WHEN POLITICAL MUSCLE IS ENOUGH: THE CASE FOR LIMITED JUDICIAL REVIEW OF LONG DISTANCE TRANSFERS OF DEVELOPMENT RIGHTS

Introduction It has been said of Transferable Development Rights (TDR) programs that the number of articles written about them exceeds the number of projects implemented. 1 While the balance has been evening out with a recent proliferation of programs nationwide, some important legal issues - and thus articles to write - remain. TDRs are property use rights that can be shifted from one parcel to another. By pledging to keep a parcel underdeveloped - that is, developed in a manner less than the maximum allowed by applicable zoning laws - that parcel's owner is given a TDR which can be used elsewhere. Whoever gains the TDR can use it to build more on her parcel than would otherwise be allowed by law. Many TDR programs have completely separate sending and receiving areas, so that there is a great distance between the two parcels involved in a TDR transaction. 2 Residents in the receiving areas note at least two general, related problems with TDRs. For one, if you can buy your way out of a regulation, such as a height restriction, simply by purchasing TDRs, perhaps that regulation is unduly harsh or unnecessary to begin with, or at the very least is a prime candidate for relaxation in the future. The second problem is the corollary: if a regulation is considered necessary to protect the public health or welfare, that interest is arguably undermined when one's neighbors can avoid the regulation through the purchase of TDRs. In both instances, expanding the ...