By letter sent June 18, the Virginia Association of Counties (VACo) and the Virginia Municipal League (VML), the bodies representing our Virginia localities at the state government level, told the Governor that ABC stores, if sold for private operation, must be subject to local land use. And they are right.

It is generally accepted that the Commonwealth of Virginia, as sovereign, is not subject to local zoning by its political subdivisions. The Commonwealth does enjoy its freedom from local regulation. However, this freedom does not extend to private uses, such as privately-owned liquor stores.

The Virginia Supreme Court has upheld local land use authority to regulate private liquor sales even when the Commonwealth has issued a state ABC license in City of Norfolk v. Tiny House, 222 Va. 414, 281 S.E.2d 836 (1981) and in County of Chesterfield v. Windy Hill, Ltd. The Supreme Court also upheld local land use authority to regulate private uses, even on publicly-owned land, in Board of Supervisors of Fairfax County v. Washington, D.C. SMSA, L.P.

The importance of local say over the proper location of these stores, and the ability to place reasonable conditions that enable the stores — now no longer under public ownership — to fit harmoniously within the community is critical. Local control over land use works and is essential to meet the citizens’ expectations for their communities.

VML and VACo are right. If the Commonwealth is no longer in charge of the location of these stores, the people’s local elected bodies must be.

In 2007, this changed, but the statutes approved that year (Virginia Code sections 15.2-2316.1 and 15.2-2316.2) had some significant limitations, perhaps most significantly the requirement that the separation of the rights from the “sending” property be immediately “attached” to the receiving property. In 2009, the statutes were significantly amended to correct this and other perceived barriers to localities and landowners using TDRs. 2009 Va Acts of Assembly ch. 413.

To assist localities and landowners alike in pursuing a TDR program, a group of stakeholders gathered at the Virginia Association of Counties (VACo) office for many months in 2009 to create a “model ordinance” and associated forms. I blogged about this last Fall in an article entitled, “Transfer of Development Rights are on the Way”. Now, the help has arrived!

Here is the official announcement from VACo:

” A copy of a model transfer of development rights (TDR) ordinance has been posted on VACo website at this location: http://www.vaco.org/LegislativeNews/LegPubs/Model%20TDR%20Ordinance.pdf

“The ordinance, which is the product of a work group representing broad stakeholder interests meeting over the past four months, also includes commentaries, model deeds and suggested references.

“The initiative for the model ordinance was the extensive changes to the TDR statute enacted by the 2009 General Assembly (Ch. 413, 2009 Va. Acts). Because of those legislative amendments, which included local taxation of the severed rights during the time they are unattached to a specific land parcel, several stakeholders felt that a usable model ordinance was needed to encourage localities’ adoption of TDR provisions.

“The work group that produced the model ordinance included local government representatives, attorneys and lobbyist, planners, developers, appraisers and other real estate professionals, state officials, and other agriculture interest groups.

“As with any model ordinance localities are reminded that local conditions and concerns may require modifications before adoption.”

Any locality hoping to start a TDR program, or to revamp an existing one, would do well to review the work of the group, which includes extensive commentary and issues to consider, as well as the model ordinance itself. The group discussed many issues, some particularly thorny, which localities should address in any TDR ordinance, whether based upon the model or not. Some issues arise from the wording of the statutes, and others from the creation of a new class of taxable real estate — the “floating” development right.

I and the whole Local Government Team at Sands Anderson Marks and Miller would be excited and proud to assist anyone with legal issues surrounding TDRs, which hold so much promise as a local government planning and land use tool, as well as an estate or financial planning tool for landowners.

My thanks to VACo for including me on the team that prepared this document, to Chip Dicks for his excellent work in Chairing the group, to Ted McCormack for his working in arranging and coordinating the group, and to all those on the team for the good work, cooperative spirit and helpful work product that emerged.

]]> http://valocalitylaw.com/2010/01/07/help-with-transfer-of-development-rights-has-arrived/feed/ 1 http://valocalitylaw.com/2009/11/17/transfer-of-development-rights-help-on-the-way/ http://valocalitylaw.com/2009/11/17/transfer-of-development-rights-help-on-the-way/#comments Tue, 17 Nov 2009 23:58:24 +0000 Andrew McRoberts http://valocalitylaw.com/?p=293 For many years, localities were without authority to adopt a TDR ordinance. The Attorney General made clear that while a TDR program might be constitutional, a statute would have to be adopted to authorize a locality to adopt a TDR ordinance. Opinion to the Honorable Robert T. Andrews, 1985-86 Va. A.G. op. 112.

In 2006, such statutes were adopted. 2006 Acts of Assembly ch. 573. However, the authority was little utilized in part because of the requirement that the severence of the development rights and the attachment of the development rights occur simultaneously. In 2009, this was addressed and other changes made to the statutes with an intent to make them more attractive to local governments and landowners. 2009 Acts of Assembly ch. 413. That statutory amendment took effect July 1, 2009.

For the last few months, a workgroup made up of representatives from local governments, realtors, homebuilders, agriculture and environmental groups has met at the Virginia Association of Counties Office on Richmond’s Main Street with one goal: To make it easier to implement Transfer of Development Rights (TDRs) in Virginia.

With special kudos to Chairman John G. ” Chip” Dicks, who facilitated the discussions, and Ted McCormack, who organized the meetings and arranged the details, a group of attorneys, lobbyists, planners, assessors, staff and other real estate professionals from varying perspectives wrangled over the details of the current TDR statutes, found in Virginia Code sections 15.2-2316.1 and 15.2-2316.2. The workgroup is nearly ready to release a model ordinance with extensive commentary, form deeds and transfer documents. I will certainly update this blog with the materials when they are finalized, which should be before the end of 2009.

The end product is one that we reached by consensus, and one that we believe will make the implementation of TDRs easier and more likely in those localities that choose to adopt some version of it. The end product is NOT approved by any locality, organization or employer, but is intended as a resource. Of course, any model will require significant review and revision by local staff and the local government attorney, as well as amendment of existing local ordinances and the comprehensive plan to make it work. But the end result may be another way to make good planning work for growing localities.

Our meetings were all very cordial, and disagreements were seldom and professional. The comments reflect some of the legitimate disagreements that occurred, and are intended to allow local governments and others to consider issues the workgroup discussed. My compliments go to every member of the workgroup for your professional demeanor and positive attitude. All of us truly seemed to want to make TDRs work for the benefit of all.