Amicus Curiae Brief — Suitum v. Tahoe Regional Planning Agency

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TABLE OF CONTENTS

Page

TABLE GP AUTIRORIEEES 2. cc ccccccccccccccces ill

INTEREST OF AMICI CURIAE ................. l

STATEMENT OF THE CASE ................... 3

SEE CRG pee PkwvacKevcncdccnenccccesces 3

I. PETITIONER’S CLAIM IS NOT RIPE BECAUSE

SHE HAS FAILED TO APPLY TO TRPA TO

TRANSFER HER DEVELOPMENT RIGHTS, AND

THUS THE COURT LACKS AN ADEQUATE

BASIS TO EVALUATE THE ECONOMIC IMPACT

OF THE LAND-USE RESTRICTIONS ON HER

SEE GU Cans cecbeecencécetsedecoencs 4

II. IT WOULD NOT BE FUTILE FOR PETITIONER

TO APPLY TO TRANSFER HER DEVELOPMENT

RIGHTS, AS SUCH AN APPLICATION WOULD

ALLOW HER TO ENJOY A CONSTITUTIONAL -

LY SUFFICIENT USE OF HER PROPERTY .... 8

A. Nationwide Experience With TDR Programs

Demonstrates That TDRs Are Marketable and

Provide a Constitutionally Sufficient Use of

FEMALE POST TE TTT TT TT TTT TTT Tee 9

TABLE 1: Nationwide Examples of Operating

Transfer of Development Rights Programs .. 14

B. This Court Has Expressly Accepted the Role

of TDR Programs in Determining Whether

Private Property Retains a Constitutionally

RE 22

III. EVEN IF IT WERE RIPE, PETITIONER’S TAKING

CLAIM WOULD FAIL UNDER THIS COURT’S

PRECEDENTS BECAUSE SHE HAS FAILED TO

SATISFY THE CONSTITUTIONALLY REQUIRED

STANDARDS .ncccscesccccccecsseneeneenee

CONCIATIIUIN onc ccccccccccsecesnsseueenenennee

TABLE OF AUTHORITIES

Page

CASES

Agins v. City of Tiburon,

a beh cecccctcoseecss 4,5,8

American Savings & Loan Ass'n v. County of Marin,

653 F.2d 364 (9th Cir. 1981) .............. 10

Aptos Seascape Corp. v. County of Santa Cruz,

138 Cal. App. 3d 484,

ED so bd cccccccccees 10

Carpenter v. Tahoe Regional Planning Agency,

804 F. Supp. 1316 (D. Nev. 1992).......... )

City of Hollywood v. Hollywood, Inc.,

432 So.2d 1332 (Fla. App. 1983)........... 11

Gardner v. New Jersey Pinelands Comm'n,

125 N.J. 193, 593 A.2d 251 (1991) ........ 10, 13

Glisson v. Alachua County,

558 So.2d 1030 (Fla. App. 1990)........... 9,10

Hodel v. Virginia Surface Mining & Reclamation Ass'n,

ek cn odedbeueccevcce 4

Lucas v. South Carolina Coastal Council,

EEE TET 24

MacDonald, Sommer & Frates v. Yolo County,

EES 4,8

Matlack v. Board of Chosen Freeholders,

191 N.J. Super. 236, 466 A.2d 83 (1982),

aff d, 194 N.J. Super. 359, 476 A.2d 1262

a 10

Penn Central Transportation Co. v. New York City,

438 U.S. 104 (1978) ............ 2, 11, 23-24, 26

United States v. Riverside Bayview Homes, Inc.,

I ob cdducwceecccocene 4

West Montgomery County Citizens Ass'n v. Maryland-

National Capital Park & Planning Comm'n,

309 Md. 183, 522 A.2d 1328 (1987) ........ 9

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985) ...... 4,5,8

STATUTES

BO TEBE, BEG i cdc ceed Svcs ce cteccdiovers l

N.J. Stat. Ann. §§ 13:18A-1 to-29 ..............4-. 13

N.Y. City Zoning Resolution § 74-79 .............. 12

San Francisco Planning Code § 101.1 .............. 2

San Francisco Planning Code § 128(a)-(c), (g) .... 2, 12-13

PRAGA ED ccs cddvcdcddnctecdvcséwséscer 6

EAE ED cece ce ccctoedeccenccccodicds 6-7

PRG. BO vedere ccsteddccdkoutecdsinscs 7

PO BD bbceccecodadkéedcdddctdcdeee 7

OTHER AUTHORITIES

1 E. COKE, INSTITUTES ch. 1, § 1 (Ist Am. ed. 1812) . 24

AMANDA GOTTSEGEN, PLANNING FOR TRANSFER OF

DEVELOPMENT RIGHTS: A HANDBOOK FOR

New JERSEY MUNCIPALITIES (Burlington

Ca, FUREREEEID TSG coweccccctececcess 22

Jerold S. Kayden, Hunting for Quarks: Constitutional

Takings, Property Rights, and Government

Regulation, 50 WasH. U. J. URB. & CONTEMP.

LSP GED cccccccccvcdédbdcsecedide 26

Jerold S. Kayden, Market-Based Regulatory Approaches:

A Comparative Discussion of Environmental

and Land Use Techniques in the United States,

19 B.C. ENVTL. AFF. L. REV. 565 (1992) ... 10,11

iv

TERRY J. LASSAR, CARROTS AND STICKS: NEW ZON-

ING DOWNTOWN (Urban Land Inst. 1989)... .

R. Jeffrey Lyman, Finality Ripeness in Federal Land

Use Cases from Hamilton Bank to Lucas,

9 J. LAND Use & ENVTL. L. 101 (1994) .....

RICK PRUETZ, PUTTING TRANSFER OF DEVELOPMENT

RIGHTS TO WORK IN CALIFORNIA (Solano

Pt Mee ehanbbesedubedeseé<ccce

22

INTEREST OF AMICI CURIAE

Amici Curiae National Trust for Historic Preservation in

the United States and the Municipal Art Society of New York

file this brief pursuant to Supreme Court Rule 37. Counsel for

the parties have consented to the filing of this brief and copies

of their letters have been filed with the Clerk of the Court.

The National Trust for Historic Preservation in the United

States (the National Trust) is a private nonprofit, charitable, and

educational organization chartered by Congress in 1949 to

further the historic preservation policy of the United States and

to “facili bli cipation” in histori ‘on. 16

U.S.C. §§ 461, 468. The National Trust has more than 265,000

individual members and seven regional and field offices

Through its Legal Defense Fund, the National Trust

advocates to secure judicial, administrative, and legislative

decisions that uphold the validity and effectiveness of

regulatory protections for historic properties and land-use

regulations in general. The National Trust has a particular

interest in the protection of transfer of development rights

programs, as they: are employed by a number of local, regional,

and state governments for the protection of historic properties,

scenic areas, and farmlands. The National Trust has participated

in more than 100 federal and state court cases over the past

quarter century, including as amicus curiae in nine regulatory

taking cases before this Court.

The Municipal Art Society of New York (the Society) is a

103-year old civic organization that aggressively champions

excellence in urban design and planning, and preservation of

the best of New York City’s past. Its educational and advocacy

efforts are dedicated to making New York a more livable city.

The Society has been concerned with land-use issues in New

York City for over ninety years and was a proponent of the

City’s first zoning law, enacted in 1916, and the Planning

Commission, created in 1938. For four decades, the Society has

been at the forefront of the historic preservation movement in

New York City and was a major advocate for the creation of the

Landmarks Preservation Law in 1965. As a leading proponent

of the efforts to save Grand Central Terminal, the Society has

a particular interest in the transfer of development rights in

connection with the preservation of historic properties. The

Society followed the legal battle from the trial courts to the

final decisions in Penn Central Transportation Co. v. New York

City, 438 U.S. 104 (1978). The Society often participates in

legal cases to advocate thoughtful and careful approaches to the

planning and preservation of the urban environment.

The City and County of San Francisco (San Francisco) is

a municipal corporation chartered under the laws of the State of

California. San Francisco regulates the use of land throughout

the City. As part of its land use regulation, San Francisco

imposes special conditions and regulations on buildings,

structures and other objects to preserve their special

architectural, historical or aesthetic value.

San Francisco offers an economic incentive to property

owners to encourage preservation of historically or architec-

turally significant buildings by allowing the owners to transfer

their development rights to another lot. San Francisco Planning

Code § 128. San Francisco has a vital interest in protecting its

transferable development rights program in order to preserve

historical or architecturally significant buildings. Such

preservation is one of eight priority land use policies adopted

by the voters of San Francisco in 1986. /d. § 101.1.

STATEMENT OF THE CASE

Amici Curiae adopt Respondent Tahoe Regional Planning

Agency’s statement of the case.

ARGUMENT

This Court should affirm the decision of the United States

Court of Appeals for the Ninth Circuit, which affirmed the

decision of the United States District Court for the District of

Nevada granting summary judgment to Respondent Tahoe

Regional Planning Agency, on the grounds that the regulatory

taking claim brought by Petitioner Mrs. Bernadine Suitum was

not ripe for judicial review.

Petitioner’s claim is not ripe for adjudication because she

has failed to apply to the Tahoe Regional Planning Agency

(TRPA) to transfer her development rights to another parcel of

land. This mechanism for the transfer of development rights

(TDR) is an integral part of TRPA’s land-use regulatory

program and provides Petitioner with constitutionally sufficient

use of her property. Application for such a transfer is necessary

in order to evaluate the economic impact of the regulation on

her property, and is thus a prerequisite to judicial review of her

taking claim. Nor has Petitioner shown that an application to

transfer her development rights would be futile. In fact,

nationwide experience with TDR programs, as documented

below, confirms that they are a well-established mechanism for

enhancing the value of property subject to regulatory

I. PETITIONER’S CLAIM IS NOT RIPE BECAUSE

SHE HAS FAILED TO APPLY TO TRPA TO

TRANSFER HER DEVELOPMENT RIGHTS, AND

THUS THE COURT LACKS AN ADEQUATE BASIS

TO EVALUATE THE ECONOMIC IMPACT OF

THE LAND-USE RESTRICTIONS ON HER

PROPERTY.

This Court has repeatedly found that a regulatory taking

claim is not ripe for adjudication unless the property owner has

filed “a meaningful application” with the appropriate

government regulatory agency, MacDonald, Sommer & Frates

v. Yolo County, 477 U.S. 340, 352 n.8 (1986), and the agency

“has reached a final decision regarding the application of the

regulations to the property at issue.” Williamson County

Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172,

186 (1985). “A court cannot determine whether a regulation has

gone ‘too far’ unless it knows how far the regulation goes.”

MacDonald, 477 U.S. at 348.

Indeed, this Court has been unwavering in its

determination to require an application for regulatory

permission, and a decision on that application, before a

regulatory taking claim will be considered ripe for judicial

review. Williamson County, 473 U.S. at 186; United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 127 (1985);

Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452

U.S. 264, 297 (1981); Agins v. City of Tiburon, 447 U.S. 255,

260 (1980). Without an application, it is impossible for the

reviewing court to determine whether the property owner “‘will

be unable to derive economic benefit’ from the land.”

Williamson County, 473 U.S. at 191 (footnote omitted).'

As this Court explained in Williamson County, the

economic impact of a regulation, and the extent to which it

interferes with distinct investment-backed expectations,

“simply cannot be evaluated until the administrative agency has

arrived at a final, definitive position regarding how it will apply

the regulations at issue to the particular land in question.” Jd In

Agins, this Court similarly concluded that the property owners’

as-applied taking claim in that case was unripe, because they

had not submitted a plan “as the ordinances permit.” Agins, 447

U.S. at 260.

The current posture of this case presents the same problem.

TRPA’s regulations clearly set forth a land-use regulatory

application procedure for the transfer of development rights,

and Petitioner has chosen not to apply for a transfer prior to

bringing a regulatory taking claim in court. As explained

below, these regulations, once employed, would provide an

adequate basis to evaluate the economic impact on Petitioner’s

property.

TRPA’s regulations create a two-part system that sets out

the procedures and requirements for property owners

undergoing regulatory review for the use of their property.

First, TRPA evaluates the environmental capacity of each

' The application requirement will not be satisfied if a

landowner who alleges a taking has made no effort or merely a token

effort to apply. See R. Jeffrey Lyman, Finality Ripeness in Federal

Land Use Cases from Hamilton Bank to Lucas, 9 J. LAND USE &

ENVTL. L. 101, 115-18 (1994) (summarizing lower court treatment

of this Court’s ripeness doctrine).

5

individual parcel of land to accommodate development, and

makes an individualized determination of each parcel’s

suitability for development.

The second part of TRPA’s regulatory program is the TDR

provision. TRPA allows— indeed, it facilitates-—the transfer of

development rights from unbuildable “sending” parcels to

other, buildable “receiving” parcels, where those development

rights may be employed to increase the size and/or density of

development. The TDR program allows the transfer of each

type of development right that property owners must possess in

order to develop land within TRPA’s jurisdiction, including

(1) land coverage potential; (2) residential development rights;

and (3) residential allocations. TRPA has routinely approved

transfers of the three types of development rights since its TDR

program was initiated in 1987. Joint Appendix (App.) at 99

(Barnett Affid. ¥ 12).

Each type of development right has a specific transfer

mechanism, reflecting its purpose and underlying policies.

First, land coverage potential may be transferred from one

parcel to another parcel located elsewhere within the same

hydrologic area. TRPA Code of Ordinances (TRPA Code), ch.

20. Petitioner’s hydrologic area, one of nine within the Lake

Tahoe Basin, includes 14,106 acres. App. at 96 (Barnett Affid.

{ 5). She is thus eligible to transfer her land coverage potential

(183 square feet, or the size of a large room addition) to any

parcel within this area, for construction of a correspondingly

larger project on the receiving parcel. App. at 96 (Barnett A ffid.

{ 6). Petitioner never applied to TRPA to transfer her land

coverage potential. Suitum Dep. at 119-20.

Second, residential development rights may be transferred

to certain parcels of land within the Lake Tahoe Basin. TRPA

Code, ch. 21. Petitioner possesses one residential development

right, which she may apply to transfer to other parcels, subject

to county approval and use and density eligibility of the

receiving parcel. App. at 97 (Barnett Affid. 4 8). Not only are

a wide range of parcels eligible to receive such residential

development rights, but certain types of development, such as

multi-residential projects, can be built only if the developer has

acquired residential development rights from other parcels. /d.

Petitioner never applied to TRPA to transfer her residential

development right. Suitum Dep. at 119.

TRPA also grants “multi-residential bonus units” to

projects acquiring transferred residential development rights

from ecologically sensitive parcels such as Petitioner’s. TRPA

Code, ch. 35. Because Petitioner’s parcel is located in a Stream

Environment Zone, three multi-residential bonus units would

be available for a project acquiring Petitioner’s residential

development right through a transfer. App. at 98 (Barnett A ffid.

q 9).

Third, residential allocations may be transferred from

parcels unsuitable for development to any parcel in the Lake

Tahoe Basin that can accommodate development, subject to

county approval and use and density eligibility of the receiving

parcel. TRPA Code, ch. 34. Petitioner obtained a residential

allocation in 1989, but she allowed it to lapse. App. at 146

(Scholley Affid. ¥ 8). She remains eligible to receive another

residential allocation simply by applying to TRPA. Jd The fact

that her parcel is environmentally unsuitable for development

does not affect her eligibility for a residential allocation. Jd

Indeed, TRPA has traditionally reserved ten percent of the

residential allocations available each year for parcels such as

Petitioner’s that cannot accommodate development themselves.

Id. Petitioner has not applied for another residential allocation

since originally being awarded one in 1989, nor did she ever

apply to TRPA to transfer the residential allocation she

previously possessed. /d.; Suitum Dep. at 119.

In ignoring all three of these options for transferring her

development rights, Petitioner has likewise ignored this Court’s

unambiguous constitutional command that owners must ripen

their cases before seeking judicial review. The Court must not

be put in the position of speculating as to what will happen if

and when she applies to transfer her development rights. It is

just this sort of guess-work that the ripeness doctrine is

designed to preclude. Petitioner should be required to apply for

a transfer of her development rights prior to seeking review of

her regulatory taking claim.

II. IT WOULD NOT BE FUTILE FOR PETITIONER

TO APPLY TO TRANSFER HER DEVELOPMENT

RIGHTS, AS SUCH AN APPLICATION WOULD

ALLOW HER TO ENJOY A CONSTITUTIONALLY

SUFFICIENT USE OF HER PROPERTY.

Petitioner attempts to justify her failure to apply for

transfer of her development rights by suggesting that it would

be futile to do so. This Court has indicated, however, that

“futility” will be found only in extremely limited

circumstances. See MacDonald, 477 U.S. at 348-49, 352 n.8;

Williamson County, 473 U.S. at 186; Agins, 447 U.S. at 260;

see generally Lyman, supra, at 122-24.

Petitioner’s futility argument is based on her denunciation

of the entire TDR program as a‘ “contrivance.” Petitioner’s

Brief at 5. This argument completely disregards the many

transfers that have occurred since the program was initiated in

1987. App. at 99 (Barnett Affid. | 12). Moreover, it is equally

important to recognize that the TDR program administered by

TRPA is not, in fact, unique. As discussed in more detail

below, TDRs are employed nationwide in land-use regulations

to provide additional and valuable uses to regulated property.

A. Nationwide Experience With TDR Programs

Demonstrates That TDRs Are Marketable and

Provide a Constitutionally Sufficient Use of

Property.

TRPA’s program for allowing transfers of different types

of development rights has many features in common with other

TDR programs adopted by state, regional, and local

jurisdictions across the country to protect ecologically sensitive

value of property subject to restrictions.

Relying on the well-established notion of property as a

collection of rights, TDR programs recognize the ability to use

one’s property for development purposes as a right capable of

being severed from a particular parcel and thereafter sold for

use on another parcel. See West Montgomery County Citizens

Ass'n v. Maryland-National Capital Park & Planning Comm'n,

309 Md. 183, 522 A.2d 1328, 1330 (1987). The sale of these

development rights permits property owners to realize value

from rights that are otherwise restricted when it comes to use of

the initial owner’s property. The TDR process is commenced—

and a transfer is possible—only when a property owner files an

application. See Carpenter v. Tahoe Regional Planning Agency,

804 F. Supp. 1316, 1325 (D. Nev. 1992); Glisson v. Alachua

County, 558 So. 2d 1030 (Fla. App. 1990).

In order to facilitate markets for development rights, local

governments have typically established two administrative

mechanisms. See Jerold S. Kayden, Market-Based Regulatory

Approaches: A Comparative Discussion of Environmental and

Land Use Techniques in the United States, 19 B.C. ENVTL. AFF.

L. REV. 565, 574-77 (1992). A two-party private transaction

mechanism permits the owner of a designated sending parcel to

sell its transferable development rights directly (or with the

assistance of a broker) to the owner of an eligible receiving

parcel. A bank-based transaction mechanism enables a

governmental agency or nonprofit organization to purchase

development rights from the owners of sending parcels and to

bank them for later sale to third parties. See Matlack v. Board

of Chosen Freeholders, 191 N.J. Super. 236, 466 A.2d 83

(1982), aff'd, 194 N.J. Super. 359, 476 A.2d 1262 (App. Div.

1984) (upholding county authority to purchase development

rights).

It is also common to find a hybrid of these two

mechanisms under which a bank exists as a purchaser of last

resort, while private transactions normally constitute the

development rights market. See Gardner v. New Jersey

Pinelands Comm'n, 125 N.J. 193, 593 A.2d 251 (1991). The

principal market-making issue under any system is ensuring

that there is sufficient demand for development rights from the

owners of receiving parcels, a bank, or others, to absorb the

supply that sending parcel owners may wish to transfer. See

American Savings & Loan Ass'n v. County of Marin, 653 F.2d

364 (9th Cir. 1981); Glisson v. Alachua County, 558 So.2d

1030 (Fla. App. 1990); Aptos Seascape Corp. v. County of

Santa Cruz, 138 Cal. App. 3d 484,188 Cal. Rptr. 191 (1982).

Local governments adopt TDR programs after carefully

addressing a number of other administrative and policy issues.

10

See Kayden, supra. at p. 10, 574-77. They must define the type

of parcel from which development rights will be sent, either

categorically (e.g., every farmland parcel of a size exceeding a

certain number of acres, or every parcel containing an historic

structure, as defined by specific criteria) or geographically (e.g.,

every parcel within a particular designated district). See City of

Hollywood v. Hollywood, Inc., 432 So. 2d 1332 (Fla. App.

1983). Local governments must also identify parcels that may

receive development rights, either on a parcel-by-parcel basis

or within specifically delineated receiving districts. Local

governments have handled these matters in various ways, with

some limiting transfers so that they may only take place

which transfers may freely occur, and some allowing transfers

anywhere within their jurisdiction between appropriately

characterized sending and receiving parcels.

The purposes for which TDRs have been employed are as

wide ranging as the purposes of land-use regulation generally.

The historic landmark preservation focus of New York City’s

program is already known to this Court. Farmland preservation

motivated Montgomery County, Maryland. The Pinelands

Commission in New Jersey and Suffolk County on New York’s

Long Island each adopted TDR programs to protect open space

and wetlands.

It may prove instructive to this Court’s consideration of

this case, and the role of TRPA’s TDR program, to have a brief

synopsis of three well-known, and distinct, TDR programs. The

most prominent TDR program (not least because of this Court’s

opinion in Penn Central Transportation Co. v. New York City,

438 U.S. 104 (1978)) exists in New York City, where it is

designed to enhance protection of designated historic

landmarks. The program operates under the City’s zoning

11

ordinance, which generally allows transfers from parcels

containing designated historic landmarks to “adjacent” parcels,

including parcels that are contiguous, across the street, or,

where there is a common chain of title, connected through

intervening streets. N.Y. City Zoning Resolution § 74-79.

The amount allowed to be transferred under this provision

is the difference between the maximum allowable floor area for

area of the existing zoning lot, including the landmarked

structure. The amount allowed to be utilized on the receiving

parcel is not capped within the central business districts—

where Grand Central Terminal and numerous other landmarks

are located—but is limited elsewhere to an increase of no more

than twenty percent above the otherwise maximum allowable

floor area of the proposed new development. The City Planning

Commission also reviews each proposed transfer to ensure that

the landmark on the sending parcel will be preserved after the

transfer and that there will be no land-use planning problems

created on or near the receiving parcel as a result of the transfer.

In addition, a number of other TDR provisions also apply to

New York City’s historic landmarks. See Brief of Amicus

Curiae City of New York.

In San Francisco, TDRs have been successfully used in the

city’s downtown area to increase the allowable density of

development beyond that otherwise permitted by San

Francisco’s planning law. TDRs may be transferred from a lot

containing a building which San Francisco has designated

significant or a landmark (a Transfer Lot). San Francisco

Planning Code § 128(a). Similar to New York City’s TDR

program, the amount of TDRs available for transfer consists of

the difference between the allowable gross floor area of the

existing structures on the Transfer Lot. Jd. § 128(b).

12

San Francisco’s TDRs may be transferred to another lot

located in the downtown zoning district, id. § 128(c), either as

a group to a single transferee or in separate increments to

multiple transferees. Jd. § 128(g). TDRs may be transferred

directly to the owner of the lot to be developed. Jd. Once the

owner has purchased TDRs, the gross floor area of the structure

to be constructed on that lot increases by the amount of TDRs

transferred. Jd. § 128(a).

Another well-known TDR program that has a successful

track record of transfers exists in New Jersey's Pine Barrens.

Covering the entire million-acre area under the jurisdiction of

the Pinelands Commission, this TDR program is designed to

protect forested and agricultural areas while concentrating

growth in areas served by adequate infrastructure and otherwise

capable of handling new development. The Pinelands

areas, forest areas, preservation areas, rural development areas,

regional growth areas, and villages and towns, among others.

N.J. Stat. Ann. §§ 13:18A-1 to -29. Within certain areas,

including villages, towns and growth areas, almost all types of

development are allowed, while preservation and agricultural

areas are more restricted. The TDR program allocates

development right allowing construction of up to four new

houses in regional growth areas. There is also a bank which

administers the program by keeping records, issuing the

useful information to prospective purchasers or sellers of

itself. See Gardner v. New Jersey Pinelands Comm'n, 125 N.J.

193, 593 A.2d 251 (1991).

13

The New York City and San Francisco TDR programs for

historic preservation and the New Jersey Pinelands TDR

program for protection of environmentally sensitive land are

three of many TDR programs employed successfully across the

country in land-use regulatory programs. The following table

describes the location, purpose, and levels of activity of a cross-

section of TDR programs employed over the past twenty years

throughout the United States.

Table 1: Nationwide Examples of Operating

Transfer of Development Rights Programs

Location | Purpose Transfer Activity/ | Source

Comments

Belmont, | Reduce or Six transfers as of | note |

California | eliminate de- | 1993

velopment on

steep slopes

Burbank, | Promote Two transfers note 2

California | appropriate involving over

concentration | 400,000 square

while main- | feet

14

Cupertino, | Create flex- | Between 30 and 40 | note 3

California | ible density transfers; very few

limitations to | development rights

assist opera- | are left to be trans-

tion of Traffic | ferred

Intensity Per-

formance

Standard

regulation

Los Preserve his- | Three projects note 4

Angeles, | toric struc- approved invol-

housing, im- | square feet of of-

prove trans- | fice, hotel, and

portation, and | retail floor area;

protect open | developers pay

space $35 per square

foot of floor area

transferred

Monterey | Protect view | Transfersinvolve | note 5

Co., corridors and | about 20 acres

California | Big Sur

Morgan Preserve 67 transfer credits | note 6

Hill, hillside land | have been pur-

California chased, involving

108.5 acres of hill-

side land; transfer

credits sell for

about $75,000

each

Oxnard, Control Transfers occurred | note 7

California | beachfront between 1984 and

development | 1988

15

Pacifica, | Site-specific | One transfer in- note 8

California volving 20 acres

Pismo Preserve open | Preserve public note 9

Beach, space access to beach

California

Placer Preserve open | Provides economic | note 10

Co., space value to property

California owners affected by

a 300-foot setback

requirement

Roseville, | Limit density | Transfer rights note |]

California | of develop- between parcels

ment owned by de-

veloper wanting to

build a subdivision

San Preserve At least two trans- | note 12

Diego, historic fers involving 5 to

California | structures 10 residential units

San Fran- | Preserve Ten transfers; suc- | note 13

cisco, historic cessful because

California | structures TDR is central

mechanism for

exceeding San

Francisco’s

downtown density

limit

San Luis | Reduce devel- | About 200 trans- | note 14

Obispo opment along | fers

Co., highly erod-

California | ible coastal

areas and to

protect critical

habitats

San Mateo | Preserve Two bonus density | note 15

Co., farmland and | credits have been

activity

Santa Reduce Over 500 transfers; | note 16

Monica potential land- | prices vary accord-

Mountains | slide and fire | ing to demand; in

California | hazards, mini- | the early 1980's, a

mize impacts | TDC was priced at

on public $43,000, and a low

service sys- | of $15,000 per

tems and TDC was reached

avoidenvir- | in the mid-80's

onmental

degradation

Irvine, Encourage One transfer invol- | note 17

California | residential ving 400 unit resi-

development | dential complex;

ordinance design-

ed with a specific

project in mind

Pasadena, | Preserve his- | Three transfers; note 18

California | toric proper- | other methods can

ties also be used to

increase density

Boulder, | Preserve Received 1996 note 19

Colorado | farmland award under state

“Smartgrowth”

Douglas | Preserve open | Received 1996 note 20

Co., space award under state

Colorado “Smartgrowth”

program

16

Washing- | Protect histor- | Transfers protect | note 21

ton, D.C. | ic buildings old downtown,

permit increased

height for new

development

Collier Preserve envi- | 325 acres pre- note 22

Co., ronmentally | served

Florida sensitive land

Maitland, | Preserve open | One transfer in- note 23

Florida space volving 3.5 acres

at $35,000 value

Palm Preserve envi- | One major transfer | note 24

Beach ronmentally since 1992, valued

Co., sensitive land | at $1.2 million;

Florida other credits would

allow 6,400

additional homes.

Calvert Preserve Used to counteract | note 25

Co., farmland urban sprawl

Maryland

Charles Preserve Used by six devel- | note 26

Co., farmland opers; approved in

Maryland 1992.

Mont- Preserve Development note 27

gomery farmland rights for about

County, 40% of the coun-

Maryland ty’s 91,000 rural

acres have been

sold; the 1981 plan

gives 1 TDR for

every 5 rural acres;

permits an extra

unit beyond base

zoning _

18

Queen Preserve In active use note 28

Anne’s farmland

County,

Maryland

St. Mary’s | Preserve Approved in 1990 | note 29

County, farmland

Maryland

Burling- | Preserve Pilot program note 30

ton Co., farmland passed by

New legislature

Jersey

Pinelands, | Preserve envi- | Transfers involv- | note 31

New ronmentally | ing 12,318 acres

Jersey sensitive land

New Preserve open | Municipal Land note 32

Jersey space Use Act permits

offsite clustering

of noncontiguous

parcels in common

ownership/control

New York | Preserve About a dozen note 33

City historic transfers

landmarks

Suffolk Préserve envi- | Transfers invol- note 34

Co. (Pine | ronmentally | ving 8.5 acres,

Barrens), | sensitive land | with 158 credits is-

New York sued to 121 parcels

Westches- | Preserve 127- | Transfer involving | note 35

ter Co., year old 100,000 square

New Y church feet, at a value of

$3.7 million; de-

veloper bought air

rights from Grace

Episcopal Church

19

Lancaster | Preserve Four TDRs trans- | note 36

Co., farmland ferred, each cost-

Pennsyl- ing $5,500; devel-

vania oper expects to

buy as many as 50

TDRs to complete

project

Pittsburgh | Protect his- Development note 37

Pennsyl- | toric buildings | rights purchased

vania and arts facili- | and transferred

ties from two theaters

Austin, Riverfront Used in revital- note 38

Texas preservation | ization of Austin’s

Colorado River

promenade

Blacks- Preserve open | Adopted in 1996 note 39

burg, space, farm- | to protect Tom’s

Virginia | land, and Creek Basin

forest

Pierce Preserve Covers 1,800 acres | note 40

Co., farmland of farmland

Washing-

ton

Seattle, Preserve At least three note 41

Wash- historic transfers for Hyatt

ington theaters Regency project

involving 130,012

square feet; devel-

oper paid $1.47

million to be used

for city’s afford-

able housing fund

20

Portland, | Preserve & Adopted in 1988 | note 42

Oregon maintain sin- | as part of Central

gle-room oc- | City Plan

cupancy

housing

Footnotes to Table:

RICK PRUETZ, PUTTING TRANSFER OF DEVELOPMENT RIGHTS TO

WORK IN CALIFORNIA 59-60 (Solano Press 1993).

Id. at 77-78.

Id. at 75-77.

Id. at 67-69.

Id. at 46-47.

Id. at 58-59.

Id. at 47-49.

Id. at 49-50.

Id. at 50-51.

Sacramento Bee, Oct. 10, 1996, at N1.

Id., April 21, 1996, at N3.

PRUETZ, supra n.1, at 71-72.

. Id at 66-67.

Id. at 56-57.

Id. at 73-74.

Id. at 53-55.

Id. at 79-80.

Id. at 69-71.

The Denver Post, July 28, 1996, at D4.

Id

. Washington Post, Aug. 3, 1996, at C1.

PRUETZ, supra n.1.

Orlando Business Journal, Oct. 4, 1996, at 32.

. Palm Beach Post, Aug. 28, 1996, at 4B.

. Washington Post, March 25, 1995, at E1.

Warfields Business Record, Sept. 16, 1996, at 1.

. Washington Post, Nov. 16, 1996, at E1; Warfields Business Record,

Sept. 16, 1996, at 1.

The Capital, Sept. 18, 1996, at A10.

Warfields Business Record, Sept. 16, 1996, at 1.

21

30. New York Times, Feb. 18, 1996, sec. 9, at 11; AMANDA GOTTSEGEN,

PLANNING FOR TRANSFER OF DEVELOPMENT RIGHTS: A HANDBOOK

FOR NEW JERSEY MUNICIPALITIES 159 (Burlington Co. Freeholders

1992)

31. New York Times, Feb. 18, 1996, sec. 9, at 11.

32. Id; New Jersey Lawyer, July 29, 1996.

33. RICHARD RODDEWIG & CHERYL INGHRAM, TRANSFERABLE

DEVELOPMENT RIGHTS PROGRAMS 8 (American Planning Ass’n

1987).

34. Newsday, March 27, 1996, at A28; /d., April 20, 1996, at A19.

35. New York Times, July 8, 1990, sec. 10, at 15.

36. Intelligencer Journal, Oct. 31, 1995, at B1.

37. TERRY J. LASSAR, CARROTS AND STICKS: NEW ZONING DOWNTOWN

185 (Urban Land Inst. 1989).

38. Asbury Park Press, July 21, 1996, at C3.

39. Roanoke Times & World News, Nov. 14, 1996, at NRV 12.

40. News Tribune, Nov. 7, 1996, at B3.

41. Seattle Times, Jan. 5, 1993, at B1; Jd., Oct. 1, 1996, at B2; LASSAR,

supra n.37, at 186-87.

42. Id. at 185-86.

In short, TDR programs are widely established nationwide,

and have proven effective in managing development in

sensitive areas.

B. This Court Has Expressly Accepted the Role of

TDR Programs in Determining Whether

Private Property Retains a Constitutionally

Sufficient Use.

Perhaps in recognition of the fact that TRPA’s TDR

program would provide a means through which she could

realize economic value for her property, Petitioner resorts to the

extreme—and constitutionally unsustainable—position that

“use” (by which she appears to mean residential development

geographically located only on her parcel) and “value” (by

which she appears to mean, inter alia, what she might receive

from the sale of her TDRs) are somehow distinct. Petitioner’s

22

Brief at 12-15, 30-34. This Court’s landmark Penn Central case

unequivocally contradicts Petitioner’s assertions, making clear

that the ability to transfer development rights constitutes a

“use” of property within the meaning of this Court’s

precedents, a use that Petitioner has chosen to disdain. In Penn

Central, this Court expressly concluded that:

Appellants . . . exaggerate the effect of the [New York

City landmarks] law on their ability to make use of the

air rights above the Terminal . . . . [T]o the extent

appellants have been denied the right to build above

the Terminal, it is not literally accurate to say that they

have been denied ail use of even those pre-existing air

rights. Their ability to use these rights has not been

abrogated; they are made transferable to at least eight

parcels in the vicinity of the Terminal, one or two of

which have been found suitable for the construction of

new office buildings.

Penn Central Transportation Co. v. New York City, 438 U.S.

at 136-37 (footnote omitted; emphasis in original and added).

In addition, the Court stated that the ability to transfer such

rights must be taken into account in order to determine whether

a taking has occurred at all:

Although appellants and others have argued that New

York City’s transferable development-rights program

is far from ideal, the New York courts here

supportably found that, at least in the case of the

Terminal, the rights afforded are valuable. While these

rights may well not have constituted “just

compensation” if a “taking” had occurred, the rights

nevertheless undoubtedly mitigate whatever financial

23

burdens the law has imposed on appellants and, for

that reason, are to be taken into account in considering

the impact of regulation.

Id. at 137 (footnote omitted). It is axiomatic that the Court in

Penn Central would not have specifically relied on New York

City’s TDR provision, and the economic value that such

transfers would bring to the property owner, if the availability

of development rights transfers was meaningless to a

determination of whether a regulatory action effected a taking.

This Court’s opinion in Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992), is similarly supportive. There,

the trial court found that the actions of the state’s regulatory

agency had rendered the owner’s property valueless, i.e., worth

zero dollars, and this Court expressly decided the case “under

the same factual assumption{].” /d. at 1020 n.9. There is no

such factual finding in this case.

The Lucas opinion used a variety of formulations to

describe the circumstances under which a categorical “total

taking” might occur, triggering the obligation to compensate,

absent a nuisance or property law-based exception. /d. at 1029-

30. This Court variously described the categorical taking

standard as a denial of “all economically beneficial or

productive use” of land, id. at 1015; all “economically viable”

use, id. at 1016; “all economically feasible use,” id. at 1016 n.7,

and “all economically valuable use,” id. at 1028. Yet the Court

repeatedly emphasized the word “economic,” and explicitly

recognized when framing its analysis: “For what is the land but

the profits thereof?” Jd. at 1017 (quoting 1 E.COKE, INSTITUTES

ch. 1, § 1 (1st Am. ed. 1812)). If the state of South Carolina had

offered a TDR option that provided Lucas with some economic

24

use of his property, then he would not have been able to prove

a categorical total taking.

Petitioner’s argument—that the Constitution demands that

her development rights be exercised in a geographically

specific fashion on her parcel of land—yields the bizarre result

that, even if the transfer of her development rights would yield

hundreds of thousands of dollars, an amount potentially worth

more than the parcel itself, TRPA’s action would still effect a

taking. In fact, the evidence in the record suggests that her

development rights—and her restricted parcel itself—may have

substantial value.

For example, in addition to any residual value of

Petitioner’s parcel, which could be realized through sale to

adjacent owners for purposes of open space, view protection, or

privacy, each of her development rights appears to have value

in the marketplace for TDRs in the Lake Tahoe Basin. Those

rights are valued at between $10,000 and $51,500, including

approximately $30,000 for the residential allocation right. See

generally App. at 130-32 (Johnson Affid.). These numbers are,

of course, not precise, which only serves to emphasize that

Petitioner’s case is not ripe, but they confirm that there is

substantial value to be realized from her property. Furthermore,

the record shows that the State of Nevada recently offered to

purchase Petitioner’s parcel for $35,000 under a program

(which continues to have available funds) to buy ecologically

sensitive lands. See App. at 141 (Johnson Suppl. Affid. 4 12).

25

Ill. EVEN IF IT WERE RIPE, PETITIONER’S T/ £™1NG

CLAIM WOULD FAIL UNDER THIS COURT’S

PRECEDENTS BECAUSE SHE HAS FAILED TO

SATISFY THE CONSTITUTIONALLY REQUIRED

STANDARDS.

Petitioner cannot succeed on the merits of her regulatory

takings claim even if it is deemed to be ripe. Absent a Lucas-

type “total taking,” a physical occupation, or a finding that a

interests, this Court’s inquiry to determine whether a regulation

has effected a taking consists of three factors: (1) the economic

impact of the regulation on the claimant; (2) the extent to which

the regulation has interfered with distinct investment-backed

expectations; and (3) the character of the governmental action.

Penn Central, 438 U.S. at 124; see Jerold S. Kayden, Hunting

for Quarks: Constitutional Takings, Property Rights, and

Government Regulation, 50 WaSH. U. J. URB. & CONTEMP. L.

125, 133-35 (1996). The inquiry focuses on whether the

property owner can earn a “reasonable return” on its use of “the

parcel as a whole.” Penn Central, 438 U.S. at 129-31.

The record below fails to establish that TRPA’s restrictions

violate the Lucas categorical total taking test, the Penn Central

three-factor inquiry, or that there is a physical occupation or

failure to substantially advance legitimate state interests.

CONCLUSION

Municipal Art Society, and the City and County of San

Francisco respectfully request that this Court affirm the

judgment of the United States Court of Appeals for the Ninth

Circuit.

Respectfully submitted,

R. JEFFREY LYMAN JEROLD S. KAYDEN

PEABODY & BROWN Counsel of Record

101 Federal Street 48 Quincy Street

Boston, MA 02110 Cambridge, MA 02138

617-345-1000 617-496-0830

Counsel for the National Trust for Historic Preservation

and the Municipal Art Society

PAUL W. EDMONDSON Loulse H. RENNE

ELIZABETH S. MERRITT City Attorney

LAURA S. NELSON CITY AND COUNTY OF

NATIONAL TRUST FOR SAN FRANCISCO

HISTORIC PRESERVATION 1390 Market Street

1785 Massachusetts Avenue,N.W. Fifth Floor

Washington, D.C. 20036 San Francisco, CA 94102

202-588-6035 415-554-3800

January 9, 1997

27