Tom Slaughter's Proportionate Fair Share memo to Planning Commission
For a year and a half, the city has known that it is required by state law to enact a Proportionate Fair Share ordinance by December 16 of this year; we're finally getting around to it now at the very last minute -- the city's version and timing allows for minimum debate, maximum benefit for developers, and almost no input from the public
-- City of Venice public document, dated 10/10/06, posted to the web on 10/18/06
 

RELATED:
New law will give break to developers
-- Venice Gondolier-Sun, 10/18/06

Got a comment? Make it here.

October 10, 2006
To: Planning Commission
From: Tom Slaughter, AICP, Planning & Zoning Director
Re: Proportionate Fair-Share Ordinance No. 06-4AM

PETITION REQUEST

A. Findings

Under Section 163.3180, Florida Statutes, the State requires each local government to adopt by ordinance an established method whereby the impacts of development on transportation facilities can be mitigated by the cooperative efforts of the public and private sectors. This legislation was the result of the "Pay As You Grow Plan for Floridas Future: Building the Infrastructure to Strengthen Floridas Economy and Quality of Life". The proposed ordinance defines concurrency as the "transportation facilities needed to serve new development shall be in place or under actual construction within 3 years after the local government approves a building permit or its functional equivalent that results in traffic generation".

The State deadline for enacting this ordinance is December 1, 2006. Staff has utilized the proportionate fair-share model ordinance provided by the Department of Community Affairs and Florida Department of Transportation in preparing the proposed ordinance.

The Proportionate Fair-Share Ordinance provides a program that allows developers to proceed with their development under certain conditions by contributing their proportionate fair-share of the cost of a transportation facility. The program applies to all developments that will impact the traffic capacity of a roadway below the established Level of Service. These facilities include City or County roadways along with Florida Department of Transportation facilities. The improvement or improvements funded by the proportionate fair-share component must be adopted into the 5-year capital improvements schedule of the comprehensive plan with the next annual capital improvements element update.

Proportionate fair-share mitigation for concurrency impacts may include private funds, contributions of land, and construction and contribution of facilities. A developer shall not be required to pay more than their proportionate fair-share. The ordinance provides for the development of a Proportionate Fair-Share Agreement that addresses the resolution to the impacts of a development to a road facility. Proportionate fair-share mitigation shall be applied as a credit against impact fees. Impact fee credit shall be determined by Sarasota County as per the interlocal agreement.

The order and action of the required public hearing will first be the review and recommendation by the Planning Commission. The Planning Commissions recommendation, including findings of fact, will then be forwarded to City Council for final action. The Proportionate Fair-Share Ordinance shall be approved by ordinance and requires two City Council public hearings for adoption.

Staff recommends that Planning Commission provide a favorable recommendation to City Council of the proposed Proportionate Fair-Share Ordinance.

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 Chapter 163.3180(16), F.S.

(1) The City Council finds and determines that transportation capacity is a commodity that has a value to both the public and private sectors and that the City Proportionate Fair-Share Program:

(a) Provides a method by which the impacts of development on transportation facilities can be mitigated by the cooperative efforts of the public and private sectors;

(b) Allows developers to proceed under certain conditions, notwithstanding the failure of transportation concurrency, by contributing their proportionate fair share of the cost of a transportation facility;

(c) Contributes to the provision of adequate public facilities for future growth and promotes a strong commitment to comprehensive facilities planning, thereby reducing the potential for moratoria or unacceptable levels of traffic congestion;

(d) Maximizes the use of public funds for adequate transportation facilities to serve future growth, and may, in certain circumstances, allow the City to expedite transportation improvements by supplementing funds currently allocated for transportation improvements in the Capital Improvements Element;

(e) Is consistent with Chapter 163.3180(16), F.S., and the City of Venice Comprehensive Plan.

The Proportionate Fair-Share Program shall apply to all developments that impact roadway systems by degrading the roadway below the established Level Of Service as part of the overall Concurrency Management System, including transportation facilities maintained by Florida Department of Transportation (FDOT) or another jurisdiction that are relied upon for concurrency determinations. The Proportionate Fair-Share Program does not apply to developments of regional impact (DRIs) using proportionate fair share, exceptions and de minimis impacts under Chapter 163.3180(12), F.S., or developments exempted from the Citys Concurrency Ordinance.

Concurrency means "transportation facilities needed to serve new development shall be in place or under actual construction within 3 years after the local government approves a building permit

or its functional equivalent that results in traffic generation"(Chapter163.3180(2)(c), F.S.).

(1) An applicant may choose to satisfy the transportation concurrency requirements of the City by making a proportionate fair-share contribution, pursuant to the following requirement:

1. (a) The five-year schedule of capital improvements in the City Capital Improvements Element (CIE).

2. (b) Long term schedule of capital improvements not listed within the five-year schedule of the CIE.

(2) The City may choose to allow an applicant to satisfy transportation concurrency through the Proportionate Fair-Share Program by contributing to an improvement that, upon completion, will mitigate additional traffic generated by the proposed development but is not contained in the 5-year schedule of capital improvements in the CIE where one of the following apply:

 (a) The City adopts by resolution a commitment to add the improvement to the 5-year schedule of capital improvements in the CIE no later than the next regularly scheduled update. To qualify for consideration under this section, the proposed improvement must be reviewed by the City Council, and determined to be financially feasible pursuant to Chapter 163.3180(16)(b)1, F.S., consistent with the comprehensive plan, 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.

(b) If the funds allocated for the 5-year schedule of capital improvements in the City CIE are insufficient to fully fund construction of a transportation improvement required by the concurrency management system, the City may still enter into a binding proportionate fair-share agreement with the applicant authorizing construction of that amount of development on which the proportionate fair share is calculated if the proportionate fair-share amount in such agreement is sufficient to pay for one or more improvements which will, in the opinion of the governmental entity or entities maintaining the transportation facilities, significantly benefit the impacted transportation system. To qualify for consideration under this section, the proposed improvements must be contained in an adopted short or long-range plan or program of the City, Sarasota County, Sarasota/Manatee Metropolitan Planning Organization (MPO), FDOT and/or Sarasota County Area Transit. Proposed improvements not reflected in an adopted plan or improvement program but that would significantly reduce access problems and congestion or trips on a major road corridor, such as new roads, service roads, or improved network development and connectivity, may be considered at the discretion of the City. The improvement or improvements funded by the proportionate fair-share component must be adopted into the 5-year capital improvements schedule of the comprehensive plan at the next annual capital improvements element update.

(3) Any improvement project proposed to meet the developers fair-share obligation must meet the design standards for City roadways, design standards for Sarasota County roadways and FDOT design standards for the state highway system.

Pursuant to policies in the Intergovernmental Coordination Element of the City Comprehensive Plan and applicable policies in MPO Long Range Transportation Plan, the City shall coordinate with affected jurisdictions, including Sarasota County and FDOT, regarding mitigation to impacted facilities not under the jurisdiction of the local government receiving the application for proportionate fair-share mitigation.

(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 E.

(2) Prior to submitting an application for a proportionate fair-share agreement, a pre-application meeting shall be held to discuss eligibility, application submittal requirements, potential mitigation options, and related issues. If the impacted facility is on the Strategic Intermodal System (SIS), then FDOT will be notified and invited to participate in the pre-application meeting.

(3) Eligible applicants shall submit an application to the City that includes an application fee listed in the schedule of fees within the City Zoning Code established by resolution. The application information shall include the following:

(a) Name, address, and phone number of owner(s), developer and agent;

(b) Property location, including parcel identification numbers;

(c) Legal description and survey of property;

(d) Project description, including type, intensity, and amount of development;

(e) Phasing schedule, if applicable;

(f) Description of requested proportionate fair-share mitigation method(s); and

(g) Copy of concurrency application.

(4) The Concurrency Administrator shall review the application and certify that the application is sufficient and complete. 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 E, then the applicant will be notified in writing of the reasons for such deficiencies. 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.

(5) Pursuant to Chapter 163.3180(16)(e), F.S., proposed proportionate fair-share mitigation for development impacts to facilities on the Strategic Intermodal System requires the concurrence of FDOT. The applicant shall submit evidence of an agreement between the applicant and the FDOT for inclusion in the proportionate fair-share agreement.

(6) 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 Strategic Intermodal System (SIS) facility, no later than 60 days from the date at which the applicant received the notification of a sufficient application and when the agreement will be considered.

(7) The City shall notify the applicant regarding the date of the Council meeting when the agreement will be considered for final approval. No proportionate fair-share agreement will be effective until approved by the City.

1. (1) Proportionate fair-share mitigation for concurrency impacts may include, without limitation, separately or collectively, private funds, contributions of land, and construction and contribution of facilities.

2. (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 applicants proportionate fair-share obligation shall be as provided for in Section 163.3180 (12), F. S., as follows:

"The cumulative number of trips from the proposed development expected to reach roadways during peak hours from the complete buildout of a stage or phase being approved, divided by the change in the peak hour maximum service volume (MSV) of roadways resulting from construction of an improvement necessary to maintain the adopted level of service, multiplied by the construction cost, at the time of developer payment, of the improvement necessary to maintain the adopted level of service."

Proportionate Fair Share = Σ[[(Development Trips i) / (SV Increase i)] x Cost i ]

Where:

Development Trips i = 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 concurrency management system;

SV Increase i = Service volume increase provided by the eligible improvement to roadway segment "i" per section E;

Cost i= 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.

(4) 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 the Capital Improvements Element, the MPO Transportation Improvement Program, or the FDOT Work Program and as updated by the City Engineering Department estimated engineering cost.

(1) Proportionate fair-share mitigation shall be applied as a credit against impact fees. Impact fee credit shall be determined by Sarasota County as per the interlocal agreement.

(1) Upon execution of a Proportionate Fair-Share Agreement the applicant shall receive a City certificate of concurrency approval. Should the applicant fail to apply for a development permit within 12 months or timeframe provided in the Citys Concurrency Management System of the execution of the Agreement, then the Agreement shall be considered null and void, and the applicant shall be required to reapply.

(2) Payment of the proportionate fair-share contribution is due at the signing of the agreement and not refundable.

(3) All developer improvements required in the agreement must be completed prior to issuance of a building permit, 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. It is the intent of this section that any required improvements be completed before issuance of a certificate of occupancy.

(4) 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.

(5) 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 nonrefundable.

(6) 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 for funding of scheduled improvements in the City capital improvements element, 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 a match for a FDOT funding program.

(2) In the event a scheduled facility improvement is removed from the CIP, 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 E(2)(b). Where an impacted regional facility has been designated as a regionally significant transportation facility in an adopted regional transportation plan as provided in Section 339.155, F.S., 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 a FDOT funding program. 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.

(1) In the interest of intergovernmental coordination and to reflect the shared responsibilities for managing development and concurrency, the City may enter in an 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 submitted to the City subject to a transportation concurrency

determination meeting all of the following criteria shall be subject to this section:

(a) The transportation determination will be based on the traffic analysis report identifying the area which is under the jurisdiction, for transportation concurrency, of an adjacent local government; and

(b) Using its own concurrency analysis procedures, the City concludes that the additional traffic from the proposed development would use five percent or more of the adopted peak hour level of service maximum service volume of a regional transportation facility within the concurrency jurisdiction of the adjacent local government ("impacted regional facility"); and

(c) The impacted regional facility is projected to be operating below the level of service standard, adopted by the adjacent local government, when the traffic from the proposed development is included.

(3) Upon identification of an impacted regional facility pursuant to subsection 2(a)-(c), the City shall notify the applicant and the affected adjacent local government in writing of the opportunity to derive an additional proportionate fair-share contribution, based on the projected impacts of the proposed development on the impacted adjacent facility.

(a) The adjacent local government shall have up to forty-five (45) days in which to notify the City of a proposed specific proportionate fair-share obligation, and the intended use of the funds when received. The adjacent local government must provide reasonable justification that both the amount of the payment and its intended use comply with the requirements of Section 163.3180(16), F.S. Should the adjacent local government decline proportionate fair share mitigation under this section, then the provisions of this section would not apply and the applicant would be subject only to the proportionate fair share requirements of the City.

(b) If the subject application is subsequently approved by the City, the approval shall include a condition that the applicant provides, prior to the issuance of any building permit covered by that application, evidence that the proportionate fair-share obligation to the adjacent local government has been satisfied. The City shall require the adjacent local government to declare, in a resolution, ordinance, or equivalent document, its intent for the use of the proportionate fair-share funds to be paid by the applicant.

M. Proportionate Share Program for TCEAs, TCMAs and MMTDs

In the event the that the City creates either a Transportation Concurrency Exception Areas (TCEAs), Transportation Concurrency Management Areas (TCMAs) or Multi-Modal Transportation Districts (MMTDs), the City shall utilized the Proportionate Fair Share Program within that District.