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Major Programs to Add Flexibility to Regulatory Systems

Introduction

Some local jurisdictions have considered adoption of major new programs/regulatory schemes to incorporate greater flexibility and fairness into codes. Examples of major programs include transfer of development rights programs, onsite density transfer for critical areas, and performance-based zoning.

Transfer of Development Rights

Transfer of development rights (TDR) programs may be used to restrict development on certain parcels, while allowing the owner of the restricted property to transfer development rights to another property. Ideally, this ability to sell or use development rights on another property at least partially compensates the property owner for the development rights removed from the restricted property. As a result, TDR programs serve both to protect resources while encouraging development in more appropriate areas. The TDR technique is a complex mechanism to implement. A viable market for development rights must exist before significant transfers will occur. Only a few programs across the U.S. have succeeded in implementing wide-scale protection of farmlands, environmentally sensitive areas or other resources through a TDR program. However, a larger number of programs have provided additional options and at least partial compensation for property owners in areas where development is being restricted by local regulations. TDR programs are commonly used to preserve agricultural lands but may also apply to open space preservation, critical areas protection, historic sites, and affordable housing.

The Washington State Growth Management Act (GMA) encourages innovative land use management techniques including transfer of development rights (RCW 36.70A.090). In 2009, the Washington Legislature adopted 2SHB 1172 (codified as 43.362 RCW) which established a regional transfer of development rights program in central Puget Sound including King, Pierce, Kitsap, and Snohomish Counties, and the cities and towns within these counties. ESHB 2538, approved in 2010, encourages high-density, compact, in-fill development and redevelopment within existing urban areas. It also encourages the establishment of a transfer of development rights program for cities that adopt an optional plan element that provides for such development.

General Information - Transfer of Development Rights

Washington Programs and Information

Snohomish County

King County (Farmland Emphasis)

Other Counties

Cities

Out-of-State Examples

Some out-of-state jurisdictions have reasonably successful programs:

Onsite Density Transfer for Critical Areas

Many Washington communities have adopted provisions that allow density to be transferred from a constrained portion of a site to an unconstrained area on the same site. Such density transfers achieve protection of critical areas while permitting the property owner to retain some or all development rights. These provisions generally include some criteria to assure that density in receiving area doesn't exceed what that area can accommodate. Some use a sliding scale that relates how much density may be transferred, depending on the percentage of the site that is constrained.

  • Spokane County Code Sec. 11.20.080 - Incentives Offers on-site and off-site transfer of density or development rights
  • Bainbridge Island Municipal Code Sec. 16.20.160(F)(5)(a) - Density Calculation (Wetlands)
  • Enumclaw Municipal Code Sec. 19.02.230 - Limited density transfer - Follows Department of Ecology Model Wetlands Protection Ordinance
  • Richland Municipal Code Sec. 22.10.340 - On-Site Density Transfer for Sensitive Areas
  • Des Moines Municipal Code Sec. 16.10.290 - Limited density transfer
  • Puyallup Municipal Code Sec. 21.06.160 - Limited density transfer.
  • Cowlitz County Code Sec. 19.15.080 (D) & (E).
  • Lynnwood Municipal Code Sec. 17.10.100 - Buffer Credit
  • Gig Harbor Municipal Code Ch. 17.59
  • Mukilteo Municipal Code Sec. 17.52B.110

Performance Zoning

Performance zoning systems establish standards and criteria to control or limit the impacts of proposed uses or activities on neighboring properties. For instance, performance standards may limit the noise, glare or traffic impacts that an activity or use generates and that will be felt beyond the property boundary. Performance zoning is generally flexible about where development is located as long as the impact of the development is kept within specified acceptable limits. In contrast, traditional zoning has focused on establishing zones and separating different uses by zone (assuming that very different uses, such as residential and industrial uses, are incompatible). Traditional zoning standards such as height, bulk, lot size, density, intensity, and setback standards typically vary depending on the type of zone.

The use of performance zoning as an overall framework for local zoning appears to be declining, although many of the types of performance standards associated with performance zoning are increasingly being incorporated into zoning codes. Performance-based zoning, is still practiced in a few communities such as Breckenridge, CO. Several communities that were known for their performance zoning, such as Ft. Collins, CO, Largo, FL and Hardin County, KY have moved away from a "pure" form of performance zoning approach to a hybrid approach. These hybrid approaches establish at least some zones, combined with use of performance standards to address compatibility concerns. The zones under these hybrid systems often allow a greater mixing of uses than under traditional zoning codes. At the same time, the codes also make ample use of performance standards to limit undesirable impacts of the uses/activities. For instance, a bed and breakfast lodge or an accessory dwelling unit may be a permitted use in a commercial, residential or other type zone, if certain compatibility standards are met. The hybrid systems may allow greater flexibility than traditional zoning, while maintaining some of the predictability and simpler administration of prescriptive codes. A hybrid system also may better channel uses to where they are needed, such as neighborhood-serving commercial uses.

We are not aware of any Washington communities that have "pure" performance zoning codes. Most Washington communities still use districts and prescriptive standards such as setbacks or landscaped buffers to separate land uses that may be incompatible. At the same time, many Washington communities also incorporate some performance standards for different types of uses into their zoning codes. Perhaps the most common use of performance standards by Washington communities is in the form of environmental performance standards such as noise, glare, odors, or water contaminants. In addition, standards may be specified for certain uses to make them compatible in a wider variety of zones. By specifying performance standards for specific uses, it is often possible to employ a more streamlined review procedure, although that may depend on the specific use. Such characteristics also distinguish performance standards from conditional use standards that are not specified in advance and generally require public hearing review.

General Information

Examples of Performance Standards in Washington

The following are links to zoning codes from Washington jurisdictions that include some performance standards:

  • Jefferson County Code Ch. 18.20 - Performance and Use-Specific Standards.
  • North Bend Municipal Code Table. 18.10.050 - Land Use Performance Standards (Scroll to table).
  • Shoreline Municipal Code Sec. 20.40.200 - 20.40.610 - Subchapter 3 - Index of Supplemental Use Criteria.
  • Lakewood Municipal Code Ch. 18A.70 - Use Specific Standards.
  • Yakima County Code Ch. 15.09 - Special Development Standards.
  • Gig Harbor Zoning Code Title 17 - Performance standards within different zone districts. See Secs. 17.15.090, 17.17.040, 17.21.040, 17.31.110, 17.36.120, 17.40.120, 17.41.030, 17.45.040, 17.48.090, 17.50.090, 17.54.030, and 17.56.030.
  • Puyallup Municipal Code, Zoning Code Title 20 - Lists performance standards within different types of zones. See Sec. 20.20.040 - 20.25.040, 20.28.045, 20.30.045, 20.35.035, 20.40.025, 20.49.015, 20.49.035, 20.50.020, 20.53.035, 20.59.040, and 20.75.015).

Examples of Environmental Performance Standards

  • Auburn Municipal Code Ch. 18.31.180 Performance Standards (Primarily for industrial zones)
  • Tumwater Municipal Code Ch. 18.40 - Environmental Performance Standards
  • Mountlake Terrace Zoning Code Title 19.20 - See General Provisions, including Art. I, General Performance Standards and Art. II, Specific Standards.

Performance Zoning in Other States

  • Breckenridge, CO Town Code Title 9 - Breckenridge Development Code (Part A) - Introduction describes code as combination between traditional and performance zoning. Sec. 9-1-19 consists of absolute policies/standards (which must be met for approval) and "relative policies." Applicants must earn enough points for complying with the set of relative policies to gain project approval.
  • Breckenridge, CO Land Use Guidelines - This document provides guidelines for land use characteristics rather than a more rigid listing of permitted uses. It is used together with the development code to evaluate proposed development.
  • Georgia 2004 Model Code: Alternatives to Conventional Zoning, Georgia Department of Community Affairs - See Part 3: "Provisions for Developing and Built-Up Areas," which includes Sec.s on performance standards and see Part 6, Sec. 6-6: Alternative Approaches: "Land Use Guidance (Point) System" which approaches a "pure" performance zoning system.
  • New Hampshire Performance Zoning, New Hampshire Office of Energy and Planning

Performance Standards Examples - Other States

  • Fort Collins, CO Land Use Code - This code makes ample use of performance standards. See especially Article 3, Div. 3.4 - Environmental, Natural Area and Cultural Resource Standards, and Div. 3.8 - Supplementary Regulations
  • Code of Queen Anne's County, MD Part III Ch. 18:1 (See especially Part 3, Articles VI & VII) - An earlier version of this code relied on performance standards without use of specific zones. The revised code employs both zones and performance standards to regulate development.
  • Havana, FL Performance Zoning Ordinance, 2015 – Performance zoning for rural town developed to provide equitable solutions to land use conflicts
  • Portland, OR Zoning Code Ch. 33.203 - 33.296 - Additional Use and Development Regulations

Last Modified: September 25, 2017