Legal Memorandum: Transferable Development Rights

Issue: What authorities govern transferable development rights in Minnesota, California, Arizona and nationwide?

Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623 (Minn. 2007) (city declined to amend comprehensive plan to permit golf-course land to be turned into residential development; denial of amendment was not arbitrary or capricious, but takings issue arising from denial of master-plan amendment had to be remanded; property no longer economically sustainable as a golf course; court discusses the factors set out in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), including economic impact of city.’s decision to deny amendment to master plan and owner’s investment-backed expectations)

Barancik v. County of Marin, 872 F.2d 834 (9th Cir. 1989) (constitutional challenge to density requirements for ranchland; court concluded density requirements did not violate substantive due process as they were neither arbitrary nor irrational).

Corrigan v. City of Scottsdale, 720 P.2d 513 (Ariz. 1986) (successful constitutional challenge to ordinance establishing “no development” line on scenic hillside and containing provision for transferable density credits; landowner challenged ordinance through a declaratory-judgment action and sought damages for temporary taking of property; no development plan was submitted before filing action).

3 Arden H. Rathkopf & Daren A. Rathkopf, The Law of Zoning & Planning §§ 59:1–:25 (West 2005) (chapter covers TDRs in general; does not address purchasing development rights from county “bank”; at time chapter was written, its author, Edward H. Ziegler, Jr., was at the University of Denver College of Law)

Am. Planning Ass’n, Land Use and the Constitute: Principles for Planning […]