Lee County, population 770,577 (2019), 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.
In 2014, 2016, 2017, and 2019, Lee County made further amendments. As of September 2020, the county website described three programs: Greater Pine Island (LDC 2-151), Wetlands (LDC 2-149), and Southeast Lee County (LDC 2-153).
Greater Pine Island
Greater Pine Island is a large island in the Gulf of Mexico with one bridge to the mainland. Property owners who record conservation easements on wetlands on Pine Island can sever one transferable development unit (TDU) per five acres or two TDUs per legal lot. Pine Island landowners can sever one TDU per acre of non-urban upland or three TDUs per acre of Pine Island uplands in the Outlying Suburban Category.
In receiving areas one Pine Island TDU yields one dwelling unit in Pine Island Center or two dwelling units in receiving areas on the mainland. Alternatively, Pine Island TDUs can be used in Future Urban Areas to increase the commercial intensity of existing Planned Developments by 10,000 square feet of commercial floor area per TDU. Pine Island TDUs can also be used to reduce open space and onsite native vegetation preservation requirements.
This program aims to preserve wetlands not on Pine Island or in Southeast Lee County. Preserved sending areas can sever one TDU per five acres of wetland or two TDUs per legal lot. TDU allocations are doubled for TDUs from Coastal High Hazard Areas.
One wetland TDU can achieve two dwelling units in Future Urban Areas that allow for bonus density.
Southeast Lee County
Wetland sending sites in Southeast Lee County can sever one TDU per five acres or two TDUs per legal lot. Upland sending sites here can sever between one and four TDUs per ten acres of density reduction/groundwater resource (DR/GR) land depending on location and whether the conservation easement allows agriculture or limits the sending site to conservation.
One Southeast Lee County TDU can yield one dwelling unit plus 800 square feet of non-residential floor area when transferred to a receiving site in a Southeast Lee County Mixed-Use Community. Alternatively, one Southeast Lee County TDU can yield two dwelling units in a Future Urban Area that allows Bonus Density.
In many circumstances, the Community Development Director can administratively approve the use of TDUs to increase bonus density provided the proposal does not exceed the maximum density allowed to the receiving site in the Lee Plan and the Director finds that additional traffic will not travel through areas with significantly lower density, that existed and committed infrastructure is adequate to accommodate the planned development and that the resulting development will be compatible with existing and planning surrounding development.
TDUs may not be used on property located in the coastal high hazard area or in five of Lee County’s planning communities.
Logically, the owners of wetland sending area land should be highly motivated to participate since wetlands are very difficult to develop and some of these areas are as far as two miles from the nearest public road. Sending area development potential is also 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. Additionally, the relatively restrictive sending site zoning further discourages on-site development. Furthermore, the administrative approval process relieves developers of the cost, delay, and uncertainty of public hearings.
Despite these favorable characteristics, only two TDRs were approved between 1986 and 1996. However, by 2001, Paul O’Connor, then the Director of Lee County’s Planning Division, reported that over 500 TDRs were created by the preservation of sending areas and that 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. In addition, the water management district is accomplishing much of the same goals as the TDR program by acquiring 18 square miles of freshwater marshlands as part of a stormwater control program.