Transfer of Development Rights
Source: Cape Cod Commission Model Bylaws and Regulations
Transfer of Development Rights Bylaw/Ordinance
for Towns in Barnstable County, Massachusetts
The Cape Cod Commission has created a model bylaw for use by towns in Barnstable County to implement a transfer of development rights program. The model bylaw was drafted by the environmental services consulting firm of Horsley & Witten, Inc., in Barnstable, and the Boston law firm of Robinson & Cole.
The intent in drafting the model TDR bylaw is to give the towns in Barnstable County a starting point from which they can develop their own bylaws. It is possible that a local bylaw might be virtually identical to the model or might vary substantially, depending upon local conditions. The Cape Cod Commission would welcome the opportunity to work with individual towns on crafting their own bylaws.
The TDR concept is actually quite simple, although the complexities of the model bylaw probably suggest that the TDR concept is more complex. Think of residential clustering. Instead of one house on a one-acre lot, clustering allows smaller lots, clusters the houses together and sets aside substantial areas of open space for public or private use.
Residential clustering moves the development potential (the development rights) from the area to be preserved as open space into the area proposed for the cluster. The density of development in the open space goes to "0" and the density of development in the area where the homes are clustered is greater than one house per one acre.
This is the essence of transferring development rights. When all is said and done, unless the community offers significant density bonuses, the overall density in the community or region does not change, because the density is merely being moved from one place to another. The result, in terms of land development and land conservation, is that areas capable of somewhat higher densities receive those densities and areas of special interest for preservation can be preserved.
This concept has worked in many different settings, most notably the Pinelands of New Jersey and Montgomery County, Maryland. It can work for Cape Cod, but it certainly should not be seen as the perfect way to address growth management problems. Instead, the TDR technique is one instrument in a large orchestra of ways that we can address the complexities of land conservation, development and the protection of private property rights.
The annotations and commentary which follow use the numbering and headings of the model bylaw. These annotations and commentary will not be part of your bylaw, but will serve as a "legislative history" of the intent of the drafters and the interpretation to be given to terms and provisions.
Despite the drafters' best intentions, there is no true "model" bylaw/ordinance, particularly in an area as diverse as Cape Cod. Towns are encouraged to revise the text and annotations within this bylaw/ordinance as they determine appropriate.
01.0 Purpose and Intent: This bylaw enables the transfer of development potential from one parcel to another. The transfer of development rights makes it possible to greatly restrict or even prohibit development entirely in one area (called the Preservation or Sending District) where there is a sensitive resource, such as a wellhead protection area, and transfer those development rights to another area (called the Receiving District) where there are little or no impediments to higher density, such as an "urban core" with public water and sewer. The density is transferred from a "sending" parcel to a "receiving" parcel.
By creating receiving parcels as markets for the sale of unused development rights in the sending parcels, TDR programs encourage the maintenance of low-density land uses, open spaces, historical features, critical environmental resources, and other sensitive features of the designated sending parcels. When the owner of a sending parcel sells development rights to the owner of a receiving parcel, the purchaser thereby increases the development rights beyond otherwise permissible limits. In this manner, local governments can protect a variety of sensitive features while providing a mechanism to compensate any perceived diminution in land development potential.
TDR programs are consistent with the purpose of the Cape Cod Commission Act and planning efforts at the local government level to further the conservation and preservation of natural and undeveloped areas, wildlife, flora and habitats for endangered species; the preservation of coastal resources including aquaculture; protection of ground water, surface water and ocean water quality, as well as the other natural resources of Cape Cod; balanced economic growth; the provision of adequate capital facilities, including transportation, water supply, and solid, sanitary and hazardous waste disposal facilities; the coordination of the provision of adequate capital facilities with the achievement of other goals; the development of an adequate supply of affordable housing; and the preservation of historical, cultural, archaeological, architectural and recreational values.
Commentary: The purpose and intent provisions describe why the bylaw has been developed and what purposes it intends to serve. It is partly an educational component to help the public and the users of the bylaw understand what transferable development rights are and how they might be used to preserve special areas.
02.1 Preservation District. An overlay zoning district established by the Town Meeting/Town Council upon recommendation from the Planning Board as an area in which use or development should be restricted.
Commentary: An overlay district is a type of district that lies on top of another, like a bedspread over a blanket. The blanket is the underlying zoning district, such as a single family detached zone with 10,000 square foot lots. With TDR, that underlying zone doesn't change. Instead, like the bedspread over the blanket, we lay the Preservation District requirement and, as you'll see, the Receiving District also, over portions of the underlying zone or zones. They also don't have to line up perfectly. The overlay district may cover only part of a regular zone or may cover part of several underlying zones.
All of the provisions of the underlying zones remain the same, including use, density, setbacks and the like. All of the procedures for the underlying zones remain the same.
What changes is that there is now a new and additional requirement, in the case of the Preservation District, to meet certain preservation objectives by moving development potential out of that area into another area. Note that the phrase "Preservation District" has been referred to by other jurisdictions as "Sending District" or "Donor District." This regulation uses the phrase "Preservation District" exclusively.
02.2 Receiving District. An overlay zoning district established by the Town Meeting/ Town Council upon recommendation from the Planning Board as an area suitable to receive transferred development rights.
Commentary: The Receiving District is another overlay zone which is likely to be one that has some special ability to take on extra density. The Receiving District in most towns will probably have public water and sewer, an improved road infrastructure, and sufficient land and market demand to absorb additional density. As much care must be taken in identifying and delimiting Receiving Districts as in picking out the Preservation Districts. Sensitivity must be given to the land economics -- will there be sufficient demand in the Receiving District to encourage the sale and transfer of development rights from the Preservation District?
It is likely the towns will find themselves adjusting the Preservation District and the Receiving District as they refine their TDR programs, expanding and shrinking some districts and adjusting the incentives for transfer.
02.3 Development Rights. Those rights to develop, expressed as the maximum number of dwelling units per acre for residential parcels or square feet of gross floor area for nonresidential parcels, that could be permitted on a designated sending parcel under the applicable zoning and subdivision rules and regulations in effect on the date of the transfer of development rights. Determination of the maximum number of development rights available for transfer shall be made by the Special Permit Granting Authority as presented in Section 05.2.
Commentary: Development rights is how we measure density that is allowed to be transferred out of the Preservation District and into the Receiving District. It's not easy to pick the "exchange rate" for such transfers, but here we have identified dwelling units per acre for residential parcels and gross floor area for nonresidential parcels.
In a residential zone, each lot, regardless of size, would have one development right associated with it. In a nonresidential zone, each parcel would have associated with it the number of square feet of building that could be built in a maximum buildout scenario.
02.4 Transfer of Development Rights (TDR). The transfer from a sending parcel to a receiving parcel of development rights.
Commentary: This is the actual transfer or movement of the development rights from one parcel to another. This is done by a legal instrument in the form of a contract which is able to be recorded on the land records.
02.5 Sending Parcel(s). Parcel(s) of land within a Preservation District from which development rights may be transferred.
Commentary: Sending parcels are lots or groups of lots forming a contiguous parcel in a Preservation District from which development rights are transferred.
02.6 Receiving Parcel(s). Parcel(s) of land within a Receiving District to which development rights may be transferred.
Commentary: Receiving parcels are lots or groups of contiguous lots in a Receiving District that will receive development rights and be developed at higher-than-normal densities.
02.7 Major Developments. A proposed development project that, due to its size, location or character, could adversely affect the community or region. These developments include:
Subdivision of 15 acres or more;
Development of 15 or more residential lots or dwelling units;
Development of 5 or more business, office or industrial lots;
Commercial development or change of use for buildings greater than 10,000 square feet;
New construction or change of use involving outdoor commercial space of greater than 40,000 square feet.
Commentary: Major developments are those which the Town considers of significant size or capable of significant impact, such that, if pursued within a Preservation District, would likely threaten public health, safety or the general welfare of the community. The Major Developments noted above are examples of thresholds towns may want to consider. Towns are free to alter the thresholds as they deem appropriate.
02.8 SPGA. The special permit granting authority, as set forth in Section 06 of this bylaw.
Commentary: This is the local authority having the power to grant special permits. The TDR bylaw uses special permits in connection with the transfers. Massachusetts law allows Towns to choose either the planning board, board of selectman or board of appeals as the special permit granting authority. As noted in Section 07.0, the planning board is the recommended SPGA under this bylaw.
03.0 Restrictions on Development in Preservation Districts
Land owners who desire to protect sensitive environmental areas may voluntarily sell development rights from sending parcels and enter into permanent development restrictions on those parcels.
If located within a Preservation District, a land owner may either:
03.1 Existing Density Controls
comply with all existing density limitations imposed by regulations adopted by Town Meeting/Town Council as well as those that may be imposed as a condition of a special permit and effective at the time of application for approval of the proposed development;
03.2 Permanent Development Restrictions
permanently restrict from future development the land area proposed for development or land area of the same zoning designation within the Preservation District totaling not less than 100% of the total land area of similar quality, character and development potential on which development is proposed.
Upon receipt of a special permit for development within a Preservation District, where such special permit is conditional upon the voluntary, permanent restriction of development rights set forth in Section 03.2, the land owner may sell or otherwise transfer those development rights affected by such restrictions to a Receiving District according to the guidelines of Section 05.0.
Commentary: This provision gives a property owner in a Preservation District three choices. They can develop under the existing controls without doing any transfers, subject only to the granting of permits required by the zoning bylaw/ordinance in effect.
The second alternative is to agree to restrict all or part of the development site and then transfer the development rights from that portion which is restricted.
The third alternative is to agree to restrict all or part of a different site within the Preservation District than the one proposed for development, containing at least the same area of land as the site scheduled for development and of the same quality, character and development potential as the site to be developed. "Quality, character and development potential" is a phrase used to ensure that the land restricted is roughly equal -- of similar development potential and relationship to the preservation goals of this regulation -- to the land being developed. For example, if the land to be developed is 100 percent upland, the SPGA should ensure that the land restricted is not 100 percent wetland. Of course, this regulation gives flexibility to both the applicant and the SPGA in preserving land and resources, so no specific formula can be given.
The Town may wish to offer an incentive to landowners/developers to transfer their development rights. This incentive is most often established by granting "density bonuses." These bonus provisions are discussed in greater detail in Section 05.0, below.
Some TDR programs mandate the transfer of development rights. This bylaw/ordinance provides Towns with both voluntary (Section 03.0) and mandatory (Section 04.0) provisions. With the right balancing of the size of the Preservation and Receiving Districts, and the application of proper incentives, it is believed that a voluntary system will work for many developments, and a mandated system should be established for Major Developments within Preservation Districts. It is important to note, however, that even with a voluntary system for all developments, Towns should consider appropriate downzonings (increase in minimum lot sizes) to increase the attractiveness of the TDR option. Of course, part of the effort should be educational and political -- political in the best sense of the word -- in encouraging property owners in the Preservation Districts to actively participate in preserving critical resources.
04. Major Developments and Restrictions on Development in Preservation Districts
A land owner proposing a Major Development in a Preservation District shall comply with Section 04.1 or 04.2, below.
04.1 Permanent Development Restrictions of Similar Land Area
Permanently restrict from future development land area of the same zoning designation within the Preservation District totaling not less than 100 percent of the total land area of similar quality, character and development potential on which development is proposed.
04.2 Permanent Development Restrictions
Upon transfer of the development rights, permanently restrict from future development the land area proposed for development.
Commentary: Special, additional controls may be imposed when there is a Major Development in a Preservation District.
Where there is proposed to be such a development, the property owner will have two choices. First, they can develop on their land so long as they set aside and restrict from all future development an area of land equal to or greater than that which they propose to develop. The rationale for this is that Major Developments cause significant impacts and the Preservation Districts are not capable of sustaining development at the underlying densities. This alternative allows the land owner falling within Section 04.0 to restrict all or part of a different site within the Preservation District than the one proposed for development, containing at least the same area of land as the site scheduled for development and of the same quality, character and development potential as the site to be developed. "Quality, character and development potential" is a phrase used to ensure that the land restricted is roughly equal -- of similar development potential and relationship to the preservation goals of this regulation -- to the land being developed. For example, if the land to be developed is 100 percent upland, the SPGA should ensure that the land restricted is not 100 percent wetland. Of course this regulation gives flexibility to both the applicant and the SPGA in preserving land and resources, so no specific formula can be given.
The other alternative, and much preferred both in terms of sound land planning and in the property owner's economic interest, is the imposition of permanent development restrictions under Section 04.2 and the transfer of the development rights to a Receiving District.
Note : Both Sections 03.0 and 04.0 can be included in a Town's adoption of this bylaw/ordinance as Section 03.0 establishes a voluntary TDR program and Section 04.0 establishes a mandatory TDR program for Major Developments. Towns are free to include both or only one of these Sections.
An additional note of caution: In Suitum v. Tahoe Regional Planning Agency , 117 S.Ct. 1659 (1997), the United States Supreme Court inferred, but did not expressly state, that a mandatory transfer of development rights program may constitute a regulatory taking where a land owner was left with no economic value of the land from which development rights were to be transferred (a sending parcel). At issue for towns considering the adoption of this bylaw, specifically the provisions of Section 04.0, above, is whether enforcement of Section 04.0 could lead to a successful claim that the town deprived a landowner of economically viable use of his or her land. The likelihood that a reviewing court would find that a regulatory taking has occurred turns on the two pronged test established over the past sixty years, and clearly expressed in Agins v. City of Tiburon , 447 U.S. 255 (1980).
In Agins , the U.S. Supreme Court explained that a regulatory taking occurs where government's legislative actions fail to advance a legitimate governmental interest (the so-called "first prong") or deny a landowner economically viable use of his land (the so-called "second prong").
This bylaw undoubtedly satisfies part one of the Agins test. At issue is whether part two-- the requirement of leaving a landowner with some economic value -- will be satisfied if Section 04.0 above is implemented.
Cape Cod Commission staff counsel believes that the provisions of Section 04.0 above will not constitute a regulatory taking, as defined by Agins and subsequent takings case law, as Section 04.0 only applies to developments over a prescribed threshold. For example, a landowner proposing to develop 15 residential dwelling units within a defined Preservation District could avoid the requirements of Section 04.0 by developing fewer than 15 dwelling units. Because the mandates of Section 04.0 could be avoided in such a manner, the Agins requirement is not violated and a regulatory taking has not occurred.
Despite confidence that application of Section 04.0 will not constitute a regulatory taking, towns are strongly advised to discuss this matter in detail with counsel before proceeding with the adoption of Section 04.0. This cautionary note does not apply to the remainder of this regulation however, as adoption of a voluntary transfer of development rights program does not raise the same regulatory takings issues as discussed above.
05.0 Guidelines for Transfer of Development Rights
05.1 Schedule of Development Rights and Density Bonus Analysis
Subject to approval by the SPGA, development rights from sending parcel(s) may be transferred to receiving parcel(s) proposed by the applicant and identified by assessor's map and approved by the SPGA.
Where the economic development potential, infrastructure capacity and other relevant factors in a receiving parcel are suitable in the judgment of the SPGA to support additional development, the SPGA may award density bonuses up to 1.5 development rights received for each 1 development right transferred from a sending parcel.
05.2 Determination of Development Rights to be Transferred
To establish the development rights available for transfer, the SPGA may require the applicant for residentially zoned land to submit a preliminary or more detailed subdivision plan, as defined by the town's subdivision rules and regulations, to illustrate the number of lots or dwelling units. The SPGA may require the applicant for non-residentially zoned land to submit a site plan showing the square footage available for transfer.
Commentary: This section may be difficult to read at first, but upon further study you should find it fundamentally simple.
As we've noted, the "coin of the realm" for development rights is either a dwelling unit or a gross square foot of commercial space. When the transfer of the development rights occurs, it is measured in those terms.
However, to provide an additional incentive for transfers where the Receiving District has sufficient capacity to accept additional density, the special permit granting authority may give additional density bonuses up to 50 percent of the rights transferred, or as we say in the model bylaw, 1.5 times the development rights transferred in total.
For example, assume a Preservation District includes a parcel that could be developed with 20 lots. There are 20 dwelling units available for transfer. A developer in a Receiving District has a site that would be appropriate for additional dwelling units, above and beyond the existing density. That developer negotiates the purchase of the development rights from the property owner in the Preservation District.
Subject to approval of the special permit granting authority, more than the 20 units may be transferred from the sending parcel in the Preservation District to the receiving parcel in the Receiving District. In fact, up to 30 dwelling units may be transferred, thereby giving the property owner who is selling the development rights a large bonus in providing the developer who is going to use those dwelling units with an opportunity to negotiate for all 30 units.
But suppose that land in the Preservation District is undeveloped? How are we going to figure out what the development density would be at buildout without actually going through a full development process?
The model bylaw requires the owner of residentially-zoned land in a Preservation District to submit a preliminary subdivision plan as the best evidence of what might be developed.
We expressly want to avoid any burdensome expense on the property owner in the Preservation District. All that is necessary here is to reach a fundamental agreement on what a probable buildout will be. Because the property is not actually being developed and because the preliminary subdivision plan is not going to be "approved" in any formal sense, we would expect that towns will usually accept the density estimates of the property owners and that the process will generally not be adversarial (though we realize at times there will be disagreements). There may be some cases, however, where, given the nature of the parcel or the sensitivity of a particular resource, the planning board is not comfortable relying on generalized estimates of development potential. In those cases, the board should ask for more information regarding the site's development options, including the presence of wetland resources, steep slopes, access limitations or other constraints that would otherwise limit development.
On non-residentially-zoned land, the special permit granting authority may (note that we say "may" because this is totally discretionary) require the applicant to submit a site plan. Again, this is a conceptual or sketch plan only showing the basic development requirements so that a reasonable estimate of the gross square footage can be determined.
06.1 Preservation Districts
Preservation Districts are overlay districts, shown on the zoning map, which include, but are not limited to, the following natural resource areas identified in the Cape Cod Regional Policy Plan and/or the Town's Local Comprehensive Plan.
- Wellhead protection areas.
- Fresh water recharge areas.
- Potential public water supply areas as mapped by the Cape Cod Commission or the Town.
- Land designated under G.L. c. 61, 61A and/or 61B.
- Locations of historic and/or cultural significance.
- Land areas adjacent to permanently protected open space.
- Land areas providing public access to an ocean, forest or other resource.
- Significant natural resources such as rare species habitat, unfragmented forest areas and similar natural areas deserving inclusion in the Preservation District.
Commentary: Here are listed seven recommended districts, but there may be more or less depending upon the needs and the situation of individual towns. In these Preservation Districts towns may want to identify varying incentives, eliminate incentives in some types of areas, give partial incentives (such as a 1.3 to 1 ratio) with some types of natural resources (e.g. fresh water recharge areas: 1.3. to 1 ratio; locations of historic significance: 1.2 to 1 ratio, etc.) and give a maximum percentage in yet others. Or, they can adopt this section as it is and use their discretion in all types of areas.
06.2 Receiving Districts
Receiving Districts are overlay districts, shown on the zoning map, in districts/zones in the town defined as a growth activity center by the local comprehensive plan and/or zoning bylaw/ordinance and shall not include any areas included within Section 06.1. The Planning Board, as a condition for designating a Receiving District, shall prepare an infrastructure and timing of construction plan(s) with the location, cost and method of financing infrastructure required by the TDR. This plan shall be adopted by Town Meeting/Town Council as part of the Receiving District designation. Unless otherwise specified by the Town, a Receiving District zoned residential shall not receive development rights from non-residential sending parcels.
Commentary: Receiving Districts will be located in areas capable of supporting additional development. A careful planning process is essential to ensure that adequate infrastructure is in place. Towns should be prepared to adjust Receiving District boundaries, making them larger or smaller as the need arises.
07.0 Review by Special Permit Granting Authority (SPGA)
The Planning Board shall be designated as the SPGA under this bylaw. In reviewing a proposed development under this bylaw, the SPGA shall apply this criterion to applications for a special permit under Sections 03 and 04 in addition to other relevant special permit criteria provided for in the zoning bylaw/ordinance.
07.1 The SPGA shall require, as a condition for special permit under this bylaw, where the land owner opts to permanently restrict development in accordance with Section 03.3, that the record owner of sending parcel(s) in the Preservation District record at the Registry of Deeds a conservation restriction running in favor of the town as set forth in Section 09.3.
Commentary: As noted above, all of the TDR transfers must be approved by the special permit granting authority. Documents must be in recordable form. The Cape Cod Commission will consult with towns in developing their documentation for these transfers.
08.0 Intergovernmental Transfer of Development Rights
08.1 Required Town Action
The Town Meeting/ Town Council of towns in Barnstable County may, by bylaw/ordinance, approve a joint program for TDR including transfers from sending parcel(s) in one town to receiving parcel(s) in another. Such bylaw shall designate which portions of the town will be designated as Receiving Districts for TDR originating from outside the town's corporate boundaries. A town may designate Receiving Districts for inter-town transfers that are the same as, or different from, those designated for intra-town transfers.
08.2 Satisfaction of Transfers of Development Rights
If authorized by the recipient town(s), the TDR authorized by Section 05. may be satisfied by the restriction and transfer of development rights in more than one town.
08.3 Determination of Development Rights to be Transferred
To establish the development rights available for transfer, the SPGA of the recipient town may require the applicant for residentially-zoned land to submit a preliminary or more detailed subdivision plan, as defined by the town's subdivision rules and regulations, to illustrate the number of lots or dwelling units. The SPGA may require the applicant for non-residentially zoned land to submit a site plan showing the square footage available for transfer.
08.4 Recipient Approval
Inter-town TDRs require a special permit from the SPGA of the town with receiving parcel(s). The SPGA of the town receiving TDRs shall notify the Planning Board of the town from which the development rights are being transferred of the date of the public hearing required by G.L. c. 40A §11, in a manner and time coincident with the SPGA's notification of parties in interest to the special permit public hearing.
Commentary: We have the unique opportunity on Cape Cod to do something that so far as we know has not been done elsewhere in the country -- allow the transfer of development rights between towns.
As part of its bylaws, a town meeting/town council may approve a joint program with one or more other towns to transfer development rights between them.
The special permit granting authority in the town receiving the TDRs is required to notify the planning board of the town from which the development rights are being transferred. The special permit granting authority in the town from which the development rights are to be transferred will necessarily need to conduct some type of proceeding to authorize any bonuses for transfer. Thus, bonuses should be coordinated with the receiving town so that there is mutual agreement enabling the orderly transfer.
09.0 Title Recordation, Tax Assessment and Restriction of Development Rights
09.1 All instruments implementing the transfer of development rights shall be recorded in the manner of a deed in the Registry of Deeds of the jurisdiction for both sending and receiving parcels. The instrument evidencing such TDRs shall specify the lot and block number of the sending parcel(s) and the lot and block number of the receiving parcel(s).
09.2 The clerk of the Registry of Deeds shall transmit to the applicable town assessor(s) for both the sending parcel(s) and receiving parcel(s) all pertinent information required by such assessor to value, assess and tax the respective parcels at their fair market value as enhanced or diminished by the TDRs.
09.3 The record owner of the sending parcel(s) shall, within forty-five (45) days of receipt of a special permit authorizing TDRs, record at the Registry of Deeds a Conservation Restriction as defined by G.L. c. 184 §§31-33 running in favor of the town prohibiting, in perpetuity, the construction, placement or expansion of any new or existing structure or other development on said sending parcel(s). Evidence of said recording shall be transmitted to the Planning Board of the town in which the restriction has been placed, indicating the date of recording and deed book and page number at which the recording can be located. The grant of the special permit to transfer development rights shall be conditioned upon such restriction, and no special permit for a transfer of development rights shall be effective until the restriction noted above has been recorded at the Registry of Deeds.
Commentary: This section requires the conveyancing documents to be recorded in the Registry of Deeds in the jurisdiction for both the sending and receiving parcels so that they are of record and lenders and perspective purchases and others interested in the status of title will know that the property has been restricted or has been unable to be developed at higher densities.
Importantly, these transfers are going to have an impact on real property taxes. Where properties are restricted in a Preservation District, their taxes should decrease. This is a substantial incentive for the transfers.
On the other hand, in the Receiving Districts, the additional density approved as part of the transfer is likely to enhance property values and result in somewhat higher taxes.
The restrictions recorded at the Registry of Deeds also help ensure that the preserved properties will not be developed.
Please note that a Conservation Restriction is not effective for purposes of this bylaw and does not acquire perpetual status until the restriction has been approved by the Secretary of Environmental Affairs, as specified in G.L. c. 184 §§31-32. Therefore, the applicant for a TDR must commence the conservation restriction approval process well in advance of the anticipated date of receipt of the special permit.
0.10.1 If any provision of this bylaw is held invalid by a court of competent jurisdiction, the remainder of the bylaw shall not be affected thereby. The invalidity of any section or sections or parts of any section or sections of this bylaw shall not affect the validity of the remainder of the [town]'s zoning bylaw.
Commentary: This Section is a generic severability clause. Severability clauses are intended to allow a court to strike or delete portions of a regulation that it determines to violate state or federal law. In addition, the severability clause provides limited insurance that a court will not strike down the entire bylaw should it find one or two offending sections.
While TDR programs have succeeded in several areas around the country, no one has tried a program quite like this one. The successful TDR programs elsewhere generally involve large areas of land with homogenous natural resources, such as the pinelands in New Jersey or the agricultural lands in Montgomery County. Development pressure exists in the areas to be preserved in these TDR programs, but is nowhere near as great as it is on Cape Cod.
The TDR program for Cape Cod will operate under obviously different conditions, but it can work. And for towns that adopt this technique, property owners in the areas to be preserved, property owners and developers in the areas to which the density is going to be transferred, and all of the citizens of the town and Barnstable County will benefit. This is indeed potentially a win-win-win way of managing land conservation, land development and property rights. It is possible by moving this density, as we have learned to do over many decades with clustering, to maintain the buildout density, preserve land values, and enable continued and sustainable development for the benefit of everyone. First, finally and foremost, is sustainability--by preserving those critical resources which are essential for the maintenance of life, we enable future generations to live and work on Cape Cod on a sustainable basis.