Zoning Practice — October 2009
Ask the Author
Here are reader questions answered by Rick Pruetz, FAICP, and Noah Standridge, authors of the September 2009 Zoning Practice article "Is Your Community TDR-Ready?"
Question from Thomas Schultz, AICP:
Which states currently allow TDRs? Also, what is the status of TDRs within the State of Ohio? Also, have any communities within a state that has not enacted TDR legislation enacted their own local enabling legislation that would allow TDRs?
Answer from authors Rick Pruetz, FAICP, and Noah Standridge:
We know of 26 states with some form of TDR enabling legislation. Of these, the following 23 states authorize some or all jurisdictions to use TDR to implement a broad range of land use goals: Arizona, Connecticut, Delaware, Florida, Georgia, Idaho, Kansas, Kentucky, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and West Virginia. In three other states, TDR is authorized for limited purposes: Illinois, North Carolina, and South Dakota.
We could not find formal enabling legislation in some states that have TDR programs: California, Colorado, Louisiana, Michigan, Montana, Nevada, Oregon, South Carolina, Texas, Utah, Wisconsin, and Wyoming. However, TDR enabling legislation from the state is not necessarily a precondition to adopting a TDR program.
TDR is a mechanism for implementing land use goals and all states delegate the authority to regulate land use and development to local governments in some form. To the extent that this delegation includes a broad range of land use regulations, local jurisdictions may rely on that general police power authority to adopt TDR programs. However, in some states, and in some types of jurisdictions in some states, powers granted by the state to localities must be specific and explicit, including the authority to adopt TDR ordinances. Unfortunately, it is not always clear whether a jurisdiction can rely on its general authority to regulate land uses or whether that jurisdiction should rely only on specific enabling legislation. This question is best answered by a jurisdiction’s attorney.
The last time we looked, Ohio had not adopted specific authority for local jurisdictions to use TDR. However, attorneys for a village and township in Ohio that were considering adopting a TDR ordinance opined that Ohio’s general granting of land use regulatory control to local jurisdictions allows that village and that township to adopt TDR ordinances despite the lack of specific state TDR enabling legislation. Bear in mind that these opinions were for a specific village and a specific township. As mentioned above, communities in states without specific TDR enabling legislation should consult their own attorneys about this matter before proceeding.