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    Urban Lawyer

    A Pragmatic Proposition: Regionally Planned Costal TDRs in Light of Rising Seas

    by Daniel J. Depasquale

    Daniel J. Depasquale has a B.A., Stony Brook University (2011); M.A., Stony Brook University (2012); J.D. Candidate, Western New England University, School of Law (2016).

    [S]cience, accumulated and reviewed over decades, tells us that our planet is changing in ways that will have profound impacts on all of humankind. . . . [T]hose who are already feeling the effects of climate change don’t have time to deny it — they’re busy dealing with it.1

    Climate Change is upon us, and there is ample research displaying that it is here to stay.2 Current research points to dramatic increases in greenhouse gases in the atmosphere since 1750, making it likely that the climate changes seen today are caused mostly by past and present human activity.3 More specifically, “[w]arming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, sea level has risen, and the concentrations of greenhouse gases have increased.”4 Nationally, sea levels will rise, as we witness continued inundation of United States coastal communities that will threaten the environment, economies, and the overall way of life in these areas.5 The effects are visibly evident in today’s world, as sea level has risen eight inches since 1880 and is projected to rise a staggering one to four feet more by the year 2100.6 These changes are significant because over half of the citizens in the United States live in coastal communities, totaling 164 million people.7 Moreover, it is projected that there will be an additional 1.2 million people added in coastal zones in each successive year.8

    The American northeast, with its 64 million people, is one of the most developed regions in the world.9 Cities and towns within the northeast have been dealing with a marked increase in substantial storms, heat waves, and coastal flooding, with no signs of slowing down.10 Further, resources such as water supply and potential evacuation routes are susceptible to increased flooding, sea level rise, and storm surges, as well as other potential results due to impending climatic changes.11

    Many of these impacts of climate change, such as sea level rise and extinction of species, are irreversible.12 Where these changes will lead in the future is a matter of projection,13 as scientific research can only fully comprehend the effects that are taking place at the current time.14 What is certain, however, is that the United States — and the international community for that matter — must prepare for a global future that will be startlingly distinguishable from what we experience today.

    While action is being taken both federally and by states, climate change is a global phenomenon that we as a species have created through years of emissions into the atmosphere.15 With this in mind, it is uncertain whether actions taken today have the propensity to prevent the inevitability of increased climate change and rising seas.16 This uncertainty could and should lead to adaptations and better planning of communities in order to shield them from the numerous side effects of climate change — sea level rise in particular.17 It has recently been proposed that transferable development rights programs (“TDR programs” or “TDRs”) “can and should be used to restrict coastal development in areas that are likely to be repeatedly flooded, eroded, or submerged as a result of rising sea levels and an increased frequency of intense coastal storms.”18 This proposition is the centerpiece that this article seeks to further analyze and build upon.

    This article posits that regionally planned transferable development rights programs can be effectively utilized in order to prepare for the inevitability of climate change and sea level rise. Part I analyzes the possible ways that regions, states, and municipalities can prepare for sea level rise. Part II outlines what TDR programs are and how they are organized, while also explicating the numerous pros and cons of TDRs. Part III traces the history of TDR programs, encompassing what TDR programs have previously been utilized to accomplish. It then addresses what a coastal sea level rise TDR would look like, compared to the usual TDR formula. Part IV evaluates the legality of mandatory TDR programs versus those that are voluntary, while comparing the pros and cons of each type of TDR program. Additionally, it addresses how the use of an effective federal flood insurance policy could drive voluntary programs to become more successful. Lastly, Part V posits why a regional approach to TDR programs is the best method. Part V also presents in-depth analyses into three current regional programs, with suggestions for future improvements of regional TDR programs in general.

    I.  Local Government Preparation Strategies for Sea Level Rise

    Local governments have a limited capability to prepare for the inevitability of sea level rise within their jurisdiction. Much of the issue stems from balancing the up-front and future costs of any local government program against the gain derived from such actions.19 This section will analyze what tools local governments have in preparation for an inevitable future of rising seas.

    The first policy action a local government can take is to protect the location from sea level rise.20 The usual course of action is to armor “the coast with hard-engineered shoreline stabilization structures like seawalls.”21 Alternatively — but within the same realm — is “soft armoring,”22 which involves the use of natural sand and vegetation structures, as opposed to manmade walls.23 Included within the definition of “soft armoring” is beach nourishment, which is defined as, “the process of dumping or pumping sand from elsewhere onto an eroding shoreline to create a new beach or to widen an existing beach.”24 This type of treatment is common along the coast, but by no means stops erosion; rather it stalls the effects of said erosion.25

    A second strategy that local governments can use is accommodation.26 Accommodation appropriates the use of building and zoning codes in order to prepare for sea level rise.27 Examples of such strategy include restrictions on density, removal of structures, and the creation of buffer zones.28 This includes the use of rolling easements, which “are a special type of easement placed along the shoreline to prevent property owners from holding back the sea but allow any other type of use and activity on the land. As the sea advances, the easement automatically moves or ‘rolls’ landward.”29 The main issue with rolling easements is that they generally only provide for destruction of a structure — such as a home — when the median high-tide line is past a certain point.30 Researchers in the field believe that the strategy of accommodation is best used within commercial and residentially zoned areas that can hold additional development that is designed for future climatic changes.31

    The final local government strategy is that of retreat.32 Such a strategy is an attempt to take development out of the immediate coastal area, leaving behind current or previous development.33 It is the local government’s choice whether to leave the structures to be inundated by the ocean, or to clean up the area before anything takes place.34 Generally, scholars recommend retreat for areas that are accepting the inevitability of coastal inundation, but are preparing to retain the wetlands and beaches for the enjoyment of the community.35 Retreat may become necessary in many cases, if other options become more costly as climate change intensifies and the sea level rises faster.36

    All of these strategies are viable options for local governments, and any one — or any combination of them — could work depending on the specific region that is being discussed. Ultimately, a vast majority of areas may want to look to retreat, as it is a feasible long-term solution to the inescapable reality of sea level rise. It is always better to be prepared when disaster is about to strike, rather than to be stuck cleaning up the pieces in the wake of catastrophe.37 This is provided that retreat is initiated before disaster strikes.

    The best way such a policy can be implemented is with as little hardship on the coastal communities as possible, because many residents will not want to leave their homes. Many residents of these communities will likely fight any policy that will force them to move away from not just their homes, but communities with school systems that their children attend, neighbors they have created close bonds with, and numerous other sentimental feelings and memories from the area that they call home. While this is a complex policy issue, the choice to move away may become the inevitable once the seas inundate entire communities.

    As previously demonstrated — in general — private owners of coastal lands prefer to armor, rather than retreat,38 an issue that requires incentive-based plans in order to successfully prepare for sea level rise through the use of retreat.39 An incentive-based plan is one that provides homeowners with an economic motivation to retreat rather than continue armoring.40 This paper will promote just that, through the use of coastal sea level rise TDR programs. Thus, this paper posits that the best way to meet a “least hardship” standard is through the use of coastal transferable development rights programs, which not only limit development on the coastline, but also provide a profit incentive for current coastal landowners.41

    II.  Breakdown of Transferable Development Rights Programs (TDRs)

    An owner of real property has a bundle of property rights, including the right to sell or transfer the property, the right to benefit from the property, the right to exclude, and the right to control.42 A development right is one of the rights within that bundle.43 Development of land encompasses making any “material change” to the use of such land or building on such land, whether it is over or under the owned land.44 Thus, a development right is a landowner’s right to transform the current use of her land to something else.45 Land use regulations apply when the use of the property is changed.46

    What happens under a TDR program is that the owner of the real property in effect sells her right to further develop the land.47 In order for a property owner to sell her development right, the land must be within a select area dubbed a sending zone.48 The government inserts a restriction on the deed of the landowner, placing an encumbrance upon the title of the property.49 Furthermore, the governmental body implementing the program will sometimes keep track of the development right, and the appraised value that it was given at the time of sale.50 This is a policy choice that is not utilized by all implemented TDR programs. The property owner within the sending zone can then sell these development rights to another property owner or developer within a receiving zone.51 A receiving zone is a designated area for the buying of development rights.52 What the buyer is purchasing is the right to further develop her property to an extent that was not previously permitted as per the local zoning code.53

    Some government TDR programs include the creation of a bank54 in order to administer transactions, and even purchase TDRs if the government is inclined to do so.55 The bank also has the propensity to keep down transaction costs for TDR program participants.56 Banks can even be utilized to group TDRs together, giving each TDR owner a small percentage of the total money given by an investor within a receiving area.57 On top of this, a state can use a TDR bank to purchase all of the available TDRs in the market, holding them until investors in the receiving area are found.58 This policy further incentivizes participation in the program, as the sending area property owners would receive money upfront from the provided bank.

    The basic form of a TDR program provides a blueprint for any coastal TDR program that seeks to create a retreat plan for citizens close to the ocean.59 To date there has been little scholarship on what a coastal TDR program would look like, but one can imagine such a program.60 The sending area would be a specified area close to the shoreline, in anticipation of inundation by the ocean in coming years.61 Subsequently, an inland region that is capable of taking on increased development would best suit the receiving area.62 A receiving area would most likely end up being somewhere that is already built up to some degree, but it could just as well be untouched land.63 The landowners within the sending area would then sell their TDRs to landowners within the receiving area.64 The program’s goal would be to provide sending area owners with sufficient compensation to incentivize the choice to retreat to an accommodation further away from the rising seas.65

    There are a number of benefits to implementing TDR programs. First, rather than a developer having to spend an excessive amount of time and money seeking local zoning changes, she could purchase TDR rights instead.66 This promotes business, which boosts the local economy.67 Just as important is the potential to preserve land in sending areas with little to no cost to the government.68 Such programs create a political victory for all involved if the program moves forward.

    Any TDR plan could also stimulate smart growth within the receiving areas, while preserving land in the sending area.69 Smart growth generally means the planning of neighborhoods in such a way that keeps housing close to schools, stores, and jobs, thereby creating a strong economy, while promoting the environment at the same time.70 More specifically, “[p]lanning for more compact development in receiving areas should result in more walkable communities with access to transit, a variety of shops and services, amenities such as open space and street trees, and a reduced need to drive.”71 Growth of this nature requires careful planning of roadways, transit systems, sewers, waterways, schools, and recreational facilities.72 Furthermore, higher density growth necessitates fewer firefighters and policemen per citizen, while reducing the costs to maintain roadways and power lines.73 This is vital to keep in mind when planning a coastal TDR program in response to sea level rise. Such a plan has the propensity to garner smarter growth than has been seen in the past,74 but may not always create the intended effect in coastal programs, as many times the receiving area will have existing infrastructure that is already taxed or out of date. This does not mean that smart growth cannot be achieved in a coastal TDR setting, but it would require advanced planning and more investment by the government in order to engender cities that are “smarter” than ever before.

    While there is certainly a litany of advantages to TDR programs, they are not probable or possible for all areas, as these programs are market-based systems, requiring some sort of development pressure to be successful.75 TDRs are risky, necessitating restrictions on increases in receiving areas in order to maintain high demand for the TDRs available within the marketplace.76 As long as the governing body does a good job implementing a program, does its research, and pays close attention to the potential economic situation in the region, then such an issue could potentially become irrelevant.77

    TDR programs are complex systems that are not the easiest to understand.78 Informing the public what a TDR program is and what the numerous benefits are that come along with it is an obstacle for a successful program’s implementation.79 This may require a public education campaign or public relations campaign to provide the public with the knowledge necessary to understand the program and create a desire to participate.80

    Moreover, some critics assert that TDR plans are more helpful to people who own larger plots of land, as their land is worth more TDRs.81 They further argue that these owners are then able to sell them for industrial development within receiving areas more easily than people with smaller plots of land and less bargaining power.82 While this could be an issue, a program with a previously mentioned TDR bank could best combat this by banding together small TDRs to sell as a group for industrial development within the designated receiving area.

    A closely related negative is the idea that property values will fall within the sending area, leaving the local government with the cost of maintaining current infrastructure with a lower tax base.83 Such an issue could be fixed through a program that siphons potentially increased tax dollars in the receiving area back to the sending area in order to justly compensate both, although this has yet to be seen. On the other hand, many TDR programs’ sending areas — although not within a sea level rise coastal TDR scheme — prevent the development of lands that have not yet been developed.84 In such an instance no cost is ever incurred by the local government.

    There certainly are a litany of positives and negatives to TDR programs, all of which apply to coastal programs as well. When creating a TDR program, it is important to keep in mind that “[a]n effective TDR program requires adequate resources be devoted to the program’s design and creation, including planning, funding, and implementation for capital facilities in receiving areas. Capital facilities include water, sewers, roads, transit, recreation, community services, and schools.”85

    While there are costs associated with TDR programs, they have the propensity to be considerably less than armoring programs for combating sea level rise, particularly in areas that are very likely to become inundated within the coming years.86 By the year 2040, the United States will have added approximately another 100 million people to the population.87 This increase will further stress natural resources, creating an even greater need to revitalize all aspects of infrastructure.88 TDRs provide communities with reasonable means to deal with this issue, and such programs could require the least amount of public funding.89

    III.  History of TDRs and Future of Coastal Implementation

    A.  TDRs: Past, Present, and Future Uses

    The sheer number and development of TDR programs has come a long way since their inception in 1916.90 The first TDR program was formed in New York City.91 The creation of the 1916 Zoning Ordinance established that landowners could transfer their unused air rights to other adjacent properties.92 The purchaser of these rights would then be able to use them on their land as long as they complied with local zoning limitations.93 However, prior to 1916 New York had no zoning limitations for the height of buildings.94 It was at this time that the city realized it was vital to utilize zoning laws in order to protect the city from excess “population density, building size, and land use.”95 Specifically, “[t]he 1916 Resolution sought to maintain property values and preserve light and air on city streets through height, area and public use regulations.”96

    The 1961 Zoning Resolution was a mere evolution from 1916. New York City’s new Zoning Resolution added “maximum development potential” for each land parcel as well as the ability to transfer development rights from a long-term lease that was contiguous to another parcel, which was owned in fee.97 This allowed landowners to rent out the lots adjacent to land they owned, in order to further develop the land they held in fee.98 In 1961, the new Resolution also added floor area ratio (“FAR”), meaning that each lot is designated a maxi- mum volume and floor area upon which building occur.99 Since this ordinance, development rights have overwhelmingly been expressed by way of FAR.100

    Furthermore, in 1968, New York City moved to allow landmarks to transfer their air rights to adjacent lands, eventually leading to the inception of the program highlighted within Penn Central Transportation Co. v. City of New York.101 The 1968 change redefined “adjacent lot” to cover lots across the street or intersection of the owned parcel in order to increase transfers of land rights in areas that were already densely developed.102 Most importantly, the City Planning Commission retained the ability and right to approve any of these transfers, so that they could prevent overdevelopment by the public.103

    In 1977, the law developed again, permitting TDRs to be transferred between contiguous lots that were separately owned, but the change required both landowners to file a “declaration of merged single lot status.”104 Eventually, New York, as well as Chicago, developed plans that were not limited to contiguous lots.105 It was only then that receiving and sending areas were formulated within larger areas like New York City’s waterfront district.106 This plan turned into the revitalization the South Street Seaport, by way of TDR.107 Revitalization projects such as those in New York City have become more common as TDR programs develop in the United States.108

    As of 2010 there were nearly 250 TDR programs across the country,109 with active TDRs “in thirty-four states as well as the District of Columbia.”110 As of 2010 the states with the most TDR programs were: California — thirty-three; Pennsylvania — thirty-two; Florida — twenty- eight; Washington — twenty; New York — sixteen; Massachusetts — fourteen; and Maryland — eleven.111 All other states have fewer than ten communities with TDR programs, leaving twenty-one states that have three communities or fewer with TDR programs.112

    Today’s programs were created for a vast array of policy reasons, mostly culminating behind a central principle — to conserve sensitive natural resources.113 The largest category of TDRs includes programs used for a mixture of environmental and farmland preservation.114 The most successful programs of this type can be found in the New Jersey Pinelands and in King County, Washington, which uses TDRs to preserve rural lands while generating more development within urban areas of Washington.115 The Pinelands covers over sixty municipalities, preserving agriculture as well as entire ecosystems and swamps that contain 350 species of animals, and 850 species of plants.116 The second largest use of TDRs, which includes thirty-nine different programs, is exclusively for farmland preservation.117

    The third largest use of TDR programs is for historic preservation, as was the case in Penn Central.118 There are a total of twenty-eight of these programs currently in the United States.119 Half of those are exclusively used for historic preservation, and seven emphasize downtown revitalization.120 Interestingly, there are eleven TDR Programs that prevent hillside development to promote local recreation; preserve habitat and sensitive environmental locations; and avoid wildfires, landslides, and floods.121 One city in California utilizes a TDR program to protect the mountain that is the symbol of the city.122 There are also ten TDRs for protection of groundwater.123 An example of this is Central Pine Barrens Region in New York, which protects drinking water by preserving the aquifer under Long Island.124

    As one can see, there are multitudes of other TDR program uses that protect anything from scenic views, minerals, rural character, urban design, and even just mere flexibility purposes.125 More recently, there has been an influx of regionally based TDR programs, or programs that encompass more than just one municipality, a strategy that this article posits as a best practice when available.126 Overall, a vast majority of TDR programs throughout the United States were created for environmental conservation.127

    B.  A Vision for Coastal Sea Level Rise TDR Programs

    To date, TDR programs have not been used for the purpose of mitigation of sea level rise, erosion, and damage to land.128 There are eight total TDR programs that are classified as “coastal,” but these programs focus on policy concerns other than sea level rise.129 Brevard County, Florida’s program comes closest to combating sea level rise, originally meant as a program to preserve the oceanfront, barrier island, and beaches.130 The program was also put in place to help compensate landowners for previously downzoning their lands in 1979 and 1985 from density limits of thirty units per acre to one unit per acre to better preserve the environmentally sensitive area.131 Nonetheless, to date, the program has no application to sea level rise preparation.132 This program has hit a standstill because the oceanfront property owners value their land much more than TDRs would sell for on the market.133 Moreover, local developers believe the TDR process used in Brevard County is “too cumbersome.”134

    Oxnard, California’s program is “intended to provide a mechanism for preserving important resources, maximizing coastal access, providing recreation and controlling development in potentially hazardous areas.”135 The program was created in light of litigation with the city over subdivisions created by the city.136 Citizens sued in favor of as well as in opposition to the development of beachfront lands.137 The claims were up to around forty million dollars at the high point.138 Beachfront lots were set as sending areas, leaving multifamily residential zones elsewhere to be the receiving areas.139 In order to promote the TDR program, the city waives fees and taxes normally involved in further growth of land or acquiring parkland.140 In the end, the TDR program did not work to avoid paying the money the city owed, as the city ultimately settled in 1988, resulting in more development lots on the shoreline.141 The program is still in existence, but as with Brevard County, Oxnard City’s plan has not garnered any transfers due to the shoreline land being too valuable in comparison to sending areas.142 Other coastal TDRs have various objectives such as providing flexibility in downtown areas while limiting beach development,143 or even enhancing oceanic views from the local beaches.144

    There is much to learn from the experiences with these other TDR programs. First, there is a major difference between coastal TDRs and other TDRs.145 Ordinarily, the TDR sending zone is on land that is not developed, and the government seeks to keep it that way.146 This is in stark contrast to coastal TDRs’ sending zones, which consist of lands that, for the most part, contain houses or structures.147 This creates an extra step in the program, dealing with the cleanup or destruction of the house after ocean waters have inundated the house or other structures on the premises,148 not to mention the personal property that may also be left behind after inundation.149

    Another issue more specific to coastal TDR programs is generating a market, or garnering the market price necessary in exchange for the rich value of coastal lands.150 Such a problem can be combated with a carefully drafted program in areas with local markets that have the capability of driving the TDR price through demand.151 This is a complication with the use of voluntary coastal TDR programs, which are programs that do not force landowners to join the program.152 Alternatively, there are mandatory programs that force owners living in sending areas to take part in the program.153 Under a voluntary scheme, one can conclude that TDR programs are only an option in areas that have the potential economic capacity to keep the program running through simple supply and demand free market economics.154

    IV.  Mandatory Versus Voluntary Programs

    A.  Mandatory TDR Programs and Takings

    As a result of the Fifth155 and Fourteenth156 Amendments of the United States Constitution, there have been and will continue to be takings issues for TDR programs. Takings issues within the realm of TDRs dates back to Penn Central in 1978.157 The premise of the case was that the City of New York had implemented the Landmarks Preservation Law, and the law was being challenged with a takings suit.158 The case included denial of a permit for development space atop Grand Central Station to preserve the building as a landmark.159 The plaintiff — owner of the property — was capable of transferring those development rights to somewhere else within close quarters.160 The plaintiff even owned other properties, to which they could have transferred the rights.161

    The court never reached the merits of the takings claim. However, in Justice Brennan’s majority opinion, the Court stated: “[w]hile these rights may well not have constituted ‘just compensation’ if a ‘taking’ had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on appellants and, for that reason, are to be taken into account in considering the impact of regulation.”162 In other words, the loss of the owner’s land rights would be considered a taking under the United States Constitution, however, the development rights given in return could at least in part be considered as compensation for the takings.163 This leads one to believe that in a case similar to Penn Central, the Court, or at least Justice Brennan, would have held that a partial taking was evident, requiring payment from the government in excess of the development rights provided to the property owner.

    More recently, the ruling in a 1997 case, Suitum v. Tahoe Regional Planning Agency, further convoluted the topic of takings and TDR programs.164 The case involved a landowner who was denied beneficial use of her property via environmental controls developed by the Tahoe Regional Planning Agency.165 The main issue in the case was whether the government committed an unconstitutional regulatory taking when it made the decision that the plaintiff ’s land could not be further developed, but instead could receive the value of a set number of TDRs.166 Once again, the Court did not reach the merits of the takings claim at hand, as the sole question it answered was whether the claim was “ripe for adjudication.”167

    In Justice Scalia’s concurrence (joined by Justices O’Connor and Thomas) he opined, “that the relevance of TDRs is limited to the compensation side of the takings analysis, and that taking them into account in determining whether a taking has occurred will render much of our regulatory takings jurisprudence a nullity.”168 With this — and later language within his concurrence — Justice Scalia is asserting that there was a clear taking in this case because the landowner was not allowed to build a home on her land, and thus the Court does not need to look at the TDR program to determine if a taking occurred.169 He also agrees with the Penn Central majority that the development rights provided are a form of compensation, but not necessarily full compensation.170 With no actual ruling on takings issues for TDR programs, legal scholars are left to theorize how such a claim would play out on its merits.

    It appears that there could certainly be future takings claims involved if coastal TDR programs are mandatory. The question is not whether there was any sort of taking by the government, but rather if the landowner was justly compensated for the loss of development rights on the land. Such takings compensation claims could be combated by a program that ensures just compensation to all property owners that are impacted within the sending area.171 The problem is that just compensation overall will not always be up to the discretion of the program creators. Instead, compensation will be derived from the property values of the sending and receiving areas, coupled with the robustness of the created TDR market. Thus, just compensation issues under mandatory programs are an inevitable reality when dealing with sea level rise coastal TDR programs.

    This leads to the conclusion that a TDR program, which is voluntary, or finds a way to fully compensate the landowner up front, will not have issues with constitutional takings compensation.172 A government could ultimately decide that the creation of a mandatory program —  while possibly costing the government more through the need to make sure adequate compensation is provided to all — is more beneficial than a voluntary program that may lack the incentive for participation by homeowners. Thus, one can determine that a mandatory program would garner a much more robust market for TDRs by generating a more controlled group of actors within the system, as opposed to a voluntary program that may have participation issues. The governmental decision to make the program mandatory or voluntary is certainly an important issue to keep in mind when creating a coastal TDR program.

    B.  Flood Insurance to Propel the Voluntary Coastal TDR Marketplace

    In 1968, the National Flood Insurance Plan (“NFIP”) was formed by Congress to create an entity to provide landowners with financial protection in the event of flooding.173 Under the Department of Homeland Security, Federal Emergency Management Agency (“FEMA”) determines locations of flood hazards throughout the nation, and then publishes a report.174 This report is provided to local governments in what is called a Federal Insurance Study (“FIS”).175 The local governments must then take it upon themselves to update their flood management regulations, or else FEMA could take away funding used to subsidize residents’ flood insurance.176 A resident in these areas can purchase — and must do so in high-risk areas — flood insurance from any local insurance company, as every company provides the same rate to the customer.177 The rates vary depending on the area, as they are developed based upon certain factors, including the area’s level of risk, how old the home is, and what materials were used to construct the building.178

    Unfortunately, in recent years, the costs of government subsidies have increased dramatically.179 In response to rising government costs for subsidizing flood insurance, including a “$25 billion shortfall in flood claims,”180 Congress passed bipartisan reform181 called the Biggert-Waters Act in 2012.182 The Biggert-Waters Act “was designed to make the government’s flood insurance program financially solvent by bringing rates in line with true flooding risks.”183 The result of this was increased costs for customers, especially in mandatory high-risk flood zones.184 For example, in Provincetown, Massachusetts, flood insurance increased from $600 to $6,000 per year for local residents.185

    In light of recent storms like Hurricane Sandy, people within flood zones became increasingly opposed to the new law, as it would mean exponential increases in yearly insurance rates.186 In response to the uproar over the new rates, Congress enacted the Homeowner Flood Insurance Affordability Act (“the Act”) into law.187 The Act reinstated the pre-Biggert-Waters Act rate of government subsidization.188

    Since the Act passed, policy analysts in the field have asserted numerous issues with the subsidy.189 For instance, Rob Moore, Senior Policy Analyst for the Natural Resource Defense Council (NRDC) wrote, “[r]olling back the earlier Biggert-Waters reforms and reinstating insurance subsidies is bad public policy. It sets back efforts to prepare for the impacts of climate change and is an over-correction for legitimate concerns about the affordability of flood insurance for people of limited means.”190 He also suggests that the Act will cover people who are able to pay for insurance, rather than just those in need.191 More importantly, the Act currently only brings aid to 1.2 million people in flood zones, or twenty-one percent, meaning that the other seventy-nine percent still pay flood insurance to the NFIP at actual cost.192 This is an interesting statistic, considering the amount of debt the program accumulated prior to 2012.

    As the sea level rises, more and more homes will require this subsidy, causing the debt to grow exponentially.193 Scott Gabriel Knowles, Associate Professor of History at Drexel University, concluded that the Act will cause people to be much less likely to move out of flood zones, something that he argues is not good for people advocating a more aggressive plan for the future impacts of climate change.194 Going one step further, Shiva Polefka at the Center for American Progress posits that the best method the government could take at this point is to utilize publically funded buyouts of these flood prone regions.195 Such a plan would encompass government purchase of willing residents’ lands, with demolition of all existing structures on the land, while maintaining the land for use by the public.196 Research shows that this is not only safer, but also a much more cost effective measure for the government.197 Such a plan would generate a savings for the government within ten years, as the government would not have to deal with subsidizing insurance or recovery costs of eventual future floods.198

    Utilizing these analyses on the issue of flood insurance, it is apparent that if the government would take steps away from their current legislation — by rolling back government insurance subsidization — it would do wonders for the prospects of TDR programs in coastal communities.199 To be more specific, people would experience the impending increases of flood insurance rates, and thus would be much more likely to buy into a voluntary TDR program in order to gain some economic leverage to move elsewhere. The result would be a voluntary program that could provide a robust market — more relative to what a mandatory program would garner — all while avoiding the potentiality of government takings claims.

    On the reverse side, there will inevitably be a group of homeowners that will continue to refuse to leave their homes and community behind, unless the government or the eventual inundation of the area forces them to. Such an issue may require an eventual switch from a voluntary sea level rise coastal TDR program to one that is mandatory, in order to force action by citizens refusing to participate in the program. Moreover, the use of a new insurance policy, coupled with adequate education, may garner support from those who continue to be stubborn. After all, taking part in the TDR program does not mean that people have to leave their homes, but just that they cannot further develop their property beyond its current state.

    V.  A Regional Approach to TDRs

    A regional implementation of TDR programs has the potential to generate more benefits than smaller, municipality-created programs.200 There are numerous governmental bodies within the United States that have created regional TDR programs, including New Jersey,201 the Puget Sound area in Washington State,202 and numerous other counties in Colorado,203 Maryland,204 and New York.205 The Puget Sound region of Washington State has the largest regionally implemented TDR program to date, however it may not be the most successful.206

    Historically, TDR programs have been local in nature, and many have been successful.207 It is clear that when a regional plan is not available, a local plan can be effective.208 Because TDR programs are market-based systems, however, a regionally based system would garner a larger share of TDRs within the market creating a more balanced and effective TDR marketplace.209 Moreover, a regional program would be run and procedurally implemented by one organization, which would be streamlined and more cost effective for all participating municipalities.210 A regional program creates opportunities for municipalities that would otherwise not be able to create an effective TDR program, as they do not have a big enough market or land in either the sending or receiving areas.211

    Once the regional program is formed, municipalities could have the option to join a program that has an already generated market and administrative infrastructure, rather than starting a local plan from scratch.212 The regional program would be more likely than local programs to retain federal funding through the application of grants, as has the Puget Sound program.213 What is more, a regional plan would be superior to local, municipally-run plans because the regional plan has a greater propensity to generate smart growth on a large scale, potentially creating whole new cities that are planned for the future.214 A local plan would, in contrast, likely garner smaller smart growth hubs.215 The enhanced promotion of smart growth within communities would create greater preservation of lands, along with much greener economic growth for the region.216

    In general, regional TDRs have the potential to bring about a regional market for conservation and development that is much larger than that of a single jurisdiction.217 This would increase capacity for local farms to produce fresh meat and produce to cities.218 Regional plans can also create more jobs for builders of residential housing as well as local businesses through purchasing of development rights.219 Such plans even permit developers to increase development capacity through the purchase of development rights from forest, farm, and other preserved areas in a greater capacity.220 In sum, regionally planned TDR programs can enable “[c]omprehensive planning for more compact development”221 in city areas, leaving for greater preservation of space in other areas.222 To date, the country has seen mandatory plans like that of Maryland and New Jersey perform well, with the lone voluntary, regionally-based system in Washington performing somewhat under par in comparison.223 The following sections highlight a few of the most successful regional TDR programs in the country to date, while laying out a description of how the systems are composed and carried out.

    A.  The Puget Sound TDR

    The Puget Sound Regional Council (PSRC) and The Washington State Department of Commerce developed the Puget Sound TDR program.224 The TDR Program was implemented primarily to prepare for increases in population within the region as well as the future of climate change.225 Part of the issue in the region is that much of the region’s farming and forest areas have been converted into residential housing, thus the local governments look to limit further environmental destruction of trees and fertile lands.226 The Puget Sound program is the only regionally based voluntary TDR program in the country, while other similarly sized programs are mandatory.227

    Implementation laws were passed by the state legislature in 2009, with four counties — King, Pierce, Snohomish, and Kitsap — implementing programs in the area ever since.228 Key provisions of the law included:   (1)  limiting sending areas “to county-designated natural resource and rural lands”; (2) limiting receiving areas to cities; (3) voluntary participation by residents, as opposed to mandatory participation; (4) the Department of Commerce developing “a clearinghouse of TDR resources on its website”; and (5) and the Department of Commerce developing an “interlocal terms and conditions rule that counties and cities may adopt” in order to generate “cross-jurisdictional TDR transfers.”229

    As of 2013 the Puget Sound TDR program has conserved 180,000 acres of forest, farmland, and open space.230 Further, roughly 2600 TDR credits or rights have been purchased from the conserved areas.231 Additionally, 136 new residential homes have been built, and 496,000 square feet of commercial area has been added, as well as approximately 225 feet of building height.232 These improvements are just the tip of the iceberg, as the program is still relatively new.233

    The Puget Sound TDR program has been successful for the most part, bringing numerous benefits to the region, with more yet to come.234 First, the Puget Sound program has preserved farming and forestry land, while protecting water quality in the process.235 Second, it has created incentives for cross-jurisdiction coordination to promote conservation and a booming economy.236 The program allows a city or municipality to aid in the preservation of land that is outside of its jurisdiction, but is either important to its wellbeing or to the creation of reciprocity with other local municipalities participating in the program.237

    While the Puget Sound Program appears good upon preliminary analyses, it has had issues with private sales of TDRs.238 More specifically, Pierce and Snohomish Counties have not had any private transactions as of the most recent report, while King County has had sixty-six total; King County, however, had a pre-existing TDR program in place since 1998.239 There are multiple reasons why this problem may exist. First, it could simply be a matter of time before sales take off as they did in King County. In addition, it should be noted that the current program has been highly funded by the state as well as the EPA Watershed Management Assistance Funds, and the West Coast Initiative Grant, both utilized in part to buy up TDRs for the government.240 These are assistance funds that any municipality or county can apply for.241 In the end, the government may need to provide more educational opportunities to the citizens in the form of a public education or public relations campaign to garner more community transactions and understanding of the good that a regional TDR program can provide an area, both economically and environmentally.242

    B.  Montgomery County, Maryland TDR

    The Montgomery County, Maryland TDR program is one of the most successful TDR programs to date.243 The original purpose of the plan was to compensate local farmers for land equity that was taken from them in a 1981 downzoning.244 The downzoning was a tool to create an agricultural reserve area.245 The TDR program is meant to preserve farmland within the agricultural reserve, as continued farming in the area necessitates land to farm.246 To do so the government designated an area as the “Rural Density Transfer Zone” (“RDTZ”), which is used to promote agriculture as the primary use of the land.247 The TDR must then be sold in a non-rural zone designated by the state.248 The RDTZ was rezoned to permit no more than one house per twenty-five acres, but permitting TDRs to be sold at the old zoning regulation level of one per every five acres.249

    Through 2006, approximately 10,000 TDRs were sold and recorded, for a total of 100 million dollars,250 with one TDR in 2006 — the year whose study was most recently published — going for roughly $43,000.251 The plan, although covering more land than most TDRs, is clear and concise, allowing citizens to participate easily.252 With the absence of a TDR bank, the plan has seen success by pushing real estate brokers to conduct TDR transactions themselves.253 By 2009, the program protected more than 50,000 acres of land, which is the fourth-greatest amount of any program in the country to date.254

    While the program is largely successful overall, a recent study has displayed that it has its issues as well.255 There is a lack of receiving capacity, which the program attempts to fight back by keeping a 2:1 ratio of receiving sites to TDRs from the sending zone.256 With this issue, the county asserts that the program has met its “full potential” only once within the approximately thirty years that it has been running.257 There is also a participation issue, with a study showing “that more than one-third of the subdivisions built between 1981 and 2004 did not use the TDR option even when it was available.”258 Moreover, the report ac- knowledges the large administrative costs in terms of time and money in order to merely track and monitor the success of the program.259 Lastly, it should be noted that the program is mandatory in essence, rather than voluntary, as the land rights were taken away from sending areas before the program was ever created thus leaving the homeowners to seek compensation.260 Overall, Montgomery County has created a strong program that may be held back merely by the local market for a TDR program and lack of education provided to its citizenry.

    C.  New Jersey Pinelands TDR

    The New Jersey Pinelands encompasses one million acres of land, with one of the least polluted and largest aquifers in the country.261 The area provides nearly twenty-five percent of New Jersey’s agricultural income through the sale of cranberries and blueberries, all while containing 850 plant species and 350 animal species.262 With this in mind, it is clear why the government would be interested in the preservation of such land for environmental as well as economic reasons. The area was the first national reserve, containing seven counties and fifty-three municipalities.263

    Similar to the purpose at the inception of the Maryland plan, New Jersey created this plan in order to offset the development restrictions in light of the areas national reserve designation.264 Once again, it is important to keep in mind that the program is largely mandatory.265 As of June 2015, the program has conserved nearly 52,000 acres of land.266 The State picked out twenty-three specific receiving areas that it felt were optimum “based on demand for growth, environmental suitability, and infrastructure capacity.”267 Today, the program has a public outreach website, containing guidelines and brochures to help inform the public.268 The United States and the United Nations have both designated the area as a preserve — establishing a common knowledge by citizens of the area that the land is being protected.269

    The program uses a bank to certify the owner and the rights to be sold before a sale can legally occur.270 The bank is also in charge of maintaining a registry for transactions, issuing certificates after transfers occur, and even conducting title searches on lands to ensure they are free from encumbrances.271 Creatively, the bank has the capability of purchasing TDRs, although only at eighty percent of the market value, in order not to hinder the free market system.272 The State has provided approximately fifty million dollars to the program for the use of sewer improvements in areas that are growing as a result.273 The State has made sure that there are always more receiving opportunities than rights available, which keeps the market bullish in nature.274 Overall, it is clear to see that the New Jersey Pinelands TDR plan, although complex, appears to be the best run program to date. One should keep in mind, however, that the program is mandatory in nature, and protected in part by designation as a national reserve, something that is not available to all regions, especially those looking to implement a plan to combat sea level rise.275

    VI.  Conclusion

    In the end, it appears clear that TDR programs used by coastal areas will have hiccups, but ultimately, these programs have the propensity to be successful when correctly formulated. If an efficiently created sea level rise coastal TDR program is implemented, it could be the driving force for the creation of an effective regionally based TDR market. This plan would not be available for use only by people directly on the coast, but could potentially protect other sensitive natural resources within the given regional plan. Such a plan, if successful could prepare for sea level rise, and also establish a stronger economy for environmentally efficient regions in the future through the use of smart growth within receiving areas.

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    1. Office of the Press Secretary, Fact Sheet: What Climate Change Means for Regions Across America and Major Sectors of the Economy, THE WHITE HOUSE (May 6, 2014), http://www.whitehouse.gov/the-press-office/2014/05/06/fact-sheet-what-climate-change-means-regions-across-america-and-major-se [hereinafter Fact Sheet] (quoting President Barack Obama, Remarks by the President on Climate Change, THE WHITE HOUSE ( June 25, 2013), http://www.whitehouse.gov/the-press-office/2013/06/25/remarks-president-climate-change).
    2. See generally INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SUMMARY FOR POLICY MAKERS 3 (2013), available at http://www.climatechange2013.org/images/report/WG1AR5_SPM_FINAL.pdf; INTERAGENCY CLIMATE CHANGE ADAPTATION TASK FORCE, FEDERAL ACTIONS FOR A CLIMATE RESILIENT NATION: PROGRESS REPORT (2011), available at http://www.whitehouse.gov/sites/default/files/microsites/ceq/2011_adaptation_progress_report.pdf [hereinafter INTERAGENCY PROGRESS REPORT].
    3. See Causes of Climate Change, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, http://www.epa.gov/climatechange/science/causes.html (last visited Nov. 4, 2015).
    4. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, supra note 2, at 4.
    5. See INTERAGENCY CLIMATE CHANGE ADAPTATION TASK FORCE, supra note 2, at 2.
    6. Fact Sheet, supra note 1.
    7. Id.
    8. Id.
    9. Id.
    10. Id. See generally Office of the Press Secretary, Recovering and Rebuilding After Hurricane Sandy, THE WHITE HOUSE (Mar. 14, 2015), http://www.whitehouse.gov/issues/hurricane/sandy (discussing recovery efforts on the east coast in light of the aftermath of Sandy). See also Ann Bernard & Sarah Maslin Nir, Cleaning Up After Nature Plays a Trick, N.Y. TIMES (Oct. 30, 2011), http://www.nytimes.com/2011/10/31/nyregion/october-snowstorm-sows-havoc-on-northeastern-states.html?pagewanted=all&_r=0 (discussing the effects of a freak October snowstorm in 2011).
    11. Fact Sheet, supra note 1.
    12. INTERAGENCY CLIMATE CHANGE ADAPTATION TASK FORCE, supra note 2, at 20-21.
    13. See With Few Data, Arctic Carbon Models Lack Consensus, NASA (Sept. 24, 2014), http://www.nasa.gov/jpl/carve/data-arctic-carbon-models-lack-consensus/#. VCiv5SldVfS (“As climate change grips the Arctic, how much carbon is leaving its thawing soil and adding to Earth’s greenhouse effect? The question has long been debated by scientists. A new study conducted as part of NASA’s Carbon in Arctic Reservoirs Vulnerability Experiment (CARVE) shows just how much work still needs to be done to reach a conclusion on this and other basic questions about the region where global warming is hitting hardest.”).
    14. The melting of the polar ice caps, for example, has left the polar bear with much less time to go hunting for seals each year. James Gorman, Polar Bear, A Climate Change Twist, N.Y. TIMES (Sept. 22, 2014), http://www.nytimes.com/2014/09/23/science/for-polar-bears-a-climate-change-twist.html?_r=0. Seals are thought to be necessary for the future existence of the polar bear. Id. With ice melting earlier each year, the polar bear come ashore earlier in the year as well—luckily for them—during the (now) goose summer breeding season. The snow geese population has increased exponentially from 1.5 million in the 1960’s to 15 million today. Id. The polar bears are feasting on the snow geese eggs, containing four eggs per nest. Id. There was a reported case where a polar bear ate 1,200 eggs within a few days. Four eggs is equivalent to 825 calories. Id. This is by no means enough to revitalize the polar bear population, but displays one of the many intricacies climate change has sprouted. Id. This study has shown that there is much more to understand about how climate change will affect the climate and food chains within it. See id.
    15. See Causes of Climate Change, supra note 3.
    16. See generally INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, supra note 2.
    17. See generally Megan M. Herzog & Sean B. Hecht, Combatting Sea Level Rise in Southern California: How Local Governments Can Seize Adaptation Opportunities While Minimizing Legal Risk, 19 HASTINGS W.-NW. J. ENVTL. L. & POL’Y 463, 471-72 (2013).
    18. Nicholas R. Williams, Coastal TDRs and Takings in a Changing Climate, 46 URB. LAW. 139, 141 (2014). See generally Environmental Element, BAINBRIDGEWA.GOV (Dec. 2004), http://www.bainbridgewa.gov/DocumentCenter/View/1627 (promoting usefulness of coastal TDRs as well as smart flood insurance policy).
    19. See Herzog & Hecht, surpa note 17, at 472-73.
    20. Williams, supra note 18, at 146.
    21. Herzog & Hecht, supra note 17, at 472-73.
    22. Id. at 473.
    23. Id.
    24. Don Barber, Beach Nourishment Basics, BRYN MAWR COLLEGE, http://www.brynmawr.edu/geology/geomorph/beachnourishmentinfo.html (last visited Nov. 11, 2015).
    25. Id.
    26. Williams, supra note 18, at 146 (defining accommodation as “allowing the seas to advance while providing for human habitation for as long as is practicable”).
    27. Herzog & Hecht, supra note 17, at 475.
    28. Id. at 475-76.
    29. Erosion Control Easements: A Case Study, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, http://coastalsmartgrowth.noaa.gov/elements/preserve.html#casestudy (last visited Nov. 15, 2015).
    30. Williams, supra note 18, at 149.
    31. Herzog & Hecht, supra note 17, at 476.
    32. Williams, supra note 18, at 146.
    33. Herzog & Hecht, supra note 17, at 476.
    34. See id.
    35. Id.
    36. See generally Williams, supra note 18 (explaining that as sea levels rise due to climate change, retreat mechanisms may be the most appropriate solution).
    37. See Williams, supra note 18, at 146.
    38. Herzog & Hecht, supra note 17, at 510.
    39. See id.
    40. See id. at 527.
    41. Williams, supra note 18, at 149.
    42. ARTHUR C. NELSON ET AL., THE TDR HANDBOOK: DESIGNING AND IMPLEMENTING TRANSFER OF DEVELOPMENT RIGHTS PROGRAMS 4 (Island Press 2012). See generally Brad Dashoff & John Antoncci, Understanding Real Property Interests and Deeds, GPSOLO L. TRENDS & NEWS (2011), available at http://www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/2011_summer/real_property_interests_deeds.html (explaining basic real property rights such as time, title, interest, and possession).
    43. NELSON ET AL., supra note 42, at 5.
    44. Town and Country Planning Act of 1990, c. 8, § 55, available at http://www.legislation.gov.uk/ukpga/1990/8/section/55.
    45. NELSON ET AL., supra note 42, at 5.
    46. Id.
    47. See Paul D. Gottlieb, What is a Transferrable Development Rights (TDR) Program?, RUTGERS N.J. AGRIC. EXPERIMENT STATION, http://njaes.rutgers.edu/highlands/tdr.asp (last visited Nov. 11, 2015).
    48. Id. (defining “sending zone” as “[t]he environmental protection zone where development rights are separated. It is called a sending zone because the development rights are ‘sent’ out of it. In the case of the Highlands bill, the sending zones are likely to be in the preservation area.”); see also Noelle Higgins, Transfer Development Rights, WASHINGTON.EDU, available at http://depts.washington.edu/open2100/pdf/3_OpenSpaceImplement/Implementation_Mechanisms/transfer_development_rights.pdf (last visited Mar. 14, 2015). See generally PALM BEACH COUNTY, FLORIDA COMPREHENSIVE PLAN, DEPARTMENT OF PLANNING, ZONING & BUILDING, available at http://www.pbcgov.com/pzb/Planning/comprehensiveplan/tableofcontent.htm (last updated Apr. 29, 2015) (designating sending areas for the county).
    49. See Gottlieb, supra note 47.
    50. See id.
    51. See id.
    52. See id. (defining “receiving zone” as “[a] zone where a developer buys a right to build more units than currently permitted in the local zoning ordinance. These zones ‘receive’ development rights.”); see also Noelle Higgins, supra note 49. See generally PALM BEACH COUNTY, FLORIDA COMPREHENSIVE PLAN, supra note 49.
    53. See Higgins, supra note 48.
    54. The Pinelands Development Credit Bank in New Jersey is an example of just this. See id. See generally PALM BEACH COUNTY, FLORIDA COMPREHENSIVE PLAN, supra note 48.
    55. Gottlieb, supra note 47.
    56. Williams, supra note 18, at 157.
    57. See Gottlieb, supra note 47.
    58. Id.
    59. See Williams, supra note 18, at 139.
    60. See Rolling Easements: A Primer for Coastal Managers, RISINGSEA.NET, http://papers.risingsea.net/rolling-easements-3-4-2.html (last visited Nov. 20, 2015) (web content originally published by the EPA Climate Ready Estuaries Program in JAMES G. TITUS, ROLLING EASEMENTS ( 2011); John R. Nolan, Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll?, 21 WIDENER L.J. 735, 770-73 (2012); see also Williams, supra note 18, at 156-58 (most in depth analysis); see also Robert Verchick & Lynsey Johnston, When Retreat is the Best Option: Flood Insurance After Biggert-Waters and Other Climate Change Puzzles, 47 J. MARSHALL L. REV. 695, 700 (2013) (“Government should play a role in developing risk-based information . . .communicating risk in accessible ways to the public, designating or assembling land to receive new populations, and facilitating the transfer or development of needed infrastructure to receiving areas.”); see also Jenna Schweitzer, Climate Change Legal Remedies: Hurricane Sandy and New York City Coastal Adaptation, 16 VT. J. ENVTL. L. 243, 262 (2014) (asserting New York City’s policy against coastal retreat measures, while later recommending a TDR-like scheme for New York City).
    61. See Williams, supra note 18, at 157.
    62. Id.
    63. Gottlieb, supra note 48.
    64. Id.
    65. See Williams, supra note 18, at 157.
    66. NELSON ET AL., supra note 42, at 12.
    67. See id. at 5.
    68. Id.
    69. See BRIAN BONLENDER ET AL., REGIONAL TRANSFER OF DEVELOPMENT RIGHTS IN PUGET SOUND 9 (2013), available at http://www.commerce.wa.gov/Documents/FINALRPT-Regional-Transfer-of-Development-Rights-6-30-13.pdf.
    70. See What is “Smart Growth?”, SMART GROWTH AMERICA, http://www.smartgrowthamerica.org/what-is-smart-growth (last visited Dec. 2, 2015).
    71. BONLENDER ET AL., supra note 69, at 4.
    72. Id. at 9.
    73. See generally ROBERT W. BURCHELL ET AL., TRANSIT COOPERATIVE RESEARCH PROGRAM REPORT 74: COSTS OF SPRAWL—2000 (2002), available at http://onlinepubs.trb.org/onlinepubs/tcrp/tcrp_rpt_74-a.pdf (discussing the impact of urban sprawl and offering strategies for reducing negative effects).
    74. See Williams, supra note 18, at 139.
    75. NELSON ET AL., supra note 42, at 14.
    76. Rick Pruetz & Erica Pruetz, Transfer of Development Rights Turns 40, 59 PLAN. & ENVTL. L. 3, 6 (2007).
    77. This will be better demonstrated through analysis of specific plans in the final section of this paper.
    78. See Joseph D. Stinson, Transferring Development Rights: Purpose, Problems, and Prospects in New York, 17 PACE L. REV. 319, 349-50 (1996).
    79. See id.
    80. See id.
    81. Id. at 356.
    82. Id.
    83. Id. at 342.
    84. See NELSON ET AL., supra note 42, at xix-xxi.
    85. BONLENDER ET AL., supra note 69, at 9.
    86. See Herzog & Hecht, supra note 17, at 472-73.
    87. NELSON ET AL., supra note 42, at 240.
    88. Id.
    89. Id.
    90. Margaret Giordano, Over-Stuffing the Envelope: The Problems with Creative Transfer of Development Rights, 16 FORDHAM URB. L.J. 43, 46-47 (1988).
    91. Id. at 47.
    92. Id.
    93. Id.
    94. Id.
    95. Id..; NELSON ET AL., supra note 42, at xxi.
    96. Giordano, supra note 90, at 47. See generally CITY OF NEW YORK BOARD OF ESTATE AND APPORTIONMENT COMMITTEE ON THE CITY PLAN, COMMISSION ON BUILDING DISTRICTS AND RESTRICTIONS FINAL REPORT (1916), available at https://ia600809.us.archive.org/6/items/finalreportnewy/finalreportnewy.pdf.
    97. Giordano, supra note 90, at 47.
    98. Id.
    99. Id. at 50-51.
    100. Id. at 50.
    101. Id. at 47. See generally Penn Cent. Transp. Co. v. City of N.Y. (Penn Central), 438 U.S. 104 (1978).
    102. Giordano, supra note 90, at 54.
    103. Id. at 54-55.
    104. Id. at 56.
    105. See Robert Johnston & Mary Madison, From Landmarks to Landscapes, 63 J. AM. PLAN. ASS’N 365, 366 (1997).
    106. See id.
    107. Giordano, supra note 90, at 46.
    108. Seattle created a revitalization TDR in 1985 and Portland did so in 1988, just to name another. See NELSON ET AL., supra note 42, at 235-36.
    109. Id. at xxiv.
    110. Id. at 259.
    111. Id.
    112. Id.
    113. See id. at xxiv.
    114. Id. at 131.
    115. See id.
    116. Id. The Pinelands National Reserve hosts many plants and animals. See generally The Pinelands National Reserve, NEW JERSEY PINELANDS COMMISSION, available at http://www.nj.gov/pinelands/reserve/ (last visited Mar. 14, 2015).
    117. NELSON ET AL., supra note 42, at 136.
    118. Id. See generally Penn Central, 438 U.S. 104 (due process case involving historic land preservation).
    119. NELSON ET AL., supra note 42, at 136.
    120. Id. at 137.
    121. Id. at 135.
    122. Id.
    123. Id.
    124. Id. See generally The Pine Barrens Credit Program: Transferable Development Rights in Central Suffolk County, NY, CENTRAL PINE BARRENS JOINT PLANNING AND POLICY COMMISSION, available at http://pb.state.ny.us/pbc/pbc_overview.pdf (last visited Nov. 11, 2015) [hereinafter The Pine Barrens Credit Program] (listing that one of the principal goals of the Long Island Pine Barrens Protection Act is “[p]rotection of ground, surface, and drinking water for 1.8 million residents.”).
    125. See NELSON ET AL., supra note 42, at 132.
    126. See BONLENDER ET AL., supra note 69, at 6.
    127. See, e.g., id. at 4.
    128. ANNE SIDERS, MANAGED COASTAL RETREAT: A LEGAL HANDBOOK ON SHIFTING DEVELOPMENT AWAY FROM VULNERABLE AREAS 107 (Michael B. Gerrard ed., 2013), available at https://web.law.columbia.edu/sites/default/files/microsites/climate-change/files/Publications/ManagedCoastalRetreat_FINAL_Oct%2030.pdf.
    129. See NELSON ET AL., supra note 42, at 273.
    130. Brevard County, Florida, SMART PRESERVATION, http://smartpreservation.net/brevard-county-florida/ (last visited Nov. 11, 2015).
    131. See id.
    132. See generally id. (discussing current obstacles in generating transfers of oceanfront property).
    133. Id.
    134. Id.
    135. Oxnard, California, SMART PRESERVATION, http://smartpreservation.net/oxnard-california/ (last visited Nov. 20, 2015).
    136. See id.
    137. Id.
    138. Id.
    139. Id.
    140. Id.
    141. See id.
    142. Id.
    143. E.g., Clearwater, Florida, SMART PRESERVATION, http://smartpreservation.net/clearwater-florida/ (last visited Nov. 20, 2015).
    144. E.g., Fort Lauderdale, Florida, SMART PRESERVATION, http://smartpreservation.net/fort-lauderdale-florida/ (last visited Nov. 20, 2015); Hollywood, Florida, SMART PRESERVATION, http://smartpreservation.net/hollywood-florida/ (last visited Nov. 20, 2015).
    145. See Rolling Easements: A Primer for Coastal Managers, supra note 61.
    146. See id.
    147. See id.
    148. See Williams, supra note 18, at 158 n.134.
    149. See id.
    150. Id. at 150.
    151. See id.
    152. See id. at 154.
    153. See id.
    154. See id. at 150.
    155. U.S. CONST. amend. V.
    156. U.S. CONST. amend. XIV.
    157. Penn Central, 438 U.S. 104.
    158. See id. at 107. A takings suit is when a landowner sues the government for taking away—through eminent domain or by regulations—the owner’s property right to “use” the land. See generally Regulatory Takings, MRSC.ORG, http://www.mrsc.org/subjects/legal/takings.aspx (last modified Apr. 10, 2015).
    159. See Penn Central, 438 U.S. at 115-16.
    160. See id. at 137.
    161. See id. at 115.
    162. Id. at 137. The “Penn Central Balancing Test,” originating from this case, balances these prongs against each other to determine if enforcement of the regulation constitutes a taking: 1) does the regulation interfere with investment-backed expectations; 2) is the regulation a nuisance control measure (used to protect the health, safety, morality, general welfare); 3) does the regulation constitute a physical invasion or conversion to public use; 4) does the regulation interfere with existing uses?
    163. See Jennifer Scro, Navigating the Takings Maze: The Use of Transfers of Development Rights in Defending Regulations Against Takings Challenges, 19 OCEAN & COASTAL L.J. 219, 220-21 (2014); see also Williams, supra note 18, at 160.
    164. See Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 750 (1997) (Scalia, J., concurring).
    165. See Suitum, 520 U.S. at 730-31.
    166. See id. at 728.
    167. Id. at 728-29.
    168. Id. at 750 (Scalia, J., concurring).
    169. See id.
    170. Id. at 749-50.
    171. Id. at 750; see also Williams, supra note 18, at 148.
    172. Williams, supra note 18, at 159.
    173. See FEMA, ADOPTION OF FLOOD INSURANCE RATE MAPS BY PARTICIPATING COMMUNITIES 2 (2012), available at http://www.fema.gov/media-library-data/20130726-1903-25045-4716/fema_495.pdf.
    174. Id.
    175. Id.
    176. See id.
    177. Understanding the Basics, FLOODSMART.GOV, https://www.floodsmart.gov/floodsmart/pages/residential_coverage/understanding_the_basics.jsp (last updated Nov. 17, 2014).
    178. Id.
    179. See Laura Vesey, Coastal Area Residents Stunned by Flood Insurance Rate Hikes, FORBES (Oct. 22, 2013), http://www.forbes.com/sites/zillow/2013/10/22/coastal-area-residents-stunned-by-flood-insurance-rate-hikes/.
    180. Id.
    181. Ari Phillips, How the Flood Insurance Reforms Make Costly Future Climate Disasters More Likely, THINK PROGRESS (Mar. 25, 2014), http://thinkprogress.org/climate/2014/03/25/3418323/flood-insurance-program-reforms/.
    182. Vesey, supra note 179.
    183. Deborah Barfield Berry, Coast Lawmakers Meet with FEMA Over Flood Insurance, CLARION LEDGER, (May 10, 2014), http://www.clarionledger.com/story/news/2014/05/10/coast-lawmakers-meet-fema-flood-insurance/8953143/.
    184. See Vesey, supra note 179.
    185. Id.
    186. See id.
    187. See Phillips, supra note 181.
    188. See id.
    189. See id.
    190. Rob Moore, House Moves to Reinstate Flood Insurance Subsidies and Increase Flooding Risk, NATURAL RESOURCES DEFENSE COUNCIL STAFF BLOG (Feb. 25, 2014), http://switchboard.nrdc.org/blogs/rmoore/house_moves_to_reinstate_flood.html. The National Resources Defense Council (“NRDC”) is an “effective environmental action group, combining the grassroots power of more than 2 million members and online activists with the courtroom clout and expertise of more than 500 lawyers, scientists and other professionals.” About Us, NRDC http://www.nrdc.org/about/ (last visited Nov. 20, 2015).
    191. Moore, supra note 190.
    192. Id.
    193. See id.
    194. Scott Gabriel Knowles, Flood Zone Foolishness: Politicians From Disaster Prone States Lead the Fight Against Real Disaster Reforms, SLATE (Mar. 23, 2014), http://www.slate.com/articles/health_and_science/science/2014/03/biggert_waters_and_nfip_flood_insurance_should_be_strengthened.single.html.
    195. SHIVA POLEFKA, MOVING OUT OF HARM’S WAY 4 (2013), available at http://cdn.americanprogress.org/wp-content/uploads/2013/12/FloodBuyouts-2.pdf.
    196. Id. at 6.
    197. Id. at 3.
    198. See id.
    199. See id. at 14-15.
    200. See BONLENDER ET AL., supra note 69, at 2.
    201. See Gottlieb, supra note 48.
    202. See BONLENDER ET AL., supra note 69, at 2.
    203. See Will Shoemaker, Program Aims to Conserve Land via Developer Incentive: Less Open Space in Subdivisions, in Exchange for More Elsewhere, GUNNISON COUNTRY TIMES (Colorado), Nov. 5, 2009, at A4, available at http://www.gunnisoncounty.org/DocumentCenter/View/1360.
    204. See Agricultural Preservation, MONTGOMERY COUNTY, MARYLAND OFFICE OF AGRICULTURE, http://www.montgomerycountymd.gov/agservices/agpreservation.html (last visited Nov. 20, 2015).
    205. See Pine Barrens Credit Program, supra note 124.
    206. See BONLENDER ET AL., supra note 69, at 6.
    207. See, e.g., PALM BEACH COUNTY, FLORIDA COMPREHENSIVE PLAN, supra note 48.
    208. See, e.g., id.
    209. See BONLENDER ET AL., supra note 69, at 1; see also NEW JERSEY HIGHLANDS WATER PROTECTION AND PLANNING COUNCIL, ESTABLISHED TDR PROGRAMS IN NEW JERSEY, NJ.GOV (2007), available at http://www.nj.gov/agriculture/sadc/tdr/casestudy/tdrexamplesnj.pdf.
    210. See BONLENDER ET AL., supra note 69, at 6; see also NEW JERSEY HIGHLANDS WATER PROTECTION AND PLANNING COUNCIL, supra note 210, at 1.
    211. See BONLENDER ET AL., supra note 69, at 7-8 (listing the benefits of a regional TDR brings to cities); see also NEW JERSEY HIGHLANDS WATER PROTECTION AND PLANNING COUNCIL, supra note 209.
    212. See BONLENDER ET AL., supra note 69, at 8.
    213. See id. at 2.
    214. See id. at 7-8.
    215. See id.
    216. See id. at 2.
    217. Id.
    218. Id. at 7.
    219. Id. at 2.
    220. Id.
    221. Id. at 9.
    222. See id.
    223. See, e.g., NEW JERSEY HIGHLANDS WATER PROTECTION AND PLANNING COUNCIL, supra note 209.
    224. BONLENDER ET AL., supra note 69, at 1.
    225. Id.
    226. See id.
    227. See id. at 6.
    228. Id. at 2.
    229. Id. at 31.
    230. Id. at 10.
    231. Id.
    232. See id. at 12.
    233. These “interlocal” agreements were adopted in 2001. See id.
    234. See BONLENDER ET AL., supra note 69, at 7-9 (outlining the benefits of a regional TDR).
    235. See id. at 2.
    236. See id.
    237. See id.
    238. See id. at 11.
    239. Id.
    240. See id. at 32.
    241. See id.
    242. See Stinson, supra note 78, at 349-50.
    243. RUTE PINHO, OLR RESEARCH REPORT NO. 2010-R-0464: MARYLAND’S TRANSFER OF DEVELOPMENT RIGHTS PROGRAMS, (2010), available at https://www.cga.ct.gov/2010/rpt/2010-R-0464.htm.
    244. TDR Program Overview, DEPARTMENT OF ECONOMIC DEVELOPMENT: AGRICULTURAL SERVICES DIVISION 2 (December 8, 2006), available at http://www6.montgomerycountymd.gov/content/ded/agservices/pdffiles/tdr_info.pdf.
    245. Id.
    246. See General Information, MONTGOMERYPLANNING.ORG, http://www.montgomeryplanning.org/community/plan_areas/rural_area/related_reports/plowing_newground/general_plowing.pdf (last visited Nov. 20, 2015).
    247. Id.
    248. Id.
    249. Id.
    250. TDR Program Overview, supra note 244, at 8.
    251. Id. at 7.
    252. See NELSON ET AL., supra note 42, at 143-44.
    253. See id.
    254. Id. at 143.
    255. See generally TDR Program Overview, supra note 244.
    256. Id. at 2.
    257. Id.
    258. NELSON ET AL., supra note 42, at 142.
    259. TDR Program Overview, supra note 244, at 5.
    260. See PURCHASE OF DEVELOPMENT RIGHTS AND TRANSFER OF DEVELOPMENT RIGHTS CASE STUDIES, AMERICAN FARMLAND TRUST 3, 8 (2001), available at www.ctahr.hawaii.edu/awg/downloads/rp_AFT_TDRstudies_Boone.doc.
    261. NELSON ET AL., supra note 42, at 162.
    262. Id.
    263. Id.
    264. NEW JERSEY HIGHLANDS WATER PROTECTION AND PLANNING COUNCIL, supra note 209.
    265. NEW JERSEY TDR STATEWIDE POLICY TASK FORCE, REALIZING THE PROMISE: TRANSFER OF DEVELOPMENT RIGHTS IN NEW JERSEY 18 (2010), available at http://www.njfuture.org/wp-content/uploads/2011/06/TDR-report-FINAL-081110.pdf.
    266. NEW JERSEY PINELANDS COMMISSION, THE NEW JERSEY PINELANDS DEVELOPMENT CREDIT PROGRAM 2 (2014), available at http://www.nj.gov/pinelands/infor/fact/PDCfacts.pdf.
    267. NELSON ET AL., supra note 42, at 164.
    268. Id.
    269. Id. at 165.
    270. NEW JERSEY HIGHLANDS WATER PROTECTION AND PLANNING COUNCIL, supra note 209.
    271. See id.
    272. Id.
    273. NELSON ET AL., supra note 42, at 163.
    274. See NEW JERSEY PINELANDS COMMISSION, supra note 266.
    275. NEW JERSEY TDR STATEWIDE POLICY TASK FORCE, supra note 265.