Monterey County, population 415,057 (2010), lies 125 miles south of San Francisco along the California coast. In the southern half of Monterey County, the Santa Lucia Mountains meet the Pacific Ocean in an area known as the Big Sur. The Big Sur terrain is so rugged that this area has remained relatively undeveloped despite its reputation as one of the most scenic places on earth.
In 1975, the Big Sur was recognized as an area of statewide importance in the California Coastal Plan. This Plan encourages cooperation between the California Coastal Commission and local units of government in resolving environmental protection issues. In keeping with that concept, Monterey County, with the help of a citizen’s advisory committee, created the Big Sur Land Use Plan. This Plan imposed development restrictions designed to preserve Big Sur’s natural and scenic resources as well as the tourism industry that relies on those resources. These restrictions contain viewshed policies which essentially prohibit any new development which would be visible from the Highway 1. To mitigate the impacts of these restrictions, Monterey County also adopted a transfer of development rights ordinance which allows transfers from parcels rendered unbuildable by the viewshed policies to sites within the Big Sur Land Use Plan area considered appropriate to receive additional development.
With minor exceptions, the code section controlling this TDR program, Section 20.64.190 Transfer of Development Credits remains largely unchanged from the code section (20.156) that controlled this program in 1992. Consequently, this profile is almost identical to the case study that appears in Beyond Takings and Givings in 2003.
Monterey County’s TDR program aims to maintain the natural and scenic resources of Big Sur, partly for the vitality of County tourism, using land regulations that a locally implemented through private landowners. It allows development credits from parcels rendered unbuildable by viewshed policies to be transferred to areas within the Big Sur Land Use Plan area deemed suitable for additional development.
The regulations for development in Big Sur define a “critical viewshed”. All development which would be visible from Highway 1 within the critical viewshed is prohibited. Development in the critical viewshed which is not visible from Highway 1 can be conditionally permitted, subject to siting and design standards, ( such as color, texture and landscaping ), intended to help the building blend with its environment. However, to get permission to build in the critical viewshed, applicants must grant scenic easements for that portion of their land within the scenic easement.
To determine whether or not a proposed project intrudes in the critical viewshed, the applicant must indicate the dimensions of the proposed buildings through poles and flags installed at the building site. If these poles and flags are visible from Highway 1, (including pull outs, viewing areas and walkways at the edge of the roadway), the proposed development would be considered to be within the critical viewshed. Landscaping and berming cannot be used to screen development which would otherwise be visible.
The County codes provide some exceptions to these regulations. Carefully-sited developments can be allowed in the Visitor-Serving Commercial zone. Barns, windmills, stock ponds, corrals and other essential agricultural structures can also be allowed if it would not be feasible to locate them outside the critical viewshed. Similarly, the County permits within the viewshed certain coastal-dependent uses such as beach access facilities and navigational aids. Finally, the codes exempt highway facilities, parking lots for state parks and developments in two specified areas subject to numerous conditions. Utilities must be underground unless prevented by physical constraints such as steep slopes, landmark trees or sensitive habitat.
Under the Monterey County TDR ordinance, a sending site is known as a donor site. A donor site must be a buildable parcel and a “viewshed lot”, meaning that it is subject to the Local Coastal Plan viewshed policies as set forth in the Big Sur Coastal Land Use Plan. Lots which are not constrained by the viewshed policies cannot be designated as donor sites. The term “buildable parcel” means that the site is accessible and can accommodate at least one single family residence in compliance with all County codes for health, safety and land use, with the exception of the viewshed policies. Through a public hearing process, the County Planning Commission must find that the proposed donor site is both a buildable parcel and a viewshed lot.
Designation as a donor site requires an offer to dedicate a permanent, irrevocable scenic easement to the County. The scenic easement must prohibit residential and commercial use of the property but may allow for acceptable activities such as passive open space and agricultural uses. In the Monterey County program, transferable development rights are referred to as transferable development credits or TDCs. The offer to dedicate a scenic easement is accepted by the County when the developed rights are actually transferred. When a parcel is designated as a donor site, it is granted two TDCs which can be transferred to a designated receiving site.
To designate a parcel as a receiving site, an application for development of the parcel in question must be filed with the County Planning Commission or, if appealed, the Board of Supervisors. The development proposal for an eligible receiving site must be consistent with all applicable plans and codes; however, the land use designation and zoning can be amended in order to accommodate the transferred TDCs as long as the maximum density does not exceed one dwelling unit per acre. As one of the few amendments to this ordinance since 1992, TDR transfers cannot increase residential density more than twice the density set forth in the Big Sur Coast Land Use Plan unless an environmental impact analysis demonstrates that significant impacts can be mitigated including traffic impacts, which can be addressed by reducing driveway access to State Highway Route 1.
As part of its approval of the receiving site development, the Planning Commission designates the receiving site, cancels a TDC on the donor site and produces a written decision granting the transfer of development credit. If only one of the two TDCs created at a sending site is used at a receiving site, the unused TDC remains a property right of the donor site. In addition, the ordinance requires the establishment of a revolving fund to purchase TDCs using charitable contributions, non-profit trusts, County funds or other sources. These purchased TDCs can be used for transfer or permanently retire development credits.
Monterey County is one of the few jurisdictions to use TDR to mitigate an absolute prohibition on the development of potential sending sites. In providing this mitigation, the TDR component helped win the adoption of land use restrictions which are well beyond the capabilities of many communities. The viewshed restrictions provide a very strong incentive for the owners of potential sending sites to use TDR. To promote acceptance of the viewshed restrictions, the TDR ordinance offers a two-to-one transfer ratio. In addition, elected and appointed officials as well as staff are strongly committed to making the TDR program succeed; for example, applications for donor site designations are processed as quickly and easily as possible.
Nevertheless, only a few parcels, with a total land area of less than 20 acres, have been designated as donor sites to date. In addition, no private landowner has yet applied for designation of a receiving site. The California Coastal Conservancy, a non-regulatory state agency designed to assist in the implementation of local coastal programs, explored a project to demonstrate the benefits of TDR to property owners.
The Monterey program has been complicated by the fact that a State bond approved by the voters of California allocates $25 million toward the purchase of impacted properties in the Big Sur viewshed protection zone. It is possible that many property owners would rather sell their property or development rights directly rather than become pioneers in the TDR program. Using TDR, these sending site owners must demonstrate that they have buildable lots and also negotiate for purchase of these rights with a receiving site owner.
Despite the lack of transfer activity, the Monterey County TDR program has already succeeded in helping to make the viewshed restrictions possible. According to County Zoning Administrator Dale Ellis, the public discussions on the Big Sur Land Use Plan and TDR program has also helped the community to create a consensus regarding the need to preserve the unique environment of Big Sur.