The Town of Eden, population 7,688 (2010), is located in western New York State, 20 miles south of Buffalo. Eden is an agricultural community that wants to create a land use pattern which balances open space with developed areas and provides for the efficient provision of public services and utilities. At the same time, Eden wants owners to be able to liquidate the latent development potential of their land even if these properties remain undeveloped.
In 1977, the Town adopted a zoning code which featured three zoning districts, (conservation, agricultural and agricultural preservation overlay), designed to preserve rural land uses and reduce leap frog development. The land within these three zones represented almost half of the total acreage in the town and served as the sending areas for its TDR program. Property owners could transfer the right to develop from land in these sending areas to land in three residential zones, (rural residential, suburban residential and hamlet residential). Land in these three receiving zoning districts constituted roughly half of the total area of the Town.
In 1990, Eden became even more proactive and added a mandatory TDR component to its zoning code. Under this program, owners of property in the three residential zoning districts, the receiving areas for the TDR program, had to acquire one transferred development right for each dwelling just to achieve the base density allowed by the zoning district. With that change, property owners would not be able to build any units without buying TDRs, a situation that could lead to legal action, particularly if the property owners could not find TDRs. In addition, the Town had no alternative to the private market such as allowing developers to comply with cash in lieu of TDRs or stocking a TDR bank where developers could buy TDRs if they were unable to find them on the private market. For these reasons, the Town removed the mandatory code provisions in 1995 and returned to the initial voluntary concept. In 2000, the Town also removed the Agricultural Preservation Overlay (APO), thereby eliminating its most promising sending area. The “Process” section which follows is based on Section 225-34 of the Town Zoning Code as it existed in August 2011.
The code section dealing with TDR provides four specific objectives:
- Preserve open space and agricultural land;
- Provide adequate streets and utilities economically;
- Promote an orderly sequence of development; and
- Foster development where it is most appropriate while providing economic return to the owners of restricted property.
The potential sending sites are properties zoned Conservation (C) and Agricultural (A). The minimum lot sizes allowing one single family dwelling are five acres in the Conservation zone and four acres in the Agricultural zone.
To encourage the owners of property in these three sending zones to permanently preserve their land, Eden’s TDR provisions allow transfers to occur at the rate of one TDR per three acres of land in the Conservation zone and one TDR per two acres of land in the Agricultural zone.
The potential receiving sites are areas zoned Rural Residential (RR), Suburban Residential (SR) and Hamlet Residential (HR). The owners of land in these zones can use TDR by applying for an Optional Density Permit. Along with the Optional Density Permit application, the applicant must provide a document which grants an open space easement on sending site land to the Town. After the easement is recorded, the Town Planning Board must issue an Optional Density Permit; the Planning Board has no discretion to deny the application if the open space easement is properly recorded.
With an Optional Density Permit, the receiving site is assigned a higher permitted density than the density allowed when TDR is not involved. In the RR, SR and HR zones, the base density varies depending on whether or not the lot has sewer and water, water without sewer, sewer without water or no sewer or water. In the RR zone, these base densities range from one unit per 30,000 square feet to one unit per 88,000 square feet of land. With an Optional Density Permit, the minimum lot sizes range from 20,000 to 66,000 square feet representing a density increase of from 50 percent to 33 percent. An Optional Density Permit allows comparable single-family residential density increases in the SR and HR zones. In addition, since the HR zone allows multiple family residential, Optional Density Permits can be used to increase allowable densities by 25 percent for apartment buildings in that zone.
Despite the fact that the use of TDR is not subject to discretionary approval, the Eden TDR program has been used infrequently. The development projects using the TDR option varied in scale. In one case, a property owner purchased one development right in order to create two buildable lots out of one parcel. In another instance, development rights transferred from land in the conservation zone were used to allow a senior citizen development. In some of these cases, advocates of preservation used TDR to demonstrate its benefits and encourage other property owners to try it.
According to former Town Supervisor Suzanne Bissonette, the lack of development pressure in Eden reduces interest in TDR. Furthermore, many of those who move to Eden are looking for rural lifestyles and lower-density properties. In fact, it is not uncommon for newcomers to combine two or three lots in order to create an estate-sized property. Since these people want the larger lots allowed as a matter of right, they have no incentive to purchase TDRs.
Bill Feasley, who was a member of the Eden Town Council for 22 years, agreed with former Supervisor Bissonette that the lack of transfer activity is primarily the result of low demand for higher-density development. He notes that the Town encouraged compact development by creating a sewer district; but people moving out of cities and into rural settings want large lots and are willing to pay for them.
Furthermore, the value of land for its development potential has increased over time while the value of land for agricultural purposes has remained flat. This is even true in the extremely fertile Eden Valley, which is a productive area for high-value, vegetable crops. Consequently, farmers are not as interested in selling development rights as they might have been in the past. Feasley estimated that, at one time, prime agricultural land in Eden was worth $15,000 per acre as farmland while housing sites were selling for $3,000 per lot. The relationship then changed, with prime agricultural land remaining at $15,000 per acre but buildable lots selling for $15,000 to $20,000.
Feasley believed the program would be more effective if the Town acted as a bank, buying development rights from sellers and selling them to receiving site developers. By buying development rights, the Town could overcome the logistical problems encountered when TDR sellers try to find buyers and, conversely, when buyers try to find sellers.
By eliminating the Agricultural Preservation Overlay, Eden also removed its most promising sending area. Minimum lot size in the APO was 30 acres and landowners were granted one TDR per acre placed under easement. That 30-to-1 transfer ratio, was higher than average and should eventually have been effective at motivating owners to use the TDR option.