Division 1. Concurrency  


§ 23-701. Purpose and intent; definitions
Effective on Tuesday, January 19, 2016

(a) This division establishes a "concurrency management system" to evaluate development applications to ensure that adequate capacity in required public facilities is or will be available to serve the proposed development at the time it is required. In accordance with F.S. § 163.180, public facilities subject to the concurrency management system are: sanitary sewer, potable water, solid waste, roads, public schools, recreation and open space, and drainage. The demand on a public facility is calculated through the use of the level of service (LOS) standard for that facility or service adopted by the city in the Lake Wales Comprehensive Plan and set forth in Table 23-705

(b) It is the intent of the city commission that no development permits or orders may be issued that will cause a public facility or service to operate below the adopted level of service standard. Development orders may, however, be conditioned such that public facility improvements or capacity will be in place "concurrent" or at the time the facility or service is needed by the proposed development. Consistent with Florida law, public facilities to serve the new development shall be in place no later than the issuance by the city of a certificate of occupancy (CO) or its functional equivalent.

(c) The concurrency management system is intended to serve the long term interests of the citizens of Lake Wales by implementing a managed growth perspective that monitors the capacity of important public facilities and services in order to prevent the degradation of adopted levels of service. The system does not, however, serve as a guarantee to any person or property owner that a particular level of service or amount of capacity currently exists or will exist in the future on a particular public facility at any given point in time.

(d) The following definitions apply to concurrency management rules and regulations:

Building permit: For purposes of the concurrency management system, a permit may authorize the construction of a new building, expansion of floor area, or an increase in the number of dwelling units contained in an existing building, or a change in use.

Capacity: The availability of a public service or facility to accommodate users, expressed in an appropriate unit of measure, such as gallons per day or average daily trips.

Capacity, available: Capacity that can be reserved or committed to future users for a specific public facility.

Capacity, committed: The amount of capacity that has been committed to accommodate existing developments, developments which have been issued a final development approval, committed development, and vested developments.

Capacity, reserved: Capacity that has been removed from the available capacity pool and allocated to a particular property for a set period of time.

Certificate of occupancy: A document issued by the building official allowing the occupancy or use of a building and certifying that the structure or use has been constructed or will be used in compliance with all the applicable municipal codes and ordinances.

Concurrency facilities: Public facilities and services for which a level of service must be met concurrent with the impacts of development or an acceptable deadline as mandated in the City of Lake Wales Comprehensive Plan pursuant to F.S. Ch. 163 , shall include: Sanitary Sewer, Potable Water, solid Waste, Roads, Public Schools, Recreation & open Space, and Drainage.

Concurrency management monitoring system: The data collection, processing and analysis performed by city staff to determine available capacity for concurrency facilities. Data utilized shall be the most current reliable information available to the city.

Concurrency management system (CMS): The procedure and process that the city uses to ensure that no development order or building permit is issued by the city unless the necessary concurrency facilities are available or are assured to be available consistent with the city's comprehensive plan. The procedure and process is also intended to ensure that sufficient capacity for concurrency facilities are available to meet and maintain adopted levels of service. As part of the CMS, the city shall operate and maintain a concurrency management monitoring system.

Concurrency review: An evaluation by the planning and development director and staff based on adopted level of service standards to ensure that public facilities and services needed to support development are available concurrent with the impacts of such development, as defined in this CMS. If such facilities are not available, the developer of a proposed development shall bear the cost of providing public services and facilities at the level of service defined by the comprehensive plan and concurrent with the impacts of a proposed development.

Concurrency status report: A status report prepared by the city identifying available concurrency facility capacity. The status report shall be produced, modified and adjusted from time-to-time as a result of the reservation of capacity or other act that alters the availability of concurrency facility capacity.

Design capacity: The potential or suitability for holding, storing or accommodating the demands upon a concurrency facility.

Development agreement: An agreement between the city and another party associated with the development of land or the provision of public infrastructure, which may include development agreements defined pursuant to F.S. § 63.3220, or as may be associated with development orders issued pursuant to F.S. § 380.01.

Level of service (LOS): An indicator of the operational efficiency of service provided by a concurrency facility.

Level of service standard: The adopted volume of demand required for each concurrency facility to achieve acceptable operational efficiency.

Vested: Development shall be deemed "vested" and not subject to requirements of concurrency management if development circumstances meet criteria for common law or statutory vesting, as defined below. All "non-vested" development or development orders are subject to all requirements of this CMS.

Vested rights, common law: A right not created by statute or the provisions of the City of Lake Wales Comprehensive Plan which would authorize the development of real property or the continued development of real property notwithstanding the provisions of the city's comprehensive plan. The city may find such vesting to exist whenever the applicant proves by a preponderance of evidence that the real property owner, acting in good faith upon some act or omission of the city has made a substantial change in the position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right to develop or to continue the development of the real property. The assignment of the particular zoning classification or the assignment of a particular land use designation to parcel of real property does not guarantee or vest any specific development rights to any person or entity as to said real property.

Vested rights, statutory: A statutory right to develop or to continue the development of real property pursuant to the provisions of F.S. § 163.3187(8) or its successor provisions. Such vesting may be found to exist if a valid and unexpired final development approval was issued by the city prior to the March 15, 2005, if construction has commenced on the subject development and the development is in the process of being completed or further development is continuing in good faith. Statutory vesting does not occur unless all material requirements, conditions, limitations and regulations of the development approval have been met and are being maintained.

(Ord. No. 2005-27, § 1, 7-5-05; Ord. No. 2008-05, § 1, 2-19-08; Ord. No. 2016-01, § 8, 01-19-16)
§ 23-702. Components of concurrency management system
Latest version.

(a) The concurrency management system (CMS) has three (3) components:

1. Inventory of public facilities and capacities. City staff must maintain an inventory of existing public facilities for which level of service (LOS) standards have been adopted and for which concurrency is to be determined. The inventory includes: The existing condition and total capacity for each facility, the reservations of capacity that have been granted for proposed development and an estimate of when the capacity will be utilized as development progresses, and the remaining available capacity in the facility.

2. Concurrency review of proposed developments. Each development application must be reviewed to determine if adequate capacity is or will be available to serve the proposed development.

3. Schedule of improvements to public facilities. A program must be conducted by the city to implement improvements to public facilities to correct deficiencies or expand capacity to adequately serve existing and new development. The program will include capital projects in the city's capital facilities budget and improvements required of new development.

(b) The city manager will provide an annual concurrency status report to the city commission. The initial report will be presented no later than the second regularly scheduled meeting in June, and subsequent reports will be presented at the second meeting in January. The report will include in the reserved and committed capacity inventory, as applicable, all developments for which permits and approvals were issued prior to March 15, 2005, provided they meet the vesting requirements for reservations of capacity or certificates of concurrency.

(Ord. No. 2005-27, § 1, 7-5-2005)

§ 23-703. Inventory of public facilities and concurrency status report.
Latest version.

The annual concurrency status report to the city commission on the inventory of public facilities must include:

(a) The status of the city's public facilities in relation to the adopted levels of service;

(b) A tally of capacity reservations and commitments granted during the year;

(c) An analysis of when reserved and committed capacity will be utilized as development progresses;

(d) Available capacity in each facility; and

(e) An evaluation of improvements completed or planned to maintain adopted levels of service.

(Ord. No. 2005-27, § 1, 7-5-2005)

§ 23-704. Concurrency review.
Latest version.

Sec. 23-704.1 Applicability. A concurrency review to determine compliance with this section is required for all development and land uses in the City of Lake Wales unless specifically exempted herein. Verification of compliance with this section is required prior to the issuance of a site development permit pursuant to section 23-217, a building permit, or a certificate of use pursuant to section 23-213 and prior to approval of services for land uses outside of the city limits. Developments with permits or approvals issued prior to March 15, 2005 shall be vested for reservations of capacity or certificates of concurrency as provided in subsection 23-704.4.c. and d.

Sec. 23-704.2 Burden of proof. The applicant shall bear the burden of showing compliance with the adopted levels of service and meeting the concurrency test. The administrative official will direct the applicant to the appropriate staff to assist in the preparation of the necessary documentation and information.

Sec. 23-704.3 Exemptions.

a. De minimus development. Developments or activities listed below are considered de minimus, having insignificant or no impact upon public facilities with adopted level of service (LOS) standards, and are exempt from concurrency review.

1. Construction of and addition to single-family and two-family dwellings on platted lots;

2. The addition of an accessory apartment or guest house to a residential or nonresidential property;

3. Construction of accessory structures on single-family and two-family properties if permitted under section 23-521, including swimming pools, garages, pole barns, satellite dishes, greenhouses, screen enclosures, and fences; and

4. Construction of and modifications to nonresidential structures with less than one thousand five hundred (1,500) square feet of floor area.

b. The following activities shall be exempt from the concurrency review if the administrative official issues a finding that they will have no significant impact upon public facilities with adopted level of service (LOS) standards:

1. Changes in existing use of property or existing structures when the new use does not increase any impact on public facilities over the existing use. No change in use will be considered exempt when the prior use has been discontinued for two (2) years or more, in which case the use shall be considered a new use. For changes in the use of property when the new use increases the impact on public facilities, the existing intensity shall be exempt and any increase over the existing intensity shall not be exempt;

2. Replacement of an existing dwelling unit when no additional units are created;

3. Replacement of a building or structure with a new building or structure of the same use when no additional impact on public facilities is created over the pre-existing building or structure being replaced;

4. Any development orders determined by the administrative official to have no impact public facilities.

c. Applicants for development permits who claim vesting of rights under this section shall meet a three-part test established under Florida case law for determining vested development rights. All three (3) of the following must be met in order to be vested for development:

A. good faith reliance on an act or omission of the city;

B. substantial expenditures or obligations subsequent to reliance on an act or omission of the city; and

C. highly inequitable to deny development (i.e., private hardship outweighs the public hardship).

(Ord. No. 2007-14, § 2, 6-5-07)

Sec. 704.4 Concurrency review process.

a. Development impact data. The applicant for approval of a preliminary subdivision plat pursuant to section 23-223, a preliminary planned development project plan pursuant to section 23-224, a major or minor site plan pursuant to section 23-222, a site development permit pursuant to section 23-217, a building permit for a new structure or expansion of a structure, a change of use pursuant to section 23-212 or 23-213, or any application for services shall submit required development impact data on the proposed development at the time of application. Submission of development impact data is also required for the establishment of new land uses or changes in land use (see section 23-213) regardless of whether construction is proposed on the property. Development impact data required:

1. Sanitary sewer. For residential developments, projected sanitary sewer flow of the proposed development, based upon the projected number of residents and the LOS Standard provided in section 23-706. For nonresidential development, projected volume of sewer flow. Additional information on the characteristics of the proposed sanitary sewer flow may also be required by the director of public works to assess impacts to the wastewater treatment plant.

2. Potable water. For residential developments, projected potable water demand of the proposed development, based upon the projected number of residents and the LOS standard provided in section 23-706. For nonresidential developments, projected daily water usage.

3. Solid waste. Projected solid waste to be generated by the proposed development, based upon the LOS standard established by Polk County for its landfill facilities. For nonresidential developments, projected daily solid waste generation. A certificate of solid waste concurrency from Polk County is required prior to the issuance of a site development permit.

4. Roads. Preliminary traffic generation information, including estimated number of trips and estimated impact upon roadways adjacent to the proposed development or use shall be provided with applications for preliminary subdivision plats, preliminary planned development project plans, major and minor site plans and changes of use. Local and minor collector roads shall be considered project-level facilities, to be provided by the developer. A certificate of transportation concurrency or an exemption from Polk County is required prior to the issuance of a site development permit or certificate of use for any project or change of use impacting county or state roadways.

5. Recreation and open space. (Residential developments only.) The number of residents projected in residential subdivisions, planned development projects and multi-family developments or buildings shall be submitted. Also required is a calculation of the acreage of parks required to serve the projected population, based on the LOS standards per one thousand (1,000) people: .25 acres of mini-parks, 1.5 acres of neighborhood parks, two (2) acres of community parks, and 3.75 acres of total parks. Mini-parks and neighborhood parks are considered project-level facilities, to be provided by the developer. Plans submitted for a site development permit shall show all open space and parks in the development as required by the city as a condition of approval of a preliminary subdivision plat, preliminary planned development project plan, or site plan for multi-family development.

6. Drainage. Information as required for applications for preliminary subdivision plats, preliminary planned development project plans, and site plans shall suffice for review of drainage concurrency. Drainage is considered a project-level facility, to be provided by the developer. A copy of the storm water management permit or exemption letter from the Southwest Florida Water Management District is required prior to the issuance of a site development permit (section 23-217).

7. Public schools. School concurrency requirements shall apply to all developments with residential units if a major or minor site plan, subdivision plat or planned development project plan is required for the development under this chapter. Preliminary projections of students to be generated by the development shall be provided with an application for a preliminary subdivision plat, preliminary planned development project plan, or major or minor site plan. A finding by the administrative official that school concurrency requirements are satisfied is required prior to the issuance of a site development permit, building permit, or certificate of use for any project or change of use impacting public schools, unless specifically exempted under this chapter.

b. Impact assessment. The administrative official shall review the impact data for the proposed development in consultation with the director of public works, the development review committee, and Polk County departments, as applicable. The "inventory of public facilities and capacities" maintained by the city as required under section 23-703 shall be the basis for determining available capacities. The administrative official shall make a report on each application stating the findings of the concurrency review, including information or findings provided by Polk County in regard to roadway impacts, solid waste capacity, or other matters under the county's jurisdiction. The report may include recommendations on addressing concurrency deficiencies, including developer contributions. The report shall be used by the permitting authority, (the administrative official, the building official, the director of public works, the planning board, and/or the city commission, as applicable), in deciding upon the application.

c. Reservation of capacity. A reservation of capacity shall be granted with a site development permit, a building permit, or certificate of use only upon a finding of adequate capacity in all facilities requiring concurrency review and satisfaction of the requirements of section 23-731, as applicable.

1. Building permit or certificate of use. A building permit or certificate of use shall be granted only if capacity in all required facilities is found to be adequate for a proposed new use or change of use requiring an increase in service capacity. For potable water and wastewater, a reservation of capacity shall not be granted without payment of applicable impact fees per Article VII, division 4. Such reservation shall expire with the building permit if the project is not completed, and in cases where a building permit is not required, it shall expire six (6) months from the date of its issuance if the use for which the certificate was issued is not established.

2. Preliminary plans. A preliminary site plan, subdivision plat or planned development project plan shall be approved only upon a finding that there will be sufficient capacity available for the project at the time it is required or that measures to correct any deficiency have been identified and agreed to by the city in writing. Capacity for a development with an approved and unexpired preliminary plan or plat shall be used in calculating available capacity during the review of other preliminary plans. However, except as otherwise provided in this chapter, no reservation of capacity shall be granted with approval of a preliminary plan or plat, and approval of preliminary plans does not guarantee that capacity will be available at the site development permit stage of project review.

3. Site development permit. A site development permit under section 23-217 shall be issued only upon a finding of adequate capacity in required facilities and approval by the city of a utility services agreement if required under section 23-731. If exempted under that section, a project shall be granted a reservation of potable water and wastewater treatment capacity only upon payment of applicable impact fees per article VII, division 4.

(Ord. No. 2005-27, § 1, 7-5-05; Ord. No. 2006-46, § 1, 12-5-06; Ord. No. 2007-14, § 2, 6-5-07; Ord. No. 2008-05, §§ 2, 3, 2-19-08; Ord. No. 2011-23, § 1, 10-4-11)

§ 23-705. Level of service standards.
Latest version.

The demand on each public facility is calculated through the use of the level of service (LOS) standard for that facility or service adopted by the city in the Lake Wales Comprehensive Plan and set forth below:

TABLE 23-705
LEVEL OF SERVICE STANDARDS

FACILITY
LEVEL OF SERVICE
Sanitary sewer Maximum Daily Flow—Average Daily Flow plus 13 percent
Average Daily Flow—100 gallons per capita per day (gpcd)
Effluent Quality—Meet or exceed EPA and DEP standards
Potable water Average Daily Demand—122 gallons per capita per day (gpcd)
Maximum Daily Demand—Average Daily Demand times 1.43
Storage Capacity—One-half Average Daily Demand
Pressure—20 p.s.i. minimum
Solid waste 7.3 pounds per person per day
Roads Principal Arterials—LOS D
Minor Arterials & Collectors—LOS D
Other Roadways—LOS C
Florida Intrastate Highway System Roadways—LOS C
Recreation and open space Mini-Parks—.25 acres per 1,000 population
Neighborhood Parks—1.5 acres per 1,000 population
Community Parks—2 acres per 1,000 population
Aggregate—3.75 acres per 1,000 population
Drainage EXISTING DEVELOPMENT: See Comprehensive Plan, Capital Improvement Element, Objective 2, Policy 2.01 for Flood Protection and Water Quality LOS for all drainage basins.
NEW DEVELOPMENT:
Streets and Roads—Pavement at or above FEMA 100 year flood plain;
Drainage Structures—Ability to transmit the 100-year return period storm with maximum velocity of 5 feet per second;
Storm Sewers (inlets, manholes, storm sewer lines)—Designed to handle the 3-year return period storm;
Water Quality—Meet state water quality design and performance standards established in 17-25.025 F.A.C. with treatment of first inch of runoff to meet standards required by 17-302.500 F.A.C. Applies to any stormwater drainage system which collects and transmits stormwater to a disposal location, regardless of size of the system;
All development must comply with existing SWFWMD and FDEP regulations regarding management and storage of surface waters.
Public Schools PERCENT OF PERMANENT FLORIDA INVENTORY OF SCHOOL HOUSES (FISH) CAPACITY, BY SCHOOL YEAR
2008-09 2009-10 2010-11 2011-12 2012-13
Elementary Schools
122%
122%
115%
100%
100%
Middle Schools
113%
113%
110%
100%
100%
High Schools
110%
110%
105%
100%
100%
Magnet and School of Choice:
100% of enrollment quota as established by the School Board or court ordered agreements and as adjusted by the School Board annually.
Other: K-8, 6th grade centers, 9th grade centers, 6-12 100% of permanent DOE FISH capacity
Special Facilities:
Including alternative education or special programmatic facilities that are designed to serve a specific population on a countywide basis or for temporary need and are not zoned to any specific area. Therefore, they are not used for concurrency determinations.
Conversion Charter Schools:
As set by contract.

 

(Ord. No. 2005-27, § 1, 7-5-05; Ord. No. 2008-05, § 4, 2-19-08)

§ 23-706. Application of level of service standards.
Latest version.

The applicant shall provide the planning and development department with the information required to apply the adopted level of service standard as cited below. The demand on concurrency facilities generated by the applicant's development will be determined as cited below. Population densities will be calculated at an average of 2.4 per residential unit for all residential development.

1. Sanitary sewer. The demand for sanitary sewer capacity will be determined by multiplying the total number of persons served times the level of service standard (one hundred (100) gallons per capita per day). For nonresidential development, capacity will be determined by projected volume of daily sewer flow.

2. Potable water. The demand for potable water capacity will be determined by multiplying the total number of persons served times the level of service standard (one hundred twenty-two (122) gallons per capita per day). For nonresidential development, capacity will be determined by projected volume of daily water usage.

3. Solid waste. The demand for solid waste collection and disposal capacity will be determined by multiplying the total number of persons served by the level of service standard established by Polk County for its landfill facilities. For nonresidential developments, capacity will be determined by projected daily solid waste generation. Certification from Polk County for solid waste concurrency constitutes such evidence.

4. Roads. The applicant will provide evidence demonstrating that the proposed project meets the LOS established in the Transportation Element of the City's Comprehensive Plan. Certification from Polk County for roadway concurrency constitutes such evidence.

5. Drainage. The applicant will provide evidence demonstrating that the proposed project meets the LOS established in the Drainage Element of the City's Comprehensive Plan. Issuance of a permit or exemption from the Southwest Florida Water Management District for drainage facilities shall constitute such evidence.

6. Recreation and open space. The demand for recreation and open space capacity will be determined by multiplying the total number of persons served times the level of service standard for Community Parks (two (2) acres per one thousand (1,000) population).

7. Public schools. The demand for public school capacity shall be based upon the number of units proposed and the student generation ratios approved for use by the Polk County School Board.

(Ord. No. 2005-27, § 1, 7-5-05; Ord. No. 2008-05, § 5, 2-19-08)

§ 23-707. Determination of available capacity.
Latest version.

For purposes of the CMS, the available capacity of a facility will be determined by adding the cumulative total supply for each public facility component as cited in Step 1 and subtracting cumulative total demand for each component as cited in Step 2.

Step 1: Add the indicators of available facility capacity:

1. Capacity of existing facility. The total capacity of existing facilities operating at the required level of service; and

2. Capacity of committed potable water, sewer, solid waste and drainage. The total capacity of committed new facilities, if any, that will become available on or before the date a certificate of occupancy is issued for the development.

Step 2: Subtract the committed capacity:

1. Existing demand based on existing development. The demand for services or facilities created by existing development as provided by the city.

2. Demand to be generated by vested development, valid capacity reservations, and valid certificates of concurrency. The demand for the service or facility created by the anticipated completion of other vested and/or approved developments.

(Ord. No. 2005-27, § 1, 7-5-2005)

§ 23-708. Criteria for concurrency.
Latest version.

A certificate of concurrency will not be granted for a proposed development unless the city finds that adequate capacity for concurrency facilities exists at or above the adopted level of service in order to accommodate the impacts of the proposed development, or that improvements necessary to bring concurrency facilities up to their adopted level of service will be in place concurrent with the impacts of the development.

a. Minimum criteria. The following minimum criteria must be used to determine if a required public facility or service is available to support proposed development.

1. Sanitary sewer, potable water and drainage.

A. The necessary facilities are in place at the time a development permit is issued; or

B. A development permit is issued subject to the condition that the necessary facilities will be in place when the impacts of the development occur; or

C. The necessary facilities are under construction at the time the permit is issued; or

D. The necessary facilities and services are guaranteed in an enforceable development agreement that includes the provisions of Rules 9J-5.005(2)(a)1—3. An enforceable development agreement may include but is not limited to development agreements pursuant to F.S. § 163.3220 or an agreement or development order issued pursuant to F.S. ch. 380. The agreement must guarantee that the necessary facilities and services will be in place when the impacts of the development occur.

2. Solid waste. The criteria of paragraph 1. shall apply, and, in addition, the applicant must provide the city with a notarized letter from Polk County certifying that the proposed development's solid waste generation can be accommodated at the county's landfill. A certificate of occupancy will not be issued unless all facility improvements necessary to accommodate the impacts of the development are in place.

3. Roads. The criteria of paragraph 1. shall apply, and, in addition, for projects impacting county and state roadways, the applicant must provide the city with a certificate of transportation concurrency or an exemption from Polk County and a copy of a proportionate fair-share agreement, if applicable. Transportation concurrency for city roadways may be satisfied by a transportation proportionate fair-share agreement executed pursuant to section 23-709

4. Parks and recreation. The criteria of paragraph 1. shall apply, or alternatively, the following shall be met:

A. At the time the development permit is issued, the necessary facilities and services are the subject of a binding executed contract that provides for the commencement of the actual construction of the required facilities or the provision of services within one (1) year of the issuance of the development permit; or

B. The necessary facilities and services are guaranteed in an enforceable development agreement that requires the commencement of actual construction of the facilities or the provision of the services within one (1) year of the issuance of the applicable development permit. An enforceable development agreement may include but is not limited to development agreements pursuant to F.S. § 163.3220 or an agreement or development order issued pursuant to F.S. ch. 380.

5. Public schools. School concurrency decisions should support and not be in conflict with growth management policies of the comprehensive plan and shall be based upon the school board's concurrency review findings and recommendations and interlocal agreement.

A. Concurrency approval shall be granted by the administrative official only where:

i. The school board's findings indicate adequate school facilities for each level of school will be in place or under construction within three (3) years of the issuance of the subdivision plat or site plan for each level of school.

ii. Adequate school facilities are available in the relevant school concurrency service area (CSA) or adjacent CSA where impacts of development can be shifted to that area; or

iii. The developer executes a legally binding commitment to provide mitigation proportionate to the demand for public school facilities to be created by the actual development of the property subject to the final plat or site plan.

iv. The identified deficiency is mitigated by available capacity in a start-up charter school.

B. In the event that there is not sufficient capacity in the affected concurrency service area based on the adopted level of service standard to address the impacts of a proposed development, and the availability standard for school concurrency cannot be met, one (1) of the following shall apply:

i. The project shall provide capacity enhancement(s) sufficient to meet its impact through mitigation approved by the school board and consistent with the city's school facilities element of the comprehensive plan; or

ii. The project shall be delayed to a date when the level of service can be ensured through capital enhancement(s) of planned capacity increases; or

iii. A condition of approval of the subdivision or site plan is imposed to phase the project's impact on a schedule ensuring that capacity enhancement and level of service can be ensured; or

iv. The project shall not be approved.

C. If the impact of the project will not occur until years two (2) or three (3) of the school board's financially feasible five-year program of work, then any relevant programmed improvements in those years shall be considered available capacity for the project and factored into the level of service analysis. If the impact of the project will not be felt until years four (4) or five (5) of the five-year program of work, then any relevant programmed improvements shall not be considered available capacity for the project unless funding of the improvement is ensured through school board funding to accelerate the project, through proportionate share mitigation or some other means.

b. Additional requirements.

1. Solid waste. Commercial and industrial developments that are potential hazardous waste generators shall provide a description and estimate of tonnage of solid waste to be generated for which the development will be responsible for coordinating with Polk County for disposal of such waste. The applicant will provide the city with a notarized letter from Polk County certifying that the proposed development's hazardous waste generation can be accommodated at the county's landfill. A certificate of occupancy will not be issued unless all improvements necessary to accommodate the impacts of the development are in place.

2. Recreation. Commercial and industrial developments are not assessed as having an impact on recreational facilities. However, the city may require the provision of recreational facilities as part of planned unit developments. Prior to the issuance of a building permit, all facility improvements necessary to accommodate the impacts of the entire development must be approved and a schedule established for their implementation such that all improvements will be completed prior to the issuance of the last certificate of occupancy.

(Ord. No. 2005-27, § 1, 7-5-05; Ord. No. 2006-46, § 2, 12-5-06; Ord. No. 2008-05, § 6, 2-19-08)

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

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)