A paper by Nicholas Williams ’13 won first prize in the annual Smith-Babcock-Williams Student Writing Competition, sponsored by the American Planning Association’s Planning and Law Division.
In “Coastal TDRs and Takings in a Changing Climate,” Williams argues that, as sea levels rise and weather disasters grow more frequent, policymakers should consider ways that coastal cities can encourage strategic retreat from low-lying shores in order to minimize future property losses. Williams zeroes in on transferable development rights (TDRs) as a means for municipalities to restrict development without falling prey to regulatory takings liability. The Fifth Amendment’s takings clause limits the government’s power of eminent domain by requiring that “just compensation” be paid for private property appropriated for public use.
TDR programs, which allow owners to separate the development potential of a land parcel from that land and transfer that potential to another nearby parcel, have been used in New York City to preserve historic buildings and areas without takings liability coming into force. Such a strategy has been little used in coastal areas, Williams says, perhaps due to both resistance to accepting the reality of rising ocean levels and also worries about takings liability, given the uncertain status of TDRs in takings analysis.
To make TDRs work, Williams asserts, coastal cities will need to balance incentives creatively to entice owners and developers away from the shore, making flexibility and a clearly articulated public purpose key factors. Such schemes also require a level of mandatory restriction, he adds. Thus, because a consensus on whether TDRs are vulnerable to takings liability claims has not yet been reached, TDR programs should strive to establish as clearly as possible that the TDRs in question facilitate economically valuable use of land.
Williams, currently a first-year associate in Greenberg Traurig’s Land Development Group, received a $2,500 award, and his paper will be published in the Urban Lawyer, the journal of the American Bar Association's Section of State and Local Government Law. He is the fourth NYU Law student in the past seven years to take top honors.
Posted on January 22, 2014