Transferable Development Rights In Southeast Lee County Planning for the Density Reduction / Groundwater Resource Area (DR/GR) Lee County, Florida Submitted July 2009 General Preface 1.3 Introduction 1.4 P REFACE 1 TRANSFERABLE DEVELOPMENT RIGHTS IN SOUTHEAST LEE COUNTY GENERAL PREFACE In 1990, Lee County Commissioners applied a new In September 2008 the Board of County Commission- Density Reduction/Groundwater Resource (DR/GR) ers directed that implementation of this plan begin im- designation to most of southeast Lee County to pro- mediately. This implementation phase will produce five tect the area’s shallow aquifers and reduce the county’s separate reports: population capacity. The 82,560 acres of the southeast DR/GR host rural neighborhoods, limerock mines, and • Proposed Lee Plan Amendments for Southeast Lee active farms. The land also contains valuable ecological County, which contains detailed amendments to and hydrological features including panther habitat and maps and policies in the Lee Plan and a summa- public water supply wells. ry of the data and analysis upon which they are based. Since the designation of the area, the pressure to mine and to expand the urban area outward has been increas- • Transferable Development Rights in Southeast Lee ing. In the fall of 2007 the Board of County Commis- County, which analyzes the feasibility of a trans- sioners initiated a 14-point Action Plan addressing criti- ferable development rights program and provides cal mining, traffic, and land use issues in the DR/GR detailed designs for potential rural and mixed-use area. communities. A major planning effort was part of this initiative. Using • Comprehensive Hydrological Study of the Lee detailed ecological mapping and a scenario-based land County Southeastern Density Reduction/Ground- use study, a new Prospects for Southeast Lee County plan water Resource Area, which documents the cre- defined proper balances of uses for the DR/GR’s future. ation of an integrated surface and groundwater model and analyzes land-use alternatives for this Dover, Kohl & Partners led the project team, with col- area from a hydrological perspective. laboration from Spikowski Planning Associates, Kevin L. Erwin Consulting Ecologist, Inc., Hall Planning & En- • Natural Resource Strategies for Southeast Lee gineering, Dan Cary, Berger Singerman, David Douglas County, which addresses best farming practices, Associates, Inc., and DHI Water & Environment, Inc. land acquisition and restoration, mine reclamation standards, and innovative mining approaches. To provide oversight and additional insight into emerg- ing policy options, the Lee County Commission ap- • Proposed Land Development Code Amendments pointed a 15-member DR/GR Advisory Committee for Southeast Lee County, which contains de- that met throughout 2008 and formulated independent tailed code amendments to carry out the Lee Plan recommendations on future county policy for southeast amendments and other recommendations of these Lee County. reports. This current document analyzes the feasibility of a transferable development rights (TDR) program, pro- vides detailed designs for potential rural and mixed-use communities, and proposes a new TDR program for southeast Lee County. 1.2 PREFACE INTRODUCTION Future residential development in the DR/GR area was This report explores the creation of a new TDR program carefully considered in Prospects for Southeast Lee County. for Lee County’s DR/GR area. This program would be a Two of the eleven planning principles presented in that supplement to the current TDR program which applies report addressed residential development: only to wetlands and which does not allow those devel- opment rights to be used anywhere within the DR/GR. Reallocate Development Rights; Create Sustainable Settlements To create a TDR program, Lee County would need to • DR/GR land is too valuable to waste on inefficient amend the Lee Plan to enable the program and then land use patterns. amend the Land Development Code to provide all • Keep new residential development away from pre- the details needed to carry it out. Specific Lee Plan ferred mining areas to prevent conflicts. amendments have already been proposed in a companion • Compact and connected mixed-use communities report, Proposed Lee Plan Amendments for Southeast Lee should be the standard in the DR/GR. County. Live Lightly on the Land This report is organized into three additional chapters. • Adverse human impacts on DR/GR lands should Chapter 2, prepared by economist James C. Nicholas, be minimized. Ph. D.1 explores the history of TDR programs around • Encourage cluster development to reduce the cu- the country and the economic conditions under which mulative impact of human settlement. they can function effectively. An analysis is then pre- sented of vacant land sales in and near southeast Lee Under current regulations, future residential develop- County over five recent years to project the value of in- ment in the DR/GR area is limited to 1 dwelling unit creased development intensity (and thus the economic per 10 acres. This low density cap could result in an feasibility of a TDR program). Keys to successful TDR unnecessary loss of agriculture if owners of large tracts programs are then presented. choose to create a profusion of 10-acre lots. Large-lot development can fragment natural habitats and require Chapter 3 identifies the best locations in the DR/GR for excessive travel for residents who regularly drive to jobs, development rights to be concentrated and sets forth shopping, and entertainment. basic design principles for traditional walkable neigh- borhoods. These principles are applied to each location Opportunities exist for development rights within the to demonstrate ideal ways for this concentration of de- DR/GR to be used without creating additional large-lot velopment rights to take place. subdivisions. Chapter 4 proposes a new TDR program that accom- On large tracts of land, allowable development rights plishes the principles and recommendations from Pros- can be shifted and concentrated fairly easily; the same pects for Southeast Lee County. This program would be car- number of units can be constructed in compact form on ried out through amendments to the Lee Plan and the a fraction of the acreage. When parcels are smaller or Land Development Code. non-contiguous tracts are involved, this shifting requires a transferable development rights (TDR) program. Such a program could create mixed-use communities that also provide commercial and employment opportunities to help balance Lehigh Acres’ abundance of single-family lots and severe shortage of land for all other purposes. 1 Emeritus Professor of Urban & Regional Planning and Emeritus Professor of Law, University of Florida 1.3 TRANSFERABLE DEVELOPMENT RIGHTS IN SOUTHEAST LEE COUNTY 1.4 Introduction 2.3 Transferable Development Rights 2.7 Empirical Results 2.12 Keys to a Successful TDR Program 2.25 HISTORY & ECONOMICS OF TRANSFERABLE DEVELOPMENT RIGHTS 2 This chapter prepared by: James C. Nicholas, Ph. D. HISTORY & ECONOMICS OF TRANSFERABLE DEVELOPMENT RIGHTS INTRODUCTION THE ISSUE The conversion of lands from one use to another has would place “inordinate burdens” on private property been a matter of concern in many areas around the may require monetary compensation or other com- country. The economic pressures for converting from pensatory actions by local government even if they are one, less intensive use such as agriculture, to another, not unconstitutional takings. Local governments are more intensive use, such as suburban or urban develop- caught between a duty to protect public health, safety, ment, are well known.1 Land in Lee County commonly and welfare and the potential to be ordered to compen- tends to be more valuable in development than in farm- sate landowners whose property has been taken or inor- ing or laying fallow, thus converting from low value to dinately burdened even by regulations that are justified higher value uses tends to be rewarded with profit. for the protection to public health, safety, or welfare.5 Regulatory measures, such as land use plans and zoning, There has been a great deal of experimentation around can retard and even stop such conversions. However, the country with land management techniques that such regulatory measures have their own problems. The permanently retain lands in existing low intensity uses. most obvious consequence of conversion ending regula- In some cases these techniques are applied at the same tory programs is the inability of developers, speculators, time new regulations are imposed in an effort to retain or landowners to profit from the increase in land value low intensity uses without destroying the developmen- when development potential cannot be realized because tal values of that land. In other cases these techniques of the regulatory program. are applied independently of new regulations, either to substitute permanent protection for land that had been Thus, land use planning agencies find themselves in the protected only by regulations, or to encourage landown- middle of a conflict between two competing interests. ers to voluntarily exercise their existing development On the one hand, there is a desire to protect and pre- rights in a different manner than allowed by existing serve agricultural or environmentally sensitive land and regulations. to prevent, or at least control, certain environmental and social costs commonly associated with land conversion. The most notable of these programs are purchase of On the other hand, development regulatory bodies are development rights (PDR) and transfer of development faced with vocal protests against any perceived diminu- rights (TDR).6 Both of these programs share the tion of property rights. These protests are particularly vocal if a new regulation is being imposed which would See Chapter 70, Florida Statutes, known as the Bert J. Harris Pri- further restrict land conversion; but they are heard even vate Property Rights Protection Act. Pursuant to the Harris Act, when a long standing regulation is not lifted during a there are ten means proposed in that are possible means to com- pensation a property owner for an inordinate burden: 1.