# Amicus Curiae Brief — Suitum v. Tahoe Regional Planning Agency

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0011%3A31

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 725

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0011%3A31. Public record. Not legal advice.