(Profiled January 2021)
Collier County, population 384,902 (2019), surrounds the City of Naples in the southwestern corner of Florida and includes portions of the Florida Everglades as well as numerous islands along its Gulf of Mexico shoreline. After decades of environmental damage caused by clear-cutting and ill-conceived real estate deals, Collier County has become increasingly environment-friendly. Today, federal, state, private non-profit, and county efforts have preserved roughly 80 percent of Collier County in parks and preserves that include the Audubon Society’s Corkscrew Swamp Sanctuary, Fakahatchee Strand Preserve, the Florida Panther National Wildlife Refuge, and Big Cypress National Preserve. The county’s preservation efforts have included three different TDR programs.
Special Treatment Overlay – In 1974, Collier County created the Special Treatment (ST) Overlay zoning designation to protect coastal areas, wetlands, habitat, and other places of ecological significance. The ST overlay instituted strict environmental regulations and required approval of a special permit for all new development. As an alternative to on-site development, property owners were encouraged to preserve sensitive land using TDR. However, by 1981, the ST TDR mechanism had transferred only 526 development rights, protecting 325 acres, with most of that activity occurring in a single transaction of 350 TDRs. The relatively low rate of use was attributed to the fact that developers were often able to build what they wanted on-site by concentrating development on the non-sensitive portion of sites using the planned unit development process and using the sensitive ST land as an open space amenity.
According to the Collier County Land Development Code Sec. 2.03.07D as it appeared in January 2021, the number of transferrable development rights is based on the density allowed by underlying zoning of a sending site. When TDRS are transferred from urban areas to urban areas, TDRs can be transferred into all residential zoning districts and the residential components of planned unit developments. The maximum density allowed by the zoning of the receiving site serves as baseline and the bonus density is ten percent of baseline in the lower density residential zones (up to RMF-12) and five percent in the RMF-16, RT and PUD districts. Once the Board of County Commissioners approves these urban-to-urban transfers, the owner must dedicate the protected ST land to a county, state, or federal agency or a private non-profit conservation organization. A 2007 study from Resources for the Future reported that this requirement has reduced enthusiasm to use this mechanism.
The TDR mechanism adopted for the ST Overlay in 1974 is now intertwined with the transfer process available in Collier County’s Rural Fringe Mixed Use (RFMU) District (discussed below). According to the code as it existed in 2017, the rules for RFMU transfers are more welcoming than those that apply outside of the RFMU. Sending areas in the RFMU are allowed one on-site dwelling per 40 acres, but owners can transfer one TDR per five acres and sending site owners are not required to convey title when a transfer is approved. In addition, various bonus TDRs are available to sending site owners as explained in the RFMU district description below.
Rural Lands Stewardship (RLS) – The 300-square mile area surrounding the City of Immokalee, 30 miles northeast of Naples, is zoned for agriculture but contains many environmentally-significant resources including wetlands, flow-ways, water retention areas, aquifer recharge zones, and critical habitat. To head off protracted litigation, the major landowners came to an agreement with environmentalists and government officials in 1999 that produced a Rural Land Stewardship (RLS) program aimed at preserving the most sensitive areas and transferring the unused development potential to a new town located on less-sensitive land.
The program has a 195,000-acre planning area with the majority of the land under a few large ownerships. The agricultural zoning allows one on-site dwelling per five acres. The sending sites are proposed by the property owners and the stewardship credit allocation is calculated by a two-phase process. First, the land itself is assigned preservation value according to the priority status of its environmental resources, meaning habitat, flow-ways, or aquifer recharge zones. In the second step, the applicable property owners choose the extent to which they want to restrict the use of their property. In a tiering of restrictions, owners can decide to only prohibit residential development or also restrict other activities such as mining, recreation, cropland, agricultural support, and pasturing. The amount of credits available to a property grows as the owner chooses to apply greater restrictions.
The new town of Ave Maria is the receiving area for this RLS program. Here, one acre of receiving area land can be developed to the maximum extent allowed under the Ave Maria master plan when a developer retires eight credits. With this approach, the RLS program avoids the problem inherent in many TDR programs in which developers must retire TDRs to reach a maximum density that may also be the density preferred by the jurisdiction. The possibility of giving more development potential to one acre of receiving area versus another was not a problem in Ave Maria because a single partnership is developing the entire town.
To reduce the need to commute back and forth to Naples, Ave Maria is a mixed-use community planned for 11,000 residential units, 1.7 million square feet of retail, office, and business park structures plus a variety of recreational facilities. As of 2020, the estimated population was 10,000, including enrollment at Ave Maria Catholic University, which alone is expected to ultimately accommodate 5,000 students. Developers are assured of their ability to use RLS credits and achieve the densities approved in the Ave Maria plan. Furthermore, there are no mechanisms allowing circumvention of the TDR requirements.
To date, Collier County’s RLS has placed 54,962 acres of sending area land under easement, which is more gross acreage preservation than the amount achieved by many US TDR programs. The mere existence of Ave Maria was facilitated by the fact that the receiving area is surrounded by its own undeveloped sending area and consequently devoid of nearby residents that might be inclined to oppose a relatively compact new town development next door. However, critics observe that the remote location of Ave Maria conflicts with basic principles of growth management (Linkous & Chapin 2014). Another study argues that the method of sending site selection in this program does not result in an optimal outcome for sensitive environmental resources including panther habitat (Schwartz 2013).
Rural Fringe TDR Program – Collier County adopted a third TDR program in 2004 for its Rural Fringe Mixed Use (RFMU) district, a 73,222-acre area owned by approximately 10,000 different property owners. The Rural Fringe TDR program aims to protect sending lands containing large areas of wetlands, endangered species habitat and other significant environmental resources. The sending and receiving areas are mapped. The sending area contains 21,128 of land under private ownership and 20,407 acres held by public entities. The receiving area contains 22,020 acres. The RFMUD also has a neutral area with 9,667 acres.
In the sending areas, on site development is allowed at a density of one unit per 40 acres or one unit for every lot smaller than 40 acres created before 1999. Alternatively, sending area property owners can receive one Base TDR Credit per five acres placed under a qualifying easement. The county has set a minimum price of $25,000 per Base TDR Credit but bonus credits can be sold at any price negotiated between buyers and sellers.
For each Base Credit, sending site owners can gain one early entry bonus credit, an incentive designed to jump start the program which was still in existence as of 2017. Sending area owners can also gain one Environmental Restoration and Maintenance Bonus TDR Credit when they elect to submit and implement an approved Restoration and Maintenance Plan. These plans must be prepared by a county-approved environmental contractor and are required to include a listed species management plan, a procedure to remove invasive vegetation, and financial assurance that the plan will be followed until the property has achieved sustainable ecological functionality or the property is conveyed to a public agency.
For each Base Credit, sending area property owners can obtain a third bonus credit known as a Conveyance Bonus TDR by conveying title in fee at no cost for a property with an approved Restoration and Maintenance Plan to an appropriate governmental agency. By allowing sending sites to gain all four levels of TDR credits, Collier County has created meaningful incentives for sending site property owners to choose preservation/restoration rather than on site development. As an example, the owner of a 40-acre sending site has the choice of building one dwelling unit on site or selling as many as 32 TDR credits.
Despite these seemingly generous allocation mechanisms, Collier County was not satisfied with the rate of preservation when it looked at various ways of retooling the RFMU transfer program in 2016 and 2017. Although staff saw sufficient demand for TDR credits in the long-term future, the RFMU has enough entitled lots to accommodate near term demand. Developers could consequently decline to use TDR by continuing to build relatively low-density, clustered projects. Staff proposed doubling the allocation rate to eight TDC credits per five acres in an effort to incentivize development at higher, smart-growth densities. Another option floated in 2017 involved the establishment of a capitalized TDR bank capable of buying a significant amount of TDR credits and holding them until the anticipated long-term demand for TDRs materialized. In 2017, the county was also wrestling with the fact that conservation agencies at that time were reluctant to accept ownership to properties from many sending area property owners willing to donate them after selling their TDR credits. As of the writing of this profile, it is not known how or if these issues have been resolved.
Despite the large inventory of entitled properties and the difficulties of finding a conservation agency willing and able to own and manage sending sites, Collier County had 7,347 acres of sending area land under recorded development right limitations as of June 2019, which represented a 12 percent increase in preserved land over a three-year period. This 2019 preservation snapshot reflected the recording of 1,491 Base TDR Credits, 1,491 Early Entry Credits, 954 Restoration and Maintenance Credits, and 432 Conveyance Credits.
Linkous, E. & T. Chapin. 2014. TDR Performance in Florida. Journal of the American Planning Association.Volume 80. Issue 3. Pages 253-267.
Schwartz, K. 2013. Panther Politics: Neo-liberalizing Nature in Southwest Florida. Environment and Planning. Volume 45, pages 2323-2343.