Transfer of development rights' zoning gets boost from Legislature.

Byline: Benjamin Fierro III

Amendments to the Zoning Act, G.L.c. 40A, aren't usually included in legislation authorizing the sale of general obligation bonds by the state. Nevertheless, that happened this year when the Legislature amended the Zoning Act to promote the greater use of "transfer development rights" zoning.

The amendments were hidden deep within the 103 sections of a $2.4 billion environmental bond bill signed into law by Gov. Charlie Baker in August. See St. 2018, Chapter 209, 15, 16.

What is TDR zoning?

The American Planning Association defines transfer of development rights or TDR zoning as "the yielding of some or all of the right to develop or use one parcel of land in exchange for a right or use another parcel of land more intensively."

Municipalities generally use TDRs when they seek to preserve land in an undeveloped or less-developed state without financially compensating property owners. Instead, municipalities will allow property owners higher densities or more intensive uses elsewhere in the community.

Because property owners are granted the ability to transfer their right to develop that land to another parcel, they technically have not suffered a taking of land without compensation, even if the use of one parcel of land is forbidden.

History of TDR zoning

The U.S. Supreme Court first recognized the use of TDR zoning when it upheld New York City's Landmarks Preservation Law, which sought to protect historic buildings such as Grand Central Terminal. See Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). See also Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725 (1997).

TDR zoning is not a new concept in Massachusetts. Communities such as the city of Northampton and the town of Groton have long provided for the transfer of land development rights between adjacent parcels, acting pursuant to their "home rule" authority under the state constitution.

Explicit authority to adopt local zoning ordinances or bylaws that authorize the transfer of development rights of land within or between districts by special permit was granted to municipalities by the Legislature in 2002. See St. 2002, Chapter 197.

The zoning bylaws of the towns of Acton and Townsend are good examples of TDR zoning adopted pursuant to that amendment to the Zoning Act.

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The amendments were hidden deep within the 103 sections of a $2.4 billion environmental bond bill signed in August.

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Community interests and planning

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