§ 86-10. Transportation proportionate fair-share.

(a)

Purpose and intent. The purpose of this section is to establish a method whereby the impacts of development on transportation facilities may be mitigated by the cooperative efforts of the public and private sectors, as required by and in a manner consistent with F.S. § 163.3180(16).

(b)

Findings.

(1)

The city finds and determines that transportation capacity is a commodity that has a value to both the public and private sectors and that this section:

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 ("CIE") of the city's comprehensive plan; and

e.

Is consistent with F.S. § 163.3180(16), and supports policies in the city's comprehensive plan.

(c)

Applicability.

(1)

This section shall apply to:

a.

All developments in the city that have been notified of a lack of capacity to satisfy transportation concurrency on a transportation facility in the city's concurrency management system, including transportation facilities maintained by FDOT or another jurisdiction that are relied upon for concurrency determinations; and

b.

All developments for which the city's concurrency determination concludes that concurrency requirements have been met, in whole or in part, because, pursuant to subsections 2, 3 or 4 of Rule 9J-5.0055(c), FAC: (i) the necessary facilities and services for the project are in the first three years of the city's CIE; or (ii) the necessary facilities and services for the project shall be in place or under construction no more than three years after issuance of a certificate of occupancy or its functional equivalent for the project that is the subject of the application, and the applicant is not the party performing or paying for such construction.

(2)

This section does not apply to developments of regional impact (DRIs) using proportionate fair-share under F.S. § 163.3180(12), or to developments exempted from concurrency as provided in section 86-4, or F.S. § 163.3180, regarding exceptions and de minimis impacts.

(d)

General requirements.

(1)

An applicant whose project meets the criteria of subsection (c)(1)a. of this section may choose to satisfy the transportation concurrency requirements of the city 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.

b.

The applicant has filed an application for reservation of capacity pursuant to section 86-2.

c.

The five-year schedule of capital improvements in the Capital Improvements Element ("CIE") of the city's comprehensive plan includes one or more transportation improvements that, upon completion, will provide sufficient capacity for the deficient segments to operate at or above the adopted level of service standard including the traffic generated by the proposed development. If the city's concurrency management system indicates that the capacity of the improvement has already been consumed by the reserved trips of previously approved development, then the provisions of subsection (d)(2) shall apply.

(2)

The city may choose to allow an applicant to satisfy transportation concurrency through this section by contributing to an improvement that, upon completion, will mitigate additional traffic generated by the proposed development but is not contained in the five-year schedule of capital improvements in the CIE where one of the following apply:

a.

The city adopts, by ordinance, a commitment to add the improvement to the five-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 city council and determined to be financially feasible pursuant to F.S. § 163.3180(16)(b)1, 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 five years to fully mitigate impacts on the transportation facilities.

b.

If the funds allocated for the five-year schedule of capital improvements in the city's 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, Transportation Planning Organization (TPO) or Florida Department of Transportation (FDOT). 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 five-year capital improvements schedule of the comprehensive plan at the next annual capital improvements element update.

(3)

An applicant whose project meets the criteria of subsection (c)(1)b. of this section shall make a proportionate fair-share contribution pursuant to this section even if there is sufficient capacity to satisfy transportation concurrency for the applicant's project, and such applicant shall enter into a proportionate fair-share agreement prior to the city's issuance of a certificate of capacity for the project.

(4)

Any improvement project proposed to meet the developer's fair-share obligation must meet design standards of the entity with jurisdiction over the roads (e.g., the city or Marion County) for locally maintained roadways and those of the Florida Department of Transportation (FDOT) for the state highway system.

(e)

Intergovernmental coordination. Pursuant to policies in the Intergovernmental Coordination Element of the city's comprehensive plan, the city shall coordinate with affected jurisdictions, including FDOT, regarding mitigation to impacted facilities not under the city's jurisdiction. An interlocal agreement may be established with other affected jurisdictions for this purpose.

(f)

Application process.

(1)

Upon notification of a lack of capacity to satisfy transportation concurrency or a determination that the application meets the criteria of subsection (c)(1)b. of this section, the applicant shall also be notified in writing of the opportunity or obligation to satisfy transportation concurrency through this section pursuant to the requirements of subsection (d) of this section.

(2)

Prior to submitting an application for a proportionate fair-share agreement, a preapplication meeting involving planning and engineering staff 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 preapplication meeting.

(3)

Eligible applicants shall submit an application to the city that includes an application fee as established by ordinance and 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 methods; and

g.

Copy of concurrency application.

h.

Copy of the project's traffic study or assessment as prepared pursuant to the city's traffic guidelines.

(4)

The city's planning department shall review the application and notify the applicant whether the application is sufficient and complete within ten business days of submittal of the application. If an application is determined to be insufficient, incomplete, or inconsistent with the general requirements of this section as indicated in subsection (d), then the applicant will be notified in writing of the reasons for such deficiencies within ten 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 council may in its discretion, grant a one-time extension of time not to exceed 60 days to cure such deficiencies, provided that the applicant has shown good cause for the extension and has taken reasonable steps to effect a cure.

(5)

Pursuant to F.S. § 163.3180(16)(e), proposed proportionate fair-share mitigation for development impacts to facilities on the SIS 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, or by the applicant with direction from 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 council meeting when the agreement will be considered.

(7)

The city shall notify the applicant regarding the date of the city council public hearing when the agreement will be considered for final approval. No proportionate fair-share agreement will be effective until approved by the city council.

(g)

Determining proportionate fair-share obligation.

(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 as provided in F.S. § 163.3180(16)(c).

(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 as provided in F.S. § 163.3180(16)(c).

(3)

The methodology used to calculate an applicant's proportionate fair-share obligation shall be as provided for in F.S. § 163.3180(12), and 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, as determined under subsection (g)(4) of this section, of the improvement necessary to maintain the adopted level of service.

or

Proportionate Fair-Share = σ[[(Development Trips;sub    \sub;)/(SV Increase);sub    \sub;] × Cost;sub    \sub;]

(Note: In the context of the formula, the term "cumulative" does not include a previously approved stage or phase of a development).

Where:

Development Trips;sub    \sub; = Those new 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;sub    \sub; = Service volume increase provided by the eligible improvement to roadway segment "i" per subsection (d) of this section;

Cost;sub    \sub; = 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 purpose of determining proportionate fair-share obligations, the city shall determine improvement costs based upon the actual or anticipated cost of the improvement as obtained from the CLE, the TPO transportation improvement program, or the FDOT work program. Where such information is not available, improvement costs shall be determined by an analysis by the city of costs by cross section type that incorporates data from recent projects and is updated annually and approved by the city council. In order to accommodate increases in construction material costs, project costs shall be adjusted as follows:

Cost _n = Cost _o × (1 + Cost_growth _3yr ) ⁿ

Where:

Cost _n = The cost of the improvements in year n;

Cost _o = The cost of the improvement in the current year;

Cost_growth _3yr = The growth rate of costs over the last three years;

n = The number of years until the improvement is constructed.

The three-year growth rate is determined by the following formula:

Cost_growth _3yr = [Cost_growth _-1 + Cost_growth _-2 + Cost_growth _-3 ]/3

Where:

Cost_growth _3yr = The growth rate of costs over the last three years;

Cost_growth _-1 = The growth rate of costs in the previous year;

Cost_growth _-2 = The growth rate of costs two years prior;

Cost_growth _-3 = The growth rate of costs three years prior.

(5)

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.

(6)

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 of the right of way by the Marion 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 city may require submission of an additional appraisal by an appraiser selected by city, at the expense of the applicant, if the appraisal submitted by the applicant is in excess of 150 percent of the most recent assessed value of the property. The applicant shall dedicate the right of way to the city by warranty deed free and clear of all liens, encumbrances and restrictions except those acceptable to the city in the exercise of its sole discretion. The applicant shall supply to the city a survey of the right of way to be dedicated acceptable to city, and a title insurance policy insuring the city's interest in the property at the value of the right of way as determined by this subsection, all at no expense to the city. If the estimated value of the right-of-way dedication proposed by the applicant is less than the city estimated total proportionate fair-share obligation for that development, then the applicant must also pay the difference.

(7)

The applicant may seek impact fee credits for proportionate fair-share contributions from Marion County pursuant to F.S. § 163.3180(16)(b)(2).

(8)

The applicant may apply its proportionate fair-share contributions against the certificate of capacity fee due from the applicant under subsection 86-7(c) but all impact fees due shall be paid prior to the issuance of a building permit, less impact fee credits, if any, obtained by the applicant pursuant to subsection (h)(7) of this section.

(h)

Proportionate fair-share agreements.

(1)

If a proportionate fair-share agreement is permitted or required under this section, the applicant shall execute the agreement prior to the issuance of a certificate of capacity. Should the certificate of capacity expire pursuant to section 86-6, the applicant shall nonetheless be obligated to perform its obligations under the proportionate fair-share agreement but may apply such obligations as its contribution under a future proportionate fair-share agreement in connection with a future reservation of capacity.

(2)

Payment of the proportionate fair-share contribution is due in full prior to the effective date of the proportionate fair-share agreement, unless a later date for such payment is set forth in the agreement. The effective date shall be specified in the agreement.

(3)

All developer improvements authorized under this section must be completed prior to issuance of a development permit, or as otherwise established in the proportionate fair-share agreement and accompanied by a security instrument (e.g. bond, letter of credit or other adequate assurance acceptable to the city in its sole discretion) that is sufficient to ensure the completion of all required improvements, but in any event prior to the issuance of a building permit or certificate of occupancy.

(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 project's last final development order, unless a later date is set forth in the proportionate fair-share agreement, and in any event prior to the recording of the final plat for a residential development or approval of site plan for a commercial development.

(5)

Any requested change to a 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 nonrefundable.

(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.

(8)

In the event that the proportionate fair-share agreement permits the developer to pay its contribution, make improvements or dedicate necessary right of way at a time subsequent to the execution of the proportionate fair-share agreement, the agreement may provide that the proportionate fair-share contribution be redetermined at the time of the contribution, improvements or dedication pursuant to subsection (h) of this section to reflect the anticipated construction costs of the improvement at the time the contribution is to be made, and any reservation of capacity may be conditioned upon the applicant's compliance with such requirement.

(i)

Appropriation of fair-share revenues.

(1)

Proportionate fair-share revenues shall be placed in the appropriate project account for funding of scheduled improvements in the 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 percent 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 subsection (d)(2)b.

(Ord. No. 5592, § 3, 11-28-06)