HomeMy WebLinkAboutTransfer Development documents1
TRANSFER OF DEVELOPMENT SQUARE FOOTAGE, A
GROWTH MANAGEMENT STRATEGY FOR WESTLAKE,
TEXAS
MESA + PLANNING
OCTOBER 27, 2015
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Transfer of Development Intensity: A Growth Management Strategy for Westlake.
Assessment of the Issues and Literature Search:
Since 1916, Transfer of Development Rights has been employed as a Growth Management Tool
throughout the United States. According to the TDR Handbook by Arthur C. Nelson, Rick Pruetz, and
Doug Woodruff, New York City’s 1916 Zoning Code included the ability to transfer development rights
between properties. The Handbook documents that “it allowed property owners to sell their unused air
rights to owners of adjacent lots within the same block; the new owners could then use those air rights
even if their buildings exceeded the new height and set back requirements, as long as the average
floor area of the effected buildings remained the same”. The 1916 definition of “adjacent” was made
much more flexible by later NYC regulation. The redefinition made it possible to move rights between
properties across the street and down the block.
In 1968, the U.S. Supreme Court made a landmark decision in the Penn Central v. City of New York case.
Here, Penn Central claimed that NYC had prevented the construction of a high-rise building atop Grand
Central Station and thereby constituting a “taking”. In its decision, the Supreme Court established that
the transferable development rights available to Pen Station were sufficient mitigation of any financial
burdens imposed by NYC’s Historic Preservation Law. Since this landmark decision, Transfer of
Development Rights has gained credibility and use.
At the outset of this analysis, it is important to establish that Transfer of Development Rights is not a
substitute of zoning but is intended to work within an environment established by zoning. It is the
context of zoning and the development rights it both grants and limits that makes a Transfer of
Development Rights program workable. If, through zoning, a party were able to increase development
rights or have higher development rights than they would use in a particular location, then there would
be no need for the importation of those rights from another property within the transfer context.
Therefore, a basic exchange appropriate environment is established when the use of zoning as a way to
increase development intensity is limited. Westlake, through its planned development ordinances
formulated to limit height and density, is 100 % zoned and thereby has created an optimum
environment for transfer of development square footage. Therefore, if future zoning is discouraged
(because additional traffic volumes generated by such additional entitlement would certainly surpass
any future thoroughfare capacity) and future increases in development intensity are achieved through
redistribution of existing entitlements (thereby staying within the thoroughfare capacity), then,
Westlake is well positioned to pursue such a program. The following overview and literature search
investigates this opportunity further.
To better design/ formulate a Transfer of Development Square Footage Program (hereinafter TDSF) for
Westlake, it is important to address several issues surrounding the design, implementation, and
management of such a program. More specifically, these issues are:
1. Enablement:
By 2010, there were 25 States that had adopted enabling legislation. However, not all states
with active Transfer of Development Rights Programs have such legislation, and Texas is one of
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those states. Despite the lack of enabling legislation in Texas, there are three example cities with
active TDR programs (article in Sustainable Places Blog):
Dallas: The City of Dallas uses transfer of development rights to provide an incentive to
restore landmark buildings or contributing buildings within historic districts. If a
landmark building or contributing building within a historic district has been restored
within the last five years and the restoration exceeds 50% of the pre-restoration value,
development rights for a minimum of 20,000 square feet may be transferred to building
sites in CA-1(A) or CA-2(A) districts. The maximum floor area ratio may be increased by
no more than 4.0 through the development rights transfer process. Accessed August
31st 2007 at: http://www.downtowndallas.org/invest_incen.asp
Austin: The City of Austin uses transfer of development rights as part of the Barton
Creek Watershed Ordinance. The transfer of development rights program incentivizes
clustering development and leaving the most environmentally sensitive areas of the
watershed undeveloped. The watershed is divided into three zones. First, the Critical
Water Quality Zone is limited to open space and essential utilities and is excluded from
the TDR program. Instead, the City reserves the right to purchase this area from
subdivision applicants. The second and third zones are the Lowland Water Quality Zone
and the Upland Water Quality Zone. For every one acre of land in the Lowland Zone left
undeveloped, the applicant is entitled to three additional housing units in the Upland
Zone. Also, transferring from one area of the Upland Zone to another entitles applicants
to one additional housing unit. Alternatively, a housing unit development credit can be
traded for 6,000 square feet of impervious cover in a commercial development. In
exchange for a density bonus in the Upland Zone, the land from the Sending Area is
preserved indefinitely through a deed restriction that is carried with the land. Transfers
are restricted to land within one mile of the Sending Area or within contiguous parcels
with the same property owner. Transfers must be filed concurrently with the subdivision
application. Accessed May 12, 2014 at: http://www.cityofaustin.org
San Marcos: The City of San Marcos use transfer of development rights as part of its
aquifer recharge, rivers and springs protection ordinances. For each acre of land in the
recharge zone permanently set aside as open space, the impervious cover amounts plus
residential density bonuses are given to upland sites. For each 5,000 square feet of
impervious cover that could be legally constructed on the sending site, but instead is
transferred to a receiving site, the following bonuses are allowed: either (1) two single
family homes, duplexes or townhouses or (2) three apartment units. Accessed August
31st 2007 at: www.ci .san-
marcos.tx.us/departments/planning/docs/Edwards_Ordinance_122302.pdf
The authority of such programs in states that have no enabling legislation is derived (according
to the TDR Handbook) from precedents set through case law and powers delegated through a
state’s home rule. According to Nelson, Pruetz, and Woodruff, “The term home rule refers to
the delegation of power from the state to its sub-units of government (including counties,
municipalities, towns or townships, and villages). That power is limited to specific fields and
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subject to constant judicial interpretation.” Nelson, Pruetz, and Woodruff also state that “Home
rule states differ from Dillon Rule States. In the former, local government has inherent powers
to advance the public health, safety, and general welfare even if a state’s constitution or
legislation does not enable or prescribe such powers.” Texas is a home rule state. A question to
be investigated here regards any limitations placed by State Law upon General Law
Municipalities that would prevent them from exercising the police powers mentioned above. A
quick review of the Texas Local Government Code Chapter 43 reveals this condition related to
General Law Cities:
Sec. 51.012. ORDINANCES AND REGULATIONS. The municipality
may adopt an ordinance, act, law, or regulation, not
inconsistent with state law, that is necessary for the
government, interest, welfare, or good order of the
municipality as a body politic.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
When the State Law is silent on the matter of TDR and other municipalities in Texas have, in the
absence of state enablement, established Transfer of Development Rights Programs (upheld in
court), is it possible for a General Law City to also establish such a program in the interest of and
for the welfare of “the municipality”? This is a matter for the Town Attorney to express an
opinion. It would seem that the lengthy Comprehensive Planning Process (concluded with the
adoption of the Plan by Ordinance), which sets up the framework for, thresholds for, and calls
for a Transfer of Development Rights Program in Westlake, would establish that such a program
is in the interest of, and for the welfare of, the municipality and therefore establish a basis for
moving forward. However, the Town Attorney must render an opinion at this point.
Of the 35 States, nationally, that have Transfer of Development Rights Programs, nine have such
Programs in the absence of State enabling legislation. Many of these states (such as Montana)
have many very small communities where the Program is being carried out. In many such
instances, the county is the implementing authority because the county (in states like Montana)
has zoning authority. It can be said that whether county or city, the TDR program is part of a
jurisdiction’s normal zoning activities. As such, General Law Cities in Texas are authorized to
Zone, making TDR something that General Law Cities can undertake. San Antonio accomplishes
its TDR through the use of a “conditional zoning” classification (a zoning suffix) which further
establishes the relationship between zoning and TDR.
An equally important legal issue centers around the possibility of TDR being implemented as a
text change within a city’s zoning ordinance rather than a map change, which requires further
public hearing. The cities of Texas that have TDR programs accomplish the transfer without a
zoning hearing, thereby leaving the underlying/base zoning in place.
2. Accomplishing the Transfer without Re-opening the Planned Development Ordinances:
An important legal issue is the notion of increasing development intensity through TDR without
modifying the base zoning. In Westlake, the great majority of zoning is accomplished through
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Planned Development Ordinances. These documents specify permitted uses, FAR, and in some
cases, permitted square footage as well as other spatial regulation of the development within
the development lot. The Planned Development Ordinances have been refined and adjusted
over the years since 1992 (when most of them were first put in place) and contain permitted
development conditions/ rights that the land owners would like to keep at this moment in time.
Also, the documents predate newer regulations and policies of the Town, thereby, establishing
vested rights in the ordinances applicable at the date of the Planned Development Ordinance
adoption. Landowners generally fear that reopening the Planned Development Ordinances
would lead to recalibration of the permitted conditions contained within their documents
exposing them to mandatory compliance with regulations and policies adopted after passage of
their respective Planned Development Ordinances. Therefore, it is desirable on the part of the
major land owners to participate in Westlake’s Transfer of Development Square Footage
Program if such participation and transfer of additional development square footage to their
property (located within a Receiving Area) can be accomplished without amendment of the
Planned Development Ordinance under which they operate.
Development rights are property rights and become property rights when they are recognized
by law, and only when they are so recognized may courts compel others to forbear from
interfering with them or to compensate for their invasion. Nelson, Pruetz, and Woodruff (TDR
Handbook) describe property rights as a bundle of sticks, meaning that property is simply a
combination of things one can do with the land (e.g. develop, occupy, exclude others, extract
resources, cultivate and use airspace). Each of these rights can be separated from the fee and
sold or given to another individual/property. It is this “property right” recognition of the
development potential of land within a “Sending Area” that allows it to be severed from a
Sending Area parcel to a “Receiving Area” property owner and attached to their land therein. It
would seem that identification of a zone as a Receiving Area (as done in the Comprehensive
Plan) would (through general ordinance) qualify those properties as appropriate places to
import development square footage that has been severed from tracts within a Sending Area
(also in accordance with the Comprehensive Plan).
It is important that this transfer be accomplished without rezoning as the development
conditions contained within the various Planned Development Ordinances of Westlake are
valued by the property owners and such property owners are justifiably fearful that opening up
the Planned Development Ordinances (through a rezoning-process) could lead to revision of the
valued conditions. It is equally important that the Town discourages further zoning requests as a
means of addressing emerging opportunities for increased density and, in so doing, avoid the
burden of increased traffic volumes on a future thoroughfare system barely able to
accommodate trip volumes flowing from existing entitlement. If density could be increased
through re-zoning then the Town would be assaulted with potential up-zoning requests that
would further burden future roadways with traffic that it cannot accommodate. The
Comprehensive Plan established that there is an ultimate capacity within the possible future
roadway system of Westlake that is substantially consumed by the total trip generation of
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entitlements currently permitted within the Town. Therefore, further up-zoning without also
down-zoning another property would overwhelm the saturated system making the Town
gridlocked (effecting both residential and commercial values). The limited roadway alternatives
and the immense amount of entitlement in place actually provides Westlake with justification
for capping the total permitted development at-or-near the capacity of the maximum potential
roadway system (such capacity is generally accepted by Institute of Transportation Engineers as
a Level of Service D). Therefore, both the Town and the property owners have an interest in
accomplishing density increases (where merited) without rezoning. It is this no-rezoning
environment that makes the transfer of development square footage mechanism workable. This
environment creates a true commodity out of the square footage currently in place.
Working within the limits set by roadway capacity, which is fully consumed by trip volumes
flowing from, and to, the existing total square footage permitted by current/ in-place
entitlement, a transfer of development square footage from a Sending Area to a Receiving Area
does not really change the total entitlement; it only reconfigures it. Receiving Areas are
identified in the 2015 Comprehensive Plan as zones within Westlake where the visual/
environmental impacts of increased development can be tolerated without negatively affecting
those cherished aspects of Westlake’s visual and environmental quality. Typically, these areas
are where traffic capacity and infrastructure opportunity is, or will be, greatest; and/or where
existing topographic features can conceal more intense/greater development from the general
view; and/or where value opportunities supportive of a higher level of development capture
already exist. Moving development square footage out of more visually and environmentally
sensitive areas (called Sending Areas, described below) into areas, such as those described
above, for the purposes of visual and environmental protection (as well as management of
traffic encroachment) is in the best interest of the municipality.
Sending Areas are identified in the Westlake 2015 Comprehensive Plan as areas where view
exposure, environmental sensitivity, proximity to residential use and public uses makes
commercial development above certain FAR levels (which are typically lower FAR levels
currently permitted by the “in-place” zoning and identified in the Comprehensive Plan)
undesirable and potentially disruptive. Therefore, the Sending Area is an area from which
development rights would be authorized to be severed. Once severed, they can be relocated to
a Receiving Area: areas authorized to receive development square footage transferred from a
Sending Area. Such authorization would be established by ordinance, thereby, making the
transfer program a general ordinance, not a rezoning. The zoning, for reasons stated above,
needs to remain the same and thereby define the potential severability (the amount of square
footage currently entitled, which is a property right, above the desired square footage necessary
to accomplish the stated public purposes of the Westlake Comprehensive Plan…also called the
Yield Plan) and define the potential transfer capacity (the amount of base line square footage
upon which additional square footage can be added to a point where the maximum thresholds
are attained, such as height), which is brought to the property through a transaction process
spelled out in the TDSF Ordinance. In summary, a constant zoning background defines the
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sending potential (Yield Plan) and the receiving capacity (Site Plan), thereby determining the
configuration of the transfer marketplace.
The aspect of development that most constitutes a “visual or environmental encroachment” is
“development square footage”, more so that the land use or the general spatial envelopes
associated with those land uses (such as setback). Therefore, the development square footage
potential of each Planned Development Ordinance and each categorically zoned parcel must be
viewed apart from the other aspects of entitlement. At present, development square footage is
defined in a variety of ways, including:
a. A Statement of Maximum Square Footage: Some of the Planned Development
Ordinances clearly state the permitted square footage of a land use with a simple
number (e.g. 1,200,000 square feet of retail).
b. Inferred Square Footage for a Land Use based on FAR: Many Planned Development
Ordinances use a Floor Area Ratio (FAR) as the mechanism by which permitted
development square footage can be calculated. This is open to some measure of
interpretation as land use portions of some parcels are not fixed by legal boundary
descriptions.
c. Inferred Square Footage based on a Percent of Total Land Area: Developments like
Solana (PD #1) use an approach to determination of permitted development square
footage where the aggregate amount of building (regardless of use) cannot exceed a
maximum percent of land area.
These varying methods for determination of the permitted development square footage creates
a complicated regulatory landscape for Westlake and can make the proposed Transfer of
Development Square Footage Program open to challenge. It is essential that the total square
footage available to each Planned Development parcel and each categorically zoned tract be set
as an absolute number. Therefore, a Master Tabulation of all entitled development square
footage available for transfer must be created. This Master Tabulation will become the base of
Westlake’s Transfer of Development Square Footage Program (TDSF).
Once the development square footage is isolated by use, portions of it can be severed from a
tract (located within a Sending Area) and moved to another tract (located in a Receiving Area).
It should also be possible to move square footage around within the Receiving Area, but in no
case can development square footage be moved from a Receiving Area to a Sending Area. In
this way, development square footage is separated from all other conditions of a Planned
Development or zoning category and becomes a true commodity (as referred to above). In
addition, a focus on square footage (and not other aspects of the PD, such as land use) can be
viewed as a variance.
Each tract from which development square footage is exported and to which development
square footage is imported is obligated thereafter to a Special Site Plan Process as all
development subsequent to the transfer transaction could (and likely will) require a variance
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from the spatial conditions of the Planned Development Ordinance or zoning category in place.
Any proposed importation of development square footage into a tract located within a
Receiving Area will require a Special Site Plan that must be approved by Council action before
any such transfer can be effected. The Council action for approval constitutes an approved
“variance” to the spatial conditions of the Planned Development or Zoning Category for any
parcel/ tract/site referenced by the Special Site Plan. The Special Site Plan must show usage of
the transferred development square footage for the subject parcel/tract/site as well as
document the Sending Area from which the square footage is being imported and the amount
of additional square footage being added to the parcel/ tract/site (over that already permitted
by the base zoning in place). All other parcels of the Planned Development or categorically
zoned land area not included in the Special Site Plan for a parcel/tract/site remain unchanged
and unaffected by the variance granted through the Site Plan process. Therefore, specific
variance granted upon approval of the parcel/tract/site specific Special Site Plan is only a
variance and not an amendment to the Planned Development Ordinance or base zoning
category.
In order to accomplish this, the following steps need to be taken:
a. Establish the TDSF Option (it is a voluntary program) and administrative provisions
within the municipal zoning ordinance (Chapter 102).
b. Establish the “Sending Area” (described above).
c. Determine the transferable square footage allowable to each parcel in a Sending
Area…or…identify a process by which that will be determined on a tract-by-tract basis
for properties within a Sending Area. This means preservation of entitlement for a lesser
(and preferred) square footage within the various portions of the Sending Area. These
preferred square footage levels will be set for each Community Type (as described in the
Westlake Comprehensive Plan) located within the Sending Area (as identified in the
Westlake Comprehensive Plan). Exportation of development square footage from a
parcel/tract/site within a Sending Area that would result in potential development rights
of the Planned Development of categorically zoned land area being less than the
preferred level of development for that Land Use Community (as described in the
Westlake Comprehensive Plan) would be prohibited unless the land area effected is to
be used for a public purpose (roadway, open space, landform preservation, trail, or
public facility).
d. Establish a process for severance of the transferable square footage (see Severance
Deed or Deed of Transferable Development Rights, below).
e. Establish a procedure for permanent protection of the land from which development
square footage has been severed.
f. Establish the “Receiving Area” (described above).
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g. Establish the Special Plan submittal requirements for a Receiving Area development
using the transferred development square footage severed from a parcel/tract/site
within a Sending Area. This must include a means of establishing the maximum building
envelope attainable in any Receiving Area. The Building Envelope will be expressed as a
maximum building height and FAR. This means that a portion of the Receiving Area may
only receive such Development Square Footage as can be accommodated within the
“Maximum Building Envelope”. These Building Envelopes will be set for each
Community Type specified in the Westlake Land Use Plan.
h. Establish a process for consideration of the Special Site Plan and recordation of the
transfer (see Deed of Transfer below).
Through this process, a land owner located within a Receiving Area would seek use of the
transferred square footage within a development project, and such use would be approved
through the site plan or subdivision process (as described above). Thereby, the transferee
would be able to use the imported development square footage for a project density or
intensity greater than would otherwise be allowed on the land (by the PD) up to a maximum
density established by the Town as the threshold envelope for all, or a particular portion of, the
Receiving Area.
San Antonio accomplishes its transfer with a zoning suffix identifying a Conditional Zoning
District. More specifically, the San Antonio program requires:
“Conditional Zoning District. No development rights shall be used in the Receiving Site until a
Conditional Zoning District has been approved as provided herein. The Conditional Zoning District
shall include a provision requiring recordation of a deed in accordance a requirement of
subsection 2 below.”
This approach will not work for Westlake as it requires that the boundaries of the Receiving
Area/ Sending Area be coterminous with Parcel Boundaries. Since Westlake’s definition of
Sending and Receiving Areas is a function of view sheds and natural features/systems, it will be
essential to define Sending and Receiving Areas through an overlay mechanism. Austin, Texas
uses overlays for this very reason. Among the Sending Areas in Austin are areas called “Critical
Water Quality Zones”. These zones are defined by natural boundaries as follows:
“The boundaries of a Critical Water Quality Zone shall coincide with the boundaries of the 100
year flood plain calculated under fully developed conditions…”
Therefore, Chapter 102 of the Westlake Code of Ordinances should be amended to include an
overlay mechanism for Sending Areas and an overlay mechanism for Receiving Areas with
appropriate procedures, requirements, restrictions, and standards for each. It may be preferable
to have a separate Chapter for the TDSF Program that is referenced in Section 102. The text of
Chapter 102 would be revised to:
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a. Describe the special conditions under which further up zoning would be deemed
appropriate. These conditions should relate to traffic infrastructure capacity,
establishment of land uses not currently available to Westlake, impact on the “preferred
level of development and/or the “Building Envelope” available to the TDSF Program, and
consistency with the character of the community type as defined within the Westlake
Comprehensive Plan. Unless certain justifying conditions prevail, zoning as a means of
intensifying levels of development is hereafter discouraged and the use of Transfer of
Development Square Footage is preferred.
b. Identify the process by which all categorical zoning will be transitioned into a Planned
Developments.
c. Identify the means by which the permitted development square footage will be set as
an absolute number instead of an FAR or percent of total land area.
d. Set up the Special Site Plan Variance Process applicable to Transfer of Development
Square Footage.
3. The Difference of Transfer of Development Rights and Development Square Footage:
Throughout this document the terms Transfer of Development Rights (TDR) and Transfer of
Development Square Footage (TDSF) have been used somewhat interchangeably. It is
recommended that the Westlake Program refer clearly to the Transfer of Development Square
Footage, only. As alluded to above, there are two reasons for this:
a. Zoning in Westlake is predominately accomplished through Planned Development
Ordinances which contain many variances from, and amendments to, various
development standards and requirements of the Town. Therefore, the development
rights contained within a Planned Development Ordinance are often much more than
land use and density. Transferring variances and amendments would be difficult to
manage in an equitable way. Further, it is the density that is the preservation issue for
Westlake, not the variances and amendments embodied within the Planned
Development instruments. When development square footage is transferred to a
Receiving Area, certain development standards and restrictions held within the Planned
Development Ordinance may need to be modified in order to accommodate the
additional development intensity. Necessary modifications to certain standards and
restrictions (such as height, coverage, setbacks) can be modified by the Site Plan Process
described above. These modifications are unique to the design, site, and magnitude of
the transfer; therefore, it is not necessary to also transfer variances and amendments
embodied in the Planned Development Ordinance of a Sending Site that may be
inappropriate for the aggregate of existing entitlement and transferred square footage.
b. It is important to preserve the land use integrity of Westlake; therefore, any rights
transferred pursuant to this Program only authorizes an increase in maximum density or
maximum floor area ratio and shall not alter certain designations within a Receiving
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Area (e.g. flood plains, wetlands, etc.), nor shall it allow a land use otherwise prohibited
or not permitted within the Receiving Area. Therefore, commercial square footage
transferred from a Sending Area to a Receiving Area may be used for any permitted
commercial use within the Receiving Area. The same shall be true for retail and
industrial use if such is permitted within the subject Receiving Area. It can be viewed
that the purpose of density in the zoning instruments is to establish ownership of
development square footage available for transfer.
In light of these important aspects of the proposed Westlake TDSF Program, it is essential that
the commodity transacted in the transfer is clearly identified…Transfer of Development Square
Footage (TDSF).
4. Purpose and the Importance of the Comprehensive Plan:
Throughout the literature search conducted in preparation for establishing the Westlake TDSF
Program, it is clear that the strength of the Program is greatly enhanced when the City or Town’s
Comprehensive Plan identifies Sending Areas and Receiving Areas. Virginia’s enabling statute
for Transfer of Development Rights states that Receiving Areas are defined as “one or more
areas identified by ordinance and designated by the Comprehensive Plan as an area authorized
to receive Development Rights transferred from a Sending Area…” In the TDR Handbook (by
Nelson, Pruetz, and Woodruff), the importance of the Comprehensive Plan is described as
follows:
“Too many communities simply do not consider how they will implement their land use goals
until they have adopted Comprehensive Plans. It is not uncommon, for example, for a
community to adopt a traditional land use plan containing an implementation section that calls
for future adoption of a TDR Ordinance. Typically, the newly adopted plan establishes the
maximum-density limits planned for each land use designation…ideally, the Comprehensive Plan
should identify Receiving Areas and establish maximum densities [attainable]…the plan should
clearly state that a future zoning code amendment will require acquisition of TDR’s to achieve
the plan’s maximum densities…In order to enable use of TDR’s, a Comprehensive Plan requires
linkages between it and the implementing devices, such as zoning and subdivision codes – and,
of course, a TDR Ordinance.”
Clearly Nelson, Pruetz, and Woodruff see the Comprehensive Plan as an instrument that gives
the TDR Program particular substance and legal strength. The Comprehensive Planning Process
allows the citizenry of a city or town to weigh-in on the establishment of Sending and Receiving
Areas, meaning that the public purposes served by making these distinctions are supported by
the public. In addition, the public interests served through use of a municipality’s home rule
authority is well established and documented, thereby, giving use of the Transfer of
Development Square Footage mechanism as a way to serve those interests more justification.
The purpose of the Comprehensive Plan as it relates to the creation of a Transfer of
Development Square Footage Program is to:
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a. Identify Sending Areas as areas where certain matters of importance to the public
interest can be served by less development intensity. Such identification is made
through a process of public participation and public hearing.
b. Identify Receiving Areas as areas where an increase of development intensity does not
detract from, or depreciate, those matters of importance to the public interest and
disposition of additional square footage in a Receiving Area enhances the municipality.
Such identification is established through process of public participation and public
hearing.
c. Identify desired levels of development in Sending Areas and allowable levels of
development in Receiving Areas through a process of public participation and public
hearing.
d. Establish the reason for growth management through TDSF instead of zoning as it
relates to total traffic volume capacity. Such establishment is achieved through a public
participation process and public hearing.
Based on the accomplishments of the Comprehensive Plan as listed above, a solid basis is set for
creation of a TDSF Program. In this way, the TDSF Program is an outgrowth of the Planning
Process established for the Comprehensive Plan.
5. The Operational Structure of a TDSF Program:
In order for the Transfer of Development Square Footage Program to function, it must have
certain essential processes, forms, and organizational elements. These include:
a. Legal establishment within the Westlake Code of Ordinances. This includes a Chapter for
the TDSF Program and amendment of Chapter 102 (the Zoning Chapter) to set certain limits
on future zoning and set uniformity across Westlake with regard to the definition of
development square footage that any parcel/tract/site possesses as a result of its current
entitlement. Also, amendment of Chapter 102 should establish the possible transition of
current categorical zoning into a comparable Planned Development, making all zoning
within Westlake one category. While not a requirement, it would strengthen the program.
b. Finally, the amendment of Chapter 102 should describe the Special Site Plan Variance
Process. Identify Sending Areas and Receiving Areas in the TDSF Chapter based on those
identified in the Westlake Comprehensive Plan.
c. Create documentation of potential yield (from Sending Areas) by Land Use Community Type
and permitted Building Envelope (within Receiving Areas) by Land Use Community Type.
d. Create a Deed of Severance that records the development square footage exported from a
parcel/tract/site within a Sending Area
e. Create a Deed of Transfer that records the development square footage being imported
to a Receiving Area.
f. Create a staff procedure for review and tracking.
g. Establish minimum submittal requirements.
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h. Establish a review and approval process that brings the Special Variance Site Plans to a
public hearing before Council.
i. Establish a procedure of recording the Transfer Transaction in perpetuity.
Conclusion:
This literature review established that Westlake can establish a Transfer of Development Square
Footage Program as an extension of its zoning authority. In addition, it establishes that development
square footage can likely be transferred through a Special Site Plan Variance Procedure from a Sending
Area to a Receiving Area without re-zoning or opening up the Planned Development Ordinances now in
place. Further, it establishes that:
a. Future zoning must be discouraged so that a development square footage commodity can be
created and so that the traffic capacity of the future roadway system is not exceeded.
b. Certain documents, procedures, and organizational elements are needed.
c. The varied regulatory landscape of Westlake needs to be more uniform.
d. Designation of Sending and Receiving Areas through the Comprehensive Plan process greatly
strengthens Westlake’s ability to execute a TDSF Program.
e. A Sending Area Yield Plan and Receiving Area Development Envelopes must be established.