Transferable Development Rights with non-financial compensation schemes with implementation vertikal land consolidation form, it can be a solution in slums handled and prevent the occurrence of gentrification in the area. This research method uses descriptive qualitative by field observations, in-depth interviews and, literature review, and secondary data as a complement to exploring information as much as possible and saw the reality in the field. Generally, a concept of vertikal land consolidation received a good response from stakeholders in Semarang City but related to non-financial compensation which generally given the form of zonation bonuses with excess building floors being constrained. it because of zoning permit arrangements in Semarang City which above 5 floors on the authority of Transportation Agency in relation to flight operation safety area (KKOP) of Ahmad Yani Airport in Semarang City. Non-financial compensation scheme that most beneficial to ease of licensed from Semarang city government..