The Town of Sunderland, population 3,638 (2010), lies immediately north of Amherst, Massachusetts, the home of the University of Massachusetts and Amherst College. As reported by Robert E. Coughlin, Sunderland experienced a rapid surge of multiple-family residential development in the 1960s as a result of increased enrollment at the University of Massachusetts and population doubled.
In response to this growth, the Town considered a TDR ordinance in 1973. However, this proposal was rejected in favor of a more comprehensive planning process which included six citizen advisory groups. In the goal-setting phase, these groups identified a need to preserve farmland along the Connecticut River for scenic and open space purposes as well as agricultural use. However, it was also recognized that farmland preservation, without some form of compensation, could cause economic hardships for landowners in general and could specifically make it difficult for farmers to obtain loans to finance ongoing farming operations.
In 1975, a comprehensive zoning code amendment created critical resource districts in which all new development was required to obtain a special permit from the Zoning Board of Appeals. The amendment also contained a provision that preserved open space by allowing clustering in any district except the prime agricultural zoning district. In addition, the 1975 code included a TDR component which allowed transfers from prime agricultural districts to receiving areas. Zoning code amendments since 1975 do not appear to have changed the basic mechanism of Sunderland’s TDR program. Consequently, the Process section below is almost identical to the profile that appeared in Beyond Takings and Givings in 2003.
Sunderland’s sending sites are parcels within three overlay zones called special resource districts: the Prime Agricultural District, the Critical Resource District and the Watershed District. The Prime Agricultural District covers the farmland on the east side of the Connecticut River for the entire length of the Town. The Critical Resource District, which primarily covers riverbanks and steep slopes in the northern part of the Town, is an overlay zone designed to protect lands of critical importance from the standpoint of hydrology, water quality, erosion, natural habitat, scenic value, historic character and other environmental considerations. The Watershed District, which covers about 30 percent of the eastern portion of the Town including the headwaters of a brook, is designed to protect groundwater and surface water from land uses and structures which could contaminate or otherwise adversely affect water resources. Unlike the two other overlay zones, land within the Watershed District is limited to a minimum lot size of three acres.
Development in the special resource districts can only be approved by special permit after non-development alternatives have been explored. In one alternative, the developer must demonstrate that it would be infeasible to preserve the land in any of three ways: by transferring the development rights, using the major residential development process described below; by selling the development rights; or by selling the land to a public agency or a land preservation organization. In the other option, the Board of Appeals can grant the special permit without a demonstration that preservation would be infeasible; however, when this option is used, the Board must prohibit all on-site work for 120 days unless, within that 120 days, a Town Meeting votes on a proposal to acquire the land or the development rights.
A special permit application must be accompanied by a report detailing the effect of the proposed development on the environment, including surface and ground water hydrology, water quality, soil erosion, wildlife habitat, scenic features and historic resources. The Board of Appeals must consider the recommendations of the Conservation Commission and the Planning Board as well as hold a public hearing before making a decision on a special permit. The permit can only be granted if the Board makes written findings that the benefits of the proposed project outweigh all the potential adverse impacts in the areas of socio-economics, traffic, adequacy of infrastructure, neighborhood character, natural environment and fiscal impact. In granting special permits, the Board may impose whatever conditions are needed to achieve the purposes of the code.
These special permit requirements motivate the owners of land in special resource districts to explore the potential for using their land as sending sites under the TDR provisions of the major residential development approval process.
Sending sites need not be contiguous to the receiving sites or be in the same ownership as the receiving sites proposed for the major residential development. To create transferable development rights, sending sites must be preserved from nonagricultural or nonconservation uses either by perpetual deed restriction or by deeding the land to the Town or a preservation organization. The development units which can be transferred are calculated by determining the number of dwelling units which could be built on the deed-restricted land and multiplying by two. In other words, the program offers a two-to-one transfer ratio.
Receiving sites can be located in three of the Town’s four underlying zoning districts: Village Residential (VR), Rural Residential (RR) and Commercial (C). However, land within one of the three special resource district overlay zones cannot be a receiving site.
Transfers must be approved by special permit under an approval process called “major residential development”. If a project would produce more than six new dwelling units within a two year period, it must be approved through the major residential development process. Alternatively, the developers of smaller projects can also use the major residential development process in order to take advantage of special provisions such as transfer of development rights and flexible development standards. Using flexible development standards, major residential developments can have a greater number of substandard lots and can achieve minimum lot sizes that are one half the size required under normal zoning procedures.
In addition to flexibility in lot size and frontage, a major residential development can be awarded density increases if the proposed project incorporates affordable housing or if it uses development rights transferred from approved sending sites. An approved sending site must meet several requirements: it must be land in a special resource overlay district which the Planning Board, after a recommendation from the Conservation Commission, has found to be of special resource value because of wildlife habitat, fragile terrain or visual importance; the proposed sending site must abut an existing street; and it must be preserved for agricultural-conservation uses by a conservation restriction or because it will be deeded to the Town.
The proposed receiving site development can be granted up to 25 percent more density through TDR if the Planning Board determines that the proposed receiving site development provides resource protection through sensitive site selection and design.
Sunderland has many features found in successful TDR programs. The permit process needed to build in special resource districts gives land owners a motivation to consider transferring development rights rather than trying to use them on site. The two-to-one transfer ratio also provides an added incentive. On the receiving site, developers are encouraged to use TDR by the 25-percent density bonus as well as the ability to get exemptions from lot size and lot frontage requirements using the major residential development approval process.
However, the demand for transferred development rights may be reduced by a relatively slow rate of growth in Sunderland. The Town has a development rate limitation ordinance which limits building permits to a quota of 18 units per year, with exceptions for affordable housing and development on individual lots. This quota is based on historic growth rates in the Town, indicating relatively low development pressure. In fact, Sunderland’s population declined slightly in the decade between 2000 and 2010.
The TDR program was not used in its first five years, 1975 to 1980, partly because growth pressure subsided when the University of Massachusetts slowed its expansion. However, even though no transfers occurred, the Town largely succeeded in achieving its land use goals, since no farmland was reportedly lost to development in this five year period.
According to Tom Fydenkevez, Chairman of the Town Planning Board, the TDR process was used in 1992 when a 30-lot subdivision was approved with extra density provided by transferring development rights from two sending-site lots. The project was controversial because the sending site lots were considered by many to be undevelopable due to extremely steep slopes. As a result, the Town held public meetings to discuss further refinements in the TDR ordinance, adding provisions which ensure that proposed sending sites are actually developable.