§ 23-709. Transportation proportionate fair-share program.

A. Purpose and intent. The purpose of this section 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 F.S. § 163.3180(16).

B. Findings.

1. The commission finds and determines that transportation capacity is a commodity that has a value to both the public and private sectors and 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 the 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).

e. Is consistent with F.S. § 163.3180(16), and supports the Concurrency Management System (CMS) in the City Comprehensive Plan. (Policies 2.01 and 2.02 under Objective 2 of the CIE and Policy 1.01 and 1.02 under Objective 1 of the Transportation Element.)

C. Applicability. The proportionate fair-share program shall apply to all developments in city that have been notified of a lack of capacity to satisfy transportation concurrency on a transportation facility in the city CMS, including transportation facilities maintained by FDOT or another jurisdiction that are relied upon for concurrency determinations, pursuant to the requirements of subsection D. The proportionate fair-share program does not apply to developments of regional impact (DRI's) using proportionate fair-share under F.S. § 163.3180(12), or to developments exempted from concurrency as provided in article VII, div. 1, subsection 704.4(a)4 LWC. The proportionate fair-share program does not preclude applicants from funding transportation improvements pursuant to a development agreement to meet concurrency requirements.

If the project traffic for a proposed development will impact or create a deficient roadway segment or intersection that is maintained by another jurisdiction, then the permitting jurisdiction will coordinate with the maintaining jurisdiction regarding the need or applicability for proportionate fair-share mitigation of project traffic.

D. General requirements.

1. An applicant may choose to satisfy the transportation concurrency requirement 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 five-year schedule of capital improvements in the city CIE or the long-term schedule of capital improvements for an adopted long-term CMS includes the construction phase of a transportation improvement(s) that, upon completion, will satisfy the requirements of the city transportation CMS.

2. The city may choose to allow applicant to satisfy transportation concurrency through the proportionate fair-share program by adding an improvement (construction phase) to the CIE or adopted long-term CMS that will satisfy the requirements of the city transportation CMS. For the purposes of the proportionate fair-share program, no capacity road project shall be added to the CIE unless any required alignment study or a project development and environmental (PD&E) study has been completed with an endorsed build alternative.

To implement this option, the city shall adopt, by resolution or ordinance, a commitment to add the improvement to the five-year schedule of capital improvements in the CIE or long-term schedule of capital improvements for an adopted long-term CMS no later that the next regularly schedules update. To qualify for consideration under this section, the proposed improvement must be reviewed by the appropriate city commission, 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. Any improvement project proposed to meet the developer's fair-share obligation must meet the design standards of the jurisdiction with maintenance responsibility for the subject transportation facility.

E. Memorandum of understanding on proportionate fair-share program. The city shall coordinate with the Florida Department of Transportation, Polk Transportation Organization, Central Florida Regional Planning Council and other local governments to implement the provisions of the proportionate fair-share program. Appropriate provisions for intergovernmental coordination will be detailed in a memorandum of understanding on the proportionate fair-share program (MOU), and city shall coordinate with the signatory parties to ensure that mitigation to impacted facilities is based on comprehensive and consistent transportation data.

F. Application process.

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 in subsection D.

2. Prior to submitting an application for a proportionate fair-share agreement, a pre-application meeting shall be held to discuss eligibility, e.g., project status in CIE, application submittal requirements, potential mitigation options, and related issues. If the impacted facility is on the SIS, or any state transportation facility, then the 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 of five thousand dollars ($5,000.00) 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;

g. Copy of the project's traffic study or traffic impact analysis; and

h. Location map depicting the site and affected road network.

4. The city shall review the application and certify that the application is sufficient and complete within ten (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 subsection D., then the applicant will be notified in writing of the reasons for such deficiencies within ten (10) business days of submittal of application. If the applicant does not remedy such deficiencies within thirty (30) days of receipt of the written notification, then the application will be deemed abandoned. The commission may, in its discretion, grant an extension of time not to exceed sixty (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 Strategic Intermodal System (SIS) require the concurrence of the 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 SIS facility, or any state transportation facility, no later than sixty (60) days from the date at which the applicant received the notification of a sufficient application and no fewer that forty-five (45) working days prior to the commission meeting when the agreement will be considered.

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

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 based on the form of mitigation as provided in F.S. § 163.3180(16)(c) (contributions of private funds, land or facility construction).

3. The methodology used to calculate an applicant's proportionate fair-share obligation shall be as provided for in F.S. § 163.3180(12), as follows:

The cumulative number of peak hour, peak direction trips from the complete buildout of the proposed development, or buildout of the stage or phase being approved, that are assigned to the proportionate share program segment divided by the change in the peak hour maximum service volume (MSV) or the proportionate share program segment resulting from construction of the proportionate share program improvement, multiplied by the anticipated cost of the proportionate share project. In this context, cumulative does not include project rips from previously approved stages or phases of development.

This methodology is expressed by the following formula:

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

Where:

σ = Sum of all deficient links proposed for proportionate fair-share mitigation for a project;

Development Trips;sub\sub; = 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 (CMS);

SV Increase;sub\sub; = Service volume increase provided by the eligible improvement to roadway segment "i";

Cost;sub\sub; = Adjusted cost of the improvement to segment "i". Cost shall include the cost of all project phases (preliminary engineering or alignment study, design, rights-of-way acquisition and construction) in the years said phases will occur with all associated costs.

4. The cost of the proportionate fair-share project shall be determined by the maintaining jurisdiction.

5. The value of right-of-way dedications used for proportionate fair-share payment shall be subject to the approval of the maintaining jurisdiction. No value shall be assigned to right-of-way dedications required under ordinance or as a condition of development approval.

H. Proportionate fair-share agreements.

1. Upon execution of a proportionate fair-share agreement (agreement) and satisfying other concurrency requirements, an applicant shall receive a city certificate of concurrency approval for transportation. Should the applicant fail to apply for building permits within the timeframe provided for in the city concurrency certificate, then the project's concurrency vesting shall expire, and the applicant shall be required to reapply. Once a proportionate fair share payment for a project is made and other impact fees for the project are paid, no refunds shall be given. All payments, however, shall run with the land.

2. Payment of the proportionate fair-share contribution for a project and other road impact fees not subject to an impact fee credit shall be due and must be paid within sixty (60) days of the effective date of the proportionate fair-share agreement. The effective date shall be specified in the agreement and shall be the date the agreement is approved by the commission.

3. All developer improvements accepted as proportionate fair-share contributions must be completed within three (3) years of the issuance of the first building permit for the project which is the subject of the proportionate fair-share agreement and be 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 within three (3) years of the issuance of the first building permit for the project which is the subject of the proportionate fair-share agreement.

4. Dedication of necessary right-of-way for facility improvements pursuant to a proportionate fair-share agreement must be completed prior to the effective date of the proportionate fair-share agreement.

5. Any requested change to a development project subsequent to issuance of a development order shall 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.

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 city CIE, or as otherwise established in the terms of the proportionate fair-share agreement. At the discretion of the local government having jurisdiction over the relevant transportation facility subject to the proportionate fair-share agreement, and with the concurrence of the local government issuing the development order, 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. These operational improvements shall be consistent with, and sustainable through, the construction of the capacity project. Proportionate fair-share revenues may also be used as the fifty (50) percent local match for funding under the FDOT TRIP.

2. In the event a scheduled facility improvements 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.

(Ord. No. 2006-46, § 3, 12-5-2006)