Personal Thoughts on the Land Use Partnership Act – Part 4 – Transfer of Development Rights and Cluster Development

8) Transfer of development rights

The fourth paragraph of Section 9 of Chapter 40A is modified as follows:

Zoning ordinances or by-laws may provide for special permits authorizing authorize the transfer of development rights of land within or between districts a city or town, or within two or more cities and towns that have adopted complementary ordinances or by-laws. Such authorization may be by special permit or by other methods, including, but not limited to, the applicable provisions of sections 81K to 81GG, inclusive, of chapter 41, and in accordance with a planning board’s rules and regulations governing subdivision control. Such Zoning ordinances or by-laws may shall include incentives such as increases in density of population, intensity of use, amount of floor space or percentage of lot coverage, that encourage the transfer of development rights in a manner that protect open space, preserve farmland, promote housing for persons of low and moderate income or further other community interests.

This section is only a modest change to the existing statute. It allows for cross community transfers of development rights, something that is considered within the Cape Cod Commission’s Regional Policy Plan. The changes also extend the provisions of transfers of development rights to the Subdivision Control Act. I am less clear on why that is necessary. Zoning governs land use densities, lot sizes, etc. So, I would think that if zoning made particular provisions for a change in density and lot sizes for a TDR program, the Subdivision Control Act would allow for such implementation of the new zoning provisions.

I have not concerns with TDR’s. I am not sure how communities will address the tax implications of cross border transfers of development, but this is not a mandatory requirement. I am more concerned with starting to interweave the Zoning Act and the Subdivision Control Act. This should not be done piece-meal. There are areas of conflict between the two acts that need to be addressed. A piece-meal approach to addressing cross concerns may lead to new legal interpretations of other glaring issue areas.

9) Cluster development

The seventh paragraph of Section 9 of Chapter 40A is modified as follows:

“Cluster development” means a residential development in which reduced dimensional requirements allow the developed areas to be concentrated in order to preserve open land elsewhere on the plot. the buildings and accessory uses are clustered together into one or more groups separated from adjacent property and other groups within the development by intervening open land. A cluster development shall be permitted only on a plot of land of such minimum size as a zoning ordinance or by-law may specify which is divided into building lots with dimensional control, density and use restrictions of such building lots varying from those otherwise permitted by the ordinance or by-law and open land. Such open land when added to the building lots shall be at least equal in area to the land area required by the ordinance or by-law for the total number of units or buildings contemplated in the development. Such open land may be situated to promote and protect maximum solar access within the development. Zoning ordinances or by-laws may authorize cluster development for development proceeding as-of-right or otherwise. Unless such open land is subject to a conservation restriction or agricultural preservation restriction, such open land shall be required to either be conveyed to the city or town and accepted by it for park or open space use, or be conveyed to a non-profit organization the principal purpose of which is the conservation of open space, agricultural land, historic resources, or watersheds, or to be conveyed to a corporation or trust owned or to be owned by the owners of lots or residential units within the plot. If such a corporation or trust is utilized, ownership thereof shall pass with conveyances of the lots or residential units. In any case where such land is not conveyed to the city or town or a non-profit organization as described above, a restriction shall be recorded providing that such land shall be preserved accordingly and not be built for residential use or developed for accessory uses such as parking or roadway.

The changes to this section seem to be fairly straight-forward. The changes actually take out some regulatory standards that should not be within the state law. Overall, the changes are appropriate. However, the changes could be improved upon with a simple change and that would be to remove any restrictions such as the term “on the plot” that restricts the land area under consideration to a single tract of contiguous land. Such a change would open up the concept that a cluster could include land that is separate from the site proposed to be developed. Perhaps a more important site for preservation – a farm for instance could be coupled in a cluster even though not contiguous. I know that this is part of the consideration of the Transfer of Development Rights concept in Section 8 of the proposal, but the Cluster provisions should be made consistent. It may actually be easier to sell the concept as a cluster than to sell transfer of development rights to a community or land owner.