It is the purpose of this article to describe the requirements and procedures for determination of consistency of proposed development projects with the county comprehensive plan, including meeting the concurrency requirements of the plan.

All uses, except for those public facilities proposed by county and local governments including public schools consisting of grades K through 12, or those uses determined to be vested or exempt, shall be subject to the concurrency requirements. The county shall coordinate with the Flagler County School Board concerning the planning of public educational facilities pursuant to F. S. 235.193.

The burden of showing compliance with these levels of service requirements shall be upon the developer. In order to be approvable, applications for development approval shall provide sufficient information showing compliance with these standards. The applicant shall be responsible for providing the adequate information.

The initial determination of concurrency occurred during the development of the comprehensive plan. Since the plan was developed in compliance with the level of service standards adopted by the county, the plan at that point in time was concurrent.

A report shall be prepared by county staff as required and forwarded as part of the major plan amendment process to the long range planning and land development review board, planning board and the board of county commissioners. The report shall indicate the anticipated impact of the administrative action on the levels of service adopted in this ordinance. This report is intended to be a general analysis and should identify corrective actions and any responsibility for the cost of those actions.

A report shall be prepared by county staff as required and forwarded as part of the rezoning process to the long range planning and land development review board, planning board and the board of county commissioners. The report shall indicate the anticipated impact of the administrative action on the levels of service adopted in this ordinance. This report is intended to be a general analysis and should identify corrective actions and any responsibility for the cost of those actions.

Final determination of concurrency occurs during the review of the preliminary subdivision plat, or site development plan (or building permit) and shall include compliance with the level of service standards adopted by the county. If no preliminary subdivision plat or site development plan (or building permit) is necessary, the determination of consistency and concurrency will be made prior to issuing the building permit for the specific use.

A.

Each applicant for a preliminary subdivision plat or site development plan shall select one of the following options:

1.

Applying for concurrency review.

2.

Execute a request indicating that the development is either vested or exempt.

B.

Timing of Review. Within seven (7) calendar days of a submittal, the planning and zoning director will determine whether the application is complete and whether there is enough information to adequately perform a concurrency review.

C.

Certificate of Concurrency. The planning and zoning director shall issue a certificate of concurrency or denial within thirty (30) calendar days of when the application is considered complete.

D.

A certificate of concurrency shall be applied for in the form approved by the planning and zoning director.

E.

Subsequent to the issue of a development order or permit under the authority of this article, the planning and zoning director will be responsible for ensuring and enforcing the development orders' and permits' conditions, and stipulations contained therein. The application shall contain enough information to determine the public facilities which will be impacted by the proposed development and conditions and stipulations regarding the timing and phasing of the development or provisions for public facility improvements necessary to ensure that adequate public facilities will be available concurrent with the impact of development.

F.

If the capacity of available public facilities is equal to or greater than the capacity required to maintain a level of service standard for the impact of the development, the determination of capacity shall be approved and the applicant shall receive a final development order or building permit.

G.

If the capacity of available future facilities is less than the capacity required to maintain a level of service standard for the impact of the development, the determination of capacity shall be recommended for denial by the planning and zoning director and the applicant may select one of the following options:

1.

Amend the application to reduce the need of public facilities to the capacity that is available.

2.

Arrange to provide for public facilities at the cost of the applicant that are not otherwise available or provide acceptable means for mitigating impact of the development.

3.

Re-apply for capacity approval not less than six (6) months following denial of the application.

4.

File a written appeal of the planning and zoning director's decision to the county commission.

H.

Capacity may only be reserved after payment of twenty-five (25) percent of the applicable county impact fees. These fees shall be nonrefundable but shall be credited against total impact fees due for the project. The vesting of capacity will run with the vesting of the project, and cannot be transferred to another project.

I.

If the capacity of available future facilities is at or exceeds the seventy-five (75) percent level, including the impact of the development, the planning and zoning director shall notify the county commission of proposed corrective actions.

J.

If the capacity of available future facilities is at or exceeds the eighty-five (85) percent level, including the impact of the development, the planning and zoning director shall notify the county commission of when contracts for construction of public facilities shall be let and when facilities and services will be available to provide additional capacity.

K.

If the capacity of available future facilities is at the one hundred (100) percent level, including the impact of the development, the planning and zoning director shall deny the request for capacity and notify the county commission when contracts for construction shall be let and when facilities and services will be available to provide additional capacity.

L.

Any person aggrieved by a decision of the planning and zoning director on the matter of vested rights or denial of capacity in this ordinance may appeal in writing to the board of county commission within thirty (30) calendar days of the decision of the planning and zoning director. The planning and zoning director shall establish a schedule of hearing dates and application deadlines for each hearing. The planning and zoning director shall review the application for sufficiency and insufficient applications shall be returned to the applicant for additional information. Upon acceptance by the planning and zoning director, the application shall be assigned a hearing date.

M.

The county commission shall render a decision on the application within thirty (30) calendar days of the hearing, unless for good cause that time period should be extended.

N.

Thereafter, the decision of the county commission may be appealed by an aggrieved party who participated in the hearing and may file an appeal in circuit court.

The following developments are hereby determined to be vested for the purposes of concurrency:

1.

Developments of regional impact as currently authorized under Section 380.06, Florida Statutes, which were issued as development orders by the Flagler County Commission on or before the effective date of this article.

2.

Final subdivision plans approved under the authority of previous zoning or subdivision codes, shall be vested for a period of five (5) years from the adoption date of this article, except for those nondevelopment of regional impact lands that are the subject of an agreement dated August, 1977 by and between ITT Community Development Corporation and the division of state planning which shall be vested for a period of ten (10) years from the adoption date of this article, for a total number of vacant residential lots not to exceed ten thousand four hundred eighty (10,480), which however is subject to modification at the five-year review described below in paragraph b. That number is based on the average absorption of lots from 1987 through 1990.

a.

Residential development on reserve parcels subject to the above agreement shall be vested for five (5) years for an amount not to exceed ten (10) percent of the ten thousand four hundred eighty (10,480) total number of vacant lots referenced above. No individual project may exceed an equivalent of two hundred fifty (250) units.

Nonresidential development on land subject to above agreement shall be vested for a period of five (5) years for a total of thirty-five thousand (35,000) trips exclusive of passerby or internal trips to the site. Each development will have its total external trips to the site subtracted from the thirty-five thousand (35,000) to determine future vested trips. The use of the thirty-five thousand (35,000) trips is on a first-come first-serve basis.

b.

Vesting will be reviewed during the development of the evaluation, analysis and review (E.A.R.) report at the required five-year stage of the plan and a recommendation will be made to extend, modify or terminate vesting for the same or different period contained herein, based on the evaluation of capacity. The five-year review may result in a change in the traffic model which may cause the county commission to alter the degree, amount and duration of vesting.

c.

After the effective date of this article, any lots platted in a final subdivision shall be tested for concurrency in accordance with this article. Any replats, amendments or other modifications to existing and future subdivisions shall be assessed to determine demand on capacity, and may be subject to testing for concurrency under the provision of this article.

3.

Applications for final site plans tendered on or before the effective date of this article shall be vested for a period of six (6) months from and after the effective date of this article. Any amendments or modifications which increase demand on capacity to said site plan shall hereafter be tested for concurrency under the provisions of this article.

a.

Final site plans that have been approved under the prior zoning and site plan review process of the county shall be vested for a period of five (5) years from and after the effective date of this article.

b.

Applications for final site plans tendered on or after the effective date of this article that proceed within six (6) months to final site plan approval shall also be vested for a period of six (6) months from and after the effective date of this article.

c.

Any amendments or modifications which increase demand on capacity to said site plans shall hereafter be tested for concurrency under the provisions of this article.

4.

Where a building permit has been issued and it is valid on or before the effective date of this article.

5.

Any subdivision which has received preliminary plat approval on or before the effective date of this article shall have six (6) months from the effective date of this article or one (1) year from the date of approval, whichever date is later, to obtain a final plat approval under the provisions of this ordinance. Thereafter, said project shall be tested for concurrency in accordance with this article.

The following development orders are exempted from this ordinance and may commence development without concurrency approval.

1.

Minimum Threshold. Residential projects which would result in the creation of one (1) new additional single family homesite, or a commercial, institutional or industrial expansion which is estimated to generate less than one hundred (100) vehicle trips per day as cited in the ITE manual and create (1) one equivalent residential unit of utility demand or less, shall be exempt from the transportation and other applicable components of concurrency review. This shall include the construction of accessory buildings and structures which do not create additional public facility demand. In no case, however, shall a development order be issued for a project which would impact a public facility for which a moratorium or deferral on development has been placed.

2.

Development which is considered vested by the terms of this article.

3.

Construction of public facilities that are identified in the Capital Improvements Element of the Flagler County Comprehensive Plan. Those public facilities have been included within the land use scenario of the comprehensive plan.

4.

An alteration of an approved development otherwise exempt under this article which does not create additional impact on public facilities.

5.

The construction of accessory buildings and structures which do not create additional impact on public facilities.

6.

The replacement of an existing dwelling when no additional units are created.

7.

Room additions to residences, including but not limited to, screen rooms.

8.

Signs.

9.

All maintenance activities.

10.

Approved private facilities which meet public facilities needs as identified in the comprehensive plan.

11.

Public schools consisting of grades K through 12.

Upon a determination that the development meets one (1) or more of the criteria set out for exemption, the planning and zoning director shall indicate that in writing to the applicant.

A.

General Rule.

1.

All applications for development orders shall demonstrate that the proposed development does not degrade adopted levels of service in the county.

2.

An application for a building permit will provide that the proposed development does not degrade adopted levels of service, if there exists no development order under which the permit is sought, and no development order is required prior to the issuance of the permit, e.g. a residence on a parcel of unplatted land.

3.

The latest point at which concurrency is determined is the preliminary development order. If no development order is required, the latest point to determine concurrency is the first building permit on a site.

B.

Exception. Notwithstanding the foregoing, the prescribed levels of service may be degraded during the actual construction of new facilities, if upon completion of the new facilities the prescribed levels of service will be met.

For purposes of these regulations the available capacity of a facility shall be determined by:

A.

Adding together.

1.

The total capacity of existing facilities operating at the required level of service.

2.

The total capacity of new facilities, if any, that will become available on or before the date of occupancy of the development. The capacity of new facilities may be counted only if one or more of the following is shown:

(a)

Construction of the new facilities is under way at the time of issuance of the final development order.

(b)

The new facilities are subject of a binding executed contract for the construction of the facilities or the provision of services at the time of issuance of the final development order.

(c)

The new facilities are guaranteed in an enforceable development agreement. An enforceable development agreement may include, but is not limited to, development agreements pursuant to Section 163.3220, Florida Statutes, or an agreement or development order pursuant to Chapter 380, Florida Statutes. Such facilities shall be consistent with the capital improvements element of the county comprehensive plan. The agreement must guarantee that the necessary facilities and services will be in place when the impacts of the development occur.

B.

Subtracting from that number the sum of:

1.

The demand for the service of facility created by existing development as documented in the county comprehensive plan; and

2.

The demand for the service of facility created by the anticipated completion of other approved developments, redevelopment, or other development activity.

C.

Action upon failure to show available capacity. Where available capacity cannot be shown, the following methods may be used to maintain adopted level of service:

1.

The project owner or developer may provide the necessary improvements to maintain level of service. In such case the application shall include appropriate plans for improvements, documentation that such improvements are designed to provide the capacity necessary to achieve or maintain the level of service, and recordable instruments guaranteeing the construction, consistent with calculations of capacity above.

2.

The proposed project may be altered such that projected level of service is no less than the adopted level of service.

D.

If the development creates a recreational demand not currently available for concurrency purposes and if the developer enters into a binding contract or an enforceable development agreement, which will result in the recreational level of service as defined in section 8.11.05 being provided in one (1) year, a building permit may be issued. If a development creates a demand for transportation infrastructure not currently available, and if the developer enters into a development agreement, or enters into a binding contract or enforceable development agreement, or if the proposed shortage of infrastructure would be met by a project currently within the first three (3) years of a five-year scheduled capital improvements program as noted in the capital improvements element, then a building permit may be issued.

A.

Contents. The county planning staff shall prepare an annual report on the anniversary of the effective date of this ordinance on the concurrency management system that includes:

1.

A summary of the actual development activity, including a summary of certificates of occupancy, indicating quantity of development represented by type and square footage.

2.

A summary of building permit activity, indicating:

(a)

Those that expired without commencing construction;

(b)

Those that are active at the time of the report;

(c)

The quantity of development represented by the outstanding building permits;

(d)

Those that result from final development orders issued prior to the adoption of this Code; and

(e)

Those that result from final development orders issued pursuant to the requirements of this Code.

3.

A summary of preliminary development orders issued, indicating:

(a)

Those that expired without subsequent final development orders;

(b)

Those that are valid at the time of the report; and

(c)

The phases and quantity of development represented by the outstanding preliminary development orders.

4.

A summary of final development orders issued, indicating:

(a)

Those that expired without subsequent building permits;

(b)

Those that were completed during the reporting period;

(c)

Those that are valid at the time of the report but do have associated building permits or construction activity; and

(d)

The phases and quantity of development represented by the outstanding final development orders.

5.

An evaluation of each facility and service indicating:

(a)

The capacity available for each at the beginning of the reporting period and the end of the reporting period;

(b)

The portion of the available capacity held for valid preliminary and final development orders;

(c)

A comparison of the actual capacity to calculated capacity resulting from approved preliminary development orders and final development orders;

(d)

A comparison of the actual capacity and levels of service to adopted levels of service from the county comprehensive plan.

(e)

A forecast of the capacity for each based upon the most recently updated schedule of capital improvements in the county capital improvements element.

B.

Use of the annual report. The concurrency management system annual report shall constitute prima facie evidence of the capacity and levels of service of public facilities for the purpose of issuing development orders during the twelve (12) months following completion of the annual report.

The provisions of interlocal agreements between the County and the cities shall be reflected within the concurrency management system. The agreed-upon standards between the jurisdictions shall apply.

As provided in this article, the board of county commissioners may establish fees for processing an informal or formal analysis (inquiry) of determination of capacity related to matters contained in this article. Fees shall be returned to the applicant in the event the public facilities are not constructed as required in the capital improvements element (CIE). A fee may be in the form of a prepayment of consulting fees or some other financial assurance provided by the applicant which is acceptable to the county.

Development activity shall not be approved unless there is sufficient available capacity to sustain the following levels of service for potable water as established in the potable water subelement of the county comprehensive plan:

Development activities shall not be approved unless there is sufficient available capacity to sustain the following levels of service for wastewater treatment as established in the sanitary sewer subelement of the county comprehensive plan:

Development activities shall not be approved unless there is sufficient available capacity to meet the adopted level of service of the twenty-five-year frequency, twenty-four-hour duration, design storm event onsite as determined by the county engineer.

Development activities shall not be approved unless there is sufficient available capacity to sustain the following levels of service for the solid waste system as established in the solid waste subelement of the county comprehensive plan:

Development activities shall not be approved unless there is sufficient available capacity to sustain the following levels of service for the recreational facilities as established in the recreation and open space element of the county comprehensive plan:

Recreation Standards for Resource/facilities

Flagler County, 1987

A.

Level of service. Development activities shall not be approved unless there is sufficient available capacity to sustain the following levels of service for transportation systems as established in the transportation circulation element of the county comprehensive plan:

B.

Determination of project impact. The impact of the proposed development activity on available capacity shall be determined as follows:

1.

The area of impact of the development (a traffic impact study area) shall be determined. The traffic impact study area shall be that area where the primary impact of the traffic to and from the site occurs.

For the purposes of traffic modeling, the radii shown in Table I shall be utilized by land use type.

2.

The planning department shall provide a trip analysis for all projects up to five hundred (500) trips. The projected level of service for roads within the traffic impact area shall be calculated by the department based upon estimated trips to be generated by the project. Where the development will have access to more than one (1) road, the calculations shall show the split in generated traffic and state the assumptions used in the assignment of traffic to each facility.

Where the number of trips exceeds five hundred (500) trips, the applicant shall provide, in a form acceptable to the planning and zoning director, technical modeling information as defined within the Flagler County Traffic Impact Study Methodology and Procedures.

TABLE I. SUGGESTED IMPACT STUDY AREA RADII (MILES)

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 transportation program, as required by and in a manner consistent with F.S. § 163.3180(16).

B.

Findings.

1.

The county 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 transportation 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 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;

(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 (CIE) of the Flagler County Comprehensive Plan.

(e)

Is consistent with F.S. § 163.3180(16), and supports the following policies in the Flagler County Comprehensive Plan:

Future Land Use Element, Policy 5.3.

Future Land Use Element, Policy 6.1.

Future Land Use Element, Policy 6.4.

Future Land Use Element, Policy 8.2.

Future Land Use Element, Policy 8.3.

Future Land Use Element, Policy 14.1.

Future Land Use Element, Policy 14.4.

Future Land Use Element, Policy 14.6.

Future Land Use Element, Policy 14.7.

Transportation Element, Policy 1.1.1.

Transportation Element, Policy 1.1.2.

Transportation Element, Policy 2.3.4.

Transportation Element, Policy 2.3.5.

Transportation Element, Policy 2.3.6.

Transportation Element, Policy 2.3.7.

Transportation Element, Policy 2.4.1.

Transportation Element, Policy 2.6.2.

Intergovernmental Coordination Element, Policy 2.3.

Intergovernmental Coordination Element, Policy 3.1.

Intergovernmental Coordination Element, Policy 4.1.

Capital Improvements Element, Policy 1.1.1.

Capital Improvements Element, Policy 1.1.7.

Capital Improvements Element, Policy 1.1.11.

Capital Improvements Element, Policy 1.1.12.

Capital Improvements Element, Policy 1.2.1.

Capital Improvements Element, Policy 1.2.3.

Capital Improvements Element, Policy 1.3.3. Capital Improvements Element, Policy 1.4.1.

Capital Improvements Element, Policy 1.5.1.

Capital Improvements Element, Policy 1.5.2.

Capital Improvements Element, Policy 1.6.1.

C.

Applicability. The proportionate fair-share transportation program shall apply to all developments in the unincorporated area of Flagler County that have been notified of a lack of capacity to satisfy transportation concurrency on a transportation facility in the County Concurrency Management System (CMS), including transportation facilities maintained by the Florida Department of Transportation (FDOT) or another jurisdiction that are relied upon for concurrency determinations, pursuant to the requirements of subsection E. The Proportionate Fair-Share Transportation Program 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 for in Section 8.09.00 ("Exemptions") of the Flagler County Land Development Code, the Flagler County Comprehensive Plan and F.S. ch. 163.3180, regarding exceptions and de minimis impacts.

D.

General requirements.

1.

An applicant may choose to satisfy the transportation concurrency requirements of the County 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 county CIE or the long-term schedule of capital improvements for an adopted long-term CMS includes a transportation improvement(s) that, upon completion, will satisfy the requirements of the county transportation CMS. The provisions of subsection D(2) may apply if a project or projects needed to satisfy concurrency are not presently contained within the county CIE or an adopted long-term schedule of capital improvements.

2.

The county may choose to allow an applicant to satisfy transportation concurrency through the proportionate fair-share transportation program by contributing to an improvement that, upon completion, will satisfy the requirements of the county transportation CMS, but is not contained in the five-year schedule of capital improvements in the CIE or a long-term schedule of capital improvements for an adopted long-term CMS, where the following apply:

(a)

The county adopts, 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 than the next update. To qualify for consideration under this section, the proposed improvement must be reviewed by the board of county commissioners, 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 section. Financial feasibility for this section means that additional contributions, payments or funding sources are reasonably anticipated during a period not to exceed ten (10) years to fully mitigate impacts on the transportation facilities.

(b)

If the funds allocated for the five-year schedule of capital improvements in the county CIE are insufficient to fully fund construction of a transportation improvement required by the CMS, 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 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 capital improvements element update.

3.

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

E.

Intergovernmental coordination. Pursuant to policies in the Intergovernmental Coordination Element of the Flagler County Comprehensive Plan and applicable policies in the Northeast Florida Regional 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.

F.

Application process.

1.

The review process for transportation concurrency shall take place as part of the county's final concurrency determination as stated in the CMS during the review of the preliminary subdivision plat, site development plan, or building permit, whichever is applied for first by an applicant. 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 transportation program pursuant to the requirements of subsection D.

2.

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 FDOT Strategic Intermodal Transportation System (SIS), then the FDOT will be notified and invited to participate in the pre-application meeting.

3.

Eligible applicants shall submit an application to the county that includes an application fee as set by resolution of the board of county commissioners 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); and

(g)

Copy of concurrency application.

4.

The planning and zoning director shall review the application and certify that the application is sufficient and complete within fifteen (15) business days. If an application is determined to be insufficient, incomplete or inconsistent with the general requirements of the proportionate fair-share transportation program as indicated in subsection D, then the applicant will be notified in writing of the reasons for such deficiencies. If such deficiencies are not remedied by the applicant within the time frame set forth in said notice, then the application will be deemed abandoned. The planning and zoning director may, in his or her 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 SIS requires 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 consistent with the general requirements of the proportionate fair-share transportation program, the applicant shall be advised in writing and a proposed proportionate fair-share obligation and a binding agreement will be prepared by 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 sixty (60) days from the date at which the applicant received the notification of a sufficient application.

7.

The county 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 board of county commissioners.

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 relative to that particular development that could be used for project specific capacity improvements, and construction and contribution of facilities. The fair market value of the proportionate fair-share mitigation for the impacted facilities shall not differ regardless of the method of mitigation.

2.

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 level of service (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;]

Where:

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 CMS;

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

Cost;sub\sub; = Adjusted cost of the improvement to segment "i". Cost shall include all improvements and associated costs, such as design, right-of-way acquisition, planning, engineering, inspection, and physical development costs directly associated with construction at the anticipated cost in the year it will be incurred.

3.

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 Metropolitan Planning Organization's Transportation Improvement Program (MPO/TIP) or the FDOT Work Program, as applicable. Where such information is not available, improvement cost shall be determined using one of the following methods:

(a)

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 commission. In order to accommodate increases in construction material costs, project costs shall be annually adjusted by the Consumer Price Index (CPI); or

(b)

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.

4.

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.

5.

If the county has accepted right-of-way dedication for the proportionate fair-share payment, credit for the dedication of the project-related right-of-way shall be valued on the date of the dedication at one hundred (100) percent of the most recent assessed value by the Flagler County Property Appraiser or, at the option and at the expense of the applicant, by fair market value established through the following process:

(a)

The county shall select an MAI appraiser and the applicant shall select an MAI appraiser. Both appraisers shall independently prepare an appraisal for the right-of-way dedication in question. If the independent appraisals are within ten (10) percent of each other, the average value of the two (2) appraisals shall be the value of the parcel used as a credit for the proportionate fair-share payment.

(b)

If the two (2) appraisals are more than ten (10) percent different, then a third appraiser shall be selected by the first two (2) appraisers. The third appraiser shall prepare an independent appraisal of the property. The third appraiser shall then be used to determine the value of the credit for the proportionate fair-share payment.

6.

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 is less than the county estimated total proportionate fair-share obligation for that development, then the applicant must also pay the difference. For proposed proportionate fair-share mitigation for development impacts to FDOT facilities, public or private partners should contact the FDOT for essential information about compliance with federal law and regulations 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.

H.

Impact fee credit for proportionate fair-share mitigation.

1.

Proportionate fair-share contributions shall be applied as a credit against impact fees 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 the proportionate fair-share contribution will be determined when the transportation impact fee obligation is calculated for the proposed development. Impact fees owed by the applicant will be reduced per the proportionate fair-share agreement as they become due per the Flagler County Impact Fee Ordinance. If the applicant's proportionate fair-share obligation is less than the development's transportation impact fee for the specific stage or phase of development under review, then the applicant or its successor must pay the remaining impact fee amount to the County pursuant to the requirements of the county's impact fee ordinance.

3.

Major projects not included within the county's CIE or created under subsection D(2)(a) and (b) which can demonstrate a significant benefit to the impacted transportation system may be eligible at the county's discretion for impact fee credits.

4.

The proportionate fair-share obligation is intended to mitigate the transportation impacts of a proposed development at a specific location. As a result, any transportation impact fee credit based upon proportionate fair-share contributions for a proposed development cannot be transferred to any other location unless otherwise provided for.

I.

Proportionate fair-share agreements.

1.

Upon execution of a proportionate fair-share agreement the applicant shall receive a Flagler County Certificate of Concurrency. Should the applicant fail to apply for a development permit within six (6) months of the execution of the agreement, then the agreement shall be considered null and void, and the applicant shall be required to reapply.

2.

Payment of the proportionate fair-share contribution is due in full prior to issuance of the final development order or recording of the final plat and shall be non-refundable. If the payment is submitted more than six (6) months from the date of execution 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 subsection G and adjusted accordingly.

3.

All developer improvements authorized under this section must be completed prior to issuance of a certificate of occupancy, 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.

4.

Dedication of necessary right-of-way for facility improvements pursuant to a proportionate fair-share agreement must be completed prior to issuance of a certificate of occupancy.

5.

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.

6.

In the event that an applicant withdraws an application for a development permit or otherwise ceases work on a project for which a proportionate fair-share agreement has been executed, the certificate of concurrency shall be revoked and the agreement shall be considered null and void; however, if the developer, after having paid the fee, determines not to go forward with the project prior to it being started, the fees would be refunded to the developer. Additionally, the 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.

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.

J.

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 CIE, or as otherwise established in the terms of the proportionate fair-share agreement. Fair-share contributions shall be earmarked for the capacity improvements as reflected in 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 CIE, 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 the specific development pursuant to the requirements of subsection D(2)(b).

3.

Where an impacted regional facility has been designated as a regionally significant transportation facility in an adopted regional transportation plan as provided in F.S. § 339.155, the county may coordinate with other impacted jurisdictions and agencies to apply proportionate fair-share contributions and public contributions to seek funding for improving the impacted regional facility under the FDOT TRIP. Such coordination shall be ratified by the county through an interlocal agreement that establishes a procedure for earmarking of the developer contributions for this purpose.

4.

Where an applicant constructs a transportation facility that exceeds the applicant's proportionate fair-share obligation calculated under subsection G, the county may reimburse the applicant for an excess contribution in an amount and in a manner acceptable to the county including, but not limited to, the use of one or more of the following methods:

(a)

An impact fee credit account may be established for the applicant in the amount of the excess contribution, a portion or all of which may be assigned and reassigned under terms and conditions acceptable to the county.

(b)

An account may be established by the county and in a manner acceptable to the county for the applicant for the purpose of reimbursing the applicant for the excess contribution with proportionate fair-share payments from future applicants on the facility.

(c)

The county may compensate the applicant for the excess contribution through payment or some combination of means acceptable to the county.

(Ord. No. 06-25, § I, 11-20-06)