United States: Coping with Growth: Land Use Controls for the 21st Century

Economic and population growth in Springfield and Southwest Missouri has placed development pressure on many areas which merit protection. These include areas of historic significance; green space or agricultural areas; and environmentally sensitive zones, such as sinkholes, watersheds and spring recharge areas.

Several land use controls have been developed to limit development in these areas while also providing incentives to the owners of such properties.

One such method is the conservation easement. It is a private restriction granted to a governmental or charitable organization that gives away the right to develop the property for certain uses, while still allowing others. An example would be an easement, which would prevent residential or commercial development on a particular tract of land, but still allow agricultural or recreational use.

Conservation easements may be used to protect properties as diverse as an historic façade to a building in downtown Springfield or undeveloped farm land adjoining the historic Wilson’s Creek National Battlefield in unincorporated Greene County.

In addition, if certain requirements of the Internal Revenue Code are met, conservation easements may qualify for significant income, estate and/or gift tax benefits.

Greene County has developed a unique land-use concept that couples the placement of a conservation easement on part of a tract of land with a "density bonus" being awarded for development on the remaining portion of the tract.

Under the County’s Conservation Development District regulations, the open-space portion set aside by the development can be used for conservation of natural or cultural features, agricultural uses, horse stables and trails, recreational pedestrian trails and various other recreational uses for the adjoining homeowners.

In exchange for setting aside 40% of a parceled area for such open space, a developer may be allowed a density bonus on the remaining parcel of the tract of up to 50% over the otherwise allowable density. For a significant cultural preservation or public use area, the size of the required set-aside may be reduced.

Another step further in this process of allowing a "density bonus" is the system of transferable development rights or TDR. This actually allows rights of development on one parcel of land to be sold another person for use on an entirely different parcel of property.

The oldest, best-known TDR program was created in New York City in 1965 as part of its Landmarks Preservation Ordinance, to discourage the demolition of historic buildings in favor of more dense development. The program has been only moderately successful because there are other means under New York City zoning laws to allow for denser development, including rezoning and variances.

Another jurisdiction adopting a TDR program, with better results, is Montgomery County, Maryland, which is just outside Washington, D.C. Its TDR ordinance was adopted in 1981 to preserve agricultural land from expanding development. More than 38,000 of the approximately 91,000 rural acres of Montgomery County have been preserved.

To create a TDR program, a governmental entity first creates "sending" and "receiving" zones on its planning map. Sending zones are the areas to be protected, those areas of historic, environmental or agricultural significance. The receiving zones are areas where the governmental body wants to encourage development, typically where infrastructure such as streets and utilities are already in place or are cheaper to construct and maintain.

Certain amounts of development rights are then allocated to owners of property in the sending area, theoretically in exchange for their loss of rights to develop their own property. These rights can then be sold to owners of property in the receiving area to increase the density of development otherwise allowable there.

TDR programs typically work best where development to the desired density in the receiving area is not otherwise available under the existing zoning, or through rezoning or other methods. A demand would then arise for additional development rights to be purchased from landowners in the sending area.

Governments often try to achieve this by downzoning property within the receiving zone. One hazard to this policy is that such downzoning is often challenged by landowners as an unreasonable restraint on their use of property.

A survey in 1997 found that 107 TDR programs had been established in 25 states, ranging from rural areas to urban centers. However, all legal issues surrounding TDR have not been fully settled.

A basic constitutional question involved in land-use regulation is whether it so restricts a person’s use of his property that it is a "taking" by the government, for which "just compensation" must be paid to the owner. TDR programs were designed to avoid takings claims, but the U.S. Supreme Court has yet to definitively rule on whether the grant of a TDR to a property owner prevents a governmental taking, whether the value of the TDR is to be considered as a part of the compensation due to the property owner, or whether TDRs are to be disregarded in the takings context.

Also, questions may also arise as to whether state and local laws allow TDR plans. While, at least nine states have expressly adopted TDR enabling statutes,. Missouri is not one of them. Missouri municipalities intending to adopt TDR programs must rely on existing powers granted by their own charters or zoning enabling acts as authority for creating their own TDR programs.

TDR programs have achieved mixed results in their use nationally, but if established and operated properly, they are one possible method to prevent the entire cost of protecting sensitive lands from falling entirely on the owners of such properties.