Birmingham Township, population 4,208 (2010), lies thirty miles west of Philadelphia in Chester County. In the 1970s, the Township was concerned about the impact of growth on farmland and sensitive environmental areas. At that time, preservation was being promoted by two local conservancies and one landowner bought a parcel of land and deeded the development rights to the Township.
To further the conservation effort, the Township adopted a TDR program in 1978. The TDR ordinance identified three purposes: to compensate landowners in the Township’s agricultural holding area for voluntarily preserving land recognized for environmental and agricultural values; to provide an incentive to increase density and housing variety in areas considered suitable for development; and, consequently, to protect the Township’s rural character while providing its fair share of future regional housing needs.
In November 2011, Birmingham’s Zoning Code Article XV Transferable Development Rights remained largely unchanged. Consequently, this profile is identical to the case study that appeared in Beyond Takings and Givings in 2003.
In the Birmingham program, sending sites consist of parcels at least ten acres in size within the R-A Zoning District. However, land within this district cannot qualify for transferable development rights if it cannot be developed due to easements or covenants which prohibit residential development. The number of rights available to a tract is calculated by subtracting four acres for each existing dwelling unit and multiplying the difference by 0.5, (or by 0.125 if the tract is within a specified portion of the Township’s FH Overlay District).
Sending site owners who wish to transfer development rights from only a portion of a single tax parcel must subdivide that parcel and designate the parcel from which rights are being transferred. Parcels which are not restricted against future development must comply with all code requirements including minimum lot size. But parcels from which development rights are being transferred do not have to meet minimum code requirements.
The receiving sites are parcels in planned residential development (PRD) and Eleemosynary-Institutional (E-I) districts or sites approved by conditional use permit (CUP) for retirement communities. An application to transfer rights must be signed by both the sending and receiving site owners. The application must be accompanied by surveys of both properties, a title report on the sending site, an agreement between the two owners for the sale of development rights and a copy of the proposed deed restricting future development on the sending site.
After the application has been accepted, the developer of the receiving site can apply for approval of the receiving site PRD or retirement community. The extra density allowed to projects using TDR is controlled by a code section that restricts increased densities. Birmingham encourages transfers to areas zoned for higher densities by requiring fewer TDRs for each additional dwelling unit at the receiving site. For example, on receiving sites with the lowest base density, ( 0.6 to 1.5 units per acre ), 0.8 transferred rights are needed for each extra unit added to the receiving site. On land with the highest-density base density, (4.25 to 5.0 units per acre), a developer only needs 0.5 transferred rights to be able to build an additional dwelling unit.
Although private parties cannot hold development rights for later sale, the Township is allowed to buy rights, or accept donated rights, and either extinguish them or hold them for eventual sale to the developer of a receiving site.
Future development on sending sites must be restricted by a deed of easement. This deed must be approved by the Township Board of Supervisors. The deed must designate the Township as a third-party beneficiary of the restrictions, making these restrictions enforceable by the Township as well as the receiving site owners.
After the transfer, the sending site remains in private ownership but can only be used for agriculture or open space uses, subject to appropriate soil and water conservation practices. The deed itself may also contain other uses and restrictions not specified in the code. In addition to recording the deed, the Birmingham code requires that the Chester County Board of Assessors be notified in order for a reassessment to take place.
The Birmingham Township TDR program was intended to create a market for transferred development rights. Receiving site developers are offered a sizeable density bonus for using transferred development rights. But the TDR program cannot overcome the fact that people who move to Birmingham Township are primarily looking for larger lot estates rather than higher density projects. As explained by Bill Fulton, Chester County’s Planning Director, much of the Township is zoned for a density of four units per acre and there seems to be little desire to increase density in the Township’s few, small villages.
Fronefield Crawford, Solicitor to the Birmingham Planning Commission, agrees that there is little demand for extra density in the Township. Single-family residential lots sell for more than multi-family residential lots. Tracts are now under construction in the township’s two receiving areas at a density lower than the by-right density allowed by the base zoning. Clearly, if developers don’t even use the density allowed by right, they will have no motivation to purchase extra density through TDR.
Crawford notes that transfers may also be reduced by the logistical problems associated with most TDR programs: the need for sellers to find buyers; the need for buyers to find sellers; and the delays caused by the approval process of the Township itself. However, Crawford believes that the lack of demand for extra density is a far more significant factor than these procedural issues.
In fact, no transfers have occurred so far in the Township. Furthermore the future of TDR in Birmingham does not look bright since the two most likely receiving sites now have approved planned residential developments (PRDs) and are undergoing construction. The TDR provisions remain in the zoning code. Even though the two primary receiving sites are no longer available for TDR, the Township’s zoning code includes a TDR mechanism which does not involve the PRD process. However, this non-PRD mechanism is considered to be far less likely to generate transfers.
In an update from December 1998, Mr. Crawford reported that the ordinance had not changed and that the program had not experienced transfers yet.