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Atlanta TDR Margaret Mitchell House 9490 WestLampeter San-Diego-Receiving-Zone South-Street-Seaport-154 San-Francisco-Actual-Certified-Sending-Site-635-Pine jefferson West_Hempfield HistoricDowntown

Bay County, Florida

Bay County, population 164,000 (2006), surrounds Panama City on the Gulf of Mexico in Northwestern Florida’s Panhandle Region. Wetlands and forests surround the bayous and creeks that extend from several interconnected bays that dominate the center of the County. Tyndall Air Force Base occupies much of the peninsula southeast of Panama City and linear coastal communities, including Biltmore Beach, Laguna Beach and Hollywood Beach, line Gulf shores west of Panama City.

Shell Island, an undeveloped barrier island that protects the entrance to the extensive St. Andrew Bay complex, is a popular destination for snorkeling, boating, kayaking and dolphin watching. Roughly half of Shell Island is controlled by the Florida State Park System, which also manages the nearby St. Andrew State Recreation Area. However, an antiquated subdivision in the center of the island has resulted in a mix of privately-owned and publicly-owned parcels. According to Will Hobson*, the County rezoned Shell Island to the Public Institutional district in 2004, a zone that does not allow residential development. A group of 14 landowners sued the County for damages; (the judge’s 2010 ruling is discussed below.)

In 2006, the County adopted an amendment to its land development regulations, establishing a TDR program designed to permanently preserve lands identified for protection in the Bay County Comp Plan. Only Shell Island is identified as a sending site in the Comp Plan. The regulations allow for the creation of TDR upon the recordation of an acceptable easement. But the ultimate objective is public ownership as seen in the requirement that sending site owners must state their intent to deed title to the property to the County upon the severance of the development rights.

The determination of the number of density development rights available at a sending site begins by calculating the number of residential units permitted under applicable land development regulations. Lots of record are assumed to have a density of one dwelling unit or the number of units allowed under zoning, whichever is greater. However, the ordinance specifically limits the allocation to no more than 10 dwelling units per parcel of land located on Shell Island. Allocation ratios increase from 5 units per lot up to 10 units per lot in an effort to motivate the owners of multiple contiguous Shell Island lots to transfer their development rights in a single application.

Intensity development rights may also be transferred from sending to receiving sites. These intensity rights are calculated by determining the maximum building envelope allowable to the sending site under all applicable bulk development regulations. Transferred intensity rights can be used at receiving sites to exceed the maximum building height limit that would otherwise apply. In Section 3209, the code allows an increase of 50% or 70 feet of height whichever is less. In Section 3208(3), the bonus achievable via transferred intensity is limited to 20 feet of building height.

Receiving sites include parcels within the urban service area zoned C1, C2, C3, R1, R2, R3, R5, R5A, SR-1, SR-1A, SR-2 with direct access to an arterial or collector road. However, TDR cannot be used to increase residential density within a Coastal High Hazard Area. The severance of rights from the sending area and approval of the use of those rights at a receiving site occurs concurrently. The County Development Services Director has the authority to approve or deny applications based on adequacy of infrastructure, environmental protection and safety considerations. The Director’s decision can be appealed.

In 2006, one owner transferred rights on four Shell Island lots in return for the ability to gain additional floors within a proposed resort development called Legacy Beach, which was not built as of 2010. According to Hobson*, in February 2010, Circuit Judge Michael Overstreet did not grant damages to the 14 plaintiffs in the lawsuit mentioned above but stated that they could apply for building permits regardless of the zoning. An attorney for one of the landowners argued that the ability to actually pull building permits for residential development on Shell Island is questionable since other agencies also need to approve construction in this highly sensitive area including the Florida Department of Environmental Protection and the Florida Fish and Wildlife Conservation Commission as well as Bay County.

The attorney quoted by Hobson believes Bay County should simply buy private land on Shell Island because the TDR program provides only an illusion of compensation. This comment may reflect a current lack of demand for development rights in the real estate downturn of the Great Recession. If it had the resources, the County could institute a TDR bank, buy the rights in the near term and sell them later when the real estate market returns. The adopted Comp Plan allows Bay County to establish a TDR bank to buy parcels on Shell Island, bank the resulting TDRs and sell them at an annually-updated price. However, Chapter 32, Transferable Development Rights, of the Bay County Land Development Regulations does not mention a TDR bank.

*Hobson, Will. “Transfer program little help for Shell Island owners.” News Herald. February 23, 2010. Retrieved on February 24, 2010 from http://www.newsherald.com/common/printer/view.php?db=newsherald&id=81697.