"Beyond Takings and Givings" by Rick Pruetz, FAICP

Collier County, Florida

Collier County, population 251,377 (2000), includes the City of Naples as well as part of The Everglades and the Gulf of Mexico shoreline at the southwestern tip of Florida. In 1974, Collier County adopted a new zoning ordinance designed to control growth and preserve coastal islands, marshes and other ecologically sensitive areas. As part of this code change, more than 80 percent of the land area in the County was placed in a new zoning classification called the Special Treatment overlay. The Special Treatment overlay imposes environmental regulations and requires a special permit for all new development. To encourage the protection of sensitive environmental resources in the Special Treatment overlay, the County's original TDR ordinance allowed for the transfer of development rights exclusively out of this zone. At first, transfers were only allowed to contiguous properties. However, a 1979 amendment permitted transfers to non-contiguous land and also streamlined the approval process. In 1999, the Special Treatment overlay TDR process was amended again as described in Beyond Takings and Givings.

The receiving area of Collier County’s RLS program is the new town of Ave Maria, which surrounds a new Catholic cathedral and university.

Rural Lands Stewardship Program

In 2002, Collier County adopted a plan incorporating another TDR program called Rural Lands Stewardship designed to protect much of the land surrounding the small town of Immokalee. As explained by Robert Mulhere, AICP, Vice President of RWA Consultants, the planning area contains 195,000 acres, of which 168,000 acres are owned by less than a dozen owners. The planning area is rich in wildlife habitat and environmental resources, including two flow-ways that recharge the groundwater aquifer.

Sending and receiving areas are not specifically designated. However, the TDR allocation is higher for areas with higher resource values thereby creating an incentive to use the most sensitive lands as sending areas and the least sensitive lands as receiving areas. Specifically, the County creates a base allocation determined by a natural resource rating system that assigns higher scores to wildlife habitat, flow ways, water retention areas and other environmental resources. In addition, property owners are free to decide which of seven layers of development potential they want to forego on the sending area to create Stewardship Credits. These layers include residential development, conditional uses, mining, recreation, crop agriculture, agricultural support and pasture agriculture. The more layers foregone, the greater the number of Stewardship Credits created for transfer.

In the receiving areas of most TDR programs, the community's desire for higher density conflicts with the requirement that developers provide a TDR for each bonus dwelling unit. In Collier County's RLS program, developers must acquire eight credits for each receiving area acre developed and comply with the land use guidelines for that property. This makes the use of Stewardship Credits density neutral. However, as an incentive, no TDRs are required for the receiving area acres developed as schools and other public uses.

This program has experienced immediate success thanks to the demand for credits to build Ave Maria, a Catholic university and town in the RLS planning area. As of March 2005, 5,300 acres were preserved and 7,878 credits created. According to Robert Mulhere, by the end of 2005, the program will have achieved 25 percent of its 25-year goal for environmental protection and approved a new, mixed use town on a footprint that is one tenth the size of the land area previously required.

Rural Fringe TDR Program

In February 2004, Collier County adopted yet another TDR program for its Rural Fringe Mixed Use (RFMU) District. This district contains roughly 90,000 acres of land held by approximately 10,000 property owners. The program is designed to preserve the most valuable environmental lands within this district including wetlands and habitat for protected species. The sending areas are allocated one TDR per five acres.

TDRs can be transferred from RFMU Sending Lands to RFMU Receiving Lands, urban designated areas and the urban residential fringe. According to Dr. James Nicholas, who was on the team that developed this program, developers should be able to pay $25,000 per TDR and still make a reasonable profit on receiving area developments. No upzonings are permitted without the use of TDR.

When the program was under development, the estimated compensation for sending area property owners was considered adequate: $25,000 for an easement on five acres, or $5,000 per acre. However, five-acre lots in the RFMU District have recently been selling for $50,000 each. Consequently, no transfers occurred in the first year of the program.

The County and its consultants have studied ways to remedy this lack of participation. They don't want to assume that developers will pay more than $25,000 per TDR because they don't want to jeopardize receiving area demand. So, to interest sending area property owners, the County Board is considering three changes in sending area allocation as of March 2005. 1) Property owners who act early and sever their TDRs within three years of program stat-up would get an additional one TDR per five acres. 2) Property owners who restore sending areas would receive an additional one TDR per five acres. 3) Owners who dedicate their land to a conservancy would receive an additional one unit per five acres. Consequently, property owners who take advantage of all three add-ons would be able to sell up to four TDRs for a five-acre parcel. At $25,000 per TDR, this would create $100,000 in compensation or twice the $50,000 per five-acre price in full market value that this land currently fetches.