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Understanding the TDR program in Collier County Government, Naples, Florida



Development Rights originate from Property, or Property Rights. Property Rights are a fundamental belief of the Founding Fathers built into the US Constitution. “Property” is the basis for every “right” we have and enjoy now in the United States. The right to acquire, enjoy and dispose of property is protected by the Constitution’s Fifth Amendment’s “Due Process Clause & Takings Clause,” and the Fourteenth Amendment’s “Procedural Due Process Clause.” 

Landowners have these Rights: 
•Surface Rights: a right to occupy the surface of the land.
•Subterranean Rights: a right to things beneath the land’s surface, such as oil, soil, rocks, minerals, and any other substances.
•Air Rights: a right to the air above and below the land - to a reasonable extent. 
•Vegetation Rights: a right to plant trees, crops, and other vegetation on the land (Right to Farm)
•Development or Improvement Rights: a right to place fixtures on the land, such as a house or shed
•Right to Lateral and Subjacent Support: a right to stop neighbors from excavating or otherwise changing their land such that it would damage your land and/or building. 
•Right to Be Free Of Public Or Private Nuisances: a right to request a court order to stop non-consented interferences with enjoyment of the land. Examples of nuisances include pollution, noxious odors, and excessive noise.  
•Riparian Rights: a right to use the natural waterway within the land. 
•Right to Control
•Right to allow others a right to use (license/lease)
•Right to use as collateral

The development of zoning laws gave some of those “invisible rights,” monetary value. Their sum total of value - gives land its “fair market value.” Just like a parcel of land, rights can be sold – individually or all. The selling of rights avoids the “due process and takings clause” by governments, especially when trying to acquire land for preservation.  

Collier County Government currently oversees 2 -TDR programs: RLSA-Rural Lands Stewardship Area & RFMUD-Rural Fringe Mixed Use District that attempt to not interfere with a person’s property rights. However, placing a “map overlay” on a property has been interpreted as an “indirect taking.” 

First point, both are based on the concept of preserving environmentally sensitive lands by transferring the “right to build a house” to a more suitable land for construction. Second point, both are designed to return economic fair value to the landowner with environmentally sensitive property. Third point, both allows the landowner of environmentally sensitive property to convey it to a Government Agency or an Organization that specializes in preservation land management to relive the cost burden and liability of long term ownership. Fourth point, these programs only do well when the economy is good and Developers want to build.

Both the RLSA and RFMUD TDR programs are designed so that the long term cost of managing and maintaining preserved lands are NOT PAID FOR BY THE COLLIER COUNTY RESIDENT via property taxes. These 2 programs were designed to shift the cost of acquiring the land for preservation and the cost of long term maintenance to the Developer, and/or all other Residents of the State of Florida.  

The acquisition of preservation land and its long term maintenance cost being shared by all taxpayers in Florida is not a new concept. Examples are Collier Seminole State Park, Fakahatchee State Park, Picayune Strand State Forest, etc. The reasoning is preserved lands are shared by all, used by all and therefore, should be paid for by all.

In the RLSA, all cost of maintenance in perpetuity is borne by the landowner/developer. In the RFMUD this is done by acquiring TDR #3 (Conveyance-Bonus), which requires donating/transferring environmentally sensitive lands to a State of Florida Agency that has expertise in land preservation management, or a Non Profit Organization (NPO) like the Conservancy of SW FL, Collier Audubon Society, FL Wildlife Federation, that operate off donations. However, these NPO’s do not buy land for preservation because it is too expensive for their operating budgets, especially the long term maintenance cost. These NPO’s only lobby for preservation property.

In 2004, Collier County Government had to adopt a TDR Program. This was the result of the BCC’s rezone approval (5-0) of the Twin Eagles Golf and Country Club PUD 97-3 on 22 July 1997 from “AG” to PUD. Twin Eagles is located north of Immokalee Rd on the western border of Golden Gate Estates. The Commissioners at that time were: Tim Hancock, Tim Constantine, Pam Mac’Kie, John Norris, Barbara Berry. This meeting has no video. The printed minutes are available from the Clerk of Courts.

The approval of the Twin Eagles rezone motivated the Florida Wildlife Federation and Collier Audubon Society to file an administrative lawsuit with the Dept of Community Affairs (DCA), that was the approving authority for county Growth Management Plans then. In June 1999, FL Gov Jeb Bush’s ruling was issued that all rural land in eastern Collier County needed additional building restrictions to slow/reduce growth. Twin Eagles was not required to do this since their PUD had been voted on and permit issued (vested).  

In the 5 years after Gov Bush’s ruling, 2 programs evolved to slow growth in the eastern rural fringe lands. All AG zoned properties south and west of Golden Gate Estates evolved into the RFMUD areas. The remainder of the AG zoned property north and east of the Estates became the RLSA.

The rules of the TDR program for the RFMUD landowners were developed by Collier County’s Growth Management Staff. The rules of the RLSA were determined by private consultants hired by the newly formed Eastern Collier Property Owners LLC (ECPO) composed only of the large landowners in eastern Collier County.

Click RFMUD TDR for info, RFMUD map.  
Click RLSA TDR for info. RLSA map.

Base Assumption: that a parcel of land has the “right” to build 1 dwelling per 5 acres. This Base Assumption has evolved over time to be the fundamental concept for Land Development Right density.  

The first step is to inventory all the lands and classify them as SENDING, RECEIVING, or NEUTRAL. Click on the attached maps to see the current classifications. A TDR is essentially the right to build 1 dwelling.

SENDING LANDS: Considered environmentally sensitive. Each parcel can produce up to 4 TDR’s that can be sold to the owner of a RECEIVING LAND. Once the TDR’s are extracted – the parcel cannot be developed.  

NEUTRAL LANDS: Classifed “in-between” SENDING and RECEIVING lands as to environmentally sensitivity. Cannot buy or sell TDR’s.

RECEIVING LANDS. Not considered environmentally sensitive and the owners can buy TDR’s from SENDING LANDS. Every TDR purchased allows the Developers to build another dwelling on the RECEIVING LAND area. It shifts the density from the SENDING LAND to the RECEIVING LAND. A TDR allows the owner to build more than 1 dwelling per 5 acres.

Since its inception in 2004, no State of Florida Agency would accept the conveyance of SENDING LANDS (TDR #3) north of I-75 so that a Developer could build more dwellings. It was too expensive. It increased their operating budgets beyond the tax dollars they got every year from the State of Florida. So, developers had to live with the fact they could not build at the highest density in the RECEIVING LANDS and get the most profit.

So, on 14 July 2020 BCC meeting Commissioner McDaniels offered the option to the Developers of Ventanna Point to donate land to Conservation Collier to obtain the extra TDR to build more houses. This would allow them to “skirt around” the RFMUD TDR rules to sell more houses and make more profit out of the “pockets” of the Collier County taxpayer. Click to View the BCC meeting on 14 July 2020. 

Conservation Collier is not a part of the TDR programs, and it should never be. It appears illegal to have the permitting authority -the BCC- making deals with developers to donate lands back to themselves before approving a developers permit.