Agenda 01/29/2008 Item #10C
Agenda Item No. 1 DC
January 29, 2008
Page 1 of 19
/"-
EXECUTlVE SUMMARY
Reeommendation that the Board of County Commissioners (BCC) evaluate and consider
the Collier County Planning Commission's (CCPC) 6-1 policy recommendation in support
of continually upholding the eurrent programmatic prohibition of Transfer of
Development Rights (TDR) severance from illegal Sending Land property within the Rural
Fringe Mixed-Use District (RFMUD)
OBJECTIVE:
That the Board of County Commissioners evaluate and consider the CCPC's policy
recommendation in favor of upholding the existing programmatic prohibition ofTDR severance
from illegal Sending Land property within the RFMUD.
CONSIDERA nONS:
---
On November 27. 2007, during the BCC regular meetmg under County Manager's Report Item
lOP, staff presented the Board with the requested illegal lot analysis companion with [{)Ur policy
options germane to the subject illegal lot issue. A.fter being presented with the potential policy
recommendations, tbe Board discussed the various possibilities and came to a unanimous
agreement that policy option three (proportional severance of "developable" illegal lots) was the
most practical and should be evaluated by the CCPC prior to giving any fOlmal policy direction.
On December 20, 2007, during the CCPC regular meeting under Hem 8E, staff presented the
aforesaid Board direction to the Planning Commission lor evaluative purposes. After extensive
discussion, the CCPC ultimately agrecd with the initial staff recommendation in relation to
upholding the existing prohibition of TDR scverance from determined illegal Sending Land lots.
The CCPC agreed (6-1) that - from a policy perspective- the existing programmatic
administration with respect to illegal lot TDR severance ineligibility should not be reinvented for
the benefit of one illegal Jot, i.e., the subject lot at issue does not warrant a drastic policy change.
As directed, the CCPC evaluated the subject issue from a policy standpoint and did not delve
into the individualized origin of the issue which stems directly from a Public Petition that was
initiated by an owner of an illegal lot on September II, 2007 during a BCC regular meeting
under Item 6F. The CCPC generally noted that any potential changes germane to RFMUD illegal
lot policy reconfiguratiol1 (relative to severance eligibility) should be vetted through the proper
public hearing process previous to implementation. In seconding a motion to adopt policy option
four (prohibiting illegal lot severance), Plmming Commissioner Mark Strain stated that "the
system is not broken, it is not proven to be broken, and a knee-jerk reaction to one absurd request
for a 10-foot strip does not designate the need to go forward and change the system at this time."
Staff noted on the record that the subject issue began as the above mentioned Public Petition and
provided recommended direction with regard to the owner submitting a request for an Official
~. Interpretation (OI) through the Zoning & Land Development Review Department (an OI of this
nature would be evaluated by both Zoning and Comprchensive Plmming Department given the
Agenda Item No. 10C
January 29, 2008
Page 2 of 19
inexorable linkage between the issues as it relates to illegal lots and the RFMUD TOR severance
eligibility).
If the 01 ultimately aligns with the provided staff and CCPC recommendation, the subject
property owner would be eligihle to take thc issue hefore thc Board of Zoning Appeals (BZA)
via public hearing. If the cunent recommendation is upheld by the BZA, the suhject property
owner has the right to continuaJly pursue this issue within an altemative adjudicative proceeding.
FISCAL IMPACT:
There is no quantifiable fiscal impact associated with this issue.
GROWTH MANAGEMENT IMPACT:
The joint staIf and cepc recommendation aligns with cxisting programmatic administration in
conjunction with being consistcnt with the letter and spirit of the growth management per
('olllprehcnsi\/c Planning .;talT ln1erpr~lalion.
LEGAL CONSiDERATIONS:
The County Attomey Of lice has reviewed this Executive Summary and concurs with staff- JAK
RECOMMENDATION:
That the Board of County Commissioners consider the Planning Commission's policy
recommendation upholding the existing programmatic prohibition of TOR severance from illegal
Sending Land property within the RFMUD.
PREPARED BY:
Joe Thompson, Senior Planner, Comprehensive Planning Depmiment
Item Number:
Item Summary:
Meeting Date:
Page I of2
Agenda Item No. 10C
January 29, 2008
Page 3 of 19
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
iDe
Recommendation that the Board of County Commissioners evaluate and consider the
Piannl~g Commissions policy reconuilendation in :o,upport of continually upholding the current
programmatic prohibition of Transfer of Development Rights (TOR) severance from illegal
Sending Land property Nlthlrl the Rural Fringe Mixed Use Dir,;tnct (RFMUD) (.toe Thompson.
Ssniol Planner, Compr(~hensive Plai'\ning, CDESi
1129/2008900:00 P,M
Prepared By
~Joe ~hompson
C;:.:;mmunitv Development &
environmental Services
Planner
Do'lt!~
Appro,"'cd By
Comprehensive 17f-<inni:1g
12/26/2007 :2;:42:45 PM
i~;ff V:iatzf,CIW
-:':'CUi"'iry /:,ttorney
;\ssis:an\':::,<'llJ:1t'y Att,FPev
Date
:\PPI'oved By
:::nut'VV b,UOl'nf:y ':.'Jj'fice
i2/?!:wm07 10:55 J\IJ;
Marl,:,; ne Stew<olrt
Community Development &
Environmental Services
:::.;;e::>lt!,rE;' Secretary
C,~te
Community De-v*klpment &
Environmental Services Admin.
1i7f2008 10:10 AM
Approved By
Judy Puig
Community Development &
Environmental Services
Operations Analyst
Community Development &
Environmental Services Admin.
Date
Approved By
1/71200810:37 AM
Randall J. Cohen
Community Development &
Environmental Services
Comprehensive Planning Department
Director
Date
Approved By
Comprehensive Planning
119/20086:47 AM
Mike Basi, Ale?
Community Development &
Environmental Services
Principal Planner
Date
Approved By
Zoning & Land Development Review
1/11/20088:07 AM
Joseph K. Schmitt
Community Development &
Environmental Services
Community Development &
Environmental Services Adminstrator
Date
Community Development &
Environmental Services Admin.
1116/20081:01 PM
Approved By
tile:IIC:\Agenda Test\Export\99-January%2029, %202008\ I O. %20CO UNTY%20MANAGE...
1/23/2008
Page 2 of2
Agenda Item No. 10C
January 29, 2008
Page 4 of 19
OMS Coordinator
OMS Coordinator
Date
County Manager's Offfce
Office of Management & Budget
1/17/20088:41 AM
Approved By
Mark Isackson
Budget Analyst
Date
County Manager's Office
Office of Management &. Budget
1/1B/2008 8:35 AM
\pproved By
James V. Mudd
C Qunty Manager
Date
Board of County
Commissioners
C-:}unty Man8ge(~, Offtce
'1/20/2008 10:59.AM
ti le:IIC :\Agenda T est\Export\99-J anuary%2029, %202008\ I O. %20COUNTY%20MANA G E...
1/23/2008
Agenda Item No. 10C
January 29, 2008
Page 5 of 19
STAFF REPORT
Request that the Collier County Planning Commission, through formal direction
from the Board of County Commissioners, evaluate and consider the feasibility of
Policy Option 3 as it relates to the potential inclusion of determined illegal Rural
Fringe Mixed-Use District (RFMUD) Sending Land property into the TDR program
._---~-~---~._--_._-_._----_._--_.__.__._------_._....,._-_.-,-.~._----_.-- .--_._----_._.~--.~.,.._-_._. ._".--
OBJECTIVE:
That the Collier County Planning Commission, through formal direction !Tom the Board
of County Commissioners, evaluate and consider the feasibility of Policy Option 3 in
relation to the potential inclusion of illegal RFMUD Sending Land property into the TDR
program for the purpose of severance participation.
BACKGROUND:
On September II. 2007 during the BCC regular meeting nnder Pnblie Petition ltcm 6F.
M1'. Jim Schulze petitioned the Board to allow his less than lIve acre illegal RFMUD
Sending Land property TOR severance eligibility. In Mareh of 2006, M1'. Schulze
submitted a severance application fiw the subject illegal lot to Comprehensive Planning
Department stalT who denied the petition. The Board directed stalT to research the issue
brought fOlth by M1'. Schulze and to come back with a detailed evaluation as it related to
illegal lots and TOR severance eligibility.
On October 9, 2007 during the BCC regular meeting under the County Manager's
Report, Item lOA (Executive Summary attached as Enclosure A) stafT brought the issue
of illegal RFMUD Sending Land lots back to the Board as requested for the purpose of
providing a detailed background and establishing a staffrecommendation germane to M1'.
Schulze's requested Board action, i.c., pem1itting illegal RFMUD Sending Land
properties TDR severance eligibility. The staff recommendation was to continually
uphold the current prohibition on TDR severance from determined illegal lots.
The rationale behind the staff recommendation stems primarily from Land Development
Code (LDC) zoning standards. Illegal RFMUD Sending Land lots are properties that
were created as lots of record subsequent to the underlying Agricultural zoning standards
of one (I) dwelling unit per five (5) acres (as established on October 14,1974). Since the
subject illegal property was created in its current form (0.34 acres) after the zoning
standards were already in place, there is no residential density associated with the parcel.
After extensive discussion between the Commissioners, staff and three registered public
speakers, including illegal lot property owner M1'. Schulze, the Board ultimately directed
staff to conduct a land use analysis relative to establishing the number of illegal lots
within the RFMUD Sending Land. In addition, the Board also directed staff to design and
bring back policy options with respect to the potential inclusion of illegal lots into the
TDR program for severance purposes.
Agenda Item No.1 OC
January 29, 2008
Pa~e 6 of 19
On November 27, 2007, during the BCC regular meeting under the County Manager's
Report Item lOP (Executive Summary attached as Enclosure B) staff presented the Board
with the requested illegal lot land use analysis companion with four illegal lot policy
options. Options onc through three were designed to allow illegal lots TDR severance
participation (all applicable policy options are provided in the aforesaid Executive
Summary titlcd as Enclosure B).
Policy option four was also prcsented as the initial staff recommendation previously
brought f{)rth at the October 9. 2007 BCe meeting, i.e., as referenced before, staff
recommended to uphold the existing prohibition of TOR severance from illegal lots given
they do no have any residential density.
After bcing presented with the four mentioned policy options. the Board discussed the
item and came to a unanimous agreement that policy option three should be evaluated by
the cepe prior to giving any lonnal policy direction. As stated in the provided Executive
Summary within Enclosure S, option three is designed to allow developable (from a
propeJiy si~e and lot configuration perspective) illegal lots proportional or one (I) base
credit TOR severance capability.
Per Board direction, the recommended option three should allow for proportional TOR
severance. [n addition. the Board recommended that only developable illegal lots in
existence as of June [9.2002. i.e., RFMUD GMP adoption datc, would have eligibility.
GROWTH MANAGEMENT PLAN IMPACT:
Inclusion of illegal lots or parcels into the RFMUO's TDR program is inconsistent with
the Future Land Use Element (FLUE) of the GMP and would require a GMPA and
subsequent LDCAs.
LEGAL CONSJDERA nONS:
The County Attorney Office has reviewed this Staff RepOli and concurs with staff. - JAK
FISCAL IMPACT:
There is no quantifiable fiscal impact associated with this issue; however, the required
amendments to the GMP and LDC will require extensive staff time, possible legal
advertising costs, other attendant costs, and the costs associated with the unknown
impacts on other projects which could be deprioritized as a result.
RECOMMENDA nON:
Staff recommends option 4 as described in the Executive Summary within Enclosure B.
Agenda Item No. 10e
January 29, 2008
Pa~e 7 of 19
PREPARED BY: Date:
JOSEPH THOMPSON, SENIOR PLANNER, COMPREHENSIVE
PLANNING DEPARTMENT
APPROVED BY: _~__~ Dale: ____~_
RANDALL COHEN, AICP, DIRECTOR
COMPREHENSIVE PLANNING DEPARTMENT
APPROVED By:_____________________ Dale: ~_____._______
MICHAEL BOSI. AICP. PLANNING MANAGER.
COMPREHENSIVE PLANNING DEPARTMENT
APPROVED BY: Date:
."--..__._-,._-------_...--_._~_._--~ -~---'------
JOSEPH SCHMITT. ADMINISTRATOR
COMMUNITY DEVELOPMENT & ENVIRONMENTAL
SERVICES DIVISION
Agenda Item No. 10C
January 29, 2008
Pa;lie 8 of 19
ENCLOSURE A:
October 9,2007 BCC Regular Meeting, Item lOA County Manager's Report
EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners continue to uphold the
prohibition relative to the severance of Transfer of Development Right (TDR)
credits from illegal nonconforming lots or parcels (properties of record that were
established after October 14, 1974) within the Rural Fringe Mixed Use District
(RFMUD) Sending Land
OBJECTIVE:
That the Board of County Commissioners (BCC) continues to uphold the aforementioncd
prohibition in relation to the severancc of TDR credits from illegal non-conf()m1ing lots
or parcels !propeliies of record that were established after October! 4. ! (74) that arc
located within the RFMLD." Sending Land.
CONSIDERATIONS:
On September 11. 2007 during the Bee regular meeting, under Public Petition. Item 6F,
Mr. Jim Schulze pctitioned the Board to direct staff to amend the Land Development
Code (LDC) to allow for smaller than five acre lots to be eligible for TDR credits
specifically any lot created after the established date of October 14, 1974. Additionally,
Mr Schulze expressed to the Board that there was nothing in the code that codified the
October 14, 1974 date as the date of record for lots to be deemed legally nonconforming.
In March of 2006, the respective TDR participant submitted three separate severance
applications to the Comprehensive Planning Depatiment (AR-9489, AR-9490, & AR-
9487). Each application represented one property - two of the properties were 2.5 acres
and one 0.34 acres.
Pursuant to the RFMUD TDR program eligibility criteria defined in the LDC, the subject
properties could only be eligible for severance if they were legal nonconforming lots or
parcels that were in existence as of June 22, 1999 (date of the "Final Order"). The
properties associated with AR-9489 and AR-9490 were detennined to be legal
nonconforming and processed accordingly (i.e., the severance instrument was recorded in
the public record and the TDR base and early entry credits were issued to Mr. Jim
Schulze). The 0.34 acre property connected to AR-9487 - folio number 437240006 - was
determined to be an illegal lot which ultimately resulted in staff denying the severance of
any TDRs.
The impetus behind the creation of this issue stems from Land Development Code (LDC)
section 2.03.07 D.4.c.i.a), which states the following: 'TDR credits generated from
Agenda Item No. 10C
January 29, 2008
PeJje 9 of 19
RFMU Sending Land at a rate of I TDR credit per 5 acres of RFMU Sending Land or,
for those legal nonconforming lots or parcels of less than 5 acres that were in existence
as of June 22.1999, at a rate of I TDR credit per legal nonconforming lot orparce!."
A Background on October 14, 1974 and Legal Nonconforming Lots or Parcels:
Unincorporated Collier County was previously divided into two separate plmming
districts, the Coastal Area Planning District and the Immokalee Area Planning District
(each with their own zoning code and planning commission). The October 14. 1974 date
represents when a prior zoning code was adopted that established the minimum parcel
size of five (5) acres for the agricultural zoning district within the Coastal Area Planning
District.
The Immokalee Area Planning District became subject to same size requirements on
January 5, 1982 with the consolidation of the two respective zoning codes into a unified
unincorporated County zoning code (pursuant to Ordinaocc 82-2). The previously
referenced former TDR participant and current Scnding Land owner's subject propertics
exist within the North Belle Meade Overlay (NBMO) which is within the
abovemcntioned Coastal Area Planning District.
The LDC regulates and describes a legal lot ofrecord within the definition section of the
Code by providing a definition of what officially qualifies as a legal lot of record. The
"lot ofrecord" definition reads as follows:
"Lot of record: A lot of record is (1) a lot which is part of a subdivision recorded
in the public records of Collier County, Florida; or (2) a lot, parcel, or the least
fractional unit of land or water under common ownership which has limited fixed
boundaries, described by metes and bounds or other specific legal description, the
description of which has been so recorded in the public records of Collier County,
Florida, on or before the effective date of this LDC; or (3) a lot, parcel, or the
least fractional unit of land or water under common ownership which has limited
fixed boundaries, for which an agreement for deed was executed prior to October
14. 1974, if within the Coastal Area Planning District, and January 5, 1982, if
presently within the Immokalee Area Planning District prior to May I, 1979."
Rationale for Prohibiting TDR Severance on Illegal Lots or Parcels:
Given that an illegal lot or parcel (of less than 5 acres) was created after the underlying
agricultural zoning district standards of I dwelling unit per five (5) acres were already in
place, such properties are not developable per the LDC; as such, these parcels do not
contain the development rights which were contemplated as part of the development of
the TDR process. Therefore, these rights, because they do not exist, may not be severed
and sold to owners of eligible receiving site as compensation for the inability of a sending
land property owner to develop their property.
Agenda Item No. 10C
January 29,2008
Pag€j 10 of 19
The Disconnect Associated with the Creation (Jf Illegal Lots or Parcels:
The disconnect associated with the creation of illegal lots or parcels stems from the
constitutional separation of two different County government agencics. The Property
Appraiser's Office does not verify zoning or LDC regulations previous to issuing two or
more folio numbers to a property at the request of the owner. The Property Appraiser's
Office allows property owners to split propeliy for the purposes of issuing a new folio
number for eaeh parcel notwithstanding that the property may not meet minimum area
requirements per LDC standards.
COJ1Sequences of Allowing Illegal Lots or Parcels the Ability to Sel'er TDR credit:
The inclusion of illegal lots or parcels into thc RFMUD's TOR program would be
programmatically counterproductive (()r several reasons. Therc is an estimated 150 less
than five (5) acre Sending Land parcels that may be illegal lots or parcels. If these
properties wcre to sever TDR credits. each property would be processed as a five (5) acre
parccl which would theoretically crcale an additional 750 acres of severable Sending
Land. A.s such. the potential TDR yield of 750 acres could generate (JOO credits
(redeemable density that should not ,exist per thc existing developmcnt and wning
standards L
This additional density could vcry easily Ilood the TDR market and drive down the price
ofa credit. Further, sincc the RFMUO TOR program has developed ditferently than most
TOR programs, inclusion of illegal nonconfomling lots or parcels could disinecntivize
private property owner participation if these illegal lots are strippcd of development
rights and the rcquisite number of credits is garnered by interested developers. Sending
Land owners may opt to develop estate-sized home sites in lieu of attempting to sever
TDR credits that aren't marketable based on the flood of credits linked to the theoretical
severance of illegal properties.
The inclusion of illegal lots or parcels into the TOR program would create a gross
inequity with respect to all other agriculturally zoned illegal lots existing outside of the
RFMUD. If illegal Sending Land properties were granted the ability to sever
development rights, other illegal lot or parcel owners (outside of the RFMUD) could
argue for the right to develop based solely upon the fact that illegal Sending properties of
record are being granted severable development rights.
FISCAL IMPACT:
There is no quantifiable fiscal impact associated with this issue.
GROWTH MANAGEMENT IMPACT:
Inclusion of illegal lots or parcels into the RFMUD's TDR program is inconsistent with
the Future Land Use Element (FLUE) of the Growth Management Plan (GMP). The
primary purpose of the RFMUD's TDR process is to establish an equitable method of
Agenda Item No. 10C
January 29, 2008
Pag'!! 11 of 19
protecting and conserving the most valuable environmental lands while allowing property
owners to recoup presumed lost value and development potential through an
economically viable process of transferring development rights to more suitable lands.
Inclusion of illegal lots or parcels into the RFMUD TDR program is inequitable (with
respect to allowable development potcntial per LDC regulations) and would directly
affect the economic viability of the TDR market in conjunction with potentially stifling
propelty owner participation.
LEGAL CONSIDERATIONS:
The County Attorney Office has reviewed this Executive Summary and concurs with
staff - JAK
RECOMMENDA nON:
The stalf recommendation is two-l()ld. For the reasons stated above, staff recommends
that the Board of County Commissioners continue to uphold the aforesaid prohibition
relative to the severance oj' TDR from illegal lots or parcels within the RFMUD's
Sending Land. Stalf also recommends that the Board providc direction to the County
Manager to direct staff to initiate intra-governmental coordination with the Property
Appraiser's Office in relation to rcmedying the disconnect as it relates to the creation of
illegal nonconlorming lots or parcels.
Agenda Item No. 10e
January 29, 2008
Pa~ 12 of 19
ENCLOSURE B:
November 27, 2007 BCC Regular Meeting, Item lOP County Manager's Report
EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners evaluate and consider
cach option presented with respect to including less than five acre illegal Rural
Fringe Mixed Use District (RFMUD) Scnding Land properties into the Transfer of
Development Rights (TOR) Program for thc purposes of programmatic
participation relative to TDR sevcrancc
OBJECTIVE:
That the Board oC County Commissioners (BeC) cvaluatc and consider each option
presentcd as guidance towards formulating a policy recommendation in relation to the
inelusion of less than live acre illegal RFMUD Sending Land propel1ies into the TDR
Program,
CONSIDERA nONS:
On October 9, 2007. during the BeC regular meeting, under the County Manager's
Rep0l1, Item lOA, staff responded to an issuc heard during the September II, 2007 BCC
regular meeting under Public Petition, Item 6F. The issue was initiated by Mr. Jim
Schulze who petitioned the Board to allow his less than five acre illegal RFMUD Sending
Land property TDR program participation as it relates to severing development credit.
Staff responded and recommended that the Board continue to uphold a prohibition on the
inclusion ofRFMUD Sending Land illegal properties into the TDR program (all less then
five acre Sending Land parcels created subsequent to October 14, 1974 - i.e., after the
underlying Agricultural zoning district standards of one dwelling unit per five acres was
established in the Coastal Area Planning District of the County).
Given that an illegal lot or parcel (of less than 5 acres) was created after the underlying
agricultural zoning district standards of I dwelling unit per five acres were already in
place, such properties are not eligible Cor development per the LDC; as such, these lots do
not contain any development rights to be severed under the RFMUD TDR program.
After extensive discussion, the Board ultimately directed staff to determine how many
less than five acre illegal Sending properties actually existed within the RFMUD. In
addition, the Board directed staff to come back with various options that would include
potential ways to allow the subject illegal Sending Land properties severance
participation via the RFMUD TDR program.
Agenda Item No. 10C
January 29, 2008
Pag\) 13 of 19
Less than Five Acre RFMUD Sending Land Property Analysis:
The RFMUD property analysis began with a GIS query of all privately owned less than
five acre Sending Land properties. The total number of the subject properties was 256.
After the initial number was gamered, staff used two eliminating factors which allowed
for a more accurate evaluation with the intent of producing a precise assessment.
All GIS estimated properties were cross referenced with County Property Appraiser
records and properties that were noted as five acres by way of official records were
eliminated. Also, all less than five acre properties that were previously deemed to be legal
non-conforming (LNC) (through individual detemlinations stemming from TDR program
participation) were eliminated. After the eliminating factors were applied, the number of
pareels being cvaluated decreased to 189.
The tinal analysis focused on the subject 189 less th,m five acre RFMUD Sending Land
properties. The process for conducting LNC determinations starts with obtaining the
respective property card f()r each individual parcel fi"Om the County Property Appraiser.
which indicates when the subject parcel was created. The Propeliy Appraiser was able to
retrieve 185 property cards (four properties did not have property cards on record).
In cases where there is no propeliy card on record, the rcquisitc documentation needed
for a LNC detennination is incumbent upon the propeliy owner to produce. Staff
primarily relies on the property cards obtained from the Property Appraiser, but if a
property owner produccs other evidence attesting to when the respective propeJiy was
created, e.g., recorded deed, recorded agreement for deed, then such evidence will be
taken into account when making LNC determinations.
LNC Determination Results:
Upon receiving the 185 property cards from the Propeliy Appraiser, Comprehensive
Planning Department staff forwarded the subject property cards to Zoning & Land
Development Review Department staff for the necessary LNC determinations.
Subject LNC detenninations revealed the following:
. 126 parcels deemed LNC (created prior to October 14, 1974)
. 51 parcels deemed illegal (created after October 14, 1974)
. 8 parcels deemed inconclusive, i.e., insufficient property card information
. A maximum of 63 parcels may be deemed illegal (51 parcels deemed illegal plus
8 parcels deemed inconclusive plus 4 parcels without a property card on record)
Option 1:
Option I would allow the 51 illegal lots (up to a maximum of 63) TDR severance
participation on a strictly proportional basis based off of property size. All illegal
properties could sever under the same circumstances which would always yield a
Agenda Item No. 10C
January 29, 2008
PaOO 14 of 19
fractional credit issuance. In addition, all properties would be eligible for complete TDR
utilization with respect to base and bonus credit potentiaL
For instance. using Mr. Schulze's 0.34 acre illegal property as an example, the following
credit structure would be applicable:
. 0.34 acre parcel x 0.2 units/acre (I DU/5 acres) = 0.068 base TORs
In this arrangement, the subject 0.34 acrc property could potentially yield (if all
applicable credits were achieved) up to 0.272 TORs -- comprised of 0.068 base credits
and 0.204 bonus credits.
Optioll 1 A dvalltages:
Option I would afford all illcgal lot owners equitable severancc paJiicipation. Evcry less
than live acre illegal lot would only be eligible I"r proportional TDR utilization based
solely olf of property size. This option would also pCI111it subject "legal lot owners the
ability 10 fully paliicipate in the TDR program in relation to bcing eligible I',r all
applicable credits. An advantage to fuIITDR participation deals directly with providing
an incentive to subject property <JV./1KTS relative to encouraging environmental restoration
and maintenance and COJ1vc)"ancc.
Optioll 1 Disadvalltages:
From a TDR market perspective. ti-actional credits could be deemed undesirable and
would more than likely be difficult to sell to developers and investors who need to obtain
TDR credits in whole number increments for redemption purposes. Additionally, there is
an established Board directed and LDC codified minimum sale price of $25,000 per TDR
credit. If permitted to participate in the TDR program on a proportional basis, illegal lot
owners who sever tj'actional credit cannot expect to gamer the aforementioned minimum
sale price. Further, staff anticipates having to amend the LDC for the purposes of
codifying a policy relative to establishing a proportional minimum sale price based off
the issuance of fractional TDR credit.
Optioll 2:
Option 2 would allow severance pmiicipation by permitting all 51 (up to a maximum of
63) illegal properties the ability to gamer one base TDR credit. Notwithstanding property
size, all illegal property being evaluated would be issued one TDR - bonus credits would
not be available to illegal lot participants under this potential arrangement.
For instance, using Mr. Schulze's 0.34 acre illegal property as an example, the following
credit structure would be applicable:
· 0.34 acre parcel (and all illegal lots regardless of size) = I base TDR
Agenda Item No. 10e
January 29, 2008
PalJll15 of 19
Under this arrangement, the subject 0.34 acre property (and all illegal lots regardless of
size) would be eligible for I TDR.
Option 2 Advantages:
Option 2 would also be equitablc in terms of implementation. All illegal lot owners
would be given a base TDR credit. In addition, fractional TOR credits would not be an
issue and all participating illegal lot owners would have a marketable TDR credit.
Option 2 Disadvantages:
One potential disadvantage to Option 2 revolves around the future creation of ncw illegal
RFMUO Sending Land lots. In theory, a five acre Sending Land property owner could
split their property into 20 (each with an individual (olio number) 0.25 acre illegal jots.
Instead of severing based ofT of one 5 acre property, with an initial credit yield of 4 TOR
credits, the owner has an opportunity to sever 20 TDRs fi-om the newly created illegal
lots. Such a situation would become an unquestionable detriment to the TDR program.
Should the Board choose this option. careful consideration needs to be Ic)cused on
addressing only those illegal lots in existence as of the adoption date of the RFMUO
(June 19.2(02) or the day the Board gives fonnal policy direction (in order to deter the
widespread creation of additional illegal lots not cUITently in existence lor the purpose of
severing more development credit).
Option 3:
Option 3 would only permit developable illegal lots TDR severance capability. Any
illegal lot deemed undevelopable (from a property size and lot configuration perspective)
would be ineligible to participate in the TDR program. For example, a ]0 foot wide lot is
not developable and would be ineligible for TDR severance. The TDR credit allocation
rate for subject developable illegal lots could be proportional or based on a I credit per
parcel basis (referenced TDR credit allocation advantages and disadvantages described
above in options I & 2).
Option 3 Advantages:
Option 3 would be consistent with existing programmatic administration as it relates to
the severance of less than five acre LNC parcels that have participated in the TDR
program. All less than five acre LNC properties granted TDR credits have been
developable (based on property size and lot configuration) and all were assumed to be
developable lots when the RFMUD overlay was approved.
Option 3 Disadvantages:
Option 3 would be viewed as a disadvantage to non-developable illegal lot owners.
Agenda Item No.1 OC
January 29, 2008
Pal.J} 16 of 19
Option 4:
Option 4 would uphold the current prohibition of TOR severance from illegal Sending
Land lots within the RFMUO.
Option 4 Advantages:
Option 4 would be consistent with the Growth Management Plan (GMP), and existing
Agricultural zoning district standards that have existcd sincc 1974. If illegal lots became
purported impediments to future cnvironmental rcstoration and maintenance activitics _
e.g., hydrological rcstoration futurc land managing agencics could purchase these
propel1ies l'ia markct rate acquisition. If any ofthc illegal lots were in close proximity to
managemcnt activities, they would have value and could be marketcd to interested public
agencies. In addition, this option would not create an inequity IDr owners of non-RFMUD
illegal lots. and would not give development rights that presently do not exist to the
owners of il1egallots.
Option 4 Disodvantages:
Option 4 would be viewed as a disadvantage by illegal lot owners desiring to sever TDR
crcdits.
Inherent Issues Associated with the Inclusion of1llega/ Lots into the TDR Program:
The inclusion of illegal lots of record into the TOR program would create an inequity
with respect to all other categorized illegal lots existing outside of the RFMUD. If illegal
Sending Land properties were granted the ability to scver development rights, other
illegal lot or parcel owners (outside of the RFMUD) could argue for the right to develop
based solely upon the fact that illegal Sending properties of record are being granted
severable development rights. For example, an owner of a 1.5 acre property in the Estates
(one that was created after Estates zoning standards were established) could argue for the
right to develop based off of the illegal lot TDRs.
Further, thcre is a fundamental question of appropriateness with respect to the County
granting owners of illegal lots development rights they presently do not have (by virtue of
processing illegal lots for TDR severance). If development rights in the form of TDR
credits are going to be granted to owners of illegal lots, it's logical to suspect certain
illegal lot owners will decline TDR severance participation and request the right to
develop their property. If granted TDR credits, owners of illegal lots will have the right to
sever TDR credits or develop the parcel itself.
Illegal Lot Owner Notification:
If option I, 2 or 3 is approved, the inclusion of illegal RFMUD Sending Land lots would
require a Growth Management Plan Amendment (GMPA) and subsequent Land
Development Code Amendments (LDCA). Many owners will not be aware of their
Agenda Item No. 10C
January 29, 2008
PatJ3l17 of 19
impending TDR eligibility until the formal GMPA process starts and the requisite public
hearings commence. As such, each owner of illegal property (including those lots without
a property card and ones deemed inconclusive) should be notified following any BCC
policy direction regarding illegal lot TDR credit eligibility.
Requirements for Including Illegal Lot", into the RFMUD TDR Program (option 1 or
2):
. Amend respective sections of the GMP - Future Land Use Element
. Develop implementing criteria through amendments to the LDC
. Develop and implement various administrative modifications
. Project Schedule to devclop and publically vet thc amendments
. GMP amendment cycle - transmittal hearings projected for March, 2009
. LDC amendment cycle commencing July, 2009
FISCAL IMPACT:
There is no quantifiable tiscal impact associated with this issue; however. the requircd
amendments to the GMP and LDC will require extensive staff time. possible legal
advertising costs, other attendant costs, and the costs associated with the unknown
impacts on other projects which could be deprioritizcd as a rcsult.
GROWTH MANAGEMENT IMPACT;
Inclusion of illegal lots or parcels into the RFMUD's TDR program is inconsistent with
the Future Land Use Element (FLUE) of the GMP and would require a GMPA and
subsequent LDCAs.
LEGAL CONSIDERATIONS:
This Executive Summary is for the purpose of presenting the Board with the background
for a policy discussion by the Board, and as such raises no legal issue. This Office will
work with staff to implement whatever direction the Board may give. - JAK
RECOMMENDATION:
Staff recommends option 4 as described; in an alternative scenario whereby option 4 is
not acceptable to the Board, staffrecommends option 3.
1.~4~~~~~~~~~~~~~~
determinations that illegal lots created after October 14, 1974 have no
development rights based upon zoning criteria.
2. In the alternative, although not supported by County Comprehensive Planning
staff, as it would completely disregard standards set forth in the GMP and LDC,
the BCC should consider option 3.
Agenda Item No. 10C
January 29, 2008
PaM 18 of 19
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Agenda Item No.1 DC
January 29, 2008
PalJj 19 of 19
SENDING LAND
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