§ 23-268. Transportation proportionate fair-share mitigation.

(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 section 163.3180(16), Florida Statutes.

(b)

Findings.

(1)

Hernando County Board of County Commissioners finds and determines that transportation capacity is a commodity that has a value to both the public and private sectors and that the county proportionate fair-share program:

a.

Provides a method by which the impacts of development on transportation facilities can be mitigated by the cooperative and creative 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 expanding or improving 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; and

d.

Maximizes the use of public funds for adequate transportation facilities to serve future growth, and may, in certain circumstances, allow the county to expedite transportation improvements by supplementing funds currently allocated for transportation improvements in the capital improvements element.

(c)

Applicability. The proportionate fair-share program shall apply to any development project in Hernando County where the project's traffic impact study or the county planning director (or his designee) determines that there is insufficient capacity on one (1) or more segments to satisfy the development project's transportation concurrency requirements. The proportionate fair-share program does not apply to developments of regional impact (DRIs) using proportionate fair share under section 163.3180(12), Florida Statutes, or to developments exempted from concurrency as provided in this article.

(d)

General requirements.

(1)

An applicant whose project meets the criteria of this section may choose to satisfy transportation concurrency requirements by making a proportionate fair share contribution, pursuant to the following requirements:

a.

The proposed development is consistent with the comprehensive plan and applicable land development regulations, and

b.

The five-year schedule of capital improvements in the county capital improvements element (CIE) includes one (1) or more transportation improvements that, upon completion, will provide sufficient capacity for the deficient segments to accommodate the traffic generated by the proposed development.

(2)

The county may choose to allow an applicant to satisfy transportation concurrency for a deficient segment, through the proportionate fair-share program, by the developer contributing to an improvement that, upon completion, will create additional capacity on the deficient segment sufficient to accommodate the additional traffic generated by the applicant's proposed development even if the improvement project for the deficient segment is not contained in the five-year schedule of capital improvements in the CIE where:

a.

The board of county commissioners holds an advertised public hearing to consider the proportionate share agreement and corresponding future changes to the five-year CIE; and

b.

The county adopts, by ordinance or resolution, a commitment to add the improvement to the five-year CIE. To qualify for consideration under this section, the proposed year schedule of capital improvements in the improvement must be reviewed by the board of county commissioners, and determined to be financially feasible pursuant to section 163.3180(16)(b)1, Florida Statutes, consistent with the comprehensive plan, and in compliance with the provisions of this article. Financial feasibility for this section means that additional contributions, payments or revenue sources to fund the improvement project are reasonably anticipated during a period not to exceed ten (10) years.

(3)

If the funds allocated for the five-year schedule of capital improvements are insufficient to fully fund construction of a transportation improvement required by the concurrency management system, the county 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 (1) or more improvements which will, in the opinion of the government entity or entities maintaining the transportation facilities, significantly benefit the impacted transportation system.

(4)

Improvements funded by the proportionate fair-share component must be adopted into the five-year capital improvements schedule at the next annual capital improvements update.

(5)

Any improvement project proposed to meet a developer's fair-share obligation must meet design standards of the county for locally maintained roadways and those of the Florida Department of Transportation (FDOT) for the state highway system.

(e)

Application process.

(1)

Upon identification of a lack of capacity to satisfy transportation concurrency, an applicant may choose to satisfy transportation concurrency through the proportionate fair-share program pursuant to the requirements of this section.

(2)

Prior to submitting an application for a proportionate fair-share agreement, the applicant shall attend a pre-application meeting with planning and traffic engineering staff to discuss eligibility, application submittal requirements, potential mitigation options, and related issues. If the impacted facility is on the strategic intermodal system (SIS), then the Florida Department of Transportation (FDOT) will be notified and invited to participate in the preapplication meeting.

(3)

Eligible applicants shall submit an application to the county that includes an application fee as established by resolution 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 method(s);

g.

Copy of concurrency application;

h.

Copy of the project's traffic impact statement (TIS) or traffic impact analysis (TIA); and

i.

Location map depicting the site and affected road network.

(4)

Within ten (10) business days, planning staff 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 this section, then the applicant shall be notified in writing of the reasons for such deficiencies within ten (10) business days of submittal of the application. If such deficiencies are not remedied by the applicant within thirty (30) days of receipt of the written notification, then the application shall be deemed abandoned. The board of county commissioners 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 section 163.3180(16)(e), Florida Statutes, proposed proportionate fair-share mitigation for development impacts to facilities on the strategic intermodal system requires the concurrence of the Florida Department of Transportation (FDOT). If an SIS facility is proposed for proportionate share mitigation, 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, a proposed proportionate fair-share obligation and binding agreement will be prepared by the county or the applicant with direction from the county 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 sixty (60) days from the date at which the application was determined to be sufficient and no fewer than fourteen (14) days prior to the board of county commissioners meeting when the agreement will be considered.

(7)

The county shall notify the applicant regarding the date of the board of county commissioners meeting at which the agreement will be considered for final approval. No proportionate fair-share agreement will be effective until approved by the board of county commissioners.

(f)

Determining proportionate fair-share obligation.

(1)

Proportionate fair-share mitigation for concurrency impacts may include, separately or collectively, private funds, contributions of land, and construction and contribution of facilities as provided in section 163.3180(16)(c), Florida Statutes.

(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 section 163.3180(16)(c), Florida Statutes.

(3)

The methodology used to calculate an applicant's proportionate fair-share obligation shall be as provided for in section 163.3180(12), Florida Statutes, as follows:

The cumulative number of peak hour, peak direction trips from the complete build out of the proposed development, or build out of the stage or phase being approved, that are assigned to the proportionate share program segment divided by the change in the peak hour directional maximum service volume (MSV) of the proportionate share program segment resulting from construction of the proportionate share program improvement, multiplied by the anticipated construction cost of the proportionate share project in the year that construction will occur.

This methodology is expressed by the following formula:

Proportionate Fair Share = [[(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:

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.

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 consist of all improvements and associated costs, including design, right-of-way acquisition, planning, engineering, inspection, and physical development costs, directly associated with construction at the anticipated cost in the year that construction will occur.

(4)

For purposes of determining proportionate fair-share obligations, the county shall determine improvement costs based upon the actual and/or anticipated costs of the improvement in the year that construction will occur. These costs will be determined by the county's public works department. Accepted sources for determining improvement costs may include, but not be limited to, the most recent issue of FDOT transportation costs, as adjusted, based upon the type of cross-section, and locally available data from recent projects.

(5)

If the county has accepted an improvement project proposed by the applicant, then the value of the improvement shall be based on an engineer's certified cost estimate provided by the applicant and approved by the county's public works director or other method approved by the county's public works director.

(6)

If the county 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 one hundred twenty (120) percent of the most recent assessed value by the county property appraiser or, at the option of the applicant, by fair market value established by an independent appraisal approved by the county and at no expense to the county. Said appraisal shall assume no approved development plan for the site. The applicant shall supply a drawing and legal description of the land and a certificate of title or title search of the land to the county at no expense to the county. If the estimated value of the right-of-way dedication proposed by the applicant (based on a county-approved appraisal) is less than the county estimated total proportionate fair-share obligation for that development, then the applicant must also pay the difference. If the estimated value of the right-of-way dedication proposed by the applicant (based on a county-approved appraisal) is more than the county estimated total proportionate fair-share obligation for the development, then the county will give the applicant roads impact fee credit for the difference.

(g)

Impact fee credit for proportionate fair-share mitigation.

(1)

Proportionate fair-share mitigation payments for a development project shall be applied as a credit toward the roads impact fees assessed to that development project to the extent that all or a portion of the proportionate fair-share mitigation is used to address the same capital infrastructure improvements contemplated by the county's impact fee ordinance.

(2)

Impact fee credits for a proportionate fair-share contribution will be determined when the roads impact fee obligation is calculated for the proposed development. If the applicant's proportionate fair-share obligation is less than the development's anticipated roads impact fee for the specific stage or phase of development under review, then the applicant must pay the remaining impact fee amount.

(3)

A proportionate fair-share contribution is intended to mitigate the transportation impacts of a proposed development at a specific location. As a result, any roads impact fee credit based upon proportionate fair-share contributions for a proposed development may not be transferred to any other location.

(4)

The amount of roads impact fee (RIF) credit for a proportionate fair-share contribution may be up to but shall not exceed the project's proportionate fair share amount.

(5)

A proportionate fair share impact fee credit shall be applied consistent with the following formula:

Applicant payment = [(Total project roads impact fees assessed) + (Proportionate share payment) - (RIF CREDIT)

(h)

Proportionate fair-share agreements.

(1)

Upon executing a proportionate fair-share agreement (agreement) and satisfying other concurrency requirements, an applicant shall receive county certificate of concurrency approval. Should the applicant fail to apply for building permits within the time frame provided for in the county concurrency certificate, then the project's concurrency vesting shall expire, and the applicant shall be required to reapply. Once a proportionate 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 payment of other impact fees assessed to that project shall be due and must be paid prior to 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 board or its designee.

(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. The security instrument shall conform to the subdivision construction security requirements utilized by the county development department. It is the intent of this article 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 occur 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 increase project costs or generate additional traffic that would require mitigation.

(6)

Applicants may withdraw from a proportionate fair-share agreement at any time prior to the execution of the agreement. The application fee and any associated advertising costs to the county are nonrefundable.

(7)

The county may enter into proportionate fair-share agreements for selected corridor improvements to facilitate collaboration among multiple applicants on improvements to a shared transportation facility.

(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 county capital improvements element, or as otherwise established in the terms of the proportionate fair-share agreement. Proportionate fair-share revenues may also be used as the fifty (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 capital improvements element (CIE), then the proportionate fair share revenues collected for its construction may be applied toward the construction of alternative improvements within that same corridor or sector where the alternative improvement will mitigate the impacts of the development project on the congested roadway(s) for which the original proportionate fair share contribution was made.

(Ord. No. 2009-18, § I, 12-8-09)