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Johnson v. Arlington County

Supreme Court of Virginia

December 22, 2016

RALPH JOHNSON, TRUSTEE FOR WAKEFIELD MANOR ASSOCIATES, ET AL.
v.
ARLINGTON COUNTY

         FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Louise M. DiMatteo, Judge.

          OPINION

          STEPHEN R. McCULLOUGH JUSTICE.

         Wakefield Manor and Courthouse Manor, two Arlington County taxpayers, challenge the County's inclusion of "transferrable development rights, " or TDRs, in their real estate assessment. They argue that the County had no authority to assess and tax TDRs on their properties for the years 2012 through 2015. We agree with the taxpayers and reverse the judgment of the circuit court.

         Background

         TDRs have emerged as a land use development tool in urban areas. TDRs can help a locality to "protect[] the environment and preserv[e] open spaces." Amanda Siek, Comment, Smart Cities: A Detailed Look at Land Use Planning Techniques that are Aimed at Promoting Both Energy and Environmental Conservation, 7 Albany Envt'l Outlook J. 45, 62 (2002). TDRs provide a tool for a locality to direct "new growth away from environmentally sensitive areas, historic, agricultural, or open space areas." Id. Under "a TDR program, areas to be protected from further development, 'sending areas, ' and areas better suited for increased development, 'receiving areas, ' are identified." Id. The locality can channel new development "into the receiving zones using development credits that are purchased from landowners in the sending zones, thereby compensating them for the development value of their land." Id. Once a regulatory framework is in place, a property owner with unused density can sever, sell, and transfer unused density to a designated receiving property, which can then build a more profitable project with the aid of the TDRs.

         In 2005, the General Assembly enacted Code § 15.2-750, which permits the Board of Supervisors in a county with a county manager form of government to provide

for the dedication of density or other rights to develop real property, as defined by the locality, from one or more parcels of property that are not the subject of a development application and are located in the locality to one or more parcels of property that are the subject of a development application and are located elsewhere in the locality. Such dedication shall be subject to such terms as may be provided by zoning regulations, the conditions of a special use permit or special exception, or the proffered conditions of a rezoning application, including that the terms are binding on the owners of such property and on their successors and assigns.

2005 Acts ch. 755. In response, Arlington County enacted a zoning ordinance amendment establishing a TDR program. That ordinance, currently found in Section 15.5.7(B) of the County's zoning ordinances, provides in relevant part:

In approving and accepting a site plan, the County Board may, subject to such conditions as the [County] Board may approve, permit the dedication of density or other rights to develop, as determined by the [County] Board, from one or more parcels that are not the subject of a particular site plan application to one or more parcels of property that are the subject of that same site plan application.

         Under the County's ordinance, TDRs cannot be transferred without the County's approval of a site plan. Arlington County's Policy Guidance for the TDR program explains that "TDRs could occur only through a site plan process on the 'receiving' site. [The] County Board must approve all sending and 'receiving' sites."

         One year later, the General Assembly enacted a more comprehensive statutory scheme governing TDRs, Code §§ 15.2-2316.1 through -2316.2. The latter statute specifies that "[i]n order to implement the provisions of this act, a locality shall adopt an ordinance that shall provide for" a list of twelve specifically enumerated provisions. Code § 15.2-2316.2(B). Those twelve provisions are:

1. The issuance and recordation of the instruments necessary to sever development rights from the sending property, to convey development rights to one or more parties, or to affix development rights to one or more receiving properties. These instruments shall be executed by the property owners of the development rights being transferred, and any lien holders of such property owners. The instruments shall identify the development rights being severed, and the sending properties or the receiving properties, as applicable;
2. Assurance that the prohibitions against the use and development of the sending property shall bind the landowner and every successor in interest to the landowner;
3. The severance of transferable development rights from the sending property;
4. The purchase, sale, exchange, or other conveyance of transferable development rights, after severance, and prior to the rights ...

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