Brevard County, Florida, population 543,376 (2010) is located 50 miles southeast of Orlando on Florida’s Atlantic Coast. The eastern portion of the County includes barrier islands and the western half consists of swamps. In the late 1970s, the County was looking for ways to save barrier islands, beaches, and oceanfront land, particularly at the south end of the County, which was less densely developed. The Federal Coastal Area Resources Act provided additional preservation incentives by withholding federal money for projects which serve development in fragile coastal areas. Consequently, the County wanted a process that would move future development from east of Highway A1A north and west, away from the ocean.
Sending areas in Brevard County include agricultural lands, coastal areas, and other environmental lands.
To accomplish that, the County rezoned coastal areas first in 1979 and then again in 1985 and 1988; in these downzonings, the density limits on some properties were reduced from 30 units per acre to one unit per acre. In order to compensate the affected property owners, the County added two TDR components to its zoning code in 1979. One code section allows for transfers in unincorporated areas between two properties under the same ownership, using the planned unit development process. Under the other code section, transfers are allowed between designated sending and receiving districts. The sending areas include productive agricultural land, environmental areas, and oceanfront property.
The Brevard County code allows two basic types of transfers: transfers using the planned unit development (PUD) zoning classification and transfers between land in separate ownerships within other zoning districts, including the County’s productive agriculture (PA) and environmental area (EA) districts.
Transfers within PUD zoning districts are only applicable to parcels in unincorporated areas. Eligible sending and receiving sites include two or more tracts of land under one ownership and greater than ten acres in size. However, in the South Beach areas of the County, the minimum size requirement is only five acres. Transfers of uses permitted in a planned unit development can be made between these sending and receiving sites as long as six conditions are met.
- The transfer must promote the public interest, such as the preservation of a sensitive environmental area.
- The sending and receiving sites must be in close proximity, although they do not have to be contiguous.
- The proposed use of each site must complement and be an integral part of the proposed use of the other site.
- The total density allowed on these sites after the transfer cannot exceed the density permitted on the sites prior to the transfer.
- The transfer must be noted in the PUD file maintained by the county zoning division. Exceptions and limitations granted through the transfer are binding on the developer and all subsequent owners of the property.
- Transfers can be made of residential uses and non-residential uses such as motels, hotels and restaurants. However, hotel and motel units can only be transferred to a receiving site of at least 20 acres.
- The procedure described above relates to transfers using the PUD process. As mentioned, the County also allows transfers through an alternate process in selected zoning districts. Under this option, the sending sites are referred to as transfer districts: TD-1, TD-2, TD-3, and TD-4. These districts include oceanfront land, agricultural land, and environmental areas, including wetlands as identified by soils surveys prepared by the US Soil Conservation Service.
The receiving areas are referred to as receipt districts: RD-1, RD-2, and RD-3. TDR proposals must be made as a joint application submitted by the owners of both the sending and receiving parcels. Specific transfer districts must be paired with specific receipt districts:
- Transfers can be made from the TD-1 and TD-2 districts to the RD-1 district;
- From the TD-1, TD-2, and TD-3 districts to the RD-2 district; and
- From the TD-1, TD-2, TD-3, and TD-4 districts to the RD-3 district.
The sending sites, or transfer districts, must meet four conditions.
- The sending site must be an oceanfront property or a parcel zoned as an agricultural or environmental area.
- The applicant must submit a survey of the sending site.
- The transferable rights are calculated as followed:
- Land in productive agricultural (PA) land is allocated one dwelling per acre.
- Environmental areas (EA) are allocated one dwelling unit per five acres with certain exceptions. The transfer right value can be calculated at one unit per acre where the County finds an overriding public benefit from the proposed transfer. The owners of parcels which consist of 15 percent or less of land designated EA, may transfer rights at the rate of up to four units per acre to portions of the parcel designated as residential as long as the site plan calls for preservation of the EA area and meets three other criteria.
- Properties not designated as either productive agriculture (PA) or environmental area (EA) can transfer units at the density allowed by the zoning code for that property.
- The code also specifies the development rights which can or must be retained on sending sites.
- Productive agricultural (PA) must retain up to one unit per 20 acres.
- Environmental areas (EA) cannot retain any development rights.
- Other properties retain the difference between the number of rights transferred and the total rights allowed by zoning.
- Oceanfront properties can retain a maximum of half of the development rights allowed by the zoning code.
Similar to the transfer districts, Brevard County requires that all proposed receiving sites meet seven conditions.
- The property must be located within a designated receiving district.
- The applicant must submit a binding concept plan which uses design and transitional densities to promote compatibility between the proposed development and adjacent property which may have a lower density.
- The density of the proposed receiving site project must be compatible with that of adjacent properties but cannot exceed 20 percent of the density permitted by the underlying zoning.
- Development rights can be transferred between properties within the same receiving district.
- The additional impact to public services caused by the additional density from the proposed transfer must be evaluated and weighed against the benefits of the proposed transfer.
- The public benefit of the proposed transfer must be quantified.
- If the transfer is approved, the approval is conditioned on the binding concept plan and all conditions and requirements placed on the project.
The Brevard County TDR program was designed to compensate property owners for the rezoning of coastal zoning districts from 30 units per acre to one unit per acre. Under the PUD-related TDR program, the total number of units allowed on the sending and receiving sites after the transfer cannot exceed the number of units allowed on both sites prior to the transfer. In the second program, the County allows transfers between properties in separate ownerships.
This program has been slow to generate transfers. In 1994, Planner II Tom Meyers reported that developers find the TDR process to be too cumbersome. In addition, developers can often achieve the maximum density allowed under the land use plan by clustering units in the non-sensitive portions of individual parcels. But, perhaps most importantly, the oceanfront property that the County wants to save is so desirable that most property owners are not interested in relinquishing the ability to build an oceanfront home just to transfer the rights to a less desirable inland location.
In a November 1998 update, Senior Planner Randy Woodruff reported that the TDR provisions had not changed and that no transfers had occurred as of that date. In 2005, Assistant Zoning Manager Ryan Rusnak reported that the program had not changed from a profile that appears in the 2003 book Beyond Takings and Givings. However, Mr. Rusnak mentioned that the County had approved one transfer from a 60-acre wetland tract to a developable, non-contiguous parcel.