Chapter 1.2
Low-Impact Development and Stormwater Management

• ALL
• Remove Code Barriers
• Create Incentives
• Fill Regulatory Gaps

Purchase of Development Rights

INTRODUCTION

Local governments can develop a program that allows for the purchase of development rights (PDR) on privately owned property (for ordinances establishing a transfer of development rights see Transfer of Development Rights Program brief). Pursuant to the voluntary PDR programs, a landowner sells their development rights to the local government to permanently protect the land.[1] If properly drafted, this results in privately owned land that cannot be developed in a way detrimental to wildlife, even if the current owners sell the property, and it provides financial compensation to the landowner.

A key facet of PDR programs is that they offer compensation to landowners for development restrictions.[2] The land is typically encumbered with a conservation easement or other development restriction recorded on the title.[3] A wide variety of development restrictions and protective measures may be imposed depending on the willingness of the landowner, the funding available, and community goals. A PDR program can help local governments preserve and protect land in the community in accord with community growth management goals such as protection of wildlife habitat and farmland. To administer such a program, local governments usually create a committee or other entity. The administrative body can help ensure that public funds are spent wisely to buy development rights. In addition, the administrative body may be charged with enforcement of any development restrictions to ensure the preservation of land. The most successful entities include people with a mixture of backgrounds to ensure broad understanding of community goals.

One of the most challenging aspects of a PDR program is funding. Some local government PDR programs are funded through tax levies. The program may also be funded through external sources such as grants, foundations, land trusts, and public donations.[4] In tandem with securing adequate funding, local governments must also identify areas that meet program goals and would be most beneficial for the preservation of wildlife habitat. Typically, the administrative entity accepts or solicits applications from landowners wishing to sell their development rights.[5] Some landowners who desire to protect their property from development for the benefit of the community may donate their development rights to the program and take advantage of state and federal tax credits.

EFFECTS

A PDR program creates the ability for a local government to limit or prevent development of land in accord with community growth management and land protection goals. Moreover, landowners are provided financial compensation, an important consideration where strong land use regulations may be politically controversial.

Purchasing development rights from landowners and creating development restrictions allows local governments to maintain wildlife habitats while letting private property owners continue to use the land in a limited fashion.[6] The local government by purchasing development rights can help implement comprehensive plan objectives as well as limiting infrastructure costs (water, sewer, and power lines, roads, etc.) associated with urban sprawl and rural development. ^[7] In addition, by limiting development, the local government can safeguard watersheds and mitigate the effects of storm runoff and associated costs as well as possibly preventing floods. ^[8]

EXAMPLES

Stafford County, VA

The County has PDR program to acquire conservation easements voluntarily offered by property owners. The PDR program is run by a committee of seven people and a program administrator both appointed by the County Board of Supervisors.[9] Properties that are 20 acres or larger may sell development rights, landowners in adjoining properties may combine lot sizes to reach the minimum 20 acres within the Stafford County.[10] The property must be capable of being subdivided or developed for non-agricultural use, and cannot contain any structures other than those permitted by the conservation easement created for a particular parcel.[11] The terms of the easement may permit a dwelling to be built on the site and may permit existing units to remain on property. The conservation easement runs with land and restricts the accumulation of trash grading, commercial activities, the display of billboards, and many other restrictions.[12]

The application to sell development rights on appropriate property is comprised of a form designated by the committee and must be signed by the landowner.[13] The administrator than reviews the applications to determine whether the property meets the eligibility requirements.[14] The administrator then ranks the parcels based on a point-system and submits the ranking to the committee.[15] The committee decides on which parcels of land the County should purchase a conservation easement.[16] After the administrator and committee have made their recommendations the County’s board of supervisors makes the final decision.[17] The County has the right to periodic inspection to ensure compliance with the conservation easement.

To view the provision, see Stafford County, VA, Code of Ordinances §§ 22A-1 – 22A-11 (current through May 25, 2018).

Prince George’s County, MD

The County adopted a PDR program to restrict the growth in rural areas by limiting development of land and to protect natural resources.[18] The PDR program helps implement policies from the County’s green infrastructure plan, preserve ecologically fragile and aesthetically valuable environments, retain agricultural land, maintain rural character, conserve and protect biodiversity, wildlife and aquatic habitat, and promote tourism.[19] Any conservation easement created by the PDR program is voluntarily offered through an application process that is reviewed by the County’s Agricultural Preservation Advisory Board.[20] Eligible properties are at minimum 20 acres, unless the land has been determined to have sensitive natural resources and has public value for the citizens of the County.[21] The easements contain provisions that prohibit division, industrial uses, or non-agricultural commercial uses. The landowner does not retain any right to buy back the development rights.[22] The County is the easement holder and it is recorded in the County’s land records.[23] The landowner retains all other rights held before the easement other than the development rights. If the easement is not followed the landowner may be sued for damages, and the County may be granted an injunction.[24]

To view these provisions, see Prince George’s County, MD, Code of Ordinances §§ 30-300 – 30-313 (2006).

ADDITIONAL EXAMPLES

Thurston County, WA, Code of Ordinances § 17.35 (2011) (creating PDR program to facilitate partnerships and management in the preservation of agricultural land).

Charter Township of Lyon, MI, Code of Ordinances ch. 48 §§ 38.01-.07 (current through Feb. 20, 2018) (PDR program preserving land in the Township as it is particularly well suited for woodlands, wetlands, open lands and farming).

Town Of Dunn, WI, PDR program (1997) (PDR program protecting and buffering important farmland, scenic views, significant natural features, and other lands).

ADDITIONAL RESOURCES

Planning Implementation Tools: Purchase of Development Rights (PDR) (full description of a PDR Program with common uses and analyzes different aspects of the policy).

Gayle Miller & Douglas Krieger, Purchase of Development Rights: Preserving Farmland and Open Space, Planning Commissioners Journal (2004) (good seven-page overview of PDRs).