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Wherefore Art Thou, ARTO? Transfer of Development Rights in Frederick?

Frederick County landowners are still being teased by the potential for a transfer of development rights (“TDR”) program.

Transfer of Development Rights in Frederick? ARTO? Commercial Real EstateOver the past 25 years, county government has considered TDR’s serveral times, but never adopted a program. TDR programs are complex, and like any change in zoning, controversial. Proponents see TDR’s as a way to preserv more rural land. Opponents see unwanted growth in their backyard. While Montgomery and Howard counties have TDR programs, they function quite differently and neither is perfect.

In 2013, the Frederick County Farm Bureau took the initiative and submitted a proposed zoning text amendment to the county which would allow the transfer of development rights between agriculturally zoned parcels. The Farm Bureau promoted the Agriculture Rights Transfer Option (“ARTO”) as a way for farmers to pull cash out of their land without having to develop or sell the farm. While land preservation programs accomplish the same goal, the number of farms applying to these programs far outstrips the amount of funds available. The main difference with ARTO are that the transaction is within the private sector (not constrained by government budgets) and, more controversially, the development rights are transferred elsewhere in the county, not “extinguished”.

In November 2014, the county adopted ARTO; however, in December, the Maryland Department of Planning (“MDP”) notified the county that in its opinion ARTO might increase the density of lots in Tier IV (rural) areas. MDP threatened to block all subdivisions of more than 5 lots in Tier IV if ARTO is implemented. Adding intrigue to this drama is the fact that MDP’s notification to the county came just before Governor Hogan took office and appointed a new Secretary of Planning.

So where does ARTO stand now? Even though it was adopted into the county code, its fate is uncertain. The County Council could appeal MDP’s ruling, or perhaps the new Secretary of Planning will rescind the notice sent by the prior administration. Unless and until something happens, ARTO is in purgatory and Frederick County is still without a viable TDR program. MacRo has several clients that are impacted by the fate of ARTO and will monitor developments closely.

For additional information contact Dave Wilkinson at 301-698-9696 ext. 203 or

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