What is a TDR plan? The idea behind a Transfer of Development Rights plan is relatively simple: a property owner voluntarily agrees to move their “right” to build a house from one place (thereby preserving open space in this “sending” area) to another place (a “receiving” area, where more dense development is slated to be channeled).  Ideally, this allows development to occur in places where transportation and infrastructure are in place to better support it, while preserving the rural quality of some areas.  It also compensates property owners for the value of their “by-right” development rights.

Where are the “sending” and “receiving” areas in this TDR?  While it may eventually be expanded to other parts of the County, the current TDR is a pilot program with a large “sending” area east to the CSX railroad line and on the Crow’s Nest peninsula and Marlborough Point.  The  “receiving” area is in the Courthouse area (where the TDR’s chief proponent and developer, Supervisor Paul Mile (R-Aquia), owns property that may directly benefit from the TDR.)

Will the County own the properties that participate in the TDR? No.  TDR’s only shift the development rights associated with a property, not the actual ownership of the property.  TDR participants will still own their property but will now have deed restrictions on what they can do with it. Most importantly, new residential development will not be allowed, although in some instances large buildings may still be added to the property.

Does this mean Crow’s Nest is finally saved? No.  Even the TDR’s chief proponent acknowledges, “It’s not a save-all.”  In the best case scenario, this legislation could be a tool to help in the effort to permanently protect all of Crow’s Nest from development. But we are still far from that goal.  At a minimum, reaching it will require good-faith efforts on the part of all the landowners in Crow’s Nest.  While we want to be optimistic, there are plenty of reasons to be cautious about where this may be heading.

As Save Crow’s Nest has pointed out at the numerous public hearings on the TDR, there are many “loopholes” and problems in the TDR legislation, including the following.

High Impact Activities Are Allowed.  The TDR legislation allows high impact activities, such as farming and camping, on land placed in the TDR program. In fact, until last night, logging would have been allowed, too.  In a small victory, at the last moment, the Board removed logging from uses allowed on land placed in the TDR. However, there is no protection against a landowner logging their property before they place it in the TDR program, a loophole that could potentially accelerate the destruction of some properties on Crow’s Nest.

A Possible Patchwork Could Emerge.  As passed by the Board, the TDR allows the Crow’s Nest Harbour corporate owners to keep the best lots for development, and place the rest in TDR, destroying the chance to permanently save the entire peninsula.  We could see, for example, large estate homes built on Crow’s Nest for the wealthy with the selling point of being located amidst some land that will not be developed.  In a worst-case scenario, this sort of patchwork could actually create more incentives for developers to pursue building and speed up the destruction of Crow’s Nest.

Voluntary Participation is Unclear.  It is unclear if the corporate investors who own most of the lots on Crow’s Nest even want to participate in the TDR program, given the way it is now structured. At last night’s public hearing, an attorney representing the two corporate owners of the majority of the lots in Crow’s Nest Harbour clearly stated that the TDR as passed poses significant problems for his clients.  For example, many of the properties on Crow’s Nest feature steep slopes or hydric soil (ground that is saturated by water), which would be excluded from the TDR formulas because they are unbuildable.  (Planning Commissioner Steve Apicella introduced this provision.) Property owners want such land to “count” in figuring how many development rights they have.  Such differences could prevent broad participation.

Regardless of whether or not the TDR helps to save Crow’s Nest, the program raises significant concerns for citizens and taxpayers.

Much of the TDR program is hidden from public view or participation.  The program will allow what are essentially high density re-zonings to take place in the Courthouse area without any notice, public hearings, or control by the Board. There is no public way to track which land is placed in the TDR, and what land in the Courthouse area will have increased density. And unlike all other major land use requests in the County, corporate owners of land do not have to disclose individual investors when they submit a TDR application.

Taxpayers will pay the hidden costs.  With more development, taxpayers will have to pay to fix the traffic problems created by the increased density in Courthouse, as well as fund the additional schools and other government services that will be needed.  Many of the lots in Crow’s Nest Harbour may not be buildable but if these receive credit in the TDR program, unbuildable lots could be converted into profitable development rights with no proffers attached, making the situation even worse.  (Proffers are the financial contributions developers offer up to help defray infrastructure costs when seeking a rezoning or approval for development.)

Only time will tell if the TDR really does help “save” Crow’s Nest, or if it is simply another taxpayer subsidized giveaway to real estate speculators and developers.  Again, we want to be optimistic, but history and common sense tells us that there are plenty of reasons to be wary and watchful.

The TDR becomes effective in 60 days. In the meantime, County staff will prepare and staff the application process.  While this occurs, a number of related issues are unresolved:

How will the $2 million be used?  The County is holding nearly $2 million for the construction of roads and public water and sewer in and to Crow’s Nest Harbour The court order about this money states that if a developer has not used this money by March 15, 2015 to construct all of the roads in the Harbour, and provide all of the lots with water and sewer, then the Board of Supervisors must enter into a contract within twelve months to complete as much construction of roads and/or water and sewer as the $2 million will allow. That money could be used to construct the road to the current Crow’s Nest Natural Area—the only thing currently preventing regular public access from the Natural Area.  However, the intent of the Board is unknown at this time. Will they use the $2 million to benefit Crow’s Nest, or give it away to a developer? We don’t know.

What will happen with the lawsuits?  One of the ways well-financed developers get their way is to threaten to sue the County.  There are numerous lawsuits about Crow’s Nest Harbour in process. Given that the major landowners of Crow’s Nest Harbour have indicated that the TDR as passed does not work for them, the ultimate fate of Crow’s Nest Harbour may rest on the outcome of these court cases.

How will the TDR be implemented?  There are many details to be worked out in the implementation of the TDR, some of which could affect if and how the program works.  Much of this will occur out of public view, giving us reason to be cautious.

It’s important to remember how far we’ve come.  More than 10 years ago, the local headlines were about the potential for massivedevelopment on Crow’s Nest.  National home builder Toll Brothers had an option to purchase Crow’s Nest. Citizens coming together under the “Save Crow’s Nest” banner to speak out against these plans played a crucial role in stopping that disaster and in beginning the long process that has led to the Crow’s Nest Natural Area Preserve.  Those victories are real and important.

But we’re not done yet and we can’t lose sight of the goal that has animated us from the start: ensuring that all of Crow’s Nest is protected at a price that makes sense for taxpayers.  In the coming months:

• We will continue to be a watchdog of Crow’s Nest, working to hold our elected leaders accountable to the promises they have made to save Crow’s Nest with the TDR.
• We will continue to bring you reliable and accurate information and news about Crow’s Nest.
• We will continue to make positive contributions with our semi-annual trash pick-ups on the roads through and around Crow’s Nest (if the snow ever melts!).
• We will continue to bring you news about events and volunteer activities with the Crow’s Nest Natural Area Preserve, which we hope will increase as public access expands.
• We will be starting a long-overdue makeover for our website, adding educational and other materials celebrating Crow’s Nest.  (And we’re still looking for more Crow’s Nest photos! Send them along if you have some.)

That’s a lot to do. We will need your energy and ideas as we move forward and, from time to time, we will likely be calling on you to join us in speaking out for the preservation of Crow’s Nest.

As usual, thank you all for your efforts on behalf of Crow’s Nest.