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August 04, 2008

Slutzky renews effort to create a Transfer of Development Rights program in Albemarle

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20080731-Middleditch
Leigh Middleditch describes why the 5 C's are interested in TDR's while Terrance Rephann (seated) watches

The Weldon Cooper Center for Public Service at the University of Virginia is facilitating a series of meetings studying whether a system allowing the transfer of development rights (TDR) could help the County achieve its goal of protecting the rural countryside while also allowing farmers and other owners of large parcels of land to financially benefit by creating a market system for the sale and transfer of development rights.

The idea is a pet project of Albemarle County Supervisor David Slutzky (Rio), and he was the principal speaker at the first meeting of a group that was brought together by the Citizens Committee for City-County Cooperation (or 5-C’s). 

Local attorney Leigh Middleditch, founder of the 5 C’s, said the group’s interest was raised when Slutzky first floated the idea in 2006. After Slutzky’s initial proposal for TDR’s failed to receive Board support, the 5-C’s convened a meeting in the summer of 2007 to see if the TDR program could be adjusted or better explained to the public and policymakers. In 2008, a bill sponsored by Delegate Rob Bell (R-58) granted Albemarle County the authority to create a market in which development rights in the rural area could be sold to parties seeking to build in a “receiving area.” Any TDR program would require approval from the Board of Supervisors.

In order to build broad support for the concept, the 5 C’s coordinated these meetings and invited stakeholders from all over the community to participate. The Charlottesville Area Association of Realtors (CAAR) is sponsoring the meetings, in part because the Virginia Association of Realtors is interested in gathering information on TDR efforts in Virginia. 

FIRST MEETING GETS UNDERWAY

Terrance Rephann, a Research Associate at the Weldon Center, said the TDR discussion has been largely dormant since Slutzky’s initial TDR proposal was tabled. While explaining the ground rules for the meeting, one opponent of TDRs asked why the issue was being studied at all.

“[TDR’s are] a growth management policy that tries to compensate potential losers when you try to constrain that growth,” Rephann answered. “It’s an attempt to construct a win-win situation depending on how it is executed.”

Center Director John Thomas explained that the Center was asked to facilitate a conversation where all sides of the growth issue want to solve the same problem: How to preserve Albemarle County’s rural character? 

“The goal is non-controversial,” Thomas said. “We haven’t found anybody who seems to think that somehow the beauty of rural Albemarle County ought not to be protected. The questions are myriad about how you would do it.”

The participants represented a variety of organizations and viewpoints, and included:

  • Joe Jones, Farm Bureau
  • Neil Williamson, Free Enterprise Forum
  • Dave Phillips, Charlottesville Area Association of Realtors
  • Steve Blaine, Chamber of Commerce Board
  • Frank Quayle, Realtor
  • Deborah Stockton, Virginia Independent Consumers and Farmers Association
  • Morgan Butler, Southern Environmental Law Center
  • Chuck Rotgin, Great Eastern Management Company
  • Jack Marshall, Advocates for a Sustainable Albemarle Population
  • Jane Fischer, Charlottesville Community Design Center
  • Kathy Rash, Forever Albemarle
  • Sarah Henley, Forever Albemarle
  • Linda McRaven, Free Union resident
  • Roger Ray, local surveyor
  • Mark Graham, Albemarle County’s Director of Community Development
  • Jon Cannon, Albemarle County Planning Commission (Rio)
  • David Slutzky, Albemarle County Board of Supervisors (Rio)

Many skeptics of the plan expressed their opposition up front. Sarah Henley’s husband farms in Albemarle County, and she says many in agriculture are concerned about what they see as attacks on their profession by new government policies. “You’re dealing with a lot of people’s land, and you’re dealing with a lot of people’s money,” Henley said. “[Farmers] feel like they’re being messed with, and we all don’t want the [countryside] to be built up either. I want to bring to the table that you’re messing with somebody’s investments.”

SLUTZKY’S PRESENTATION

20080731-Slutzky
Supervisor David Slutzky

Slutzky said his proposal was a starting point for discussion, and that he said he has not yet completed writing out a formal paper outlining how the TDR system would work. As he has done over the past two years, Slutzky called his presentation to the group a “straw-man” proposal designed to get their feedback on key points. Slutzky said he wanted the ultimate TDR proposal to be the result of the community’s input. 

Slutzky said that the Comprehensive Plan adopted in 1980 clearly indicated that the rural area was to be preserved. He acknowledged that many people want to do that for aesthetic reasons, but he said his motivation was to preserve the ecology. The current Comprehensive Plan created two classes of land in the County. A growth area totaling 5% of the County’s area was created where high density development could occur, while the remaining 95% was set aside to be rural, where no re-zonings for higher density would be granted.  Slutzky said that philosophy hasn’t been completely successful. 

“We fully intended to have our growth activities occur inside the growth area, and I lived out on a farm on Fox Mountain for a number of years,” Slutzky said. “I was very disturbed at the rate at which growth was happening where it was not supposed to be happening.” He said the current rate of building houses in the rural area is between 250 and 300 a year, the equivalent of a new Biscuit Run every ten years.  Biscuit Run is a 3,100 home development recently approved in the County’s growth area.

That concern, said Slutzky, prompted him to run for office, and when he was elected in 2005, he tried to advance several proposals to slow or adjust the development in the rural areas. Rural area protection strategies like phasing of development rights, clustering of homes, and mountaintop protection ordinances all failed to receive support when considered by the Board in 2006-2007.

“Each of those proposals would have to some degree constrained growth at the expense of property rights,” Slutzky said. So, Slutzky described how he began to meet with representatives of the Farm Bureau and others in order to understand the perspective of the property owner. He realized that the only rural protection strategies that can work are those that do not undermine property rights. After searching for a new strategy, he came up with the TDR proposal.

“I thought TDR’s offered us that special potential opportunity to balance these potentially competing objectives,” said Slutzky.

When the Board of Supervisors failed to embrace Slutzky’s initial TDR proposal in December 2006, members did suggest that if enabling legislation was passed by the General Assembly, it might be worth continued discussion.  Now, with laws supporting Albemarle’s exploration of TDRs approved by the General Assembly (Delegate David Toscano’s HB2503 and Delegate Rob Bell’s HB991), Slutzky is once again advocating for a TDR program and asking stakeholders for their input.

“If we can get through that process and have an outcome, and there’s enough people in this room that believe it’s the right way for the Board of Supervisors to go, I’ll take it back to my Board,” Slutzky said. “I don’t know that everybody in the room has to support it, but it better be close to everybody or politically it’s going to be challenged on arrival.” 

20080731-TDR-Map
An conceptual map showing where the boundary area might be. This map is not intended by anyone to represent where that theoretical boundary would actually be drawn

Under Slutzky’s TDR proposal, a new growth area would be established as a “boundary area” totaling 1% of the County’s land. The rural areas would be downzoned from a minimum lot size of one home per 21 acres (established in the 1980 “great rezoning”) to one home per 50 acres. Development potential lost by the downzoning or held unused by the property owner could be “banked” for future sale.  Slutzky said this would create a real estate asset to the landowner detached from the actual land. The rural area development rights could be purchased by developers seeking to build in the “boundary” area, which would not require any further re-zonings as the boundary area would be developed by-right.

However, Slutzky acknowledged he does not know how many development rights are in the rural area. He estimates there are about 50,000 theoretical development rights in the rural areas today, but many of those are parcels that are not developable for residential use. For instance, in order to get a building permit, you have to be able to demonstrate access to groundwater. Undevelopable land would not be eligible because there are no realistic development rights.

“What we don’t know today is…the size of that universe of actually usable development rights that would be rendered useless with the downzonings and would therefore be eligible for the TDR program,” Slutzky said. Under his preliminary proposal, those who chose to sell their development rights would have to go through the same qualifying steps needed to create a lot today.

 “If we’re going to take away from [landowners] the ability to sell off their land, we have to create a mechanism to make them whole,” Slutzky said.

However, Slutzky said at this time, he has no idea what a TDR would be worth because no one has ever sold one in Virginia. The TDR “bank” enabled by the General Assembly would be a mechanism to ensure a vital marketplace, because some purchasers would want to hold on to TDRs as their value fluctuates on the open market.

Under Slutzky’s proposal, the boundary area would not be subject to the Neighborhood Model requirement, and would thus, it is speculated , be more likely to result in construction of single family detached homes in cul-de-sac neighborhoods. There would be no commercial development in this zone. 

Slutzky said he would like to have the group’s input on which rural parcels should be in the boundary area, though he is suggesting incorporating the areas immediately adjacent to the growth area to take advantage of infrastructure improvements.  Slutzky is proposing a density of 2.16 lots per acre in the boundary area, where it would take two transferred development rights to create one new lot. The County could adjust those rules where appropriate to serve County goals. For instance, for an “affordable” project, that ratio could be adjusted on a 1 to 1 basis.  When this proposal has been discussed publicly in the past, Supervisor Dennis Rooker (Jack Jouett) has questioned whether a 1% expansion of the County’s growth area would be able to accommodate all the potential development rights that the County might want to retire from the rural areas.

After his presentation, there were many questions. Would any County money be used in the purchase any TDRs? No. Who will determine how many usable development rights would be eligible? County staff in collaboration with the Weldon Cooper Center.

“If we have a market of 20,000 things for sale, and it can be sold into a receiving market on a 2 to 1 ratio where there’s a demand for 10,000, 20,000 aren’t going to be put on the market next Thursday, and 10,000 aren’t going to be bought next Thursday,” Slutzky said. “This is creating a market condition that will be in place for a generation, but during that generation of potential transactions we won’t be continuing to corrode the rural areas.”

Deborah Stockton of VICFA said she was concerned that after down-zoning, the remaining parcels in rural Albemarle under 50 acres would sky-rocket in value. “They will become rare artifacts, and that will be a very elite market, and they will not be as available to what I would call small farmers who want to buy land,” Stockton said. Slutzky acknowledged that would be a risk, but he suggested that the next generation of farmers would likely be leasing their land as opposed to owning it.

Joe Jones questioned if the density in the boundary area would be too small, and that single families would want to live on larger than a half-acre property. He suggested expanding the boundary area further. Slutzky said that he didn’t think the County should mandate the size of lots in the boundary area, but an average would have to be worked out as the area built out.

Slutzky’s presentation ran long, and there was not time for the stakeholders to list the pros and cons of the proposal. That will happen at the group’s second meeting scheduled for August 14, 2008.

Sean Tubbs & Brian Wheeler

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