(a)

The construction of public transportation, potable water, sanitary sewer, solid waste, drainage, and parks and recreation facilities or any development or construction project which provides for the public health, safety or welfare shall be exempt from the provisions of this article.

(b)

Permits for accessory structures to established principal land uses where such accessory structures will not result in increased impacts shall also be exempt from the provisions of this article.

(c)

Any development order approved pursuant to a county development agreement wherein it is stated that the project's development order is exempt from this article shall state the specific provisions of this article from which it is exempt.

(Code 1979, § 14-69(e))

(a)

Purpose of concurrency evaluation. The concurrency evaluation system shall measure the potential impact of any development permit proposal upon the established minimum acceptable level of service for a roadway, solid waste, potable water, drainage, sanitary sewer, public schools, or park facility or service. The most current available information and data regarding such public facilities' or services operating levels of service shall be utilized for concurrency evaluations. Any party pursuing approval of a site plan, subdivision plat or building permit shall submit a valid concurrency evaluation, approved by the director of the planning and development services department or his designee, along with the application for development permit approval. No final development permit shall be approved unless adequate facilities are available as determined by the concurrency evaluation. A preliminary concurrency evaluation shall be performed on zoning actions.

(b)

Preliminary evaluation prior to zoning action. For review of zoning applications, a preliminary concurrency evaluation shall be completed as part of the zoning review process to illustrate the relationship between the proposal and the availability of services and facilities for the planning and zoning board, the School Board of Brevard County, and the board of county commissioners. This review will be based on the information described in the zoning application. The results of this preliminary review are for the use of the county in its review of the zoning application and a school area impact analysis application.

(c)

Application for evaluation prior to application for site plan, subdivision plat or building permit approval. Any party requesting a concurrency evaluation shall submit the following information to the planning and development services department, on a form provided by the county, and pay a fee established by resolution by the board of county commissioners, which may be amended from time to time:

(1)

The owner's name, address and telephone number.

(2)

The applicant's name, address and telephone number.

(3)

A legal description of the property.

(4)

The size of the property in acres.

(5)

A capacity certificate from the county utilities department, or from a service provider other than the county for water and sewer service, as applicable. The certificate shall state that adequate capacity is available for the applicable service to support the project based on the county's applicable level of service as defined in subsections (d)(2)b. and (d)(3)b. of this section. The certificate shall also state the total capacity needs of the project. If capacity is reserved, the certificate shall state the length of time for which capacity is reserved and provide beginning and ending dates for such reservation.

(6)

The specific use or uses.

(7)

The square footage or number of units of each use.

(8)

If a subdivision, the number and type of units for each phase.

(9)

A completed school area impact analysis form (residential projects only).

Any application for a development permit must be consistent with the information on which the concurrency evaluation was based. If the applicant increases the intensity or density of the development proposal during any stage in the development approval process, a new concurrency evaluation will be required.

(d)

Criteria for evaluation. The following criteria, utilizing best evaluation practices, shall be used to determine whether levels of service of the various facilities and services are adequate to support the specific impacts of the proposed development:

(1)

Transportation facilities.

a.

The transportation facilities shall be evaluated using maximum acceptable volume as determined by methodology based on the 1985 Highway Capacity Manual, as amended.

b.

Properties served by local roadways located within a recorded subdivision plat shall be evaluated for impact on the affected arterial, collector or intraurban segment as identified by the county's concurrency evaluation system, using best evaluation practices as approved by the board of county commissioners.

c.

The impact of the proposed development on the transportation system shall be determined by utilizing the trip generation data set forth in the most recent available edition of the ITE Trip Generation Manual, and the development shall be evaluated for its impact to the appropriate arterial, collector or intraurban roadways in the county. An applicant may supply for consideration alternative data for affected roadways or data for the potential impacts of the development. Also, the county reserves the right to require additional traffic impact studies as they relate to an applicant's proposed project where the applicant has supplied alternative data on the potential impact of a project. This data shall use established engineering practices and shall be certified by a registered engineer. The county shall maintain the option of accepting or rejecting any such alternative data. The estimated number of trips generated by the proposed development shall be subtracted cumulatively from the available capacity on the affected roadways to determine whether the roadway's capacity is adequate to support the development based on the impacted roadway's level of service. The following level of service standards shall apply within the urban and rural area boundaries as defined by the state department of transportation:

d.

For roadways where a traffic count does not exist, the county shall provide the count within ten working days.

e.

The calculation of total traffic generated by a proposed nonresidential or mixed use project will assume 100 percent build-out and occupancy of the project. Credit against the trip generation of nonresidential land uses may be taken utilizing the procedures outlined in the ITE Trip Generation Manual, most recent edition. For mixed use development, any trips that will be absorbed internally by the project shall be stated and justified by the applicant. The procedures outlined in the ITE Trip Generation Manual, most recent edition, can be used to quantify pass-by trips.

(2)

Sanitary sewer facilities.

a.

If the system is county operated, the county utilities services department shall determine capacity for sanitary sewer facilities by utilizing the existing capacity, which shall be determined by subtracting the committed capacity and present flow from the design capacity of the facilities. The county utilities department or other service providers shall issue a capacity certificate or its equivalent pursuant to subsection (c)(5) of this section and all other applicable sections of this Code.

b.

The impact on the treatment plant shall be determined utilizing the county's level of service standards of 200 gallons per day per residential unit and 200 gallons per equivalent unit per day for nonresidential projects.

(3)

Potable water facilities.

a.

If the system is county operated, the county utilities division shall determine capacity for potable water facilities by utilizing the existing applicable plant capacity, which shall be determined by subtracting the committed capacity and present flow from the design capacity of the facilities. The county utilities department or other service providers shall issue a capacity certificate or its equivalent pursuant to subsection (c)(5) of this section and all other applicable sections of this Code.

b.

The impact on the treatment plant shall be determined utilizing the county's potable water level of service standards of 250 gallons per day for residential units and 200 gallons per equivalent unit per day for nonresidential projects.

c.

Where private wells are to be utilized, the standards of the St. Johns River Water Management District and other applicable state regulations shall be utilized.

(4)

Solid waste facilities. The impact on the solid waste facility shall be determined as the amount of solid waste estimated to be produced by the development according to the county's minimum acceptable level of service standard as established annually. Evaluations for impact on solid waste facilities shall be based on a comparison of the anticipated impact of the proposed development on the remaining capacity of the county landfill.

(5)

Parks and recreation.

a.

Adequacy of public park and recreation facilities shall be based on the county's level of service standard of 1.20 total developed acres of neighborhood, community and urban district parks per 1,000 people within each planning area.

b.

The impact of proposed development shall be determined by a comparison of the projected population of the applicable planning area, including the potential increase in population due to the proposed development, to the total number of acres developed for neighborhood, community and urban district parks within the applicable planning area as shown on map 1 of the comprehensive plan. The average household size as maintained by the county research and cartography division shall be used to determine a residential project's potential population.

c.

If a development proposal provides for active recreational facilities as described in table 1, entitled "Recreational Site Development and Operational Guidelines," for neighborhood, community or urban district parks, adopted as part of the recreation and open space element of the comprehensive plan, the land area devoted to these facilities shall be utilized to determine the availability of parks and recreational facilities for the development pursuant to the acceptable level of service of 1.20 developed park acres per 1,000 population.

(6)

Drainage facilities. Adequacy of stormwater management facilities shall be determined at the time of engineering review based on the county's level of service standard as established in policy 3.1 of the surface water element of the county comprehensive plan.

(7)

Public School facilities. Adequacy of Public School facilities for all non-exempt residential development shall be determined as established in public school facilities element of the comprehensive plan. The school district shall issue a school capacity determination letter (SCADL) all non-exempt development determining compliance or offering a 90-day negotiation period for mitigation.

(e)

Concurrency evaluation finding of deficiency.

(1)

If the concurrency evaluation test finds that the development permit proposal will cause a deficiency of any public facility or service serving the proposed development site for which a minimum acceptable level of service has been established, or through updating or revising data for these public facilities and services the county determines that there is a deficiency, the county reserves the authority to deny or defer a development proposal, to cause a development permit proposal to be modified to achieve consistency with the minimum acceptable levels of service, or to process a proposal as a conditional development permit pursuant to section 62-604.

(2)

When the impact evaluation of a development permit proposal indicates that its approval will cause a deficiency in any concurrency-related public facility or service necessary to adequately service the proposed development, the following steps shall be taken:

a.

The identified facility or service for which a deficiency is predicted shall undergo an extended analysis by the responsible agency within 30 days to ensure the deficiency conclusion was based on best evaluation practices; and

b.

The applicant may utilize the options described in subsection (d)(1)c. of this section, where an applicant may submit to the county an alternative analysis of capacity status and the proposal's projected impact upon that facility or service. This data shall use established engineering standards and practices, and the results shall be certified for and in favor of the county by a registered engineer. The county shall maintain the option of accepting or rejecting any such alternative analyses; or

c.

The applicant may elect to reduce the impact of the development permit proposal to such a level that no deficiencies would be created; or

d.

The applicant may choose to make necessary improvements to the facility which would provide adequate capacity to accommodate the project; or

e.

If subsections (e)(2)a. through (e)(2)d. of this section prove insufficient or unattainable, at the applicant's option a portion of the development proposal may be conditionally approved based upon available facility and service capacities. The remainder of the development shall be deferred to a time determined by the process set forth in subsections (e)(3) and (4) of this section.

f.

The applicant may employ a combination of the remedies given in subsections (e)(2)a. through (e)(2)e. of this section.

g.

If subsections (e)(2)a. through (e)(2)e. of this section prove insufficient to resolve the impact issue, the applicant may petition the board of county commissioners to include the appropriate facility improvements in the county capital improvements schedule as described in section 62-604.

(3)

When a concurrency facility or service has been found to be lacking in available service capacity pursuant to the acceptable levels of service standards set forth in the county comprehensive plan, the staff will prepare a document to be considered at a public hearing by the board of county commissioners, which shall establish a moratorium for a sufficient period of time to permit the scheduling of the necessary deficiency-remedying improvements into the capital improvements program, financial feasibility permitting.

(4)

If the concurrency evaluation finds that a development permit proposal will cause a deficiency of any public facility or service serving the proposed development, the applicant may pay a fee to reserve priority over subsequent applications which are served by the same facility or service for a period of one year. When adequate capacity for the deficient facility or service becomes available, those applications with the highest priority, which have maintained a reservation, shall receive notification from the county of the approval date of their concurrency evaluation.

(5)

When an applicant's reserved priority becomes available and the proposal receives its concurrency approval, the applicant's approved concurrency evaluation shall be valid for six months, subject to the timeframes defined in subsection (f) of this section.

(6)

Mitigation of public school concurrency deficiencies may be considered by the county with the approval of the school district who shall evaluate developer proposed applications for proportionate share mitigation. Mitigation options may include, but are not limited to:

a.

Contribution of land or payment for land acquisition in conjunction with the provision of additional school capacity; or

b.

Mitigation banking based on the construction of a public school facility in exchange for the right to sell capacity credits; or

c.

Donation of buildings for use as a primary or alternative learning facility; or

d.

Renovation of existing buildings for use as learning facilities; or

e.

Construction or expansion of permanent student stations or core capacity; or

f.

Construction of a public school facility in advance of the time set forth in the School District's Five-Year Capital Facilities Work Program.

g.

Construction of a charter school designed in accordance with school district standards.

(7)

For mitigation measures in subsections (6)a. through g. above, the estimated cost to construct the mitigating improvement will reflect the estimated future construction costs at the time of the anticipated construction.

a.

Improvements contributed by the developer shall receive school impact fee credit.

b.

The cost difference between the developer's mitigation costs and the impact fee credit, if greater, shall be the responsibility of the developer.

(f)

Concurrency evaluation finding of nondeficiency. A finding of nondeficiency by a concurrency evaluation shall remain valid provided the application for development permit approval is submitted within six months after the date of the results of the concurrency evaluation, with the exception of single-family residences, which shall be governed by the standards of section 62-604. Once the application has been officially received by the land development division, the following prescribed timeframes shall apply:

(1)

For applicants opting to vest a site development plan approval, the finding shall remain valid up to nine months from the date of the concurrency evaluation in order to allow the appropriate amount of time for review and completion of the site planning process. Upon approval of a site plan, the concurrency finding of nondeficiency shall remain valid for a period not to exceed up to 12 months from the date of the concurrency evaluation. In order to maintain the original vesting, the building permit must be pulled within this 12-month period.

(2)

For a residential subdivision, or phase or unit thereof, including residential subdivision phases of a planned unit development, the finding shall remain valid 12 months from the date of the concurrency evaluation in order to allow the appropriate amount of time for review and completion of the subdivision review process. Upon approval of a subdivision, the concurrency finding of nondeficiency shall remain valid for a period not to exceed 36 months from the date of the construction permits approval, providing the work authorized proceeds in a timely manner as prescribed by the county. The subdivision finding may be renewed once for a period of time not to exceed 24 months if renewal is requested prior to expiration of the concurrency finding. Immediately prior to a renewal there must be a three-month waiting period from the time of expiration where the capacity not used by the subdivision is made available for the approval of other development. Any renewal will follow the concurrency evaluation criteria as defined in subsection (d) of this section.

(3)

A three-month extension of a finding of nondeficiency for site plans and subdivisions that have been submitted to the land development division for review may be approved by the land development division director. This may be permitted only during that period of time where the proposed project is under active review by the land development division and where the applicant has made timely applications, if required, to the St. Johns Water Management District, the state department of natural resources, the state department of environmental regulation or other permitting agency, but has not received approval from such agency by the end of the time allowed in this article according to subsections (f) (1) and (2) of this section for the county's subdivision or site plan review. Should an additional three-month extension be necessary, such extension must meet the same criteria given for the first three-month extension; however, the second extension shall be approved only by the board of county commissioners. The applicant shall be limited to a total of two extensions as set out in this subsection, with the first granted by the land development division director and the second by the board of county commissioners. Timely application shall be defined for purposes of this section as an application made within 30 days of site development plan submittal or subdivision submittal. The applicant shall be responsible for requesting any extensions provided for under this section, and shall also be required to show proof of eligibility for exemption by submitting to the land development division a copy of the application to a permitting agency for verification.

(4)

For an individual single-family lot or parcel, the building permit must be obtained within 24 months of the date of the finding of nondeficiency, and work authorized must proceed in a timely manner pursuant to the Standard Building Code. Lots included within subdivisions which have not passed a concurrency evaluation, or where the concurrency evaluation and vesting period have expired, are included in this category.

(5)

For the purpose of approving a final development order, subject to the restrictions in subsection (f)(6) of this section, property owners shall have the option of pursuing a development agreement with the county as provided for in section 62-605. A concurrency evaluation shall be conducted as a component of a development agreement, and if concurrency is found or guaranteed the timeframe for the finding's validity shall be set forth in the agreement.

(6)

For site plans and subdivisions, the vesting provisions of subsections (f)(1) through (6) of this section shall apply only in the following circumstances:

a.

Threshold capacity. The vesting periods described in this subsections (f)(1) through (6) of this section shall be available only where the levels of service are at or below the following levels:

1.

Road capacity. The affected roads are operating or committed at a level equal to or less than 85 percent of the acceptable level of service.

2.

Sewer. The appropriate sewer facilities are operating or committed at a level equal to or less than 85 percent of the existing plant capacity as determined by the service provider or appropriate authority.

3.

Water. The existing plant is operating or committed at a level equal to or less than 85 percent of the existing plant capacity as determined by the service provider or appropriate authority.

4.

Parks. The area available for parks is equal to or greater than 1.40 acres for every 1,000 persons.

5.

Solid waste. The appropriate solid waste facility is committed at a level equal to or less than 85 percent of the existing capacity.

6.

Public schools. The appropriate school facilities will not exceed allowable capacity.

For the purposes of this section, committed capacity shall mean those capacities reserved for a development project pursuant to any provision of this article. Determination of committed and available capacity shall be the responsibility of the appropriate authority as described in subsections (d)(1) through (6) of this section.

b.

Maximum capacity allotment. In addition to the threshold capacity restrictions described in subsection (f)(6)a. of this section, a site plan or subdivision shall be allotted no more than 25 percent of the remaining capacity of a facility. Project size shall be determined utilizing the most restrictive of the facilities named in subsection (f)(6)a. of this section. No more than one phase shall be approved for development until 50 percent of the residential lots or units or commercial projects approved for that phase have been sold or developed.

c.

Development agreement to allow vesting. A project or phase requiring services or facility capacity in excess of the maximum capacity allotment stated in subsection (f)(6)a. or (f)(6)b. of this section or seeking to extend the vesting period for a finding of nondeficiency beyond the limits stated in this section may have the option of entering into a development agreement with the county as provided in section 62-605 to provide for these services or for extended vesting. Projects or phases in which the threshold capacity will be exceeded may also have the option of entering into a development agreement as described in section 62-605.

(g)

Expiration of finding of nondeficiency. Where any of the applicable timeframes, as set forth in subsection (f) of this section, for a particular project expire, a new concurrency evaluation shall be required prior to application for the next development permit. Any vesting period relating to concurrency may be considered void if the applicant fails to perform in fulfilling all requirements to keep the vesting current, including the payment of all fees pursuant to a capacity reservation for a particular service. If the applicant maintains a capacity reservation for a particular service, the expiration of the concurrency evaluation finding of nondeficiency shall not nullify such capacity reservations.

(h)

Cumulative records of level of service. The concurrency evaluation system shall maintain a cumulative record of the level of service allocations permitted by the approval of development permits relative to the operating levels of service for all applicable public facilities and services which have established minimum acceptable levels of service as described in subsection (f)(6)a. of this section. The county shall make these records available at all of the county service complexes to inform the general public as to the status of all of the public facilities and services which are required to be monitored for concurrency.

(i)

Re-evaluation of a congested roadway segment for substantial traffic count decreases. When a congested roadway segment's traffic count volume reveals a substantial decrease, as compared to that segment's current traffic volume, the roadway segment shall undergo a re-count and an extended analysis by the responsible agency within six months to ensure the accuracy of the current traffic volume. For the purpose of this section, a congested roadway segment is defined as a roadway segment, which has a current volume of greater than 85 percent of the segment's maximum acceptable volume and a substantial decrease is defined as a decrease on a congested roadway segment, which reveals a reduction in volume by ten percent or more or reduces the traffic volume below 85 percent of the segment's maximum acceptable volume. Where a re-count and an extended analysis is required, the previous current traffic volume of a roadway segment shall be utilized until the conclusion of the analysis.

(Code 1979, § 14-69(a); Ord. No. 2003-20, §§ 1, 2, 5-20-03; Ord. No. 08-25, § 1, 8-5-08; Ord. No. 2018-24, § 21, 10-9-18)

(a)

Monitoring procedures. The county shall maintain written or computerized records of all capacity or volumes which are committed for developments as a result of development permits issued by the county. Where another jurisdiction provides services to a project in the unincorporated area of the county, the county shall require that the appropriate information regarding those services be provided to the county prior to completing a concurrency evaluation.

(b)

Measurement of potential impacts. For purposes of measuring the potential impact of a project, all previously committed volumes and capacities shall be taken into account cumulatively and compared to the level of service and total available capacity or volume, as appropriate.

(Code 1979, § 14-69(b))

The county may conditionally approve a development permit pursuant to the following criteria if the concurrency evaluation test indicates that the potential impact of a site development plan, subdivision or building development permit will cause a deficiency to occur to an established minimum acceptable level of service:

(1)

Subdivision plats and site plans. Subdivision plats and site plans may be approved if a deficient public facility improvement based on the established acceptable levels of service is contained in the county annual capital improvements schedule, the county capital improvements program schedule, or the first three-year schedule of the capital improvements programs of other governmental agencies, and the improvement will provide a level of service sufficient to accommodate the potential impact of the proposed development.

(2)

Building permits.

a.

Building permits may be approved if construction of a necessary public facility improvement based on the acceptable levels of service is budgeted in the annual capital improvements budget, or is under binding contract for construction, is under another binding financial commitment mechanism, or is already under construction, and the improvement will provide a level of service sufficient to accommodate the potential impact of the proposed development.

b.

Building permits may be approved if the developer agrees to construct all improvements necessary to accommodate the impacts of the proposed development.

c.

Building permits may be approved if the applicable impact fees or "fees-in-lieu-of" which relate to the specific public facility improvements necessary to accommodate the impacts of the permit are scheduled within the capital improvements program and are paid.

d.

To obtain the benefit of section 62-602(f), all fees shall be paid prior to the issuance of a building permit, notwithstanding the payment time specified in article V of this chapter or any other ordinances.

e.

For review of zoning applications, the preliminary concurrency evaluation shall be used for general information purposes only as part of the zoning review. Subsequent to the approval of a zoning application, a formal concurrency evaluation prior to site plan, subdivision plat or building permit approval shall be required.

(Code 1979, § 14-69(c))

(a)

Application. Requirements for a development agreement application are as follows:

(1)

A legal description of the land subject to the agreement, and the names of its legal and equitable owners.

(2)

The duration of the agreement.

(3)

The development uses permitted on the land, including population densities and building intensities and height.

(4)

A description of public facilities that will service the development, including the name of the person who shall provide such facilities; the date any new facilities, if needed, will be constructed; and a schedule to ensure public facilities are available concurrent with the impacts of development.

(5)

A description of the level of service allocations to be permitted by the development agreement.

(6)

A description of any reservation or dedication of land for public purposes.

(7)

A description of all local development permits approved or needed to be approved for the development of the land.

(8)

A finding that the development permitted or proposed is consistent with the county comprehensive plan and land development regulations.

(9)

A description of any conditions, terms, restrictions or other requirements determined to be necessary by the county for the public health, safety or welfare of its citizens.

(10)

A statement indicating that the failure of the agreement to address a particular permit, condition, term or restriction shall not relieve the developer of the necessity of complying with the law governing such permitting requirements, conditions, terms or restrictions.

(11)

Identification of the specific dates that define the development's phasing, if applicable, and the commencement and completion of construction in each phase.

(12)

A description of the applicant's commitment for providing capacity or its equivalent on the affected facilities which the applicant will be consuming in excess of the amount otherwise authorized by this article.

(b)

Recording. The county shall record the agreement with the clerk of the circuit court within 14 days of its approval or execution.

(c)

Applicability of subsequently adopted county laws or policies. The laws and policies governing the development of the land at the time of the execution of the development agreement shall govern the development of the land for the duration of the development agreement. The county may apply subsequently adopted laws and policies to a development that is subject to a development agreement only if the county has held a public hearing and determined that:

(1)

They are not in conflict with the laws and policies governing the development agreement and do not prevent development of the land uses, intensities or densities in the development agreement;

(2)

They are essential to the public health, safety or welfare, and expressly state that they shall apply to a development that is subject to a development agreement;

(3)

They are specifically anticipated and provided for in the development agreement;

(4)

The county demonstrates that substantial changes have occurred in pertinent conditions existing at the time of approval of the development agreement; or

(5)

The development agreement is based on substantially inaccurate information supplied by the developer.

(d)

Applicability of subsequently adopted state or federal laws. If state or federal laws are enacted after the execution of the agreement which are applicable to or preclude the parties' compliance with the terms of the agreement, the agreement shall be modified or revoked as necessary to comply with the relevant state or federal laws.

(e)

Periodic review of compliance. The land subject to a development agreement shall be reviewed by the county at 12-month intervals following the date of the agreement. If demonstrated good faith compliance is not found, the agreement shall be revoked or modified by the county.

(f)

Duration. The duration shall not exceed five years, unless extended by mutual agreement according to prescribed due process.

(Code 1979, § 14-69(d))

State Law reference— Development agreements, F.S. § 163.3220 et seq.

(a)

All developments of regional impact shall undergo a preliminary concurrency evaluation as part of staff review prior to the issuance of the development of regional impact (DRI) development order. The DRI development order, where it includes references to schedules of improvements required to be installed prior to the continuance of the project based upon a monitoring program, shall be written in a manner consistent with the county comprehensive plan and this article with respect to acceptable levels of service, service areas, roadway segments or intersections, or other related factors.

(b)

Where the monitoring program included in the DRI development order of a development of regional impact makes reference to a level of service measurement, such measurement shall take into account the impacts of other applicable development orders that have been issued by the county but which otherwise may not be revealed by the level of service measurement.

(c)

Each subsequent development order for a site plan, subdivision or building permit approval which will be located within the development of regional impact final development order shall also undergo a concurrency evaluation for monitoring. Should a concurrency evaluation for a final development order show that the level of service of a facility affected by the development of regional impact is deteriorating at a faster rate than what was projected by the development of regional impact development order, the county shall suspend the further issuance of development orders if a deficiency occurs until the necessary improvements are committed, even where such action would cause the schedule of improvements approved as part of the initial DRI development order to be accelerated.

(d)

Developments of regional impact approved by the board of county commissioners prior to April 7, 1989, shall be exempt from the provisions of this article; however, any amendments to previously exempted developments of regional impact shall not be exempted.

(Code 1979, § 14-69(f))

State Law reference— Developments of regional impact, F.S. § 380.06.

(a)

This subchapter, comprised of sections 62-607—62-618, shall be known and may be cited as the Brevard County Proportionate Fair-Share Program for Transportation.

(b)

The board of county commissioners has the authority to adopt this division pursuant to Florida Constitution Article VIII and F.S. chs. 125 and 163.

(c)

The board of county commissioners is required to adopt this subchapter by and in a manner consistent with F.S. § 163.3180(16).

(d)

The county proportionate fair-share program for transportation shall apply to all developments in the county that have been notified of a lack of capacity to satisfy transportation concurrency on a transportation facility in the county concurrency management system, including transportation facilities maintained by FDOT or another jurisdiction that are relied upon for concurrency determinations, pursuant to the requirements of section 62-611.

(e)

The proportionate fair-share program for transportation does not apply to developments of regional impact (DRIs) using proportionate fair-share under F.S. § 163.3180(12), or to developments exempted from concurrency as provided in section 62-601 and/or F.S. ch. 163.3180, regarding exceptions and de minimis impacts.

(Ord. No. 06-60, § 1, 11-14-06)

The purpose of this division 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.

(Ord. No. 06-60, § 1, 11-14-06)

The board of county commissioners of finds and determines that transportation capacity is a commodity that has a value to both the public and private sectors and the county proportionate fair-share program:

(1)

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;

(2)

Allows developers to proceed under certain conditions, notwithstanding the failure of transportation concurrency, by contributing their proportionate fair-share of the cost of a transportation facility;

(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 traffic congestion;

(4)

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

(5)

Is consistent with F.S. § 163.3180(16), and supports the goals, objectives and policies in the county comprehensive plan.

(Ord. No. 06-60, § 1, 11-14-06)

As used in this division, the following words shall have the following meanings, unless some other meaning is plainly intended:

Capital improvements element (CIE) shall mean the required element of a local government's comprehensive plan that fulfills the requirements of F.S. § 163.3177(3). The capital improvements element as used in the proportionate fair-share program for transportation may refer to the capital improvements element of the county's comprehensive plan or to the capital improvements element of the comprehensive plan of another local government in the county that is subject to the proportionate fair-share program for transportation.

Concurrency management system (CMS) shall mean the land development regulations that contain the policies, procedures and methodologies used to measure the impact of new development on the adopted level of service on the roadway network in the county and is consistent with the requirements of F.S. § 163.3180. The concurrency management system includes the land development regulations adopted by the county and can include those adopted by another local government within the county that is subject to the county proportionate fair-share program for transportation.

Transportation impact fees shall mean those impact fees imposed by the county through the county transportation impact fee ordinance as codified in sections 62-801—62-819.

(Ord. No. 06-60, § 1, 11-14-06)

(a)

An applicant may choose to satisfy the transportation concurrency requirements of the county or another local government in the county that is subject to the county proportionate fair-share program for transportation 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 of the county or local government with jurisdiction over the proposed development.

(2)

The five-year schedule of improvements in the CIE or the long-term schedule of improvements for an adopted long-term CMS includes a transportation improvement(s) that, upon completion, will provide sufficient capacity to accommodate the additional traffic generated by the proposed development. The provisions of subsection (b) may apply if a project or projects needed to satisfy concurrency are not presently contained within the local government CIE or an adopted long-term schedule of improvements.

(b)

The board of county commissioners may, at its sole discretion, choose to allow an applicant to satisfy transportation concurrency through the proportionate fair-share program for transportation by contributing to an improvement that, upon completion, will provide sufficient capacity to accommodate the additional traffic generated by the proposed development, but is not contained in the five-year schedule of improvements in the CIE or a long-term schedule of improvements for an adopted long-term CMS, where the following apply:

(1)

The board of county commissioners or another local government in the county adopts, by resolution or ordinance, a commitment to add the improvement to the five-year schedule of improvements in the CIE or long-term schedule of improvements for an adopted long-term CMS no later than the next regularly scheduled update. To qualify for consideration under this section, the proposed improvement must be reviewed by the board of county commissioners or city council of the local government with jurisdiction, and determined to be in compliance with F.S. § 163.3180(16)(b)1., provided additional contributions, payments or funding sources are reasonably anticipated during a period not to exceed ten years to fully mitigate impacts on the transportation facilities.

(2)

If the funds allocated for the five-year schedule of capital improvements in the CIE are insufficient to fully fund construction of a transportation improvement required by the CMS, the board of county commissioners or city council of a local government in the county that is subject to the proportionate fair-share program for transportation may still enter into a binding proportionate fair-share agreement with the applicant authorizing construction of that amount of development on which the proportionate fair-share is calculated if the proportionate fair-share amount in such agreement is sufficient to pay for one or more improvements which will, in the opinion of the governmental entity or entities maintaining the transportation facilities, significantly benefit the impacted transportation system. The improvement or improvements funded by the proportionate fair-share component must be adopted into the five-year capital improvements schedule of the comprehensive plan or the long-term schedule of capital improvements for an adopted long-term concurrency management system at the next annual capital improvements element update.

(c)

Any improvement project proposed to meet the developer's fair-share obligation must meet design standards of the county for county maintained roadways, those of the FDOT for the state highway system, and the design standards of the applicable local government for all other roads.

(Ord. No. 06-60, § 1, 11-14-06)

Pursuant to policies in the intergovernmental coordination element of the county comprehensive plan and applicable policies in East Central Florida Regional Planning Council's Strategic Regional Policy Plan, the county shall coordinate with affected jurisdictions, including FDOT, regarding mitigation to impacted facilities not under the jurisdiction of the local government receiving the application for proportionate fair-share mitigation. An interlocal agreement may be established with other affected jurisdictions for this purpose.

(Ord. No. 06-60, § 1, 11-14-06)

(a)

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 county proportionate fair-share program for transportation pursuant to the requirements of section 62-611.

(b)

Prior to submitting an application for a proportionate fair-share agreement, a pre-application meeting shall be held to discuss eligibility, application submittal requirements, potential mitigation options, and related issues. If the impacted facility is on the strategic intermodal system (SIS), then the FDOT will be notified and invited to participate in the pre-application meeting.

(c)

Eligible applicants shall submit an application to the county that includes an application fee established by the board of county commissioners by resolution and the following:

(1)

Name, address and phone number of owner(s), developer and agent;

(2)

Property location, including parcel identification numbers;

(3)

Legal description and survey of property;

(4)

Project description, including type, intensity and amount of development;

(5)

Phasing schedule, if applicable;

(6)

Description of requested proportionate fair-share mitigation method(s); and

(7)

Copy of concurrency application.

(d)

The county shall review the application and certify that the application is sufficient and complete within 15 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 section 62-611, then the applicant will be notified in writing of the reasons for such deficiencies within 15 business days of submittal of the application. If such deficiencies are not remedied by the applicant within 45 calendar days of receipt of the written notification, then the application will be deemed abandoned. The county manager may, in his/her discretion, grant an extension of time not to exceed 60 calendar 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.

(e)

Pursuant to F.S. § 163.3180(16)(e), proposed proportionate fair-share mitigation for development impacts to facilities on the SIS requires the concurrency 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.

(f)

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 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 SIS facility, no later than 60 calendar days from the date at which the applicant received the notification of a sufficient application and no fewer than 14 calendar days prior to the board of county commissioners' meeting when the agreement will be considered.

(g)

The county shall notify the applicant regarding the date of the board of county commissioners' meeting when the agreement will be considered for final approval. No proportionate fair-share agreement will be effective until approved by the board of county commissioners and executed by all parties.

(Ord. No. 06-60, § 1, 11-14-06)

(a)

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.

(b)

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.

(c)

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 trips from the proposed development expected to reach roadways during peak hours from the complete build out of a stage or phase being approved, divided by the change in the peak hour maximum service volume (MSV) of roadways resulting from construction of an improvement necessary to maintain the adopted LOS, multiplied by the construction cost, at the time of developer payment, of the improvement necessary to maintain the adopted LOS."

OR

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

(d)

For the purposes of determining proportionate fair-share obligations, the county shall determine improvement costs based upon the actual cost of the improvement as obtained from the CIE, the MPO/TIP or the FDOT Work Program. Where such information is not available, improvement cost shall be determined using one of the following methods:

(1)

An analysis by the county of costs by cross section type that incorporates data from recent projects and is updated annually and approved by the board of county commissioners. In order to accommodate increases in construction material costs, project costs shall be adjusted by an inflation factor established by or acceptable to the county; or

(2)

The most recent issue of FDOT Transportation Costs, as adjusted based upon the type of cross-section (urban or rural); locally available data from recent projects on acquisition, drainage and utility costs; and significant changes in the cost of materials due to unforeseeable events. Cost estimates for state road improvements not included in the adopted FDOT work program shall be determined using this method in coordination with the FDOT district.

(e)

If the county has accepted an improvement project proposed by the applicant, then the value of the improvement shall be determined using one of the methods provided in this section.

(f)

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 125 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. The applicant shall supply a drawing and legal description of the land and a certificate of title or title policy insuring title 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 is less than the county estimated total proportionate fair-share obligation for that development, then the applicant must also pay the difference. Prior to purchase or acquisition of any real estate or acceptance of donations of real estate intended to be used for the proportionate fair-share, public or private partners should contact the FDOT for essential information about compliance with federal law and regulations.

(Ord. No. 06-60, § 1, 11-14-06)

(a)

Proportionate fair-share mitigation contributions shall be applied as a credit against transportation impact fees assessed by the county on the project. Credits will be awarded for that portion of the transportation impact fees that would have been used to fund the improvements on which the proportionate fair-share contribution is calculated. The portion of the transportation impact fee used to fund said improvements shall be calculated by the ratio of the total amount of transportation impact fees used to fund the improvements on which the proportionate fair-share contribution is based to the total amount of transportation impact fees used to fund all improvements within the transportation impact fee benefit district in which the project is located that are listed in the adopted schedule of improvements in capital improvements element.

(b)

At the time that the proportionate fair-share contribution is determined, the county will calculate the transportation impact fee obligation for the proposed development and calculate the portion of the transportation impact fee used to fund the improvements on which the proportionate fair-share contribution is based. The transportation impact fee credit shall not exceed 100 percent of the portion of the transportation impact fee obligation that is creditable to the development or 100 percent of the proportionate fair-share contribution, whichever is less.

(c)

The proportionate fair-share obligation is intended to mitigate the transportation impacts of a proposed development at a specific location. For that reason, the transportation impact fee credit based upon proportionate fair-share contribution for a proposed development cannot be transferred to any other location or development.

(Ord. No. 06-60, § 1, 11-14-06)

(a)

Upon execution of a proportionate fair-share agreement (agreement) the applicant shall receive written acknowledgement of concurrency approval from the county or the local government with jurisdiction over the proposed development. Should the applicant fail to apply for a building permit within one year of the effective date of the agreement, then the agreement shall be considered null and void, and the applicant shall be required to reapply in accordance to the provisions of section 62-613.

(b)

Payment of the proportionate fair-share contribution is due in full prior to issuance of the final development order or, if a plat is involved, recording of the final plat and shall be non-refundable. If the payment is submitted more than 12 months from the effective date of the agreement, then the proportionate fair-share cost shall be recalculated at the time of payment based on the best estimate of the construction cost of the required improvement at the time of payment, pursuant to section 62-614 and adjusted accordingly.

(c)

All developer improvements authorized under this ordinance must be completed prior to issuance of a development permit, or as otherwise established in a binding agreement that is 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 before issuance of building permits or certificates of occupancy.

(d)

Dedication of necessary right-of-way for facility improvements pursuant to a proportionate fair-share agreement must be completed prior to issuance of the final development order or recording of the final plat.

(e)

Any requested change to a development project subsequent to a development order may be subject to additional proportionate fair-share contributions to the extent the change would generate additional traffic that would require mitigation.

(f)

An applicant 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 county will be non-refundable.

(g)

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.

(Ord. No. 06-60, § 1, 11-14-06)

(a)

Proportionate fair-share revenues shall be deposited in a project account established to fund projects listed in the schedule of improvements in the CIE, or as otherwise established in the terms of the proportionate fair-share agreement. At the discretion of the county, proportionate fair-share revenues may be used for operational improvements prior to construction of the capacity project from which the proportionate fair-share revenues were derived. Proportionate fair-share revenues may also be used as the requisite local match for funding under the FDOT Transportation Regional Incentive Program (TRIP) or other grant program.

(b)

In the event a scheduled facility improvement is removed from the schedule of improvements in the CIE, then any proportionate fair-share revenues collected for its construction may be applied toward the construction of another improvement that would mitigate the impacts of development pursuant to the requirements of subsection 62-611(b)(2).

(c)

Where an applicant constructs a transportation facility that exceeds the applicant's proportionate fair-share obligation as calculated pursuant to section 62-614, the county shall reimburse the applicant for the excess contribution using one or more of the following methods:

(1)

An account may be established on behalf of the applicant for the purpose of reimbursing the applicant for the amount of the excess contribution. The account shall be funded with proportionate fair-share payments from future applicants who impact the same facility. A capital recovery agreement shall be prepared by the county and fully executed to formalize this arrangement.

(2)

The county may directly compensate the applicant for the excess contribution through payment or some combination of means that are mutually acceptable to the county and the applicant.

(Ord. No. 06-60, § 1, 11-14-06)

(a)

In the interest of intergovernmental coordination and to reflect the shared responsibilities for managing development and concurrency, the county may enter an agreement with one or more adjacent local governments to address cross jurisdictional impacts of development on regional transportation facilities. The agreement shall provide for application of the methodology in this section to address the cross jurisdictional transportation impacts of development.

(b)

A development application submitted to the county subject to a transportation concurrency determination meeting all of the following criteria shall be subject to this section:

(1)

All or part of the proposed development is located within one mile of the area which is under the jurisdiction, for transportation concurrency, of an adjacent local government; and

(2)

Using its own concurrency analysis procedures, the county concludes that the additional traffic from the proposed development would use five percent or more of the adopted peak hour LOS maximum service volume of a regional transportation facility within the concurrency jurisdiction of the adjacent local government ("impacted regional facility"); and

(3)

The impacted regional facility is projected to be operating below the level of service standard, adopted by the adjacent local government, when the traffic from the proposed development is included.

(c)

Upon identification of an impacted regional facility pursuant to section 62-618 (b)(1)—(3), the county shall notify the applicant and the affected adjacent local government in writing of the opportunity to derive an additional proportionate fair-share contribution, based on the projected impacts of the proposed development on the impacted adjacent facility.

(1)

The adjacent local government shall have up to 90 days in which to notify the county of a proposed specific proportionate fair-share obligation, and the intended use of the funds when received. The adjacent local government must provide reasonable justification that both the amount of the payment and its intended use comply with the requirements of F.S. § 163.3180(16). Should the adjacent local government decline proportionate fair-share mitigation under this section, then the provisions of this section would not apply and the applicant would be subject only to the proportionate fair share requirements of the county.

(2)

If the subject application is subsequently approved by the county, the approval shall include a condition that the applicant provides, prior to the issuance of any building permit covered by that application, evidence that the proportionate fair-share obligation to the adjacent local government has been satisfied. The county may require the adjacent local government to declare, in a resolution, ordinance, or equivalent document, its intent for the use of the concurrency funds to be paid by the applicant.

(Ord. No. 06-60, § 1, 11-14-06)