VACo joins with VAR to develop model TDR ordinance

To encourage Virginia localities to adopt transfers of development rights (TDRs) ordinances, VAR and the Virginia Association of Counties (VACo) collaboratively developed a model ordinance. Right-click this link and select “Save target as…” to download a copy. Details about the partnership after the jump, courtesy of VACo.

The Virginia General Assembly first adopted statewide enabling legislation for local zoning ordinances permitting transfers of development rights (“TDRs”) in 2006. (Ch. 573, 2006 Va. Acts of Assembly). That legislation was amended in the 2007 legislative session to allow TDRs across county-city boundaries with the permission of the local governing bodies and circuit court approval. (Chs. 363 and 410, 2007 Va. Acts).

Although the original legislation resulted from a negotiated agreement between local government organizations and the development community, neither side moved forward quickly after adoption of the enabling legislation to implement TDR provisions in any Virginia locality. One identified obstacle was the requirement in the original legislation that the severance of development rights from one parcel and attachment of those rights to another parcel occur at the same time.
In an effort to remove that obstacle and make the TDR legislation more attractive to localities and developers, their representatives had intermittent discussions over the ensuing two years, eventually including representatives of realtors, environmental preservation groups and others.

Those talks led to the introduction and eventual adoption in the 2009 session of further amendments to the enabling Code sections. (Ch. 413, 2009 Va. Acts) In addition to allowing severance of development rights without their immediate reattachment to another property, the 2009 amendments provide for local taxation of the severed rights as a separate property interest during the time they are unattached to a specific land parcel, clarify the procedures for the TDR to occur, and generally attempt to make the enabling statutes easier to use.
In the course of negotiating the 2009 legislative changes, the negotiators recognized that development of a usable model ordinance might also help to spur localities’ adoption of TDR provisions. Accordingly, during the late summer and autumn of 2009, a group of representatives of the various stakeholders has held a series of meetings and produced the model ordinance provisions here being offered.

The work group that produced the model ordinance includes attorneys and lobbyists, planners, developers, appraisers and other real estate professionals. Collectively the work group has hundreds of years of experience dealing with land use and real property development issues. Special acknowledgement is due to our chairman and facilitator, John G. “Chip” Dicks, of FutureLaw, LLC, who participated as representative of the Virginia Association of Realtors, to Mr. Dicks’ partner Barrie Bowers, who served as our scrivener-in-chief, and to Ted McCormack of the Virginia Association of Counties, who coordinated the local government participation, handled scheduling and logistics, and served as host of our meetings. A full list of the participants and their organizations is attached.

Most members of the work group are generally comfortable with the model ordinance and hope others will find it useful. We encourage Virginia local governments to consider adoption of a TDR ordinance based on the model and the adjoining commentary, but local conditions and concerns obviously may require modifications before adoption. A list of general TDR resources in also included in this document.

We emphasize, however, that the model ordinance is the product of a group effort, that it has not been officially reviewed or endorsed by any of the work group participants or their employers or clients, and that it does not represent the official position or policy of any organization. We have tried to make the model ordinance consistent with the enabling Virginia statutes (Va. Code §§ 15.2 2316.1 and 15.2-2316.2) as they became effective on July 1, 2009, but we make no warranties of the model ordinance’s legality or enforceability, and disclaim liability for any deviations from the statutory authority, real or perceived.

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