Some farmers in Montgomery County may soon be marketing a nonagricultural commodity -- development rights.
The prospective customers will be a handful of developers who want to take advantage of the higher densities the county is offering under its program for transferring the right to build houses from rural areas to other parts of the county that can accommodate growth.
The program is a product of the county's decision to preserve its agricultural land and rural open space, located largely in a swath of upper Montgomery from Poolesville to Burtonsville. The land amounts to more than a fourth of the county.
Montgomery adopted a master plan in 1980 that reduced the residential development potential of these lands from one unit per five acres to one unit per 25 acres. The county initiated the rights-transfer program to compensate rural landowners for the reduction in potential units that could be built on their property.
Landowners who chose to develop a portion of their land at the rate of one unit per 25 acre can do so and still sell the development rights for the remaining land, county officials said.
Thus far, only parts of the eastern county along Rte. 29 have been officially designated as being able to accommodate transferred development, but other areas are under consideration. County planner James Crawford said the Rte. 29 parcels are zoned for residential lots of up to half an acre.
In several weeks, the Montgomery County Council is expected to approve a sectional map amendment that will rezone the Rte. 29 parcels and, in turn, open the doors for the sale of rights to build approximately 3,500 houses or apartment units.
At least one developer has signed a contingency contract with a farmer to buy rights to build 132 units in the Rte. 29 corridor, said county planner Melissa Banach, who is in charge of coordinating development rights sales. Five other developers are negotiating with farmers elsewhere in the county for similar rights. Officials say the cost of development rights ranges between $5,000 and $8,000 per unit.
While county officials are enthusiastic about the development program, it has generated some confusion and mistrust, planners acknowledge.
"The initial reaction was skepticism," said Perry Berman, chief planner for the northern part of the county. "The development industry supported it, generally," he said, but not all the farmers have, either out of a belief that they were not being compensated or a desire to use their land for their own purposes.
Billy Anderson, a businessman in Boyds who rents out his 450-acre farm in Dickerson and who has acted as a spokesman for the farming community, said the generally conservative farmers eventually realized that if they didn't support the rights-transfer program, "their equity would be lost."
While some farmers do support the theory of transferable rights, they also believe it unfair that a development right on a property next to a built-up area is equivalent to a development right at the sparsely settled Frederick County border.
"The builder is not going to pay any more for it," Anderson noted.
Some property owners contend that the county's motive is to prevent growth in certain parts of the county.
Four landowners, whose property lies in the northern and western parts of the county, have accused Montgomery in a lawsuit of using the measure to have ownership transferred without adequate compensation. "There is no development pressure going on" in the rural areas of the county, said attorney John J. Delaney, of Linowes & Blocher, the law firm representing the owners. County records indicate that there is "more land being farmed today than five years ago," Delaney said.
While the plaintiffs do not really find fault with the rights-transfer concept, Delaney said they do think their land has been "taken" because the county approved agricultural preserve areas before it approved areas for higher density. Without the latter, Delaney said, development rights for an estimated 17,600 units in the county have no real value. The suit asks that the transfer-rights program be invalidated as it is now set up.
Other criticism of the transfer program has come from those whose neighborhoods would be affected by the increased density.
L. Thomas Faringer, a retired Air Force colonel, is active in the citizens association representing the Stonecrest and Woodcrest subdivisions near Old Columbia Pike and Randolph Road, where more houses would be built. He contends that while the transfer-rights program may help the county preserve its farmland it interferes with another county goal -- stimulating the construction of moderate-priced housing.
The costs of the transferred development rights will "ultimately be paid by the home purchaser, which is inconsistent with the objective of providing reasonably priced housing," Faringer says.
In addition, he said, "the increase in density is not accompanied by an adequate traffic improvement program" in a part of the county where major roads are already congested.
He also argues that the number of transfer rights assigned to eastern Montgomery County is disproportionate to the rest of the county. The 1,300 acres in the eastern county planners feel can absorb more development would, under current plans, accommodate another 3,532 housing units.
Under the county-wide plan, development rights purchased from a landowner in eastern Montgomery, for example, can be transferred to an area of the county designated as a growth area. While the county coordinates the transfers now, officials hope the process eventually could be handled independently.
Transfer rights are not new here: Both Montgomery and the District have used a form of density transfer to protect historic properties, but only to adjacent parcels of land.
The process has been used once in the District -- to allow development next to the Christian Heurich mansion near Dupont Circle NW. A proposed amendment to the city's historic preservation law would allow for the transfer of development rights to other neighborhoods, but discussion over the issue has been complicated because of the city's height limit.
No rights transfer program is under consideration in Northern Virginia, according to Fairfax County planner Phoebe Kilby, because Virginia requires enabling legislation for such programs and none has been introduced.