The City of Oakland, population 390,724 (2010), is connected to the City of San Francisco by the five-mile long bridge which crosses San Francisco Bay. For at least two decades, Oakland has had a mechanism which allows transfers of density between abutting properties. The TDR ordinance was designed, at least in part, to encourage the preservation of turn-of-the-century summer homes dating back to the days when wealthy families used Oakland as a retreat from San Francisco. However, the TDR ordinance is not limited for use as a historic preservation tool. Oakland’s revised zoning code became effective on November 3, 2011. But this provision, Section 7057, was inserted in the new code unchanged as Section 17.106.050. Consequently, the Process section below is identical to the one found in the case study in the 2003 book Beyond Takings and Givings.
Under the Oakland ordinance, a potential sending site could be any property in the City zoned for high-density residential (R-60, R-70, R-80 and R-90 ). Development rights are made available for transfer by restricting the number of dwelling units or floor area which can be developed on the sending site. The legal document restricting future development on the sending site must be approved by the City Attorney and filed with the County Recorder. Only properties which abut the sending site may be used as receiving sites; once approved, these receiving sites can use the development rights acquired from the sending sites to exceed the density allowed by the site’s base zoning.
The transfer is made through the conditional use permit (CUP) process. In order to be approved, the proposed density increase must be provided for in the zoning regulations for the receiving site. A TDR application must also meet all of the criteria generally required for the granting of a CUP. In addition, the City must find that the transfer of dwelling units or floor space would have an impact that is at least no greater than the impact which would result from the amount of development automatically allowed by the zoning code for the sending and receiving sites.
It is likely that interest in transferring development rights is reduced by the need for receiving sites to abut sending sites. In addition, base zoning can allow floor area ratios as high as 7:1 to potential receiving sites, typically supplying more density than most developers can use.
Nevertheless, developers occasionally use the TDR option. In 2003, planner Scott Miller reported approval of a project using the TDR provisions. The receiving site development is an 81-unit residential condominium on a 1.15-acre site on Ford, Lancaster and Glascock Streets. The site is zoned M-40, Heavy Industrial. The general plan designation is Residential Mixed Use under the City’s Estuary Policy Plan (EPP). The EPP allows residential development by conditional use permit. Although the neighborhood still has an industrial character, developers are interested in building residential as well as live-work units here. One live-work complex is already completed, one is under construction, another has been approved and a fourth is awaiting approval. At the EPP’s maximum density of 53.33 units per acre, the 1.15-acre site would be allowed 61 units without TDR.
Through TDR, 20 units were transferred to the site, allowing density to increase from 61 to 81 units. The developer of the receiving site project is also developing the sending site. The sending site project, known as The Estuary, would be allowed 211 units under the EPP but the developer is proposing to build a 100-unit condominium and transfer the unused units. In return for approval of the transfer, the developer must record an easement permanently limiting the sending site to a density of 100 units.
The City’s TDR code section requires sending and receiving sites to be adjacent. But the City approved a variance to allow this transfer between nearby but not adjacent properties. The City also approved variances for two development standards, allowing reductions in the width of the courtyard and parking spaces adjacent to walls.