State of New York Senate Bill S6424A: Identifying Lands at Risk from Sea-Level Rise or Flooding as Eligible Sending Districts for Transfer of Development Rights (TDR) Programs
On November 20, 2019, the State of New York passed Senate Bill (S.B.) S6424A amending the state’s enabling statute for Transfer of Development Rights (TDR) programs to allow local governments to create a TDR program to mitigate risks from sea-level rise, storm surge, and flooding. TDR programs create market incentives to shift development away from areas where it is discouraged (called “sending areas”) to areas where development is preferred (called “receiving areas”). Under a TDR program, landowners in a sending area can choose to sever and sell some or all of their unused development rights from their property as “TDR credits” and preserve that land for conservation. TDR credits can then be bought and sold as a tradable commodity to developers in receiving sites, who can use the TDR credits to increase the density of proposed development above base zoning standards in the receiving area. This is the first example of a state statute that explicitly includes language authorizing a local government to create a TDR program and designate sending areas for managed retreat purposes.
Through S.B. S6424A, the state added language to different local government statutes (General City Law § 20-f, Town Law § 261-a, and Village Law § 7-701) to allow municipalities (i.e., cities, towns, and villages) to create a TDR program “to protect lands at risk from sea level rise, storm surge or flooding.” S.B. S6424A also includes new language that allows local governments to designate sending areas in districts which consist of: “natural, scenic, recreational, agricultural or open land or sites of special historical, cultural, aesthetic or economic values sought to be protected or lands at risk from sea level rise, storm surge or flooding.” By including this language in these enabling statutes, local governments in New York State can consider using TDR programs as a managed retreat strategy for coastal adaptation by discouraging development in higher flood risk sending areas and encouraging the sale of TDR credits in lower flood risk receiving areas. Other states may consider including similar language in their TDR enabling statutes, or local governments in home rule states may also evaluate opportunities through their land-use and zoning powers.
Publication Date: November 20, 2019
- State of New York