The Town of Southampton in Suffolk County, population 56,790 (2010), stretches for 25 miles along the south shore of New York State’s Long Island, 80 miles east of New York City. Southampton’s shoreline is lined with villages. But the interior contains productive farmland and environmentally significant areas including the Pine Barrens, an undeveloped area located in the adjacent townships of Riverhead and Brookhaven as well as Southampton.
In 1970, a new comprehensive plan called for natural resource protection as well as other goals. Two years later, in 1972, Southampton decided to increase the flexibility of its environmental-protection effort by instituting a transfer of development rights program. That initial TDR program was designed to protect environmental resources in general, and, in particular, to maintain the overall ratio between population capacity at final community build-out and the safe yield of Southampton’s groundwater reservoir.
In that initial program, parcels had to meet certain criteria to qualify as sending sites including porous soils, aquifer recharge zones, farmland, tidal wetlands, affordable housing and land designated for greenbelts, parks, beaches and other recreational facilities. The transfer ratio was 1:1: density on the receiving sites was increased by the exact number of dwelling units precluded at the sending sites. Potential receiving sites were parcels of at least five acres in size within ten residential zoning districts. In each of these districts, a project using TDR was allowed to exceed the maximum density allowed in that zone as long as the density did not exceed the maximum allowed in the zoning district with the next highest density limit. In addition, sending and receiving sites had to be within the same school district.
In 1995, Southampton joined the adjacent towns of Brookhaven and Riverhead as well as Suffolk County and the State of New York in adopting a regional TDR program designed specifically to preserve the Pine Barrens. The Pine Barrens TDR program is discussed in a case study in The TDR Handbook (Island Press 2011).
Despite the adoption of the multi-jurisdictional Pine Barrens program, Southampton retained an amended version of the original TDR provisions in its codebook and added other TDR-like programs until, in the mid 2000s, Southampton identified the following code sections and programs as providing for TDR:
- Old Filed Maps (1979)
- Purchase of Development Rights Program (1982)
- Central Pine Barrens Overlay District (1995)
- Agricultural Planned Development District Ch. 330-248 (2001)
- Density Incentive, Carriage House, Workforce Housing Ch. 330-9 (last revised 2001)
- Planned Development Districts (PDD) Ch. 330-248, 1995)
- Hamlet Office/Hamlet Commercial (HO/HC)
- TDR Certificate Program Chapter 244 (2001 and amended 2010)
The TDR Certificate Program (Chapter 244) is the subject of the following Process section.
TDR was proposed in the 1999 Comprehensive Plan as a tool to reduce density on farmland, environmentally-sensitive lands and scenic vistas. In 2001, Southampton implemented this recommendation with Chapter 244, TDR Certificate Program, which created sending areas within the Agricultural Overlay District and the Aquifer Overlay District. Chapter 244 was subsequently “amended in its entirety” in 2010. This Process section is based on the version that appeared in the Town Code on October 30, 2011.
Chapter 244 is intended to implement the 1999 Comprehensive Plan Update’s call to protect natural, scenic and agricultural qualities of open land, areas of special character or special historic, cultural or aesthetic interest or value. It is designed to work in conjunction with the Town’s Community Preservation Fund (CPF) which uses a two-percent real estate transfer tax to fund a TDR program under New York Town Law 261-a. Specifically, the Town can use real estate transfer tax funds to buy and bank development rights which it then sells, turning what would otherwise be a one-time use of CPF money into a revolving preservation funding source.
The Administrator of the Land Management Department determines whether a proposed parcel qualifies as a sending site based on criteria found in the Comprehensive Plan, the Town Code or the CPF Project Plan. The Administrator can also approve sites that meet the criteria mentioned in the paragraph above. Yield plans are prepared for proposed sending sites to determine the number of lots that each site could actually accommodate based on the site’s zoning in 2001 when the new version of the TDR code was initially adopted. Code contains formulas for calculating the number of TDRs available to a sending site based on its underlying zoning. Nonresidential zones are allocated one development right per acre. The Administrator of the Land Management Department issues a development right allocation letter based on these calculations. Once the landowner records a conservation easement on the sending site, the Administrator issues a development rights certificate and the landowner can sell the resulting development rights to receiving area developers.
TDRs from the TDR Certificate Program, as well as other Southampton TDR programs, can be transferred to a wide variety of receiving areas including the following.
- Residential Receiving Area District (Article XXV, 330:230-234)
- Old Filed Map Overlay District (330:54-56)
- Special Old Filed Map Overlay District (330: 59-60)
- Residential Districts (330:9) Density Incentive
- Planned Development District (Article XXVI, 330: 240-244)
This profile focuses on one of these options, the Residential Receiving Area District (RRAD). A RRAD is a floating district that the Planning Board can independently approve in order to accommodate the increased density created by TDRs in places that are appropriate for flexibility in development regulations. RRADs cannot be located within the Tidal Wetland or Ocean Beach Overlay districts or within Central Pine Barrens core preservation or critical resource areas. Beyond those prohibitions, the Planning Board can select sites that result in developments that will be beneficial and compatible with their surroundings and not cause significant adverse environmental impact.
Once a RRAD is established, developers who comply with all development and TDR regulations can achieve the allowable bonus density as a matter of right. The baseline is determined by a yield map prepared according to existing zoning. Each dwelling unit in excess of baseline requires one TDR. The maximum density allowed in a RRAD is two dwelling units per acre. Unless approved by a supermajority of the Town Board, the RRAD must be in the same school district as the sending site.
Southampton now has a TDR Clearinghouse. Unlike the way this term is used in many other programs, in Southampton, the Clearinghouse buys, holds and sells TDRs. This greatly facilitates the use of TDRs and allows the Clearinghouse to pursue funding, set purchase and sale prices as well as market the program.
In a study published in 1981, Robert E. Coughlin reported the original Southampton program had experienced only one TDR transaction between 1972 and 1980. In that transfer, a single property owner transferred 18 TDRs from a sending site that would have been expensive to develop at another parcel that he also owned. Another transfer was attempted in the early 1970s but failed due to neighborhood opposition to the proposed density of the receiving site project.
In 1995, Principal Planner David Wilcox reported that sending site owners were interested in original TDR program because sending sites often have problems with environmental regulations, infrastructure and other constraints which make it more profitable to transfer development rights rather than develop on site.
For example, the Town’s first transfer involved a long, narrow sending site that would have been difficult to provide with infrastructure. This sending site, a pine woodland surrounding a pond and stream, is now protected as Suffolk County parkland. The parkland status achieves the program’s objectives of preserving groundwater and protecting ecological environments as well as conserving open space for recreational facilities. The original Southampton TDR program was used three times between its initial adoption and its replacement by the current programs. In these early transactions, 48 dwelling units were transferred and 163 acres of environmentally-sensitive land were preserved.
The combination of the CPF with the new TDR program will be well worth watching over the coming years. The annual report of the CPF suggests that this program, which gets its initial funding from real estate transfer taxes, has made almost 200 separate acquisitions of property in Southampton representing the preservation of an estimated 2,800 acres of land. However, more investigation would be needed to determine how much of that total qualifies as sending area under the TDR program, how many TDRs have been severed and banked, how many of these TDRs have been sold to receiving area developers and the amount of money that was able to be reapplied to other preservation projects as a result.