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Lee County, Florida

Lee County, population 618,754 (2010), surrounds the City of Fort Myers on Florida’s Gulf Coast. In 1984, the County adopted a comprehensive plan designed to preserve environmentally-sensitive lands and direct development to areas where infrastructure and public services can be economically provided. As a result of this plan, permitted densities in wetlands were reduced from one unit per acre to as little as one unit per 40 acres.

The County was concerned about takings lawsuits and decided that some form of compensation was needed. Two years later, the County adopted a TDR ordinance to mitigate the impact of the new land use restrictions. The ordinance specifically states that the TDR mechanism is designed to provide economic relief to property owners for development restrictions placed on these environmentally-sensitive lands.

In 2010, Lee County adopted a second TDR program that allows development rights to be transferred from uplands as well as wetlands and also designates additional receiving sites. With some exceptions, these two programs operate independently. For example, the credits generated under the original program can only be used on receiving sites designated under the original program.

Process

Although the original TDR program was adopted in 1986, this code section was amended in 1999, 2000, 2005 and 2010. For the purpose of this profile, this program is referred to as the Chapter 2 program and the following description is taken from Section 2-141 – 148 as it appeared in the Lee County Development Code in August 2011. In the Chapter 2 program, sending sites are designated wetlands that have not been zoned private recreational facilities planned development (PRFPD) and consequently still retain transferable residential density rights. The sending sites cannot be owned by a public agency, subject to conservation easements or precluded from physical development by other legal restrictions that predate 1986.

The ordinance allocates one TDR per five acres and recognizes partial rights as small as one tenth of a TDR. Sending site property owners who agree to participate submit a sketch of the wetlands on their land for the purpose of determining the number of TDRs available for transfer. Owners who wish to proceed record an easement permanently protecting the sending site for conservation. Once that easement is recorded, the owners can transfer the resulting TDRs using deeds of transfer.

Receiving sites under the Chapter 2 TDR program are lands designated in the comprehensive plan as intensive development, central urban or urban community. Barrier islands are prohibited from receiving TDRs. Chapter 2 establishes three ways in which TDRs can be approved for receiving sites: 1) by right, 2) by administrative approval if a rezoning is not needed, or 3) concurrent with a rezoning.

  1. By Right –  One bonus unit per acre can be added by TDR to land already zoned TFC-1, TFC-2, TF, RM-2 through RM-10, CT, C1-A, C1, C2-A and C2. In no event can the density exceed the maximum total density range of the receiving site’s land use category.
  2. Administrative Approval – The Community Development Director can administratively approve the use of TDRs in conventional zoning districts as long as the proposal does not exceed the maximum density allowed by the Lee Plan and as long as the Director can make seven findings regarding adequacy of infrastructure and compatibility with surrounding land uses. The Director’s decision can be appealed.
  3. Rezoning – An applicant can apply to use TDRs concurrently with the rezoning of a receiving site including a rezoning to a planned development zoning district or an amendment to an existing planned unit development.

The separate TDR program adopted in 2010, referred to here as the Chapter 32 TDR program (Section 32-301 through 310) aims to preserve agricultural lands and other uplands by transferring development rights to areas suitable for compact development. Lands are not eligible to become sending areas if they are owned by a governmental agency, encumbered by a conservation easement, approved for development, designated as a Future Limerock Mining Area or designated as an Existing Acreage Subdivision.

The sending areas are in Southeast Lee County. When the sending area is a wetland, one TDR credit is granted for each 20 acres placed under perpetual conservation easement. When the sending area is an upland area, one TDR is allocated for each 10 acres placed under permanent agricultural easement plus one TDR for each five acres restored to natural conditions and placed under a perpetual conservation easement. When upland areas support existing indigenous vegetation, one TDR is granted for each five acres placed under conservation easement. These allocation ratios double for sending areas in priority preservation/restoration areas.

The Chapter 32 TDR program has five types of receiving areas.

  1. Mixed Use Communities and Rural Golf Course Communities in Southeast Lee County
  2. Mixed use overlay
  3. Specialized Mixed Use Nodes in Lehigh acres
  4. Bonus density as provided in the Chapter 2 TDR program
  5. Incorporated municipalities through interlocal agreements

Each of these receiving areas has its own procedures for the use of TDRs. For example, in mixed use developments in Southeast Lee County receiving areas, each TDR allows one bonus dwelling unit plus 150 square feet of bonus commercial floor area or 600 square feet of bonus commercial floor area.

Program Status

The Chapter 2 TDR program has several features found in successful programs. First, the sending sites are wetlands or other land that is very difficult to develop. Some of these areas are as far as two miles from the nearest public road. Furthermore, development potential is severely limited by environmental regulations including the need to obtain permits from both the State of Florida and the U.S. Army Corps of Engineers to build in wetlands. Finally, the relatively restrictive sending site zoning further discourages on-site development. As a result, sending area landowners should logically be highly motivated to use the TDR option. Furthermore, the Chapter 2 TDR program facilitates use by receiving area developers by offering TDR bonuses both as a matter of right and through an administrative approval process. Despite these favorable characteristics, only two TDRs were approved for transfer during the program’s first decade. These TDRs were used to allow two triplexes on a pair of lots that could accommodate only duplexes under the baseline zoning density.

However, in a 2001 update, Paul O’Connor, the Director of Lee County’s Planning Division, reported a significant increase in TDR activity. Over 500 TDRs were created by the preservation of sending areas. Three multiple-family residential receiving area developments used almost 200 of these TDRs. Nevertheless, Mr. O’Conner reported that the TDR program was still viewed by many developers as too cumbersome. More importantly, many developers were satisfied with the density allowed as a matter of right by the receiving-site zoning. In particular, transfers cannot be used to achieve the maximum bonus density for sites in Hurricane Vulnerability Zones; the reason for this requirement is to minimize the number of people who might have to evacuate this area in the event of a hurricane. Ironically, these zones are along the coast and the river and, therefore, are the areas where added density is in the greatest demand. For these reasons, O’Connor considered TDR to be less effective in preserving wetlands than the one-unit-per 20-acre zoning. In addition, the water management district is accomplishing much of the same goal by acquiring 18 square miles of freshwater marshlands as part of a storm water control program.

With regard to the evolution of the Chapter 32 TDR program, in 1996, the voters of Lee County approved a property tax increase to fund the acquisition of up to two-thirds of this upland area. TDR was then explored as a possible method of preserving the remaining third. In 2010, the Chapter 32 TDR program was adopted to preserve agricultural land and other upland areas. As of the writing of this profile in 2011, it is too early to evaluate the effectiveness of the Chapter 32 TDR program.