Developing in the Lake Tahoe Basin: TRPA Development Rights
In most cities, all you need to develop a property is an available lot and zoning that permits your desired use. However, development is distinctive in the Lake Tahoe Basin due to its unique and sensitive natural resources. The Tahoe Regional Planning Agency (TRPA) regulates land use in the basin. In 1987, TRPA created a transfer of development rights program, whereby a landowner can sell development rights to owners of other parcels, subject to TRPA’s approval based on the eligibility of the receiving parcel for development.
Background
In 1969, Congress approved the Tahoe Regional Planning Compact between California and Nevada, creating TRPA as an interstate agency to regulate development in the Lake Tahoe basin. After the 1969 compact had proven inadequate for protection of the lake and its environment, the states proposed and Congress approved an amendment in 1980, requiring the agency to adopt a plan barring any development exceeding such specific “environmental threshold carrying capacities” as the agency might find appropriate. (Suitum v. Tahoe Regional Planning Agency (1997) 520 U.S. 725, 729.)
Land coverage is a key element of the TRPA’s plan to achieve conditions within the threshold carrying capacities. The 2012 TRPA Plan includes the goal to “direct the amount and location of new land uses in conformance with the environmental threshold carrying capacities and the other goals of the Tahoe Regional Planning Agency Bi-State Compact.” Under this goal, it is TRPA’s policy to limit allowable impervious land coverage associated with new development. This is because impervious surfaces increase snow melt and stormwater runoff, containing pollutants, that drain into Lake Tahoe. Developing impervious surfaces reduces the naturally porous soil that functions as infiltration and water storage.[1] The development rights program helps TRPA restrict new development and concentrate development in less sensitive areas.
Transferable development rights (TDRs) are a land use technique intended to avoid takings claims that can arise under land use regulations by transferring development rights on a restricted property to another location. The U.S. Supreme Court held that land use regulations which restrict development were not an unconstitutional taking when the property owner was allowed to transfer development rights to another site. (Penn Cent. Transp. Co. v. City of New York (1978) 438 U.S. 104, 138.) Transferable development rights were found to be constitutional since the property owner could sell their rights and receive a reasonable return on their investment. (Id. at 136.)
TRPA Development Rights
There are three different types of development rights: tourist accommodation units (TAUs), single and multi-family residential units of use (RUUs), and commercial floor area (CFA). RUUs are formed by combining a potential residential unit of use and a residential allocation. Each TAU corresponds to the right to build one hotel room, each RUU corresponds to a residential unit (such as either a single apartment or a large single-family home), and CFAs are measured by square feet of commercial floor area.
Property owners can look up information about existing development rights on this Parcel Tracker website. If a property owner does not have development rights, they have several options:
Private market. The Transfer of Development Rights Marketplace helps connect buyers and sellers of available development rights within the Tahoe Region.
Local land bank. Local land banks including the California Tahoe Conservancy and the Nevada Division of State Lands acquire sensitive properties, restore them, and bank development rights that may be sold and transferred to eligible buyers .
Local jurisdiction. Local jurisdictions hold a small pool of commercial and tourist units for special planning districts (such as town centers) and residential allocations. Every two years additional residential allocations are distributed by TRPA to the local jurisdictions based on performance with regional standards. For more information on each jurisdiction, see City of South Lake Tahoe, El Dorado County, Douglas County, Washoe County, and Placer County.
Retire sensitive property. Property owners and developers can acquire a residential allocation from TRPA by retiring a sensitive property. This transaction requires a TRPA application and that the sensitive lot is deed restricted from future development.
If property owners have unused CFA, RUU, or TAU development rights, they may be converted to another land use type, with exchange rates designated by TRPA. For example, 300 square feet of commercial floor area could be converted into 1.5 multi-family residential units of use or 1 single family residential units of use. Conversion of development rights require a TRPA conversion application.
Property owners can also get bonus units or extra development rights as an incentive for retiring development on a sensitive lot, transferring development rights from a sensitive area to a town center, creating a preserved natural area, or building deed-restricted units that are reserved for the local workforce and low-income housing.
Do you have more questions about developing in Lake Tahoe? Contact our office.
Written by Emily Kershenbaum, Associate Attorney at Apricity Law, PC.
[1] https://www.trpa.gov/land-coverage/