Staff recommends approval of the ordinance creating Section 18-21 of the Code of Ordinances regarding transportation concurrency, and establishing a Proportionate Fair Share Program to fund transportation improvements
On June 24, 2005, Governor Jeb Bush signed Senate Bill 360, which implemented the first significant changes to Florida’s planning laws since the 1985 Growth Management Act. Among the changes were new requirements for school concurrency, transportation concurrency, financial feasibility of Capital Improvement Elements, and water supply planning.
According to the new legislation, this first step toward transportation concurrency is the adoption of a Proportionate Fair Share Program to “provide a method by which the impacts of development on transportation facilities can be mitigated by the cooperative efforts of the public and private sectors”. The deadline set for adoption is December 1, 2006. Local governments who fail to adopt a program will be prohibited from amending their Comprehensive Plan until such time as they comply.
The Lake/Sumter Metropolitan Planning Organization (MPO) has been working with the cities and the County to draft a model ordinance. This is not unlike the recent efforts toward school concurrency, with the notable exception that the division of powers and the authority for land use approvals is not in question. In developing the draft ordinance, we note that the MPO carefully considered Leesburg’s input and incorporated most all of our comments.
The ordinance prescribes the method that a developer may use to satisfy transportation concurrency when they are notified that sufficient capacity does not exist to accommodate the impacts of their project. This is the “Proportionate Fair Share Program”. It also ties the City’s Comprehensive Plan (Capital Improvement Element, or “CIE”) to the Concurrency Management System, pursuant to the requirements of S.B. 360. To do this, the ordinance requires that the City adopt a “financially feasible” CIE every year, and that the CIE must be utilized in the administration of the Fair Share Program. The CIE is similar to the 10-Year Capital Improvement Plan (CIP) that the Commission already adopts every year, but the requirements are more stringent regarding the funding sources and the document need only cover a 5 year period. It is likely that the CIE will be a pared-down version of the CIP.
Regarding the Fair Share Program, a developer whose project will adversely impact the adopted level of service for a certain roadway can satisfy concurrency by contributing a “proportionate share” to a transportation project that will mitigate the adverse impacts. The project must be in the City’s CIE, or the City must commit to putting it there through a binding agreement. “Proportionate share” may include cash payment, right-of-way dedication, actual construction of a transportation improvement, or contributions to alternative transportation such as mass transit (if applicable). Transportation impact fee credits will be given for the proportionate share contributions, and the proportionate share agreements will actually be shown on the CIE as a funding source. Payment of the proportionate share is due and payable prior to the issuance of the final development order, which for residential projects will be the plat, and for commercial projects will be the final site plan.
Since transportation facilities frequently traverse multiple jurisdictions, intergovernmental coordination is required by the ordinance. The City must include the Florida Department of Transportation in any Concurrency Pre-Application Meeting affecting an FDOT roadway. The City must also include other affected jurisdictions (City or County) in the process. This can result in multi-party interlocal agreements or may result in the contribution being split amongst the agencies responsible for maintenance of the facility.
While S.B. 360 and the resulting Proportionate Fair Share ordinance are fairly well-thought-out, there are several additional steps that must be taken to ensure successful implementation of transportation concurrency. Lake County and all the cities need to establish an agreed-upon transportation model that will be used to determine project impacts. Procedures for utilization of the model, as well as updates and maintenance thereto, will be needed as well. The City will need to make changes to the adopted Concurrency Management System to remove any conflicts therewith, and will need to strategize how best to educate the development community on the implementation of transportation concurrency.
1. Approve the ordinance as proposed; or
2. Such alternative action as the Commission may deem appropriate
There is no direct fiscal impact as a result of this ordinance. One future fiscal impact could include the need to assist the MPO with administration of a county-wide transportation model.
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AN ORDINANCE OF THE CITY OF LEESBURG, FLORIDA, CREATING §18 – 21 OF THE CODE OF ORDINANCES, PERTAINING TO TRANSPORTATION CONCURRENCY; PROVIDING DEFINITIONS; ESTABLISHING A PROPORTIONATE FAIR SHARE PROGRAM TO FUND TRANSPORTATION IMPROVEMENTS NEEDED TO SERVE CERTAIN DEVELOPMENTS; SPECIFYING THE METHODS BY WHICH DEVELOPERS OF REAL PROPERTY MAY SATISFY THEIR TRANSPORTATION CONCURRENCY REQUIREMENTS; SPECIFYING STANDARDS AND PROCEDURES FOR DETERMINING CONCURRENCY ON CITY, COUNTY, STATE AND FEDERAL ROADWAYS; PROVIDING FOR COORDINATION WITH OTHER LOCAL GOVERNMENTS WHOSE TRANSPORTATION SYSTEMS MAY BE AFFECTED BY DEVELOPMENTS WITHIN THE CITY OF LEESBURG; PROVIDING A FORMULA FOR COMPUTING A PROPORTIONATE FAIR SHARE CONTRIBUTION; PROVIDING FOR THE USE OF FUNDS GENERATED FROM PROPORTIONATE FAIR SHARE CONTRIBUTIONS; PROVIDING FOR PROPORTIONATE FAIR SHARE AGREEMENTS BETWEEN THE CITY AND DEVELOPERS; REPEALING CONFLICTING ORDINANCES; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Florida Legislature has mandated that all local governments establish procedures for determining transportation concurrency and for determining the fair share contribution required of developers of real property toward the cost of transportation improvements required to serve their developments, by no later than December 1, 2006; and
WHEREAS, the City of Leesburg has determined that it is in the best interests of the health, welfare and morals of the citizens of Leesburg to adopt an ordinance creating a proportionate fair share program for transportation improvements required to serve new developments, in compliance with the legislative mandate,
NOW THEREFORE, BE IT ENACTED BY THE PEOPLE OF THE CITY OF LEESBURG, FLORIDA:
Section 18 – 21 of the Code of Ordinances of the City of Leesburg, Florida, is hereby created to read as set forth below:
The purpose of this ordinance is to establish a method whereby the impacts of development on transportation facilities can be mitigated by the cooperative efforts of the public and private sectors, to be known as the Proportionate Fair-Share Program, as required by and in a manner consistent with §163.3180(16), F.S. This ordinance will also provide methods and procedures for Lake County and the fourteen Municipalities within Lake County, to coordinate the Proportionate Fair Share Program.
The Proportionate Fair-Share Program shall apply to all proposed developments in the City that have been notified of a lack of capacity to satisfy transportation concurrency on a transportation facility in the City Concurrency Management System (CMS) or the CMS of any Municipality, including transportation facilities maintained by FDOT, Lake County, a Municipality, or another jurisdiction, that are relied upon for concurrency determinations, pursuant to the requirements of Section D. The Proportionate Fair-Share Program does not apply to developments of regional impact (DRIs) using proportionate fair-share under §163.3180(12), F.S., or to developments exempted from concurrency as provided by local and state law.
(1) An applicant may choose to satisfy the transportation concurrency requirements of the County or a Municipality by making a proportionate fair-share contribution, pursuant to the following requirements:
(a) The proposed development is consistent with the comprehensive plan and applicable land development regulations and
(b) The five-year schedule of capital improvements in the City’s Capital Improvements Element (CIE) or the long-term schedule of capital improvements for the City’s long-term CMS includes a transportation improvement(s) that, upon completion, will satisfy the requirements of the CMS. The provisions of Section D(2) may apply if a project or projects needed to satisfy concurrency are not presently contained within the applicable CIE(s) or the adopted long-term schedule of capital improvements.
(c) A proportionate share contribution may involve the addition of transportation capacity through several means including but not limited to: the physical widening and/or reconstruction of a roadway to add capacity; or where the primary roadway is constrained or widening is no longer desired, the addition of transportation capacity could involve creating new reliever roadways; new network additions; contributing to new transit capital facilities (e.g., bus rapid transit corridor); contributing to the expansion of bus fleets or other mass transit systems to increase capacity or service frequency, or other contributions to mass transit system expenses; or any other means determined by the City to add transportation capacity sufficient to mitigate impacts..
(2) The City may choose to allow an applicant to satisfy transportation concurrency through the Proportionate Fair-Share Program by approving the applicant’s contribution to an improvement or improvements that, upon completion, will satisfy the requirements of the applicable CMS(s), but is not contained in the five-year schedule of capital improvements in the CIE(s) or a long-term schedule of capital improvements for an adopted long-term CMS, where the following apply:
(a) The City adopts, by resolution or ordinance, a commitment to add the improvement to the schedule of capital improvements in the CIE or long-term schedule of capital improvements for an adopted long-term CMS no later than the next regularly scheduled update. To qualify for consideration under this section, the proposed improvement must be reviewed by the appropriate jurisdictions and agencies and must be determined to be financially feasible pursuant to §163.3180(16) (b) 1, F.S., consistent with the comprehensive plan of each jurisdiction within which any portion of the proposed improvement would lie, and in compliance with the provisions of this ordinance. Financial feasibility for this section means that additional contributions, payments or funding sources are reasonably anticipated during a period not to exceed 10 years to fully mitigate impacts on the transportation facilities. If a transportation facility proposed for the Proportionate Share Program is under the jurisdiction of another entity, such as the County or FDOT, the proposed capacity improvement shall be included in the five-year Work Program of that jurisdiction or, when the improvement is not in the Work Program, through resolution or ordinance, there shall be adoption of a commitment to add the improvement to the schedule of capital improvements in the CIE or long-term schedule of capital improvements for the adopted long-term CMS of the other jurisdiction no later than the next regularly scheduled update.
(b) If the funds allocated for the schedule of capital improvements in the CIE are insufficient to fund fully construction of a transportation improvement required by the CMS, the City may still enter into a binding proportionate fair-share agreement with the applicant. The agreement may authorize construction of the amount of development which would be supported by the funds allocated for capital improvements already contained in the CIE if the proportionate fair-share amount in such agreement is determined to be sufficient to pay for one or more improvements which will, in the opinion of the governing body of each governmental entity or entities maintaining the transportation facilities adversely affected by the development, significantly benefit the impacted transportation system to an extent that the adverse effects of the development will be substantially ameliorated. The improvement or improvements funded by the proportionate fair-share component must, for each affected local jurisdiction, be adopted into the capital improvements schedule of the comprehensive plan or the long-term schedule of capital improvements for an adopted long-term concurrency management system at the next annual capital improvements element update.
(3) Any improvement project proposed to meet the developer’s fair-share obligation must meet design standards of the jurisdiction within which the majority of the planned improvements would be located for locally maintained roadways and those of the FDOT for the state and federal highway system.
(4) Pursuant to Chapter 163.3177, F.S., the CIE must include transportation improvements included in the Lake Sumter MPO Transportation Improvement Plan (TIP) to the extent that such improvements are relied upon to ensure concurrency and financial feasibility. If the City is relying upon scheduled improvements to a facility maintained by another jurisdiction to ensure concurrency and financial feasibility, the scheduled improvements from the other jurisdiction’s Work Program must also be included in or added to the CIE of the local government issuing the development order approval.
(1) In the interest of intergovernmental coordination and to reflect the shared responsibilities for managing development and concurrency, the City may enter into an interlocal agreement with one or more adjacent local governments to address cross jurisdictional impacts of development on regional transportation facilities. The agreement shall provide for application of the methodology in this section to address the cross jurisdictional transportation impacts of development.
(2) A development application shall be subject to this section when a transportation concurrency determination is made that indicates the development will have an adverse impact on the adopted level of service standard on one or more facilities in a neighboring jurisdiction. In determining whether the proposed development will cause the impacted regional facility to operated below its level of service, the level of service to be used shall be that adopted for the facility by the jurisdiction which maintains the facility, or if maintenance is bifurcated among two or more jurisdictions, that of the jurisdiction within which a majority of the affected regional facility lies.
(3) Upon identification of an impacted regional facility the City shall notify the applicant and the other affected jurisdictions in writing of the potential proportionate fair-share agreement, based on the projected impacts of the proposed development on the impacted adjacent facility.
(4) Pursuant to policies in the Intergovernmental Coordination Element of the City comprehensive plan, the City shall coordinate to the extent reasonably feasible with affected jurisdictions, including FDOT, regarding mitigation to impacted facilities not under the jurisdiction of the City. Proportionate fair-share contributions should be applied toward the impacted facility. However, impacted facilities may be maintained by an agency other than the City. In such cases the City will endeavor to work with other affected local governments and agencies to establish a procedure for coordinating mitigation to impacted facilities that are maintained by another agency. An interlocal agreement may be established with other affected jurisdictions for this purpose. In the absence of an interlocal agreement detailing how proportionate fair share contributions are to be allocated among affected local governments, the contributions shall be allocated based on a per linear foot calculation of how much of the affected facility is maintained by each affected jurisdiction, so that for example if the County maintains 45% of the facility, it would receive 45% of the proportionate fair share contribution, and the remainder would go to the jurisdiction or jurisdictions which maintain the other 55% of the facility.
(1) Upon notification of a lack of capacity to satisfy transportation concurrency, the applicant shall also be notified in writing of the opportunity to satisfy transportation concurrency through the Proportionate Fair-Share Program pursuant to the requirements of Section D.
(2) Prior to submitting an application for a proportionate fair-share agreement, a pre-application meeting shall be held with all affected jurisdictions to discuss eligibility, application submittal requirements, potential mitigation options, and related issues. If the impacted facility is a state facility, then the FDOT will be invited to participate in the pre-application meeting. The appropriate parties for review of a proposed proportionate fair share agreement would include the jurisdiction maintaining the transportation facility that is subject to the agreement, if other than the City.
(3) The City Manager or his/her designee shall review the application and certify that the application is sufficient and complete within 10 business days. If an application is determined to be insufficient, incomplete or inconsistent with the general requirements of the Proportionate Fair-Share Program as indicated in Section D, then the applicant will be notified in writing of the reasons for such deficiencies within 10 business days of submittal of the application. If such deficiencies are not remedied by the applicant within 30 days of receipt of the written notification, then the application will be deemed abandoned. The City Commission may, in its discretion, grant an extension of time not to exceed 60 days to cure such deficiencies, provided that the applicant has applied in writing for the extension prior to expiration of the initial 30 days period, has shown good cause for the extension, and has taken reasonable steps to effect a cure.
(4) Pursuant to §163.3180(16) (e), F.S., proposed proportionate fair-share mitigation for development impacts to facilities on the SIS requires the approval of FDOT. The applicant shall submit evidence of an agreement between the applicant and the FDOT for inclusion in the proportionate fair-share agreement.
(5) When an application is deemed sufficient, complete, and eligible, the applicant shall be advised in writing and a proposed proportionate fair-share obligation and binding agreement will be prepared by the City, and delivered to the appropriate parties for review, including a copy to the FDOT for any proposed proportionate fair-share mitigation on a SIS facility, no later than 60 days from the date at which the applicant received the notification of a sufficient application and no fewer than 14 days prior to the City Commission meeting when the agreement will be considered. The City may enter into an agreement with FDOT where deemed appropriate.
(6) The City shall notify the applicant regarding the date of the elected body meeting when the agreement will be considered for final approval. No proportionate fair-share agreement will be effective until approved by the elected body.
(1) Proportionate fair-share mitigation for concurrency impacts may include, without limitation, separately or collectively: private funds, contributions of land, and construction of and contribution of facilities.
(2) A development shall not be required to pay more than its proportionate fair-share. The fair market value of the proportionate fair-share mitigation for the impacted facilities shall not differ regardless of the method of mitigation.
(3) The methodology used to calculate an applicant’s proportionate fair-share obligation shall be as provided for in Section 163.3180 (12), F. S., as follows:
Proportionate Fair-Share = S[[(Development Tripsi) / (SV Increasei)] x Costi ]
Development Tripsi = Those trips from the stage or phase of development under review that are assigned to roadway segment “i” and have triggered a deficiency per the CMS; only those trips that trigger a concurrency deficiency will be included in the proportionate fair-share calculation;
SV Increasei = Service volume increase provided by the eligible improvement to roadway segment “i” per section E;
Costi = Adjusted cost of the improvement to segment “i”. Cost shall include all improvements and associated costs, such as design, right-of-way acquisition, planning, engineering, inspection, and physical development costs directly associated with construction at the anticipated cost in the year it will be incurred.
(a) For the purposes of determining proportionate fair-share obligations, the City shall determine improvement costs based upon the actual cost of the improvement as obtained from cost estimates contained in the CIE, the City’s Transportation Construction Program, or the FDOT Work Program, as applicable. Where such information is not available, improvement cost shall be determined by the following method: an analysis by the jurisdiction maintaining the facility of costs by cross section type that incorporates data from recent projects and is updated annually and approved by the jurisdiction. In order to accommodate increases in construction material costs, project costs shall be adjusted through time by an inflationary index.
(4) If the City has accepted an improvement project proposed by the applicant, then the value of the improvement shall be determined using one of the methods provided in this section.
(5) If the City has accepted right-of-way dedication for the proportionate fair-share payment, credit for the dedication of the non-site related right-of-way shall be valued on the date of the dedication at 120 percent of the most recent assessed value by the Lake County Property Appraiser or, at the option of the applicant, by fair market value established by an independent appraisal approved by the City and at no expense to the City. The applicant shall supply a drawing and legal description of the land and a certificate of title or title search of the land to the City at no expense to the City. If the estimated value of the right-of-way dedication proposed by the applicant is less than the estimated total proportionate fair-share obligation for that development, then the applicant must also pay the difference. Prior to purchase or acquisition of any real estate or acceptance of donations of real estate intended to be used for the proportionate fair-share, public or private partners should contact the FDOT for essential information about compliance with federal law and regulations.
(1) Proportionate fair-share contributions shall be applied as a credit against any City transportation impact fees to the extent that all or a portion of the proportionate fair-share mitigation is used to address the same capital infrastructure improvements contemplated by the City’s impact fee ordinance.
(2) Impact fee credits for the proportionate fair-share contribution will be determined when the transportation impact fee obligation is calculated for the proposed development. Impact fees owed by the applicant will be reduced per the Proportionate Fair-Share Agreement as they become due per the Impact Fee Ordinance of the City. If the facility lies within more than one jurisdiction, the impact fee credits shall be prorated on a per linear foot basis computed by the number of linear feet of the facility within each jurisdiction, to the extent permitted by the impact fee ordinances of affected jurisdictions other than the City. If the applicant’s proportionate fair-share obligation is less than the development’s anticipated road impact fee for the specific stage or phase of development under review, then the applicant or its successor must pay the remaining impact fee amount to the County, the City and any other jurisdictions entitled to collect impact fees, pursuant to the requirements of the applicable impact fee ordinances.
(3) The proportionate fair-share obligation is intended to mitigate the transportation impacts of a proposed development at a specific location. As a result, any road impact fee credit based upon proportionate fair-share contributions for a proposed development cannot be transferred to any other location unless provided for within the local impact fee ordinance.
(1) Upon execution of a proportionate fair-share agreement (Agreement) and meeting all other requirements of City’s concurrency regulations, the applicant shall receive a certificate of concurrency from the City. Should the applicant fail to apply for a development order within 12 months of the execution of the Agreement, then the Agreement shall be considered null and void, and the applicant shall be required to reapply. In addition, if the proposed development’s impacts were the only impacts causing the potential deficient operation of the facility, the specific project may be removed from the CIE.
(2) Payment of the proportionate fair-share contribution is due in full prior to issuance of the final development order which for the purposes of this section shall be recording of the final plat if the property to be developed is being subdivided, approval of the final site plan for a development which entails multiple residential or commercial units but is not being subdivided or for which no new record plat is required, final site plan approval of any condominium or cooperative development not requiring a record plat, and issuance of a building permit if the development does not fall within any of the other categories enumerated in this subsection. Once paid, contributions shall be non-refundable. If the payment is submitted more than 12 months from the date of execution of the Agreement, then the proportionate fair-share cost shall be recalculated at the time of payment based on the best estimate of the construction cost of the required improvement at the time of payment, pursuant to Section G and adjusted accordingly.
(3) All transportation improvements undertaken by the developer authorized under this ordinance must be completed prior to issuance of a final development order, or as otherwise established in a binding agreement that is accompanied by a security instrument that is sufficient to ensure the completion of all required improvements. Any bond, letter of credit or other security instrument shall be for at least 150% of the estimated cost of improvements to be completed by the developer, and shall be subject to adjustment annually to take into account any increases in the costs of materials and construction, so that the affected local government(s) will be assured of having sufficient funds available from the security instrument to complete the project if the developer fails to do so. The bond, letter of credit or other security instrument shall be irrevocable and shall remain in effect until the developer fully completes the required improvements.
(4) Dedication of necessary right-of-way for facility improvements pursuant to a proportionate fair-share agreement must be completed prior to issuance of the final development order as defined in subsection I(2) above.
(5) Any requested change to a development project subsequent to a development order may be subject to additional proportionate fair-share contributions to the extent the change would generate additional traffic that would require mitigation.
(6) Applicants may submit a letter to withdraw from the proportionate fair-share agreement at any time prior to the execution of the agreement. The application fee and any associated advertising costs to the City will be non refundable.
(7) The City may enter into proportionate fair-share agreements for selected corridor improvements to facilitate collaboration among multiple applicants on improvements to a shared transportation facility.
(1) Proportionate fair-share revenues shall be placed in the appropriate project account of the local government(s) entitled to share in the revenues for funding of scheduled improvements in the County or Municipal CIE, or as otherwise established in the terms of the proportionate fair-share agreement. At the discretion of the local government, proportionate fair-share revenues may be used for operational improvements prior to construction of the capacity project from which the proportionate fair-share revenues were derived. Proportionate fair-share revenues may also be used as the 50% local match for funding under the FDOT Transportation Regional Incentive Program (TRIP).
(2) In the event a scheduled facility improvement is removed from the CIE, then the revenues collected for its construction may be applied toward the construction of another improvement within that same corridor or sector that would mitigate the impacts of development pursuant to the requirements of Section D(2)(b).
(3) Where an impacted regional facility has been designated as a regionally significant transportation facility on the Lake-Sumter MPO Regionally Significant Corridors Map, then the City may coordinate with other impacted jurisdictions and agencies to apply proportionate fair-share contributions and public contributions to seek funding for improving the impacted regional facility under the FDOT TRIP. Such coordination shall be ratified by the City through an interlocal agreement that establishes a procedure for earmarking of the developer contributions for this purpose.
(4) Where an applicant constructs a transportation facility that exceeds the applicant’s proportionate fair-share obligation calculated under Section G, the City shall reimburse the applicant for the excess contribution using one or more of the following methods:
(a) An impact fee credit account may be established for the applicant in the amount of the excess contribution, a portion or all of which may be assigned and reassigned to subsequent owners of the land to be developed, under the terms and conditions acceptable to the City, but which must run with the land and may not be assigned in gross to the developer of any other parcel of property.
(b) An account may be established for the applicant for the purpose of reimbursing the applicant for the excess contribution with proportionate fair-share payments from future applicants on the facility.
The City may compensate the applicant for the excess contribution through payment or some combination of means acceptable to the City and the applicant.
If any portion of this ordinance is declared invalid or unenforceable, then to the extent it is possible to do so without destroying the overall intent and effect of this ordinance, the portion deemed invalid or unenforceable shall be severed herefrom and the remainder of this ordinance shall continue in full force and effect as if it were enacted without including the portion found to be invalid or unenforceable.
All ordinances or parts of ordinances which are in conflict with this ordinance are hereby repealed, to the extent necessary to alleviate the conflict, but shall continue in effect insofar as they are not in conflict herewith, unless repeal of the conflicting portion destroys the overall intent and effect of any of the conflicting ordinances, in which case those ordinances so affected shall be hereby repealed in their entirety.
This ordinance shall become effective upon its passage and adoption according to law.
PASSED AND ADOPTED at the regular meeting of the City Commission of the City of Leesburg, Florida, held on the day of , 2006.
THE CITY OF LEESBURG, FLORIDA