Podcast: |
Friday, July 4, 2014
Mass.gov
Last Friday at this time, I was telling you about the “Transfer of Development Rights” concept, and referred you to an article published by the Loma Prieta Chapter of the Sierra Club. The article is generally positive about the benefits of “TDR,” as the Transfer of Development Rights concept is often abbreviated. The Fourth of July is probably a pretty good day to provide a more critical commentary on TDR, since the whole concept is based on the idea that “property rights” means “development rights,” and there are some Constitutional questions there.
Actually, there are no “development rights,” in any general sense. Our Constitution forbids our government from “taking” our property without due process of law, and requires the government to pay for our property if it does take it for public use. But there is no Constitutional provision that says that the government must let us do whatever we want to do with the property we own. The “use” of property is always subject to governmental regulation in the public interest, so you can’t legally compel the government to give you permission to develop your property in the way that might benefit you the most. There is no general “development “right,” and since there isn’t, the concept of a “transfer of development rights” is based upon a fallacious premise.
Maybe I’ll come back to this topic one more time, in a future Land Use Report. What your “rights” are, as a property owner, is an important issue in land use and planning law.
More Information:
Former Santa Cruz County Supervisor Gary Patton talks about land use, and land use decisions, with an emphasis on public participation and how the land use process works.