Slicing (and Transferring) Development
9 Pages Posted: 15 Jan 2020
Date Written: December 17, 2019
This symposium essay applies insights from Professor Lee Fennell’s Slices and Lumps: Division and Aggregation in Law and Life to two distinct issues in zoning and land use regulation. The first is the use of transferable development rights (TDRs). TDRs provide an ideal vehicle for considering the interaction of slices and lumps, the advantages (and disadvantages) of both slicing and aggregating entitlements, and the relationship between what might be termed naturally occurring lumps and the artificial lumps created by law. The conceptual framework developed in Slices and Lumps also sheds light on recent high-profile zoning reforms and the potential for further reform.
Slicing, transferring, and aggregating development rights and recalibrating the scale or unit at which we apply density restrictions can enable new development and increase housing supply. They offer mechanisms for preserving a desirable variety of old and new structures and uses in urban neighborhoods by reducing development pressures on individual lots. At the same time, allowing the addition of new dwelling units to existing single-family lots minimally reconfigures existing lumps in a manner that may not upset the expectations of neighbors grown accustomed to the lumps next door and that may, in the aggregate, also make a significant contribution to the supply of housing. Slices and Lumps provides a rich and rewarding framework for thinking about the costs and benefits of these and other reconfigurations of our existing land uses and their regulatory regimes.
Keywords: Fennell, Slices and Lumps, Land Use, Property, Transferable Development Rights, single-family zoning, ADUs, zoning reform, Deep Work
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