BENJAMIN FIERRO III – Used throughout country
Northampton planners had an idea several years ago that promised to save precious farmland while at the same time preserve landowners’ property rights.
Planners passed an ordinance that permits owners of riverside, farm and forest land to sell their development rights to builders who could in turn use those rights to build higher-density developments in specially designated areas of Northampton.
“It [the ordinance] was adopted in an effort to protect some areas and direct development into other areas,” said Carolyn Misch, Northampton’s senior land use planner and permit manager.
Homebuilders and lawmakers want to make it easier for other Bay State communities to do just as Northampton did – preserve land in undeveloped or less-developed areas while redirecting residential and commercial development elsewhere.
A bill that would change the Zoning Act to allow communities to follow Northampton’s lead and authorize the transfer of development rights – or TDRs – through special permit, received a favorable recommendation from the Joint Committee on Local Affairs last week.
The bill, filed by Sen. Stephen M. Brewer, D-Barre, will be reviewed by Senate leaders in coming weeks.
The bill has received support from the Home Builders Association of Massachusetts, the Greater Boston Real Estate Board and the Massachusetts Association of Realtors. The proposed legislation was filed for the first time last year but never passed.
Last week, the Massachusetts Audubon Society publicly supported the bill for the first time.
Christopher Hardy, legislative liaison for the Massachusetts Audubon Society, told lawmakers that transferable development rights can help communities preserve land without having to spend money to buy it.
Aspects of Ownership
At the same time, property owners won’t lose out on land investments because the right to develop can be transferred to other pieces of property, Hardy said.
“The property owner has not suffered a taking of his or her land without compensation, even if the use of one parcel of land is forbidden, because he or she has merely transferred one aspect of the ownership of land – the right to develop and use the land – from one parcel to another,” Hardy said.
Benjamin Fierro III, an attorney with the Boston law firm of Lynch & Fierro who represents HBAM, said local and regional governments throughout the country are using TDRs to preserve open space, wetlands, and historic landmarks.
Both Montgomery County in Maryland and Boulder County in Colorado have used transferable development rights programs with much success.
But few Massachusetts communities are adopting TDRs in their local zoning laws because the Zoning Act does not explicitly authorize it, Fierro said, adding that the Zoning Act must be changed to encourage communities to use TDRs as a planning tool.
In addition to Northampton, only Acton and Townsend have adopted rules authorizing TDRs, according to Fierro.
In Northampton, TDRs have not been used because the city’s zoning rules were revamped to allow for higher-density developments in some areas, thus negating the need for transferable development rights, said Misch.
Misch said that an act authorizing the transfer of development rights was passed in 1993.
At the time, planners wanted to redirect development from largely untouched areas of Northampton to several other parts of the city, including the site of Northampton State Hospital, which has been in the process of closing over the last several years.
In Acton, the issue of transferable development rights came up because of commercial – not residential – development.
TDRs were adopted in that town primarily to redirect commercial development from Route 2A to designated business centers, said Acton Town Planner Roland Bartl. But so far TDRs have not been used, he said.
