Monroe County, population 73,090 (2010), lies at the southwestern tip of the Florida peninsula. It is the site of large portions of the Everglades National Park and the Big Cypress National Preserve as well as the Florida Keys. The Keys contain most of the County’s population and continually attract new development despite numerous environmental constraints. For example, the Keys lack a potable water supply, making it necessary to pipe water in from Dade County. The entire County is within the 100-year floodplain and almost all of the land is less than five feet above mean sea level which makes the entire archipelago vulnerable to hurricanes. Furthermore, antiquated subdivisions have created numerous small lots in areas now designated for preservation.
In 1972, Florida adopted the Land and Water Management Act, which designated the Keys as an Area of Critical State Concern. In 1985, Florida passed the Growth Management Act, which mandates comprehensive plans for all jurisdictions. In 1986, Monroe County adopted a comprehensive plan to protect environmental resources, particularly wetlands and habitat areas for endangered plants and animals.
To implement that plan, the County created new land development regulations which significantly reduced development potential in environmentally-sensitive areas. At the same time, a transfer of development rights program was adopted to compensate for this down zoning and respond to claims that the new restrictions create a taking of property.
In 1991, the County adopted a Dwelling Unit Allocation program that limits growth to approximately 200 new units per year. (The exact quota changes from year to year.) This limit was imposed to provide further environmental protection and also to maintain the amount of time currently needed for hurricane evacuation procedures. As discussed below, this quota system has also reduced the demand for additional density and, consequently, the demand for transferred development rights.
As of September 2011, the 1986 TDR provisions (originally Sec.9.5-265) now appear in Section 130-160 Transferable Development Rights but the substance of Section 130-160 is unchanged.
In the Monroe County program, sending and receiving sites are not pre-designated but instead are proposed by property owners. The sites must meet two basic criteria. First, the proposed sending site must have equal or lower code-permitted density than the proposed receiving site. Secondly, the proposed sending site must have a more ecologically-significant land use classification than the proposed receiving site. For example, transfers would most likely occur from wetland sending sites to upland receiving sites.
Monroe County’s TDR program transfers only residential and hotel development rights. The transfer ratio is one-to-one: for every development right removed from a sending site, one additional right can be transferred to receiving sites. The sending site owner is motivated to transfer rights because site constraints and development restrictions on environmentally-sensitive lands make it difficult or impossible for the owners to actually achieve the development potential allowed by the zoning code density limits. For example, in many environmentally-sensitive land classifications, 85 percent of every parcel must be preserved as open space.
To encourage the use of TDR, the County allows fractions of development rights to be transferred. Sending site owners can consequently sell part of a development right for the portion of their parcel which is not an open space requirement but which is nevertheless unbuildable due to density limits and other restrictions.
Development rights can be severed from sending sites and held for future use; but, the conservation easement which preserves the sending site is not recorded until the development right is used to construct an additional dwelling on a receiving site. This feature has caused some problems for the Monroe County program as explained below.
Receiving site developers must prove that they own the TDRs needed for their proposed projects. Once ownership is established, the receiving site project must be approved through a minor conditional use permit process. A minor conditional use permit requires a $3,000 application fee. The process takes about six months, with a development review committee making a recommendation to the Planning Director. This process allows the Director to require additional conditions such as fences, landscaping, special parking/circulation features or any other conditions needed to protect adjacent properties.
The Monroe County zoning code has two sets of density limits. Allocated density establishes the dwelling units allowed per gross acre of land when TDR is not being transferred to a site. A second limit, maximum net density, determines the number of units allowed per net acre when units are being transferred to a receiving parcel. Net acreage means gross acreage minus the land area in required setbacks or open space, whichever is greater; also, when a parcel includes a meandering shoreline or more than one habitat type, a survey is required to determine the net buildable area. According to David Quigley, Development Review Planner for the County, net buildable acreage is often substantially smaller than gross acreage. As a result, the number of dwelling units allowed via TDR on a receiving site is not always substantially higher than the number allowed without TDR.
In addition to the CUP and maximum density requirements mentioned in the preceding paragraphs, development of receiving sites is subject to five other requirements. In two specified zones, density is limited to one unit per lot. In another zone, maximum density is restricted to two units per lot. When transfers are made from the Native Area District to the Destination Resort District, the Recreational Vehicle District or the Mixed Use District, the County provides a bonus density of two extra hotel rooms for each transferred unit. The development proposed to receive the transferred density must comply with all development standards applicable to the receiving site. As mentioned above, the allocated density of the receiving site must be higher than that of the sending site and the sensitivity of the sending site must be higher than that of the receiving site.
Finally, before the building permit for the receiving site project can be issued, a deed of transfer must be recorded on the sending parcel with a covenant prohibiting the further use of the sending site for residential purposes except as open space or yard area.
The only other way to exceed the allocated density on a receiving site is by gaining a density bonus for providing affordable housing. However, developers are often reluctant to use this code provision since it requires the placement of a covenant on the property to ensure that the housing will remain affordable for at least 20 years. In addition, the demand for additional density is dampened somewhat by the County’s development cap, which allows only 255 new dwelling units per year.
In a 1997 concept paper on the Monroe County TDR program, Senior Comprehensive Planner David Quigley reported that 93 TDRs had been transferred. Receiving sites in the middle Keys used 55 of these TDRs while sites in the upper Keys used 36 TDRs and sites in the lower Keys used only 2 TDRs. Most of the TDRs were used to allow the construction of single-family residences on parcels that would not otherwise comply with density requirements. However some TDRs were used from the expansion of a hotel and platting. Most of these TDRs came from sending sites in the middle and lower Keys.
This 1997 report noted five deficiencies in the County’s TDR program and made the following recommendations.
- Currently, the owner of a deed-restricted sending site continues to pay taxes on transferred development rights until the receiving site development using those TDRs is completed. The report recommends that the tracking system be designed so that the Property Assessor is automatically notified of the use of TDRs through the recordation of a development order.
- Sending and receiving sites can occur randomly among all zoning categories that allow residential or hotel use. The report states that the program would be more effective if sending and receiving sites were identified or if the criteria for defining these sites were at least more explicit.
- The report recommends that receiving site developers be given additional incentives to use TDRs, such extra points in the Permit Allocation System.
- Open space dedications or recordation of conservation easements should be required when TDRs are transferred.
- A tracking system should be developed to implement the recommendations listed above and provide greater flexibility in transferring TDRs between residential sending sites and non-residential receiving projects.
In September 2011, Joe Haberman, Manager of Planning & Development Review reported that the County does not assemble statistics on the amount of land preserved by TDR although it does document the number of TDR applications approved and the number of TDRs transferred (see below). He mentioned that the permit allocation system was still in effect. He also stated that the County was currently updating its Comprehensive Plan and that this process could result in future changes to the TDR ordinance and program.
According to The Use of Transfer of Development Rights to Manage Growth: The Adoption and Performance of Florida County TDR Programs, a 2012 dissertation by Evangeline Linkous, Monroe County had approved 32 TDR applications between 1987 and 2010 creating 99 credits; most were used for single family residential development but some TDRs allowed bonus multi-family residential, hotel and commercial development.