§ 23-269. Public school facilities proportionate share mitigation.

(a)

Purpose and intent. The purpose of this section is to establish a method whereby the impacts of proposed residential development on public school facilities can be mitigated by the developer in situations where the proposed project creates or increases a capacity deficit within one (1) or more school types (elementary, middle, high), based on the adopted LOS standard, within the subject CSA and that such capacity deficit cannot be cured by available capacity in an adjoining CSA and whereby the developer agrees to mitigate such capacity deficit through an acceptable binding commitment consistent with section 163.3180(13), Florida Statutes, as such may be amended or renumbered from time to time.

(b)

Findings. Hernando County Board of County Commissioners finds that allowing developers the ability to enter into proportionate share mitigation agreement:

(1)

Provides a method by which the impacts of residential development on public school facilities can be mitigated by the cooperative and creative efforts of the public and private sectors;

(2)

Allows developers to proceed under certain conditions, notwithstanding the failure of public school facilities concurrency, by contributing their proportionate fair share of the cost of providing, expanding or improving a public school facility; and,

(3)

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 overcrowding at public school facilities.

(c)

Applicability. The proportionate fair-share program shall apply to any residential development project in Hernando County where the project's impacts creates or increases a capacity deficit within one (1) or more school types (elementary, middle, high), based on the adopted LOS standard, within the subject CSA and that such capacity deficit cannot be cured by available capacity in an adjoining CSA. The proportionate fair-share program does not apply to developments exempted from concurrency as provided in this article.

(d)

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

(1)

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

(2)

The school district determines that the proposed project will create or increase a capacity deficit within one (1) or more school types (elementary, middle, high), based on the adopted LOS standard, within the subject CSA and that such capacity deficit cannot be cured by available capacity in an adjoining CSA; and

(3)

The developer is willing to enter into and execute a legally binding commitment (via an acceptable proportionate share mitigation agreement) which mitigates the actual capacity deficit created by the proposed project in a fair and proportionate manner.

(e)

Mitigation alternatives.

(1)

Procedures. In the event the proposed project meets the requirements for proportionate share contribution, then the following procedure shall be used.

a.

The applicant (developer) shall initiate in writing a mitigation negotiation period with the school district in order to establish an acceptable form of mitigation proportionate with the project's impact on an existing or actual capacity deficit, pursuant to section 163.3180(13)(e), Florida Statutes, the county's comprehensive plan, and this article.

b.

Acceptable forms of mitigation may include:

1.

The donation, construction, or funding of school facilities sufficient to offset the demand for public school facilities to be created by the proposed development.

2.

Construction of a charter school that complies with the requirements of section 1002.33(18), Florida Statutes.

3.

The creation of mitigation banking based on the developer's construction and/or financing of a public school facility in exchange for the right to sell excess capacity credits (the selling of excess credits shall be limited to that area within the subject CSA or any abutting CSA) and as may be further limited by this article, and subject to review and approval by the school district.

c.

Mitigation negotiation period:

1.

If within ninety (90) days of the date the applicant initiates the mitigation negotiation period, the applicant and the school district are able to agree to an acceptable form of mitigation, a legally binding proportionate share mitigation agreement shall be executed by the applicant and the school board (together with the county) which sets forth the terms of the mitigation, including such issues as the amount, nature, and timing of donations, construction, or funding to be provided by the developer, and any other matters necessary to effectuate mitigation in accordance with the county's comprehensive plan and this article. The proportionate share mitigation agreement shall specify the amount and timing of any impact fee credits or reimbursements, if any, that the developer expects to receive in connection with its mitigation payment/donation under said agreement.

2.

The school district may grant up to two (2) ninety-day extensions to the mitigation negotiation period.

3.

If, after ninety (90) days, together with any allowed extensions, the applicant fails to proffer an acceptable proportionate share mitigation agreement, then the school district will issue a written finding of no available capacity which the school district shall send to the applicant with a copy to county.

(2)

Standards. The following standards apply to any proposed proportionate share mitigation agreement:

a.

Relocatable classrooms will not be accepted as mitigation.

b.

Mitigation shall be directed to projects on the school district's financially feasible five-year work program that the school district agrees will satisfy the demand created by that development approval, and shall be assured by a legally binding proportionate share mitigation agreement between the school board, the county, and the applicant. The development agreement shall be executed prior to the issuance of the applicable subdivision plat, site plan or functional equivalent in the development review process.

c.

Student generation formula. The student generation formula used for calculating mitigation shall be as follows:

Number of Student Stations (by school type) = Number of Dwelling units (by housing type) × Student Generation Multiplier (by housing type and school type)*

[*Student Generation Multipliers shall be based upon the best available data and professionally accepted methodology and the most recent supporting data and analysis promulgated by the school district]

d.

Cost per student station. For purposes of this article, cost per student station estimates shall include, at a minimum, all costs of providing instructional and core capacity including land, site improvements, design, buildings, equipment, furniture, and costs of financing (if applicable). The capital costs associated with transportation of students shall not be included in the cost per student station estimate used for mitigation.

e.

All mitigation pursuant to this section must be proportionate to the demand for public school facilities to be created by the actual development of the property and based upon an existing and actual school capacity deficit (as determined pursuant to this article) within one (1) or more school types (elementary, middle, high).

(3)

Calculation of proportionate mitigation share. The proportionate mitigation share amount shall be calculated as follows:

Proportionate Share Amount = Number of Student Stations (by school type) × Cost per Student Station (by school type)**

[**The above formula shall be calculated for each housing type within the proposed development and for each school type (elementary, middle, high) for which a capacity deficiency has been identified. The sum of these calculations shall be the proportionate share amount for the development under review.]

(4)

Credits. The applicant shall be entitled to a credit against its mitigation obligation for any public school facilities impact fees and other exactions (i.e. contributions of land and/or facilities improvements) imposed by county ordinance or contained within a development order or development agreement between the applicant and the county or school district for the same need on a dollar-for-dollar basis at fair market value.

(5)

Amendments to five-year work plan/capital improvement element. If the school district agrees to the developer's proffered proportionate share mitigation agreement, then the school district must commit to adding the improvement required for mitigation to its five-year work program and the county must commit to amending its capital improvement element and capital improvement schedule accordingly. The agreement shall include the landowner's commitment to continuing renewal of the development agreement upon its expiration.

(Ord. No. 2009-18, § I, 12-8-09)