The purpose and intent of this division is:

A.

To implement the provisions of the Highlands County Comprehensive Plan related to the adequacy of school facilities as new residential growth occurs.

B.

To implement the provisions of the Highlands County Interlocal Agreement for Coordinated Planning and School Concurrency.

C.

To ensure that public schools needed to support new development will meet the adopted level of service.

D.

To ensure that no proposed development is approved that would generate demands that exceed school capacity at the adopted level of service.

E.

To ensure that adequate school facilities will be in place or under actual construction as new development occurs, or within three years after the issuance of approval of any proposed development, as provided by state statute, by providing a mechanism to implement proportionate share mitigation for school facilities where needed.

(Ord. No. 08-09-54, § 3)

A.

Generally. Except as otherwise specifically provided, the provisions of this division shall apply to development orders for preliminary plat, site plan approval or the functional equivalent for planned development or flexible unit development or the equivalent submitted after December 1, 2008, as follows:

1.

All such proposed development shall be subject to school concurrency.

2.

An applicant for such proposed development may, upon request, obtain a non-binding finding of available school capacity from the school district at any time prior to the filing of an application for approval of the proposed development.

3.

Before approval of any such proposed development, or phase thereof, the following must be obtained:

a.

A valid and unexpired finding of available school capacity as determined by the school district and designated on the school district capital improvements schedule. A finding of available school capacity expires after one calendar year.

b.

A valid and unexpired allocation of school concurrency as determined by the school district, or a proportionate share mitigation agreement executed by the developer and the school board.

4.

The following residential uses shall be considered exempt from the requirements of school concurrency:

a.

Single-family lots of record, existing as such on September 2, 2008.

b.

Any residential development that has a preliminary plat or site plan approval or the functional equivalent for a site-specific development order prior to December 1, 2008, shall be exempt from the school concurrency requirements.

c.

Any amendment to any previously approved residential development that does not increase the number of dwelling units or change the type of dwelling units.

5.

Age-restricted communities with no permanent residents under the age of 18.

a.

Exemption of an age-restricted community will be subject to a restrictive covenant duly recorded in the public records of Highlands County, Florida, limiting the age of permanent residents to 18 years and older, among other requirements.

b.

In the event the recorded restrictive covenant is breached or otherwise removed, the local government may enforce the restrictive covenant or may declare the exemption to be null and void and the school concurrency in effect at the time of the change in circumstances to be immediately due and payable, and school concurrency may, thereafter, be collected by any method available to the local governments for collecting monies owed to it.

(Ord. No. 08-09-54, § 3)

A.

When required. Subject to the requirements of this section, an application for school concurrency must be submitted in conjunction with any proposed preliminary plat, site plan or the functional equivalent for planned development or flexible unit development or the equivalent. No such proposed development will be approved by the county unless it complies with the requirements of this division.

B.

Requirements for application for school concurrency.

1.

Pre-submittal meeting. Prior to submission of an application for school concurrency, the applicant shall meet with the county development services director and the school district to confirm the scope and applicability of this division and to identify potential school facility deficiencies that may need to be mitigated.

a.

At or following the pre-submittal meeting, the applicant shall be provided the following:

(1)

The current school district capital improvements schedule;

(2)

Relevant and available information regarding demand for school facilities and available school capacity; and

(3)

A summary of the scope of the requirements for an application for school concurrency, which shall include, but not necessarily be limited to, the information listed in subsection B.2. of this section.

b.

At or following the pre-submittal meeting, the applicant shall inform the county and the school district of any interest to explore proportionate share mitigation options, specify the mitigation options to be considered and, if possible, the proposed amount and type of proportionate share mitigation.

2.

General requirements. The application for school concurrency shall include:

a.

Name, address, and phone number of the applicant;

b.

Property location, including parcel identification numbers and vicinity map;

c.

A description of the proposed development adequate to determine the number and type of public school students generated by the proposed development, including the number of dwelling units and unit types, the type, intensity and amount of development, and whether there is any age restriction for occupancy;

d.

A phasing schedule for any proposed development to be completed in more than one phase;

e.

A description of any past or proposed school facility dedicated, constructed, or funded in order to mitigate the public school impacts of the proposed development;

f.

A calculation of any school impact fees that will be assessed prior to occupancy of the dwelling units or lots that are part of the proposed development;

g.

In the event that there is not available school capacity to accommodate the proposed development, a proposed proportionate share mitigation agreement, using the form provided by the school district, and a description of the proposed proportionate share mitigation option(s) being utilized; and

h.

Other relevant information required by the school district that is needed to evaluate the application for school concurrency and to make a finding with regard to available school capacity.

3.

Completeness review. Within 15 business days after its receipt, the county development services director will determine whether the application for school concurrency is complete and complies with the submission requirements set forth in this division. If the application for school concurrency is complete and the submission requirements have been met, the county development services director will forward the application for school concurrency to the school district for review and a finding with regard to available school capacity. If the application for school concurrency is not complete, the county development services director shall notify the applicant of its deficiencies in writing within 20 business days of its receipt. At the time that the application for school concurrency is determined to be complete, the county development services director shall send it to the school district for review.

4.

Appeals. Appeal may be taken from the final decision of the county development services director regarding the applicability of this division to a particular application. Appeals must be filed within 30 business days of the decision, as further described herein.

5.

Finding of available school capacity. The county shall not approve a residential development until the school district issues a finding of available school capacity. If a finding of available school capacity is based on proportionate share mitigation, the county shall not give final approval of the proposed development until the execution of a proportionate share mitigation agreement by the applicant and the school district, pursuant to this division. No provision of the proportionate share mitigation agreement shall limit the authority of the county to deny any development permit or its functional equivalent. Upon approval of the proposed development, the county shall execute the proportionate share mitigation agreement.

6.

Duration and effect of an allocation of school concurrency.

a.

An allocation of school concurrency shall remain valid and shall apply to any certificate of occupancy or building permit requested for as long as the approval of the proposed development remains effective.

b.

An allocation of school concurrency shall not affect the need for the applicant to meet all other requirements set forth in the land development and subdivision regulations or any other lawfully adopted ordinance or law of the county.

7.

Finding of no available school capacity; proportionate share mitigation agreements.

a.

Upon receiving from the school district of a finding of no available school capacity, the county development services director must notify the applicant in writing within ten business days of the denial. The notice must state the reasons for the denial and any actions that the applicant may take voluntarily to receive a finding of available school capacity.

b.

Upon a finding of no available school capacity, an applicant may:

(1)

Submit a proposed development for a reduced amount of development for which available school capacity exists;

(2)

Submit an amended proposed development that includes the following:

(a)

A proposed phasing schedule setting forth the amount, location, and timing of development associated with each proposed phase;

(b)

A showing that available school capacity will exist for each phase of development;

(c)

Other additional information or materials identified by the school district as necessary to ensure school concurrency;

(d)

Proffer an executed proportionate share mitigation agreement, pursuant to this division, which shall fully mitigate the impact of the proposed development on school facilities; or

(e)

Wait until school capacity may exist for the proposed development pursuant to the school district five-year district facilities work program.

(Ord. No. 08-09-54, § 3)

The LOS applied to a CSA shall be as adopted in the Highlands County Interlocal Agreement for Coordinated Planning and School Concurrency and the Public School Facilities Element of the Highlands County Comprehensive Plan for each level or type of school facility.

(Ord. No. 08-09-54, § 3)

A.

Applicability. The provisions of this section shall apply to an applicant that either has received a finding of no available school capacity or wishes to proffer proportionate share mitigation.

B.

Generally. If it is determined necessary or desirable, the school district and the county may convene a meeting with the applicant, or each other if desired, to discuss the specific details of the proportionate share mitigation agreement. A 90-day negotiation period shall be applicable for such purposes. The proportionate share mitigation agreement shall provide mitigation that is at least proportionate to the demand for school facilities to be created by the additional or new residential units in the proposed development, and for which there is no available school capacity. Mitigation may not be provided unless it is first accepted by the school district. Any mitigation that is provided for in a proportionate share mitigation agreement must satisfy the demand created by the additional or new residential units, and shall be directed by the school district toward a planned school facility as identified in the school district five-year district facilities work program. The proportionate share mitigation agreement must be signed by the applicant and the school district before a finding of available school capacity can be issued. The county shall execute the proportionate share mitigation agreement following approval of the proposed development. No provision of the proportionate share mitigation agreement shall limit the authority of the county to deny any development permit or its functional equivalent.

C.

Options for proportionate share mitigation. If the applicant chooses to enter into a proportionate share mitigation agreement, the applicant shall consult with the county and the school district on the options available for mitigating the CSA affected by the proposed development. The applicant shall provide one or more of the proportionate share mitigation options. The agreed upon mitigation shall be described in an exhibit to the proportionate share mitigation agreement. The following options or a combination thereof may be utilized to satisfy such mitigation requirements:

1.

Payment of calculated proportionate share mitigation fees in accordance with subsection F. of this section;

2.

Contribution of land;

3.

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

4.

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

5.

Renovation of existing buildings for use as learning facilities;

6.

Construction of permanent student stations or core capacity; or

7.

Construction of a school in advance of the time set forth in the school district five-year district facilities work program.

D.

Proportionate share mitigation requirements. Proposed mitigation shall be directed toward a permanent capacity improvement identified in the school district five-year district facilities work program. Consideration may be given by the school board to place an additional improvement required for mitigation in the school district five-year district facilities work program. The proposed mitigation must satisfy the demand created by the proposed development consistent with the adopted LOS standards or identified as an amendment to the adopted school district five-year district facilities work program. Portable classrooms will not be accepted as mitigation.

E.

Use of capacity of contiguous concurrency service areas. Mitigation shall not be required when the adopted LOS cannot be met in a particular CSA, if the school district determines that the needed capacity for the development is available in one or more contiguous CSA(s) and the impacts of the development on school capacity can be shifted to that CSA.

F.

Determination of amount of proportionate share mitigation required. The amount of proportionate share mitigation required from an applicant shall be calculated by applying the adopted student generation rate multiplier to the estimated cost per student station for each school type (elementary, middle and high) for which there is not sufficient school capacity. The full cost of proportionate share mitigation shall be required from the proposed development. The minimum proportionate share mitigation obligation for a proposed development shall be determined by the following formulas:

Formula for number of student stations to be mitigated

Number of new student stations required for mitigation (by school type) = available school capacity for the proposed development - [number of dwelling units generated by the proposed development (by housing type) × student generation multiplier (by housing type and school type)]

Formula for cost of mitigation

Cost of proportionate share mitigation = number of new student stations required for mitigation (by school type) × estimated cost per student station (by school type).

G.

Cross jurisdictional impact. If the approval of additional or new residential dwelling units would result in a failure of school concurrency within a school district in an adjacent county and the applicant seeks to enter into a proportionate share mitigation agreement, the formulas set forth in this section shall be used to determine the applicant's minimum proportionate share mitigation obligation. Any proportionate share mitigation provided by the applicant shall be directed to the school district in the adjacent county that experiences the failure of school concurrency.

H.

Impact fee credit. A developer shall receive credit for school impact fees to be paid to the county for land, buildings, permanent student stations or core capacity donated and buildings renovated pursuant to this division, and accepted by the school district based upon amounts agreed upon by the applicant, the school district, and the county in proportion to the total amount due for the development's public school facilities impact. If the total impact for public schools is prepaid through the developer's proportionate share mitigation, no impact fees for public schools shall be due for residential dwelling units constructed within the approved development.

(Ord. No. 08-09-54, § 3)

A.

School district five-year district facilities work program. Pursuant to the Highlands County Interlocal Agreement for Coordinated Planning and School Concurrency, the county will review, comment, and participate in the development of the school district five-year district facilities work program and will provide input with respect to the consistency of the school district five-year district facilities work program with the county comprehensive plan.

B.

Capital improvements element. The capital improvements element of the county comprehensive plan shall be amended each year by December 1 to reflect the most recent update to the school district five-year district facilities work program. Adoption shall be by reference to the specific date of approval by the school district of the updated school district five-year district facilities work program.

(Ord. No. 08-09-54, § 3)

An applicant may appeal any final decision by the county development services director, made pursuant to the terms of this division, to the board. Appeals must be filed with the county administrator within 30 business days of the determination or decision being appealed. Appeals shall be heard by the board at an evidentiary hearing at which the reasons for the decision and the evidence relied upon shall be presented. The applicant also shall have the opportunity to present the reason for appeal and evidence in support of the appeal. The board may:

1.

Affirm the decision of the county development services director;

2.

Remand the matter to the county development services director for further proceedings; or

3.

Reverse the decision of the county development services director.

Decisions of the board may be challenged in a court of competent jurisdiction in accordance with applicable law.

(Ord. No. 08-09-54, § 3)

Certain land development rights of property owners may be vested with respect to the Highlands County Comprehensive Plan, land development regulations, and requirements for the determination of capacity of public facilities and availability of public facilities ("concurrency"). It is the intent of the BCC that these regulations be implemented and applied with sensitivity to private property rights and not be unduly restrictive. It is the intent of the BCC that nothing in these regulations be applied or construed in a manner that abrogates the vested rights of a property owner under F.S. § 163.3167(5); or the common law of the United States or the State of Florida; or constitutes a taking of property in violation of the Constitutions or laws of the State of Florida or the United States of America. The purpose of this section is to provide standards, limitations, and procedures for the determination of vested rights. Any person claiming vested rights to develop property shall make application for a determination of vested rights pursuant to this section. A determination of vested rights made pursuant to this section may be relied upon according to its terms by the property owner and his successors. Judicial relief will not be available unless administrative remedies set forth in this section are exhausted, including the appeal of a vested rights determination to a hearing officer as provided in this section.

(Ord. No. 05-06-30, § 82; Ord. No. 16-17-17, § 258)

An application for a determination of vested rights shall be approved if an applicant has demonstrated rights that are vested under the standards of this section. The burden shall be, at all times, on the applicant to establish entitlement to the vested rights claimed. The vested rights determination shall allow completion of the development determined to be vested up to and through issuance of appropriate certificates of occupancy, subject to the limitations set forth in this division and subject to compliance with such laws and regulations against which the development is not vested.

A.

Certain projects vested (F.S. Ch. 380). Developments of regional impact which are authorized under F.S. Ch. 380.06, pursuant to a valid, unexpired binding letter of vested rights issued by the state land planning agency, including approved modifications to such binding letter of vested rights (the "binding letter"), are vested, as set forth in the binding letter, from the Highlands County Comprehensive Plan, from the land development regulations adopted to implement the plan, and from concurrency. Such vesting shall continue until development approved in the binding letter is complete or until the expiration or invalidation of the binding letter, whichever occurs first. A proposed change to a development vested hereunder shall be considered a substantial deviation and shall be processed as a zoning change. Any substantial deviation after January 25, 1991, shall cause those development rights that are the subject of such deviation to become subject to the plan, the land development regulations adopted to implement the plan, and concurrency. The request for a determination of vested rights shall consist of the binding letter, along with the master plan of development or similar document previously approved by the BCC. Such document shall be provided to the planning division for verification of authenticity. The planning division may require additional documents or materials necessary for the county to determine the extent of development vested and to estimate the capital improvements required by the development. Submission of the binding letter along with the appropriate master plan or similar document and any additional materials required by the planning division shall entitle the development to a determination of vested rights. DRI scale developments which are vested under F.S. § 380.06 and for which a binding letter has not been issued shall qualify for a determination of vested rights upon receipt by the planning division of substantial competent evidence that, prior to July 1, 1973, the county issued a building permit or other authorization to commence development and that in reliance on such permit or other authorization that there has been a change of position as required under the provisions of F.S. § 380.06(20), and such vesting shall continue until such development is complete or until the state land planning agency determines that such development is not entitled to be vested under F.S. § 380.06, whichever occurs first.

B.

Certain development orders vested. A development that has been issued a local development order and has commenced and is continuing in good faith is vested, to the extent of the development permitted by such local development order from the Highlands County Comprehensive Plan, from the land development regulations adopted to implement the plan, and from concurrency as provided in this section. Possession of a valid, unexpired local developmental order shall vest the development approved under such permit for the purposes of the plan if issued prior to January 25, 1991; if issued prior to the effective date thereof, for purposes of the land development regulations adopted to implement the plan and concurrency; and, if issued prior to the effective date of any plan amendments adopted pursuant to the settlement agreement, for purposes of such amendments. Verification of such approvals or permits shall be made by the director, or designee, of the county department that issued the approval or permit, and his statement of verification shall be submitted to the planning department.

C.

Common law vesting. Consistent with the common law of the United States and the State of Florida, a property owner may also establish vested rights by proving that he has reasonably relied in good faith upon some act or omission of the county, and has made such a substantial change in position or has incurred such extensive obligations and expenses, that it would be highly inequitable or unjust to destroy the rights he has acquired. In making this determination, Highlands County may consider a number of factors, including but not limited to whether construction or other development activity has commenced and is continuing in good faith and whether the expense or obligation incurred cannot be substantially utilized for a development permitted by Highlands County's Comprehensive plan and Land Development Regulations.

D.

Certain lots-of-record vested. Construction or reconstruction of single-family residential units and related structures upon legal lots-of-record existing prior to the adoption of the Highlands County Comprehensive plan are vested against the use, density, or intensity provisions of the Highlands County Comprehensive Plan when necessary to provide the property owner a reasonable and economically viable use of the property. The determination of vested rights shall allow the issuance of development orders and permits for such construction and reconstruction.

E.

Certain subdivisions vested. The lands within the boundaries of recorded plats approved and recorded according to law on or before January 25, 1991, which had diverse patterns of ownership as of that date and had roads which had been accepted, as of that date, by the county or the State of Florida for maintenance or which are maintained by a special benefit district are vested against the use and density limitations which would otherwise exist due to those platted lands being located in areas which were designated for agricultural use on the future land use map adopted January 25, 1991. All other provisions of federal, state, and local laws, rules, and regulations as in effect from time to time shall govern the development of all lands within those platted subdivisions.

F.

Certain existing uses of structures, existing uses of the land, or existing buildings vested. Any property owner wishing to expand, rebuild, or change an existing use of structures, buildings, or land that, while inconsistent with the comprehensive plan future land use map complied with the zoning regulations when built or commenced and obtained all required building permits when developed, build, or established shall have the right to continue that use of the structure or use of the land until that use is discontinued and may be permitted to expand, rebuild, or change that use if such expansion, rebuilding, or change in use is allowed by the zoning district regulations currently in effect for the property. All other land development regulations, concurrency, and other county ordinances then in effect shall govern the permitting of the expansion, rebuilding, or change in use.

(Ord. No. 05-06-30, § 82; Ord. No. 19-20-09, § 107)

A.

A determination of vested rights will not relieve a property owner from the application of any future county impact fee ordinance.

B.

Except as otherwise expressly provided herein vesting determinations shall be limited to use, density, and intensity.

C.

Except as provided in this division, upon the expiration of five years after the issuance of a determination of vested rights, the issuance of development permits for the property subject to the determination of vested rights shall be subject to the requirements for concurrency. Notwithstanding the foregoing, the five-year period may be extended upon a finding by the development services director or the hearing officer, on appeal, that such extension is reasonable and necessary in light of the development approved. Commencing with the expiration of two years after the issuance of a determination of vested rights, pursuant to this division, an annual report shall be submitted to the planning department by the developer or owner of the subject property. Annual reports shall be submitted on forms provided by the planning department and shall be due on each annual recurrence of the issuance date. The annual report shall contain information and documents establishing that development has commenced and is continuing in good faith. Failure to commence and continue in good faith shall cause the development to become subject to concurrency. Failure to file an annual report, when due, may cause the development to become subject to concurrency. Requests for extensions shall be submitted to the planning department not less than 30 days prior to the due date for the annual report.

D.

Except as provided in this division, all development subject to a determination of vested rights must be consistent with the terms of the development approval(s) upon which the determination of vested rights was based. Any substantial deviation from a prior approval, except a deviation required by governmental action, shall cause the development involved to be subject to the policies and implementing decisions and regulations set forth in the Highlands County Comprehensive Plan, including concurrency. It is understood, however, that non-site planned approvals may allow for some flexibility in development scenarios. The development services director shall determine whether a proposed change is a substantial deviation in light of the following criteria:

1.

Any change in use or intensity of use that would increase the development's impacts on those public facilities subject to concurrency by more than five percent.

2.

Any change in access to the project that would increase the development's transportation impacts by more than five percent on any road subject to concurrency unless the access change would result in an overall improvement to the transportation network.

Except for changes that meet the criteria of this subsection, proposed changes shall not cause the development allowed under the determination of vested rights to become subject to concurrency, but, to the extent feasible, shall cause such development to become subject to the land development regulations adopted to implement the plan. The property owner may appeal a substantial deviation determination to the BOA within ten days of such determination.

E.

Notwithstanding anything in this section to the contrary, a vested rights determination may be revoked upon a showing by the county of a peril to public health, safety or general welfare of the residents of Highlands County unknown at the time of approval.

(Ord. No. 05-06-30, § 82)

The county shall maintain a list of those projects presumed vested. However, at any time the determination of vested status may be amended by substantial competent evidence as per the requirements of these regulations.

(Ord. No. 05-06-30, § 82)

The following rules shall govern the application for a determination of vested rights.

A.

Applications for determination of vested rights shall be submitted to the Highlands County Planning Department (the "planning department").

B.

An application for a determination of vested rights relating to the use of property shall be filed within two years from the conclusion of the consistency rezoning public hearings for the subject property. Except as provided in subsection C. and D. of this section, failure to file an application within the required period will constitute an abandonment of any claim to vested rights.

C.

If a property owner is absent from the State of Florida during the entire filing period and does not have an agent present in the State of Florida during such period, such property owner may, with documentation sufficient to indicate a probable lack of notice, be granted leave by the planning department to file an application within one year after the individual's return to the State of Florida.

D.

Notwithstanding the provisions of this section, the BCC may, in extraordinary circumstances, allow a property owner to submit an application after the one year deadline where such extension is necessary to avoid undue hardship to the property owner.

E.

An application for determination of vested rights may be submitted only by a property owner who:

1.

As to vesting for the comprehensive plan, owned the property proposed for development on January 25, 1991, the effective date of the Highlands County Comprehensive Plan; or,

2.

As to vesting for concurrency and the land development regulations adopted to implement the plan, owned the property on the date of adoption of the regulation against which the applicant seeks to be vested; or,

3.

As to vesting for any comprehensive plan amendments adopted to implement the provisions of the settlement agreement between Highlands County and D.C.A. approved by the BCC, owned the property prior to the effective dates of such amendments; or,

4.

Entered into a contract or option to purchase the property on or before such date; or,

5.

Presents facts such that it would be inequitable, unjust or fundamentally unfair to deny an application for vested rights where the applicant acquired ownership after such date.

(Ord. No. 05-06-30, § 82)

An application for a determination of vested rights shall be submitted to the development services director on a form prepared by the development services department. An application fee in an amount determined by the BCC, from time to time, shall accompany and be part of the application. The application shall include the following information and documents and shall be made on the form attached hereto in the planning department.

A.

Name, address and telephone number of the owner or his authorized agent;

B.

Street address, STRAP number, legal description and acreage of the property; and,

C.

All factual information and documents reasonably available to the owner and applicant to prove the existence of vested rights according to the standards stated in this section.

(Ord. No. 05-06-30, § 82)

After receipt of an application for a determination of vested rights, the development services director shall, within ten working days, determine whether the application, as submitted, is complete.

A.

If incomplete: If all items required are not included, the application shall be deemed incomplete and the applicant notified in writing, requesting the additional information or documents. The applicant shall have 30 calendar days to supply the missing information or documents, after which time, if not received, the development services director shall disapprove the application and so notify the applicant. The applicant must then resubmit his application as if it were a completely new submission. Credit will be given for any application fee or review fee submitted with the first application toward applicable fees for any subsequent application for the same project submitted within 12 months from the date the applicant was notified that his application had been deemed incomplete.

B.

If complete: If all items required are included and the application otherwise conforms with the submission requirements of these regulations, the application shall be deemed complete, and the applicant notified, in writing, that the application will be processed within 20 working days.

(Ord. No. 05-06-30, § 82; Ord. No. 16-17-17, § 259)

After receipt of a complete application for a determination of vested rights, the development services director shall review and evaluate the application pursuant to the criteria in this division and shall prepare a written report of its determination specifying whether the application request be granted, granted with conditions, or denied. If granted or granted with conditions, the report shall specify the rights determined to be vested and where applicable, conditions that may be applied. In the event that the vesting request is denied, the vesting determination shall specify the reasons for denial. The development services director shall send the vesting determination to the applicant by certified mail to the mailing address given on the application.

(Ord. No. 05-06-30, § 82)

A.

Notice of appeal. A property owner desiring to appeal the development services director's determination of vested rights shall file a verified notice of appeal, within 30 days after the date of mailing of the vesting determination, on a form established for such purpose by the planning department, by certified mail or personal delivery to the planning department. The notice of appeal submitted by the property owner shall contain:

1.

The name and address of the appellant or the appellants, and an explanation of how his or her substantial interests will be affected by the determination.

2.

The legal description of the property.

3.

A statement of all disputed issues of material fact. If there are none, the notice of appeal must so indicate.

4.

A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the appellant to relief.

5.

A demand for relief to which the appellant deems himself entitled.

6.

Any other information which the appellant contends is material.

B.

Other requirements. The appellant shall submit with the notice of appeal all relevant documents in his custody or control pertaining to the appeal.

1.

With the notice of appeal, the appellant shall pay all applicable fees.

2.

The fees and costs of the hearing officer conducting the hearing shall be paid equally by the county and the appellant. With the filing of the notice of appeal, the appellant shall pay to the county a deposit in an amount established from time to time by the BCC to defray the appellant's share of the hearing officer fees and costs. After the appellant's share of the hearing officer fees and costs is finally determined, any deposits in excess of appellant's expenses shall be refunded to appellant, and appellant shall pay to the county any amount by which the share of such fees and costs exceeds the deposit.

C.

Hearing procedure.

1.

The hearing officer shall set a date, after consulting with the applicant, the board attorney, and the development services director not later than 45 days after filing of the notice of appeal.

2.

Procedures for the hearing and matters relating thereto shall be governed by this Code.

3.

The hearing officer shall render a decision on the appeal within 30 calendar days after the hearing.

4.

The decision shall be in writing, shall contain findings of fact and conclusions of law, and shall refer specifically to the property or portion of property to which it applies. The decisions may contain reasonable conditions necessary to effect the purposes and requirements of this section. The decision shall state that it is subject to expiration in accordance with this Code.

5.

The decision shall be filed with the planning department and a copy shall be provided to the appellant and the board attorney. The decision of the hearing officer shall be considered final for purposes of judicial appeal.

D.

Appeal from decision of hearing officer. An aggrieved party may appeal a final order of the hearing officer to the Circuit Court in Highlands County, Florida, within 30 days after the filing of such decision in the planning department, but not thereafter. Review in the circuit court shall be by petition for writ of certiorari, which shall be governed by the Florida Rules of Appellate procedure.

(Ord. No. 05-06-30, § 82)

The purpose of this division is to provide for the protection of environmentally sensitive lands and to promote orderly growth in Highlands County by allowing development rights to be severed from sending lands and transferred to sites where additional development can be accommodated. The transfer of development rights program is designed to redistribute population densities, or development potential, to encourage the most efficient use of services and facilities. Further, it is the purpose and intent of this division to provide an alternative to the development of sending lands by establishing a mechanism to seek economic relief from the limitation of development imposed on these lands. Transfer of development rights can mitigate inequities in the valuation of land by providing a means of compensating landowners whose property is restricted, by permitting the sale of development rights, and making landowners in more intensively developed areas pay for the right to develop up to maximum density, by purchasing development rights.

(Ord. No. 05-06-30, § 82)

Development rights may be transferred from sending areas pursuant to the procedures contained in this division, to property in incorporated Highlands County which meets the qualifications to receive such density.

(Ord. No. 05-06-30, § 82)

The transfer of development rights (TDR) program allows a property owner to exceed his starting density by purchasing development rights from the property owner with land in a designated sending area as so to allow an increase up to the maximum density of the receiving site. In order to increase density, the site must meet the requirements to become a designated receiving area and follow the procedures as described in this division. When development rights are transferred from the sending area to the receiving area, a TDR easement over the sending area shall be simultaneously recorded in the public records of Highlands County, restricting future development potential.

(Ord. No. 05-06-30, § 82)

A.

General. Except as otherwise specified, the transfer of development rights program shall be administered by the development service director, who may designate responsibilities regarding the program to one or more members of the planning department staff.

B.

Responsibilities. The development services director, or designee, shall be responsible for:

1.

Establishing, administering and promoting the county's transfer of development rights program.

2.

Administering the transfer of development rights bank established by the Highlands County BCC.

3.

Ensuring the orderly and expeditious processing of transfer of development rights applications under this division.

4.

Ensuring the contract for sale and purchase of development rights is executed and all deeds and easements are recorded in the public records of Highlands County.

5.

Ensuring that the property appraisers office is notified of all transfers of development rights.

6.

Ensuring that the future land use map, if applicable, is amended by a staff initiated land use map amendment to reflect an appropriate future land use designation for the sending area.

(Ord. No. 05-06-30, § 82)

A.

General. Sending areas represent in part those areas of the county that are designated by the BCC to warrant protection. The owner of property in a designated sending area may transfer the development rights to a parcel of land in a designated receiving area, subject to the provisions of this division.

B.

Eligible sending area shall include:

1.

Lands designated as wetlands, Cutthroatgrass seeps or xeric uplands on the future land use conservation overlay map, or which may be designated as residential, on the comprehensive plan land use map and the zoning atlas.

2.

Other sites determined by the BCC to be worthy of protection. At such a time that the BCC determines that a parcel of land is environmentally sensitive or preservation of the site is in the public interest, the parcel is eligible to become a designated sending area. The site shall be designated by resolution of the BCC.

3.

Lands designated as agriculture on the comprehensive plan land use map and AU on the zoning atlas.

C.

Transfer rate. The owner of land which is designated as a sending area may elect to transfer development rights as provided in this division. Residential development rights may be transferred from property designated agriculture, at the rate of one dwelling per five acres. The minimum land area eligible for the transfer of development rights shall be ten acres for agricultural lands, and at the density and intensity allowed by the comprehensive plan and the zoning ordinance for non-agricultural lands. All properties must be legal lots of record.

D.

Transfer limitations. If the owner of land in a sending area only transfers a portion of the development rights available for the property, the county, upon recommendation from the development services director reserves the right to determine which portion of the land is subject to the conservation easement. The purpose is to preserve the highest quality environmentally sensitive land, link high quality sites when possible, and allow compatible development to occur on the remainder of the site.

E.

Computation of the development rights. The number of development rights assigned to a sending area parcel of land shall be determined by the development services director as calculated below:

1.

All development rights shall be in whole numbers, no fractions shall be permitted. Any fractional residential unit that may occur during calculations shall be converted upward, if one-half or more of a whole unit, or downward, if less than one-half of a whole unit, to the nearest whole unit.

2.

The amount of development rights assigned to a sending area parcel shall be reduced by one dwelling unit for every conforming residential structure situated on the property at the time of approval.

F.

Restriction on future use. Upon closing of the contract for sale and purchase, an appropriate deed shall be recorded in the public records of Highlands County for the sending parcel. In addition, the residential development of the subject property shall be considered severed. Conservation or agriculture easements shall satisfy all requirements of F.S. § 704.06.

G.

Existing uses. Residential dwelling units which existed prior to making application to transfer development rights shall be permitted to remain as legal conforming uses. All other uses shall be considered non-conforming.

H.

Remaining land area. If all of the development rights assigned to a sending area are not transferred off the site, the remaining development rights, if proposed for development, shall be developed in a manner consistent with its comprehensive plan designation and compatible with the surrounding area.

(Ord. No. 05-06-30, § 82; Ord. No. 16-17-17, § 260, 261)

Development rights shall only be transferred to those parcels which meet the qualifications for designation as receiving areas.

A.

Eligible receiving areas. In order to qualify as a receiving area for an increase in density above the starting densities allowed by the comprehensive plan a parcel must:

1.

Be located within any of the residential urban land use designation mapped by the comprehensive plan and on the zoning atlas.

2.

Be compatible with surrounding land uses.

3.

Meet all concurrency requirements.

B.

Residential density bonus. Approved flexible unit development receiving areas may receive a density up to the maximum density allowed by the future land use designation. Residential development at a density greater that nine dwelling units per acre shall be for low/very low income housing as defined by the comprehensive plan.

(Ord. No. 05-06-30, § 82)

A.

Sending parcel application. The property owner of environmentally sensitive lands must make application for an administrative determination in order to be formally designated as a sending area. The purpose of this administrative determination is to ascertain the exact number of development rights the property owner is entitled. The application shall include, at a minimum:

1.

Proof of ownership;

2.

A legal description of the property;

3.

Contract or option for the purchase and sale of development rights.

B.

Review process.

1.

Within 15 working days from receipt of the application, the planning department shall complete a site check to ensure that the site has not been altered. Within five working days from completion of the site check, the planning staff shall complete a written recommendation to the development services director regarding the site.

2.

Within five working days from receiving the staff recommendation, the development services director shall complete the review of the application.

C.

Written determination. The property owner shall receive a written determination indicating how many development rights can be sold. The number of development rights for the site shall be documented and be kept on file at the planning department. The written document shall be valid for a period of 12 months.

D.

Transfer of development rights (TDR) easement. Simultaneous with closing on the contract for purchase and sale of development rights, the owner of land in the sending area shall execute an easement, in a form acceptable to the BCC. The easement shall restrict future use of the land, shall satisfy all requirements of F.S. § 704.06, shall be recorded in the public records of Highlands County, and shall run with the land and be binding with all current and subsequent owners of the servient estate in perpetuity.

E.

Re-submittal for application. The owner of a sending parcel may re-apply until all development rights have been severed from the property.

F.

Development right certificates. A Highlands County Development Rights Certificate is a legal document which permits a property owner to retain and sell development rights after donating environmentally sensitive lands (sending areas) to the county. These lands shall be managed by the county or its designee. In such cases, TDRs shall be treated in a manner similar to retention of mineral rights and shall be recognized upon recording of a deed transferring ownership from the property owner to the county.

1.

Eligibility. Development rights certificates shall only be issued to property owners with land in sending areas that donate the environmentally sensitive land to the county. The development rights certificate shall require that restrictions be placed on the sending area prior to the sale of those development rights. A minimum donation of ten acres is required.

2.

Issuance of the certificate. Upon completion of the application process, and recordation of the deed transferring ownership of the property to Highlands County, the property owner shall be issued a development rights certificate. The certificate shall indicate the exact number of development rights which can be sold, transferred, or traded, by the holder of such certificate. The certificate shall remain in effect until used in a designated receiving area in accordance with provisions of this division.

G.

Limitation. The amount of development rights assigned to a sending area parcel, or indicated on a certificate, shall be reduced by one for every conforming residential structure situated on the property at the time of application.

(Ord. No. 05-06-30, § 82; Ord. No. 16-17-17, § 262)

A.

General. Transfer of development rights is considered a special density program and receiving areas shall be approved concurrent with issuance of a development order. The following procedures shall be followed in order to become a receiving area in Highlands County.

B.

Pre-application conference. Prior to submittal of an application requesting to be a receiving area, the applicant is encouraged to attend a pre-application conference with the planning staff, to review the proposed development, and the requirements and procedures of the transfer of development rights program.

1.

Submission of application. An applicant for receiving area status must submit all necessary information and material, including a contract (or option) for sale and purchase of development rights, as required by the transfer of development rights program.

2.

Determination of sufficiency. The development services director shall determine the sufficiency of an application for transfer of development rights within five working days from the receipt of the application.

a.

If it is determined that the application is not sufficient, written notice shall be mailed to the applicant specifying the deficiencies within ten working days of the determination. The development services director shall take no further action on the application unless the deficiencies are remedied. If the deficiencies are not remedied within 20 working days, the application shall be considered withdrawn.

b.

If the application is determined sufficient, the development services director will proceed to review the application pursuant to the procedures and standards of this division.

3.

Review and decision of the development services director. Within 15 working days after the development services director determines the application is sufficient, the application shall be reviewed to determine if the applicant has complied with the preliminary requirements for a receiving area. A letter of agreement or development agreement incorporating the items of the letter must accompany the adequate facilities component of the application prior to issuance of a concurrency reservation or conditional concurrency. Reservations shall be based on the total density of the development including the density to be granted pursuant to the transfer of development rights program.

4.

Standards. All applications for the transfer of development rights receiving area program shall comply with these standards:

a.

The proposed development and request to be designated a receiving area for a density increase shall be compatible with surrounding land uses and consistent with the comprehensive plan.

b.

The requested density increase shall not exceed the maximum density permitted by the future land use designation.

5.

Issuance of a preliminary report. A preliminary report prepared by the development services director shall be issued within seven working days of action or inaction. The report shall identify all conditions that must be fulfilled by the developer in order for the property to be designated a receiving area, and receive the requested or recommended increase in density.

(Ord. No. 05-06-30, § 82)

Upon the issuance of the preliminary report approving the request, the property owner shall proceed through the development approval process.

A.

Review and recommendation of development services director. The development services director shall review the application, preliminary report, letter of agreement or development agreement and recommend approval, approval with conditions, or denial of the application based on the standards in this division, for all developments with density transfers. Transfers of 20 units or less shall be established through administrative approval by the development services director. All density transfers of more than 20 units must have final approval of the BCC.

B.

Review and recommendation of the P&Z. Within 20 working days of the recommendation of the development services director, the P&Z shall consider the application, the preliminary report, the development services director's recommendation, the relevant support materials, and public testimony given at a hearing. After the close of the public hearing, the P&Z shall recommend to the BCC approval, approval with conditions, or denial of the application and the proposed increase in density.

C.

BCC findings. In addition to finding that the standards to qualify as a receiving area and be eligible for an increase in density have been satisfied, by the BCC shall require that:

1.

The transfer of development rights is by deed, and the deed shall be recorded with the county in the same manner as a deed for real property before final site plan approval.

2.

The transfer is to eligible parcels of land which meet all the requirements of these regulations within which the transferred densities have been included and amended.

3.

The proposed development meets all concurrency requirements at the level of impact calculated to include the density transfer.

4.

If the transfer is between two private parties, at the time the transfer is approved, the entire sending area from which transfers will occur shall be subject to a conservation, open space, or agriculture easement, recorded and identified on the zoning atlas. Pending recording of the TDR easement, no development approvals or development permits will be issued for the receiving area.

5.

The proposed development and density are compatible with the surrounding area and land use.

D.

Conditions. The development services director or the P&Z may recommend and the BCC may impose such conditions in approval of a transfer of development rights and designation of receiving area that are necessary to accomplish the purposes of the comprehensive plan and these regulations to prevent or minimize adverse effects upon the community.

E.

Notification to property appraisers office. Upon approval of the receiving area and recording of deeds of transfer and conservation easements the development services director shall notify, within five working days, the property appraiser's office in writing that property development rights have been transferred from the sending area to the receiving area in perpetuity and that:

1.

The seller shall be entitled to reduction of taxes consistent with the development rights retained, if any, and the TDR easement placed on the property; and

2.

The development rights transferred shall run with the receiving parcel and the parcel shall be reassessed at the approved density.

(Ord. No. 05-06-30, § 82)

Concluding the transfer of development rights and providing that all standards have been met and deeds of transfer and conservation easements recorded, the planning department shall initiate a county comprehensive Plan land use map amendment to accurately reflect the use of the sending area parcel as Conservation or indicate that a TDR easement exists. The receiving area shall be designated to reflect the approved density during the five-year revision to the comprehensive plan as required by Florida Statutes.

(Ord. No. 05-06-30, § 82)

The development services director shall implement and maintain an "accounting" system for monitoring density transfers in the transfer of development rights program.

(Ord. No. 05-06-30, § 82)

The provisions of the Florida Local Government Development Agreement Act provide authority for the BCC to enter into a development agreement with any person having a legal or equitable interest in real property located within the unincorporated area of Highlands County, Florida, and for such purpose, the legislative intent and provisions of the Florida Local Government Development Agreement Act, F.S. §§ 163.3220—163.3243 et seq., is hereby adopted and incorporated herein by reference.

(Ord. No. 05-06-30, § 82)

In addition to the requirements of F.S. §§ 163.3227 and for the purposes of a local development order, any development agreement approved by the BCC shall include, but not be limited to, the following information, maps, and other documentation that is necessary to make a completeness determination:

A.

A preliminary site plan which depicts all construction phases, whenever applicable;

B.

A map depicting the future land use of the property, as designated on the future land use map of the Highlands County Comprehensive Plan as amended from time to time;

C.

A map depicting the most current zoning district(s) established or anticipated to be established for the property, so long as such zoning district(s) is (are) consistent with the Highlands County Comprehensive Plan and conforms (conform) to the zoning ordinance and other applicable development regulations then in effect;

D.

In the same manner as F.S. § 163.3227(d) regarding public facilities, a description of private facilities, including on-site and off-site improvements necessary to complete the project;

E.

A description of the remedial measures to mitigate concurrency and environmental impacts that are attributable to the proposed project, whenever applicable; and,

F.

A listing of applicable state and federal permits that are issued or will need to be acquired in order to develop the project as it is proposed.

(Ord. No. 05-06-30, § 82)

Development agreements shall be prepared in accordance with this section and submitted to the planning department. Development agreements shall contain such information as is required by the above and as is reasonably necessary to portray the project in its completed stage.

A.

When a proposed development agreement is determined to be complete and within 30 calendar days from this completeness determination date, the planning department shall schedule and notice a public hearing on the development agreement at the earliest possible regular meeting of the planning and zoning commission (hereafter called the "commission") and, thence, the following regular meeting of the BCC in accordance with this section.

B.

When a proposed development agreement is determined to be insufficient or incomplete, the planning department shall provide the applicant with a written statement of any additional information required to complete the development agreement.

C.

The BCC will establish and may amend by resolution a schedule of fees from time to time for the filing and processing of development agreements.

(Ord. No. 05-06-30, § 82)

Two noticed public hearings shall be conducted for a development agreement or its amendment. The first public hearing shall be held by the planning and zoning commission, which shall act as the local planning agency and which shall make a recommendation to the BCC for approval, approval with conditions or changes, or denial of the proposed development agreement. The day, time, and place at which the second public hearing will be held shall be announced at the first public hearing. The second public hearing shall be held by the BCC, which shall take formal action to approve, to approve with conditions or changes, or to deny the development agreement, incorporating the mandatory findings of this section with their action. Public hearing dates will coincide with the regularly scheduled meetings of the commission and the BCC. The date, time, and place of a subsequently continued public hearing shall be announced by the chairman before adjourning the public hearing.

(Ord. No. 05-06-30, § 82)

Any action by the BCC to approve or to conditionally approve a development agreement shall incorporate the following findings of fact that, if constructed in accordance with this development agreement, the affected development or project:

A.

Complies with the Highlands County Comprehensive Plan and will be made to conform to the land development regulations of Highlands County for all subsequent local development orders;

B.

Satisfies the minimum requirements for concurrency clearance, as provided in these regulations;

C.

Satisfies the requirements for environmental clearance, as may be applicable and as provided in these regulations;

D.

Satisfies the requirements of F.S. § 163.3223, as may be applicable; and

E.

Provides the terms and conditions which the BCC deems are necessary:

1.

To assure orderly physical and economic development;

2.

For the mitigation of impacts attributed to the project being approved; and,

3.

To maintain the health, safety, welfare, and values of the general public.

(Ord. No. 05-06-30, § 82)

Within 14 calendar days after the effective date of the execution, revocation, cancellation, modification, or extension of a development agreement by the county, the development services director shall record the development agreement in the public records of Highlands County.

(Ord. No. 05-06-30, § 82; Ord. No. 16-17-17, § 263; Ord. No. 19-20-09, § 108)

A development agreement may be amended, revoked, canceled, modified, extended, or otherwise rescinded in whole or in part by mutual written agreement of the parties to the agreement or by their successors in interest.

A.

As a consequence of laws enacted after the execution of a development agreement, such agreement shall be amended or revoked as necessary to comply with those laws.

B.

In accordance with this section, the BCC may from time to time amend a development agreement in order to grant an extension of time for executing specific performance according to that agreement.

Amendments shall be governed by the same rules governing this section. Prior to amending a development agreement, the commission and the BCC shall hold a public hearing on the proposed amendment, in accordance with this section.

(Ord. No. 05-06-30, § 82)

Within 14 days after a local government enters into a development agreement, the local government shall record the agreement with the clerk of the circuit court in the county where the local government is located. A development agreement is not effective until it is properly recorded in the public records of the county. The burdens of the development agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties in the agreement. Whenever applicable, no development agreement shall be effective or be implemented by a local government unless the local government's comprehensive plan and plan amendments implementing or related to the agreement are in compliance with F.S. § 163.3184.

(Ord. No. 05-06-30, § 82; Ord. No. 16-17-17, § 264)

Unless otherwise specified in the development agreement, the planning Department shall conduct an annual review of every development subject to a development agreement, commencing 12 months after the effective date of the agreement. This review shall be called a compliance review.

A.

The planning department shall initiate the compliance review by giving written notice, by certified mail return receipt requested, to the principal contact person specified in the development agreement. Such notice shall include:

1.

The commencement date of the compliance review and the time period under review;

2.

The name, office mailing address, and phone number of the county staff person who will conduct the annual compliance review;

3.

A date by which the principal contact person should respond with written testimony, information, and documentation to demonstrate good faith compliance with the terms and provisions of the development agreement during the period under review;

4.

A brief description of the compliance review process and time-frame; and,

5.

As may be necessary for clarification purposes, a copy of the development agreement with a general description of those provisions or compliance issues under review and requiring a response.

B.

If the development services director finds that the affected development or project has complied in good faith with the development agreement during the period under review, the development or project shall be deemed in compliance with the development agreement for that time period and the compliance review shall be concluded with no further action being required.

C.

If the development services director concludes that there is a violation of or a failure to comply with terms, provisions, or conditions set forth in a development agreement, the development services director shall instruct the code enforcement officer to:

1.

Prepare a notice of violation which cites the specific terms, provisions, or conditions of the development agreement concluded to be in violation or noncompliance; copies of this notice of violation shall be submitted to the BCC, the board attorney, and a copy shall be mailed by certified mail return receipt requested to the principal contact person identified in the development agreement; and,

2.

Schedule and notice for an abatement hearing pursuant to these land development regulations; and,

3.

At the election of the principal contact person, schedule a meeting between responsible agencies of county staff and the private parties of interest or their agents or assigns in order to consider remedial measures and corrective action to abate the cited violations of the development agreement and bring about compliance to same within a reasonable period of time. This meeting shall be conducted at a place specified by the development services director at least ten business days prior to the abatement hearing date. Any remedial measures or corrective actions resulting by mutual consent of the parties in negotiation shall be favorably recommended over to the abatement hearing, but shall not be presumed or deemed binding upon the development services director or the BCC in that hearing.

D.

Upon conclusion of the abatement hearing, and upon consideration of the facts, recommendations, and testimony presented, the development services director or the BCC shall take either of the below actions:

1.

A finding that the developer has demonstrated good faith compliance with the terms and conditions of the development agreement for the period under review. Such action shall conclude the annual compliance review, with no further action being required: or,

2.

A finding that, on the basis of substantial competent evidence, there has been a violation of or a failure to comply with the cited portions of the development agreement for the period under review, in which any of the following further actions may be taken separately or in combination:

a.

To make an uncontested stipulated settlement providing that all or any combination of the remedial measures or corrective actions which were arrived at by mutual consent of the parties prior to the abatement hearing are sufficient and satisfactory for the continued execution of the development agreement;

b.

To amend the development agreement in accordance with this section as a means to bring action for or to require specific performance, to the extent that such modifications shall be probationary over the next annual review time period and are deemed necessary to assure reliable performance on and a faithful execution of the development agreement;

c.

To cause the revocation of the development agreement in accordance with this section, including all appertaining local development orders and permits;

d.

To cause a reconsideration of the merits, of the approved development, in whole or in part, and to amend the local development orders and permits in accordance with these land development regulations;

e.

To issue a stop work order until acceptable corrective actions are taken;

f.

To invoke whatever monetary penalties or cost recoveries are allowed under the development agreement; and/or,

g.

To take any other actions allowed by law.

E.

Should the development services director determine that the evidence for violation or noncompliance is of such magnitude, scope, or negligence so as to reliably constitute bad faith actions on the part of the developer within the context of the development agreement, or so as to pose a substantial or an immediate threat or hazard to the public health, safety, or welfare if allowed to continue, the development services director may immediately petition the BCC for an action to 1) table all applications for development approval then under consideration by the county and/or 2) issue a stop work order for construction activities to cease at the development site until such time as the abatement hearing prescribed by this section are concluded.

F.

Notwithstanding the compliance review time frame, the code enforcement officer operating with and executing under the directive of the BCC, shall have authority to take the above actions at any time against a developer or a development project for which a development agreement is in effect.

(Ord. No. 05-06-30, § 82)

For purposes of this section, enforcement, inspection, and review shall direct to the specific county authorities having jurisdiction or purview, as provided for hereinabove, including but not limited to the BCC, the board attorney, the development services director, the chief building official, the code enforcement officer, the county engineer, or other such persons so designated by the BCC.

A.

Any party, any aggrieved or adversely affected person as defined in F.S. §§ 163.3215(2) or the state land planning agency may file an injunctive relief in the circuit court where the local government is located to enforce the terms of a development agreement or to challenge compliance of the agreement with the provisions of F.S. §§ 163.3220—163.3243.

B.

Reserved.

(Ord. No. 05-06-30, § 82)

It is the purpose and intent of the BCC to provide the means for evaluating proposed development orders to ensure that the level of service standards adopted in the county's comprehensive plan are maintained, and that public facilities and services needed to support development are available concurrently with the impacts of such development. In addition, this section includes:

A.

Guidelines for interpreting and applying level of service (LOS) standards to applications for final development orders and permits, and for determining at what point in the process the test for concurrency must be met;

B.

Guidelines for assessing the demand placed on public facilities as well as the capacity of public facilities;

C.

The means by which the county will monitor changes in the capacity of public facilities;

D.

Provisions for the county to reserve capacity in the public facilities necessary to serve a proposed development following issuance of a certificate of concurrency; and,

E.

Provisions for a certificate of concurrency to include a time limit during which construction must commence to avoid forfeiture of the reserved capacity.

(Ord. No. 05-06-30, § 82; Ord. No. 12-13-18, § 3)

A.

Applicability. Unless specifically exempted by this section, concurrency clearance must be obtained for all development within the unincorporated areas of Highlands County, including but not limited to, commercial building structures, residential subdivisions, commercial and industrial subdivisions, manufactured home subdivisions, manufactured unit parks, seasonal parks, planned unit developments, cluster/PUD developments, and mining operations. The county engineer is charged with the responsibility of reviewing applications for and issuing concurrency clearances. Proof of concurrency clearance shall be obtained from the county engineer and submitted along with applications for final development orders for development requiring the recording of final plats, for development requiring the submittal of final site plans, and for mining operations.

B.

Exemptions. The following shall be exempt from the concurrency review requirements of this section:

1.

Building permits issued solely for remodeling, reconstruction, or restoration of residential units or nonresidential uses;

2.

All valid and approved final development orders issued after January 25, 1991, and before the adoption of these regulations, authorizing construction or other physical activity for single phase or multiphase projects provided, however, that for multiphase projects the preliminary plat or the preliminary site plan for the entire project must, to maintain exempt status for the project, be approved within one year of the platting of the previous phase, or where platting is not required, the occupancy of the immediately preceding phase;

3.

All valid, unexpired final development orders issued prior to the adoption of these regulations (dated November 1, 2005) relating to a development of regional impact (DRI) project issued pursuant to F.S. Ch. 380, or a local government development agreement approved pursuant to F.S. Ch. 163, except where:

a.

Substantial deviations are sought for the final development order, and then, these regulations shall apply only to those portions of the development for which the deviation is sought; and/or

b.

The county can demonstrate that substantial changes in the conditions underlying the approval of the final development order have occurred or the final development order was based on substantially inaccurate information provided by the developer;

4.

All new single-family residences, duplexes, and manufactured homes and accessory structures to residences not on a currently deficient hurricane evacuation route — this exemption excludes any new subdivision;

5.

Boat docks when accessory for residences, duplexes, and manufactured homes;

6.

Utility stations and substations (less than 69 KV);

7.

Public safety stations or buildings;

8.

Accessory storage facilities to a non-residential use, not including any principal use, such as mini-warehouses, warehouses, or distribution facilities;

9.

Parking lots open to the public or required for another use;

10.

All agriculture operations not involving permanent human occupancy or habitation;

11.

All transmitting and receiving towers or communication towers; and,

12.

All public projects not creating public facility demands, including utility service lines, flood control and drainage improvements, and central potable water or central wastewater facilities.

C.

Concurrency review process.

1.

An application for concurrency clearance shall be submitted on an official form reproduced in the Highlands County Technical Standards Manual, current edition, and available from the county engineer's office. It is a written, stand-alone document that must be submitted to the county engineer along with an application fee as adopted by the BCC. The concurrency clearance application must be reviewed and approved by the county engineer prior to submission of an application for a final development order by the applicant, except as permitted pursuant to section 12.04.101.F.

2.

Applicant for a proposed commercial development in a subdivision which has been platted, recorded and currently has an unexpired certificate of concurrency issued by the county may attach a copy of the subdivision's certificate of concurrency to the application and request a reevaluation of the permitted land uses under which the certificate of concurrency was issued. The county engineer will evaluate the proposed commercial development to assess if there is any deviation from the permitted land uses under which the certificate of concurrency was issued. If there are no deviations, the development will be allowed to proceed. If there are deviations from the permitted land uses under which the certificate of concurrency was issued then a reevaluation of concurrency shall be required. The county engineer may request only such additional information as is necessary to evaluate any deviation caused by the proposed new development from the subdivision's certificate of concurrency.

3.

Within ten working days after receipt of the application the county engineer shall determine whether or not the application is complete:

a.

If incomplete: If all items required are not included, the application shall be deemed incomplete and the applicant notified in writing, requesting the submission of additional information or materials. The applicant shall have 30 calendar days to supply the missing information, after which time, if not received; the county engineer shall return the application, denied. The applicant must then resubmit his application as if it were a completely new submission.

b.

If complete: If all items required are included, and otherwise in conformance with the submission requirements of these regulations, the application shall be deemed complete, and the applicant notified in writing, that his application will be processed within 15 working days and within ten working days after review and recommendation from the concurrency review meeting, if required.

D.

Concurrency determination for small projects, minor traffic impact analysis (TIAs), and some major TIAs. For small and minor TIA projects, the county engineer will, within 15 working days, make one of the following concurrency determinations and notify the applicant, in writing, of the decision. For major TIA projects, which do not require a concurrency review meeting as determined by the county engineer, the county engineer will, within 25 working days, make one of the following concurrency determinations and notify the applicant, in writing, of the decision. This decision shall be considered final, subject only to appeal as further provided for in this section:

1.

The county engineer will issue a certificate of concurrency where it is determined that adequate public facilities and services will be available concurrently with the impacts of the development and at all subsequent stages of the development approval process up to the expiration of certificate of concurrency.

2.

Where it is determined that capacity of a public facility or service is inadequate within the impacted area, the county engineer shall:

a.

Deny issuance of a certificate of concurrency; or

b.

Issue a certificate of concurrency subject to one or more of the following conditions:

(1)

Reduction of project size, density, and intensity to reduce the impacts of the development to less than or equal to the available capacity;

(2)

Requirement of the following:

(a)

Provision of public facilities and services through an approved Highlands County Land Development Agreement, including offsite improvements, by the applicant to achieve the necessary additional capacity needed to maintain the adopted LOS standards; or

(b)

Commitment by the applicant through an approved Highlands County Land Development Agreement, to construct public facilities and services to achieve the necessary additional capacity needed to maintain the adopted LOS standards prior to the issuance of a building permit; or

(c)

Approved proportionate fair-share agreement subject to sections 12.13.140 to 12.13.149, of the Code of Ordinances, Highlands County, Florida.

(3)

An improvement project is scheduled and fully funded through construction in the first year of the adopted capital improvements element of the comprehensive plan, or the adopted Florida Department of Transportation Five-Year Work Program.

E.

Concurrency determination for major TIAs. For all major TIAs, which require a concurrency review meeting as determined by the county engineer, the county engineer will, within 25 working days, review and prepare an agenda packet including the major TIA and concurrency recommendation for consideration by the attendees at the concurrency review meeting. After review and action by the attendees at the concurrency review meeting, the county engineer will within ten working days make one of the following concurrency determinations, and notify the applicant, in writing, of the decision. This decision shall be considered final, subject only to appeal as further provided in this section.

1.

The county engineer will issue a certificate of concurrency where it is determined that adequate public facilities and services will be available concurrently with the impacts of the development and at all subsequent stages of the development approval process up to the expiration of certificate of concurrency.

2.

Where it is determined that capacity of a public facility or service is inadequate within the impacted area, the county engineer shall:

a.

Deny issuance of a certificate of concurrency; or

b.

Issue a certificate of concurrency subject to one or more of the following conditions:

(1)

Reduction of project size, density, and intensity to reduce the impacts of the development to less than or equal to the available capacity;

(2)

Requirement of the following:

(a)

Provision of public facilities and services through an approved Highlands County Land Development Agreement, including offsite improvements, by the applicant to achieve the necessary additional capacity needed to maintain the adopted LOS standards; or

(b)

Commitment by the applicant through an approved Highlands County Land Development Agreement, to construct public facilities and services to achieve the necessary additional capacity needed to maintain the adopted LOS standards prior to the issuance of a building permit; or

(c)

Approved proportionate fair-share agreement subject to sections 12.13.140 to 12.13.149, of the Code of Ordinances, Highlands County, Florida.

(3)

An improvement project is scheduled and fully funded through construction in the first year of the adopted capital improvements element of the comprehensive plan, or the adopted Florida Department of Transportation Five-Year Work Program.

F.

Time limits.

1.

The certificate of concurrency shall be valid based on the following criteria:

a.

Land subdivisions not requiring improvement plans: 18 months from the date of issuance of the final development order or 24 months from the date of issuance of the certificate of concurrency, whichever comes first;

b.

Land subdivisions requiring improvement plans: 36 months from the date of issuance of the final development order or 42 months from the date of issuance of the certificate of concurrency, whichever comes first;

c.

Commercial building structures: 24 months from the date of issuance of the final development order or 30 months from the date of issuance of the certificate of concurrency, whichever comes first;

d.

Mining and mining related activities: 24 months from the date of issuance of the final development order or 30 months from the date of issuance of the certificate of concurrency, whichever comes first.

2.

An extension may be granted at the discretion of the county engineer for six months, subject to appropriate conditions and safeguards. A written request must be submitted for a time extension a minimum of 30 calendar days prior to the expiration of the certificate of concurrency which includes documentation to substantiate that there has been no substantial change in the permitted land uses under which the certificate of concurrency was issued.

3.

If a certificate of concurrency expires or the approved land uses change substantially, as determined by the county engineer, the applicant will have to reapply for concurrency clearance, repay the application fee and complete a new traffic impact study.

4.

If a major TIA is required for transportation concurrency, the certificate of concurrency may be valid for a period not to exceed five years, upon approval by the county engineer, if the applicant's major TIA includes a minimum of five years of background growth in the concurrency determination traffic analysis.

5.

The expiration of the certificate of concurrency may occur at a negotiated date for any of the following:

a.

A development of regional impact (DRI) or phase thereof, pursuant to F.S. Ch. 380; or,

b.

A Highlands County Land Development Agreement secured project, or phase thereof, pursuant to these regulations.

G.

Application contents. All applications for concurrency clearance shall provide sufficient information to determine the impacts of such development pursuant to the concurrency evaluation procedures in this section. Two copies of the application shall be submitted to the county engineer. Such information, as documented in the Highlands County Technical Standards Manual, current edition, shall include:

1.

Conceptual site plan showing specific location of the project including all existing roads, right-of-way, median openings and driveway connections within 250 feet of the project site;

2.

Total number and type of dwelling units for residential developments:

3.

Identification of the type, intensity and size of non-residential use, where appropriate, at a level of detail consistent with the type and location of development;

4.

Identification of project phasing, and the estimated start and completion dates;

5.

Total central potable water and central wastewater treatment demand and peak demand projected to be generated by the proposed development;

6.

If the project will utilize the services or facilities of an individually-owned, community-owned or franchised utility system, the applicant shall provide evidence of a contract with the service provider, indicating the provider's commitment and ability to serve the proposed development; such evidence shall include a letter from the franchise operator stating that adequate capacity is available and reserved to serve the proposed development, which shall include and specifically reference the department of environmental protection permit number issued pursuant to a completed notice of intent to use general permit for central wastewater collection, drinking water distribution system as amended or superseded, and if applicable, an application to construct a public drinking water system as amended or superseded, and if applicable, a copy of the latest operation and maintenance performance report prepared pursuant to Florida Administrative Code Chapter 62-550 or any successor regulation(s); if the ability of the provider to serve a proposed development is contingent upon planned facility expansion, such planned improvements shall meet the requirements of this section;

7.

Where central potable water is not available, the applicant shall make provisions for an alternate source of central potable water and supply evidence from the Highlands County Health Department showing that the suggested alternative to central potable water will be allowed and shall be designed to meet the requirements of this section;

8.

Where projects are to be served by septic systems, the applicant shall provide evidence from the Highlands County Health Department that septic systems will be allowed and shall be designed to meet the requirements of this section;

9.

Where projects are to be served by package central wastewater treatment plants, the applicant shall provide the design capacity of the proposed onsite central wastewater treatment plant;

10.

Any proposed dedication or provision of park and open space land by the applicant;

11.

Estimate of the amount of solid waste generation;

12.

Any available stormwater design calculations for the management of surface water quality and quantity and a statement that the stormwater management shall comply with the requirements of this section;

13.

Information about the projected school enrollments from the proposed development so that the school board can be informed about any such increase in the enrollments;

14.

Data and analysis required for traffic impact study, as explained in the Highlands County Technical Standards Manual, current edition of this Code and completed on County provided forms and electronic files;

15.

Evidence of the affected utility companies confirming the availability of electric, natural gas (optional), and phone service in sufficient capacity to serve the proposed development; and

16.

All evidence from the school board and affected utility companies, including, but not limited to, central potable water, central wastewater, solid waste, electric, natural gas, and phone service, confirming the availability of sufficient capacity to serve the proposed development shall be dated no more than 12 months prior to the date of the application for concurrency.

H.

Development agreements. The county may, but under no circumstances is it required to, enter into a Highlands County Land Development Agreement as authorized by F.S. §§ 163.3220—163.3243(1993) as from time to time amended, or these regulations, in order to ensure the provision of adequate facilities and services for all new development concurrently with the impacts of that development. The effect of the development agreement shall be to bind the parties to the terms and conditions of the development agreement and the certificate of concurrency.

I.

Transfer of certificate of concurrency. A certificate of concurrency shall apply to the land and is, therefore, transferable from owner to owner of the land subject to the terms and conditions of the certificate; it is not transferable from property to property. Persons transferring ownership shall notify the county of the transfer to allow the county to provide notice to the new owner, should notice become necessary.

(Ord. No. 05-06-30, § 82; Ord. No. 06-07-28, § 3; Ord. No. 07-08-32, § 19; Ord. No. 11-12-04, §§ 87—90; Ord. No. 12-13-18, §§ 4—6; Ord. No. 16-17-17, §§ 249—251; Ord. No. 19-20-09, § 106)

Editor's note— Ord. No. 06-07-28, § 4, adopted April 10, 2007, repealed § 12.13.102, which pertained to cumulative impact on levels of service. See also the Code Comparative Table.

The BCC has established an appeal process described in this division for hearing appeals when a certificate of concurrency has been either denied by the county engineer or issued conditionally or an extension has been denied. The process directs that the appeals be heard by a hearing officer appointed by the board in compliance with guidelines of this division.

A.

General requirements. The county engineer's decision to deny a certificate of concurrency or issue a certificate of concurrency subject to conditions described in this section, may be appealed. All appeals shall be heard within 30 days of the date of filing the notice of appeal, unless otherwise stipulated and agreed to by the applicant and the county, or unless otherwise ordered by the hearing officer for good and sufficient cause.

1.

Appeal form. An appellant desiring to appeal such decision shall file a verified notice of appeal, on a form established for such purpose by the engineering department, by certified mail with the county administrator. The notice of appeal submitted by the appellant shall contain:

a.

The name and address of the appellant or the appellants, and an explanation of how his or her substantial interests will be affected by the determination.

b.

The legal description of the property.

c.

A statement of all disputed issues of material fact; if there are none, the notice of appeal must so indicate.

d.

A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the appellant to relief.

e.

A demand for relief to which the appellant deems himself entitled.

f.

Any other information which the appellant contends is material.

2.

Other requirements.

a.

The appellant shall submit with the notice of appeal all relevant documents in his custody or control pertaining to the appeal.

b.

With the notice of appeal, the appellant shall pay all applicable fees.

c.

The fees and costs of the hearing officer conducting the hearing shall be paid equally by the county and the appellant. With the filing of the notice of appeal, the appellant shall pay to the county a deposit in an amount established from time to time by the BCC to defray the appellant's share of the hearing officer fees and costs. After the appellant's share of the hearing officer fees and costs is finally determined, any amount in excess of appellant's deposit shall be refunded to appellant, and appellant shall pay to the county any amount by which his share of such fees and costs exceeds his deposit.

3.

Hearing procedure.

a.

Procedures for the hearing and matters relating thereto shall be governed by this Code.

b.

The hearing officer shall render a decision on the appeal within 15 working days after the hearing. If a state hearing officer is used, the decision shall be rendered within 30 days.

c.

The decision shall be in writing, shall contain findings of fact and conclusions of law, and shall refer specifically to the property or portion of property to which it applies. The decisions may contain reasonable conditions necessary to affect the purposes and requirements of this section. The decision shall state that it is subject to expiration in accordance with these regulations.

d.

The decision shall be filed with the county administrator's office and a copy shall be provided to the appellant, the board attorney and the county engineer. The decision of the hearing officer shall be considered final for purposes of judicial appeal.

4.

Appeal from decision of hearing officer. An aggrieved party may appeal a final order of the hearing officer to the Circuit Court in Highlands County, Florida, within 30 days after the filing of such order in the office of the county administrator. Review in the circuit court shall be by petition for writ of certiorari, which shall be governed by the Florida Rules of Appellate Procedure.

B.

Hearing officer.

1.

The BCC shall appoint one or more hearing officers, all of whom shall be either lawyers, professional engineers, planners who are members of the American Institute of Certified Planners, or others the board determines to be qualified and to have demonstrated experience in land use matters.

2.

Hearing officers may be removed for cause.

3.

The county may use the State of Florida's Hearing Officer Program, F.S. Ch. 120.

4.

Whoever shall accept an appointment as a hearing officer and any firm with which the hearing officer is or may become associated during his term and for a period of one year from the date of termination as holder of such office, is hereby expressly prohibited from acting as agent or attorney in any proceeding, appeal, application, or matter before any commission, board, agent, or other office of county government, involving property which was the subject of an appeal regarding concurrency clearance and heard by the officer during his term.

(Ord. No. 05-06-30, § 82)

A.

Determination of capacity. To ensure that adequate public facility and service capacity is available concurrently with the impact of a proposed development, the total available capacity must be greater than or equal to the demand from the proposed development. The total available capacity is the difference of the total capacity and the sum of demands from existing development, vested development and approved/reserved development.

B.

Availability of infrastructure and services. A public facility or service shall be determined to be available for central potable water, central wastewater, solid waste, and drainage if it meets any of the conditions below. Parks and recreation services or facilities shall be determined to be available if they meet any of the conditions 1. through 5. below. Transportation facilities shall be determined to be available if they meet any of the conditions 1. through 6. below. The requirements of these regulations concerning the posting of sureties to guarantee completion of work shall apply to all construction described in conditions 2. through 5. below:

1.

The facility or service is in place to serve a proposed development when the county's final development order, permit, or development agreement is approved.

2.

The county's final development order, permit, or development agreement is approved subject to the condition that the facility or service will be in place when the impacts of the proposed development occurs.

3.

The facility or service is under construction when the county's final development order, permit, or development agreement is approved.

4.

The facility or service is the subject of a binding executed construction contract which provides for the commencement of the actual construction of the required facility or the provision of the required service within one year of issuance of the county's final development order.

5.

The facility or service is guaranteed by an enforceable development agreement which requires commencement of the actual construction of the facility or the provision of the service within one year of issuance of the county's final development order or permit.

6.

The public facility is identified in the county's adopted five-year capital improvements program or in the capital improvements element of the comprehensive plan or included in the adopted Florida Department of Transportation Five-Year Work Program provided that:

a.

The proposed improvements as set forth in the plan/program are sufficient to maintain the adopted levels of services after development.

b.

The proposed public improvements are scheduled to commence within three years of the issuance of the applicable development order or permit.

C.

Central potable water and central wastewater. The adopted level of service standards for central potable water and central wastewater are:

1.

Residential water systems:

a.

RV park: 75 gpcd.

b.

Mobile home park: 100 gpcd.

c.

Single-family residential: 120 gpcd.

d.

Multi-Family Development: 120 gpcd.

2.

Water storage capacity. All new development and redevelopment shall provide a total project water storage capacity (in combination with standby pumping capacity) of at least 50 percent of the maximum daily water system demand. Minimum water pressure for fire-flows shall be 35 pounds per square inch (psi) residual, with minimum flow capacity as follows:

a.

Residential: 500 gallons per minute.

b.

Commercial: 750 gallons per minute.

c.

Industrial: 1,000 gallons per minute.

D.

Solid waste. The county's adopted level of service standard shall be its ability to provide facilities sufficient to accommodate 5.21 pounds/person/day.

E.

Parks and recreation/open space. The adopted level of service standard shall be to maintain a county-wide standard of ten acres per 1,000 population.

F.

Stormwater management. The county shall require new development to utilize the appropriate SWFWMD, SFWMD, or FDOT drainage procedures and methods to ensure that post-development runoff will not exceed the pre-development runoff for a 25-year/24-hour storm event, and Best Management Practices shall be utilized to meet the state water quality standards. The stormwater management system for the proposed new development shall comply with the following minimum level of service standards:

1.

New development:

a.

SWFWMD LOS: 25-year/24-hour storm event — (peak discharge; 25-year/24-hour).

b.

SFWMD LOS: 25-year/24-hour storm event — (peak discharge; 25-year/36-hour).

Note: Direct discharges into designated outstanding Florida waters shall require a treatment area one and one-half (1.5) times greater than that required otherwise.

2.

Existing Development:

a.

Interim LOS: Ten-year/24-hour storm event.

G.

Transportation facilities. The data requirements and concurrency evaluation shall be performed in accordance with this section and Highlands County Technical Standards Manual, current edition. The adopted level of service standards for the concurrency determination network are included in the comprehensive plan transportation element.

(Ord. No. 05-06-30, § 82; Ord. No. 06-07-4, § 25; Ord. No. 06-07-28, § 5; Ord. No. 16-17-17, § 252)

Sections 12.13.140 through 12.13.149 shall be known and may be cited as the Highlands County Proportionate Fair-Share Ordinance.

(Ord. No. 06-07-5, § 1)

A.

Purpose and intent. The purpose and intent of the Highlands County Proportionate Fair-Share Ordinance 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, which shall be known as the proportionate fair-share program, as required by and in a manner consistent with F.S. § 163.3180(5).

B.

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

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 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 county to expedite transportation improvements by supplementing funds currently allocated in the five-year capital improvements schedule in the capital improvements element (CIE) of the county comprehensive plan for transportation improvements; and

5.

Is consistent with F.S. § 163.3180(5), and supports the following policies in the county comprehensive plan:

a.

Objective 3 with associated policy 3.7 of the transportation element.

b.

Objective 9 with associated policies 9.1, 9.2, and 9.3 of the transportation element.

c.

Objective 12 with associated policy 12.1 of the transportation element.

d.

Objective 4 with associated policies 4.1, 4.2 and 4.3 of the future land use element.

e.

Objective 4 with associated policies of the intergovernmental coordination element.

f.

Objective 2 with associated policies 2.1, 2.2 and 2.3 of the capital improvements element.

g.

Objective 4 with associated policies 4.1, 4.2, 4.4, 4.5 and 4.9 of the capital improvements element.

(Ord. No. 06-07-5, § 1; Ord. No. 16-17-17, § 253)

A.

The proportionate fair-share program shall apply to all developments in the county that have identified or have been notified of a lack of capacity to satisfy transportation concurrency on a transportation facility in the concurrency management system (CMS) adopted by the BCC, including transportation facilities maintained by the Florida Department of Transportation (FDOT) or another government agency that are utilized for concurrency determinations, pursuant to the requirements of section 12.13.143 of this division. The proportionate fair-share program does not apply to developments of regional impact (DRIs) using proportionate fair-share under F.S. § 163.3180(5), or to developments exempted from concurrency as provided in this division; policies in the county comprehensive plan; or F.S. § 163.3180, regarding exceptions and de minimis impacts.

B.

The proportionate fair-share program applies to transportation improvements or mitigation required to address roadway link deficiencies identified at the time of concurrency review. If an intersection deficiency is identified in the concurrency denial determination and the improvements required to remedy that insufficiency can be incorporated into a link improvement pursuant to section 12.13.143 of this division, then the costs and proportionate fair-share contribution may be included in the link improvement and calculation of the proportionate fair-share obligation made pursuant to section 12.13.146 of this division. The proportionate fair-share program does not apply to minor intersection improvements, such as signal retiming, installing traffic signals, and constructing turn lanes required to remedy a deficiency, that are not part of a roadway link transportation concurrency requirement. The county engineer may consider and approve major intersection improvements, such as grade separations, interchanges, and through movement capacity improvements, as eligible for the proportionate fair-share program.

(Ord. No. 06-07-5, § 1; Ord. No. 16-17-17, § 254)

A.

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:

1.

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

2.

The transportation improvement needed for mitigation is fully funded through construction in years two, three, four or five of the five-year capital improvements schedule in the CIE and the transportation improvement(s) upon completion, will satisfy transportation concurrency on a transportation facility on the five-year capital improvements schedule in the adopted CIE. The provisions of section 12.13.143.B. of this division may apply if a project or projects needed to satisfy concurrency are not presently contained in the five-year capital improvements schedule in the adopted CIE.

B.

The county may choose to allow an applicant to satisfy transportation concurrency through the proportionate fair-share program by contributing to an improvement that, upon completion, will satisfy transportation concurrency on a transportation facility included in the five-year capital improvements schedule in the CIE pursuant to this subsection, but is not, at the time the application pursuant to section 12.13.145 of this division is made, contained or fully funded in the five-year capital improvements schedule in the CIE where the following apply:

1.

The county adopts, by resolution or ordinance, a commitment to add the improvement to the five-year capital improvements schedule in the CIE no later than the next regularly scheduled update. To qualify for consideration under this section, the proposed improvement must be reviewed by the appropriate county body and determined to be financially feasible pursuant to F.S. § 163.3180(5), consistent with the county comprehensive plan, and in compliance with the provisions of sections 12.13.140 through 12.13.149, inclusive, of this division. In order to fulfill the obligations of the proportionate fair-share agreement, the developer shall financially commit funds prior to the effective date of the agreement by delivering to the county a monetary payment or land for right-of-way acceptable to the county equal to the developer's proportionate fair-share obligation as stated in the proportionate fair-share agreement or by securing the developer's proportionate fair-share obligation with a cash deposit, certificate of deposit, bond, or other similar cash equivalent security acceptable to the county.

2.

If the funds allocated for the five-year capital improvements schedule in the 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 obligation is calculated if the proportionate fair-share obligation in that agreement is sufficient to pay for one or more improvements which will, in the opinion of the county engineer, significantly benefit the impacted transportation system.

3.

The improvement or improvements funded by the proportionate fair-share contribution must be adopted into the five-year capital improvements schedule in the CIE at the next annual CIE update.

C.

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

(Ord. No. 06-07-5, § 1; Ord. No. 16-17-17, § 255)

A.

Pursuant to policies in the intergovernmental coordination element of the county comprehensive plan and applicable policies in the Central Florida Regional Planning Council Strategic Regional Plan, the County shall coordinate with affected jurisdictions, including FDOT, neighboring counties, and incorporated municipalities in Highlands County, 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.

B.

In the interest of intergovernmental coordination and to reflect the shared responsibilities for managing development and concurrency, the county may enter into agreements with one or more adjacent local governments to address cross-jurisdictional impacts of development on regional transportation facilities.

(Ord. No. 06-07-5, § 1)

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 proportionate fair-share program pursuant to the requirements of section 12.13.143 of this division.

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 designated in accordance with F.S. §§ 339.61, 339.62, 339.63, and 339.64, 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 as required by the county's current fee structure for permit application fees 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.

Traffic impact study performed in accordance with the county's adopted technical standards manual procedures;

6.

Phasing schedule, if applicable;

7.

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

8.

Copy of concurrency application.

D.

The county engineer shall review the application and certify that the application is sufficient and complete within ten 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 12.13.143 of this division, then the applicant will be notified in writing of the reasons for such deficiencies within ten business days of submittal of the application. If such deficiencies are not remedied by the applicant within 20 days of receipt of the written notification, then the application will be deemed abandoned. The county engineer may, in his or her discretion, grant an extension of time to be determined by the county engineer 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(5), proposed proportionate fair-share mitigation for development impacts to facilities on the strategic intermodal system requires the concurrence of 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 determined to be sufficient, complete, and eligible, the applicant shall be advised in writing and a proposed proportionate fair-share obligation shall be calculated and a 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 state highway system facility, and a copy to any incorporated municipality in highlands county having jurisdiction, for transportation concurrency, over an impacted road, no later than 60 days from the date upon which the applicant received the notification that the application is determined to be sufficient, complete, and eligible, and no fewer than 14 days prior to the BCC meeting when the agreement will be considered. The payment or security to be provided by the developer pursuant to section 12.13.143.B.1. of this division must also be documented for consideration by the BCC. All agreements and other documents requiring execution by the developer shall be executed by the developer prior to consideration by the BCC.

G.

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

(Ord. No. 06-07-5, § 1; Ord. No. 16-17-17, § 256)

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.

The fair market value of the proportionate fair-share mitigation for the impacted facilities shall not differ regardless of the method of mitigation. In calculating the proportionate fair-share obligation, a development shall not be required to pay more than its proportionate fair-share contribution regardless of the manner of mitigation. The proportionate fair-share contribution specified in the proportionate fair-share agreement shall not exceed the proportionate fair-share obligation calculated pursuant to this section.

C.

The methodology used to calculate an applicant's proportionate fair-share obligation shall be as provided in F.S. § 163.3180(5), 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, multiplied by the construction cost, at the time of developer payment, of the improvement necessary to maintain the adopted level of service. For purposes of calculating the applicant's proportionate fair-share obligation pursuant to this methodology, "construction cost" includes all associated costs of the improvement, including, but not limited to, design, right-of-way acquisition, planning, engineering, inspection, utilities, financing costs, and physical development costs directly associated with construction at the anticipated cost in the year it will be incurred. As used in this section, the term "same development" shall mean any development occurring on land existing as a single parcel or as contiguous parcels having the same owners on October 1, 2006, and all lands required to be developed as a single development by zoning amendment, comprehensive plan amendment, ordinance or agreement.

OR

Proportionate Fair-Share = Σ[[(Development Trips;sub\sub;)/(MSV 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" when that stage or phase has triggered a deficiency according to the CMS;

MSV Increase;sub\sub; = Maximum service volume increase provided by the eligible improvement to roadway segment "i" per section 12.13.143 of this division;

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, utilities, financing costs, and physical development costs directly associated with construction at the anticipated cost in the year it will be incurred. The construction cost inflation factor shall be determined by the county engineer based upon the most recent publication of the "FDOT Transportation Costs" or "The Engineering News of Record" or other documentation of construction cost inflation acceptable to the county engineer.

D.

For the purposes of determining proportionate fair-share obligations, improvement costs shall be based upon a certified and sealed engineer's cost estimate for a project defined in a proportionate fair share agreement. Such cost estimate will be consistent with unit bid costs of recent similar bid projects, preferably within Highlands County, within the last year. This cost estimate will be reviewed for reasonableness and approved or disapproved, in writing, by the county engineer. If disapproved, the grounds for the disapproval will be indicated to the applicant so that a revised cost estimate may be resubmitted.

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 all or part of the proportionate fair-share contribution, credit for the dedication of the non-site related right-of-way shall be valued on the date of the dedication at an amount up to 120 percent of the most recent assessed value by the county property appraiser or, at the option of the applicant, by fair market value established by an independent appraisal approval and ordered by the county upon receipt of funds from the applicant to pay for the appraisal. 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. Prior to purchase or acquisition of any real estate or acceptance of donations of real estate intended to be used to satisfy a proportionate fair-share obligation, public or private partners should contact the FDOT for essential information about compliance with federal law and regulations and should contact the county engineer for essential information about compliance with the Highlands County Technical Standards Manual, current edition, and the land development regulations.

G.

If through the approval of a previous phase of a development, a proportionate fair-share obligation pursuant to this program was required on a roadway segment and that obligation was satisfied, the previous payment may be applied as a credit toward proportionate fair-share obligations on the same roadway segment for future phases of the same development.

(Ord. No. 06-07-5, § 1; Ord. No. 16-17-17, § 257)

A.

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 contribution is used to address the same capital infrastructure improvements creditable as allowed by the county impact fee ordinance.

B.

Impact fee credits for the proportionate fair-share contributions will be determined when the transportation impact fee obligation is calculated for the proposed development. Impact fees owed by the applicant will be reduced as provided in proportionate fair-share agreement as they become due pursuant to the county impact fee ordinance. If the applicant's proportionate fair-share obligation is less than the development's anticipated 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 impact fee ordinance.

C.

Major projects not included within the county impact fee ordinance or created under section 12.13.143B.1. and 2. of this division which can demonstrate a significant benefit to the impacted transportation system may be eligible for impact fee credits to the extent allowed by the county impact fee ordinance.

D.

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.

E.

No impact fee credit shall be allowed for any project that is not included in the five-year capital improvements schedule in the CIE.

(Ord. No. 06-07-5, § 1)

A.

Upon the effective date of an executed proportionate fair-share agreement for which the proportionate fair-share obligation has been paid or adequately secured as provided in section 12.13.143.B.1. of this division, the applicant shall receive a county certificate of concurrency approval. Should the certificate of concurrency approval expire following execution of the proportionate fair-share agreement, the proportionate fair-share agreement shall be considered null and void, and the applicant shall be required to reapply.

B.

Payment of the proportionate fair-share obligation is due in full prior to issuance of the final development order or recording of the final plat, whichever is last to occur, and shall be non-refundable. If the payment is submitted more than 12 months after the date of execution of the proportionate fair-share agreement by all parties, the proportionate fair-share obligation 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 12.13.146 of this division and adjusted accordingly.

C.

All facilities constructed by a developer pursuant to a proportionate fair-share agreement must be completed or completion adequately secured pursuant to section 12.13.143.B.1. of this division prior to the issuance of the final development order.

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, whichever is last to occur.

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.

Applicants may submit a letter to withdraw from the proportionate fair-share agreement at any time prior to the execution of the agreement by the BCC. The application fee shall be nonrefundable and the applicant shall reimburse the county for all associated advertising costs incurred by the county.

G.

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

H.

Payment of the proportionate fair-share obligation calculated pursuant to section 12.13.146 of this division whether paid in money or by dedication of right-of-way or by delivery of adequate security pursuant to section 12.13.143.B.1. of this division shall be nonrefundable.

I.

If an executed proportionate fair-share agreement is rendered null and void due to expiration of an approved certificate of concurrency after payment of the proportionate fair-share obligation in money or by dedication of right-of-way and, (i) within six months thereafter, the applicant re-applies for a proportionate fair-share agreement for the same property, and (ii) within nine months after the timely filing of that re-application, another proportionate fair-share agreement is entered into for the same property by the applicant and the BCC, a credit shall be given for that payment of the proportionate fair-share obligation. The amount of the credit shall be an amount equal to that payment multiplied by a fraction, the numerator of which is the number of trips for the un-built part of the development for which that payment was made and the denominator of which is the total trips for the development for which that payment was made.

(Ord. No. 06-07-5, § 1)

A.

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. At the discretion of the BCC, 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 50 percent local match for funding under the FDOT transportation regional incentive program.

B.

In the event a scheduled facility improvement is removed from the five-year schedule of capital improvements in the CIE, then the revenues collected for its construction may be applied toward the construction of another improvement within that same corridor or impact area as determined by the county engineer that would mitigate the impacts of development pursuant to the requirements of section 12.13.143.B.2. of this division.

C.

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 transportation regional incentive program. 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.

D.

When an applicant constructs a transportation facility that exceeds the applicant's proportionate fair-share obligation calculated under section 12.13.146 of this division, the county shall reimburse the applicant for the excess contribution according to the terms and conditions of the proportionate fair-share agreement using one or more of the following methods:

1.

By using future transportation impact fees to the extent allowed by the county impact fee ordinance.

2.

By using future proportionate fair-share payments from other applicants for the same facility, or from proportionate fair-share payments for other transportation facilities for which other funding has been secured to build the project for which the proportionate fair share payment was originally collected.

3.

Through other compensation or means acceptable to the county and the applicant.

(Ord. No. 06-07-5, § 1)