Spotlight on Zoning Practice
Could Transfers of Development Rights Facilitate Coastal Retreat?
Despite ongoing sea level rise and increasing risks of severe coastal flooding, people continue to move to high-opportunity coastal areas. And communities in these areas only have three options for keeping people and property safe: (1) building structures to block or redirect flood waters, (2) integrating more green infrastructure to act as a sponge for flood waters, or (3) moving development away from flood-prone areas. As climate impbecome increasingly more severe, some communities may have no choice buadoptbrace option three.
To date, managed retreat efforts in the U.S. have been limited to targeted buyout programs following specific disasters and a few instances of small towns and rural villages relocating to upland areas. As Kerry Fang, PhD, notes in the July issue of Zoning Practice, "Transfer of Development Rights for Managed Retreat," local officials could use their zoning authority to remove the right to build new structures or even to amortize existing structures in high-risk areas. But widespread downzoning is a political nonstarter in most communities. Fang says this tension has motivated some planners to start exploring whether transfer of development rights (TDR) programs could be part of the solution.
In Principle, It Could Work
According to Fang, TDR is a potentially attractive tool for facilitating coastal retreat because it combines market-oriented and regulatory approaches. Even without explicit enabling legislation, courts have generally upheld local officials' rights to authorize property owners in designated sending areas to voluntarily sell their unused development rights to owners in designated receiving areas.
While most existing TDR programs aim to preserve historic resources, farmland, or undeveloped sites, there is likely no legal barrier to designing a program to incentivize transfers of existing, already used development rights. But as Fang points out, this approach would likely require an extremely favorable exchange rate for senders and other favorable market conditions to work. According to Fang, Ocean City, Maryland, is the only community that has successfully facilitated development rights transfers from existing structures.
In Practice, We’d Need to Address Interlocal Competition
While some individual jurisdictions may be able to replicate Ocean City's limited success, what about jurisdictions that have no space to safely retreat? Some coastal areas in the U.S. are a tight patchwork of densely developed small cities and towns. These are the places where the aggregate risks of sea level rise and coastal flooding are greatest, but political barriers to coastal retreat are the highest. If your entire town is a high-risk area, it would be self-defeating to facilitate TDR from one subarea of your jurisdiction to another. And successfully facilitating transfers out of your jurisdiction would weaken your tax base and, potentially, lead to an eventual disincorporation.
This may sound rather hopeless, given the strong incentives for local jurisdictions to compete with one another for jobs and residents. But Fang has identified one example of a regional TDR program that may offer a model for efforts in other parts of the country. The bi-state Tahoe Regional Planning Agency's TDR program isn't in a coastal area, but it has had some success in facilitating transfers of unused development rights away from the shores of Lake Tahoe in California and Nevada. The hard truth, though, is that replicating this model in other parts of the country will likely require actions at the state level.
Subscribe to Zoning Practice
Each issue of Zoning Practice provides practical guidance for planners and land-use attorneys engaged in drafting or administering local land-use and development regulations. An annual subscription to ZP includes access to the complete archive of previous issues.
Top image: Kyle Little / iStock / Getty Images Plus