The purpose of this division is to ensure that facilities and services needed to support development are available concurrent with the impacts of development. The following public facilities and services are subject to concurrency evaluation: roads, potable water, sanitary sewer, drainage, solid waste, and recreation. Except as otherwise provided, no development proposal submitted after the effective date of this chapter shall be approved unless public facilities are or will be available to serve a proposed development, such that the adopted levels of service are maintained, concurrent with the impacts of the proposed development. Prior to concurrency approval for a proposed development, the following conditions shall be met, as applicable:

(1)

Potable water, sewer, solid waste, and drainage. The concurrency requirement may be met through one of the following conditions:

a.

The necessary facilities and services are in place at the time a development permit is issued;

b.

A development permit is issued subject to the condition that the necessary facilities and services will be in place when the impacts of the development occur;

c.

The necessary facilities are under construction at the time a permit is issued;

d.

The necessary facilities and services are guaranteed in an enforceable development agreement. An enforceable development agreement may include, but is not limited to, development agreements pursuant to Florida Local Government Development Agreement Act (F.S. § 163.3220 et seq.), or an agreement or development order issued pursuant to Florida Local Government Development Agreement Act (F.S. § 163.3220 et seq.)., or an agreement or development order issued pursuant to F.S. ch. 380. The agreement shall guarantee that the necessary facilities and services will be in place when the impacts or the development occur.

(2)

Roads. The concurrency requirement may be met by satisfying the conditions listed in subsections (1)a through d of this section, and by complying with the following standards:

a.

The Capital Improvements Element and 5-Year Schedule of Capital Improvements must be financially feasible, and may recognize and include transportation projects listed in the first three years of the applicable FDOT 5-Year Work Program.

b.

The 5-year Schedule of Capital Improvements must include facilities necessary to maintain the adopted level of service standards to serve the proposed new development, and the facilities necessary to eliminate those portions of existing deficiencies which are a priority to be eliminated during the five-year period in which the capital improvements plan is to be implemented.

c.

The Capital Improvements Element and 5-Year Schedule of Capital Improvements must be based on currently available revenue sources which must be adequate to fund the public facilities required to serve the development authorized by the development order and development permit.

d.

The 5-Year Schedule of Capital Improvements must include the estimated date of commencement of actual construction and the estimated date of project completion.

e.

The 5-Year Schedule of Capital Improvements must demonstrate that the actual construction of the road must be scheduled to commence in or before the third year of the five-year schedule.

f.

A plan amendment would be required to eliminate, defer or delay construction of any road which is needed to maintain the adopted level of service standard and which is listed in the 5-Year Schedule of Capital Improvements.

g.

The town will adopt land development regulations which, in conjunction with the Capital Improvements Element, ensure that development orders and permits are issued in a manner that will assure that the necessary public facilities will be available to accommodate the impact of that development.

h.

A monitoring system shall be adopted which enables the town to determine whether it is adhering to the adopted level of service standards and its capital improvements schedule.

i.

The comprehensive plan shall clearly designate those areas within which facilities will be provided by the town with public funds in accordance with the 5-Year Schedule of Capital Improvements.

(3)

Parks and recreation. The concurrency requirement may be met by satisfying the conditions listed in the above requirements, or by complying with the following standards:

a.

At the time the development permit is issued, the necessary public facilities and services are the subject of a binding executed contract which provides for the commencement of the actual construction of the required public facilities or the provision of services within one year of the issuance of the development permit; or

b.

The necessary public facilities and services are guaranteed in an enforceable development agreement which requires the commencement of the actual construction of the public facilities or the provision of service within one year of the issuance of the applicable development permit. An enforceable development agreement may include, but is not limited to, development agreements pursuant to the Florida Local Government Development Agreement Act (F.S. § 163.3220 et seq.) or an agreement or development order issued pursuant to F.S. ch. 380.

(Land Development Code 1995, § 5.01.01)

(a)

General requirements. The concurrency management system (CMS) shall identify and inventory existing service capacities available for development. It shall include facility and service improvements approved in the first year of the town's 5-Year Schedule of Capital Improvements. No development order or permit may be issued by the town which results in a reduction in the level of service (LOS) below the adopted standard.

(b)

Concurrency test statement. Concurrency test statements shall be filed with and reviewed by the town, and a determination of concurrency shall be made prior to formal submittal of a development plan of any kind. This shall include issuance of building permits for residential development on existing lots where no plat or site development plan is required.

(c)

Procedure. The following procedure shall be carried out in order to obtain a determination of concurrency:

(1)

Prepare concurrency test statements on forms available at the development director's office.

(2)

Completed concurrency test statements shall include the following information:

a.

A legal description of the site proposed to be developed along with a map identifying the site in relationship to the town's boundaries.

b.

A narrative description of the proposed development identifying the type of development and all land uses proposed within the site.

c.

Identification of all roadways adjacent to the site by name, pavement width, functional classification, jurisdiction (i.e., state, county or city jurisdiction), current capacity and existing LOS.

d.

Projected average daily traffic (ADT) and peak-hour traffic generated by the proposed development and the traffic distribution on the existing roadways.

e.

Projected potable water demand generated by the proposed development and identification of the service provider.

f.

Projected wastewater demand generated by the proposed development and identification of the service provider.

g.

Projected solid waste generation and identification of the service provider.

h.

Description of the stormwater management system for the proposed development. This description shall include the drainage basin in which the proposed project is located, method of treatment, system design parameters, and location of outfall.

i.

Identification of required park and recreation facilities, if any, and method of providing said facilities.

j.

A development schedule identifying the proposed date for the start of construction and the date of project completion.

(3)

Where required information is readily available, the development director may, at his discretion, obtain or calculate one or more of the above data requirements. However, it shall be the applicant's full responsibility to ensure that the concurrency test statement is complete and accurate.

(4)

The development director shall distribute the completed concurrency test statement to appropriate town departments charged with providing the identified services. Each department shall certify on the concurrency test statement whether or not there is sufficient capacity to service the development.

(5)

For any public service not provided by the town, the development director may waive capacity certification on a case-by-case basis if there is satisfactory evidence that capacity is available to support the proposed development on existing lots and may be waived under the same conditions.

(6)

The applicant shall be notified within seven working days as to whether the proposed development meets the concurrency requirement. If the proposal is determined to meet concurrency, the applicant may proceed with the development process as set forth in other sections of this chapter. Proposals not meeting concurrency shall not be processed for review until and unless an agreement has been reached by the town and the developer to mitigate the identified deficiency.

(Land Development Code 1995, § 5.01.02)

Fees for staff review of concurrency test statements shall be established and may be changed from time to time, by resolution of the town council.

(Land Development Code 1995, § 5.01.03)

All development proposals submitted to the town for review shall be consistent with the data established in the concurrency test statement. Those exceeding the service demand levels established in the concurrency test statement shall not be processed. The applicant shall be provided with a written notice that a new concurrency test statement shall be required. Where deficiencies have been identified, development plans based on an agreement to provide needed facilities and/or services shall be processed with the agreement as a condition of development approval. However, the town shall not be required to approve a development plan which meets the concurrency requirement but does not satisfy other provisions of this chapter.

(Land Development Code 1995, § 5.01.04)

Allocations of public facility and service capacities shall be on a first-come, first-served basis. Services shall be allocated at the following stages:

(1)

Subdivisions. On final approval of a subdivision plat, service capacities shall be allocated based on the approved plat. Allocation of service capacity shall be valid for five years from the date of final plat approval.

(2)

Site development plan. Those developments which are processed under the site development plan review procedures shall be allocated service capacities upon approval of the site development plan. Allocation of service capacity shall be valid for six months from the date of site development plan approval.

(3)

Single-family residential on existing lots. Prior to receiving a building permit for single-family structures on platted lots existing before the adoption of this chapter, or on nonsubdivision lots established by metes and bounds legal description, the builder or property owner shall secure a certificate of concurrency from the development director. Allocation of service capacity shall be valid until the expiration date of the building permit or issuance of a certificate of occupancy.

(Land Development Code 1995, § 5.01.05)

Through the concurrency management system, the town shall maintain the following levels of service for public facilities:

(1)

All development which was not approved through a subdivision plat, site development plan, or the issuance of a building permit prior to the date of adoption of this chapter shall be subject to an adequacy determination through the concurrency management system.

(2)

An adequacy determination shall also be required for existing development where any improvement, expansion, or other change which is proposed which may result in a greater demand for those public facilities addressed in this division.

(3)

The development director shall determine whether a proposed change in existing development requires an adequacy determination.

(Land Development Code 1995, § 5.01.06)

As part of the adequacy determination, findings shall be made as to the amount of available capacity in those public facilities which are addressed in this division.

(1)

Adequacy of the road system. The adequacy of the road network shall be evaluated according to conditions at the time the development plan or building permit is approved. Initial measurement of roadway capacities shall be carried out using data and methodology accepted by FDOT or other traffic analysis techniques which are technically justifiable as determined by the development director. Capacity ratings on the state highway network shall be approved by FDOT.

a.

Any proposed development shall be required to address the adequacy of the town's road network as it relates to the projected traffic volumes generated by the development. If any affected road segment lacks capacity to accommodate the additional traffic generated at the adopted level of service (LOS), it shall be determined whether such capacity will be available if all of the transportation improvements contained in the town's comprehensive plan and/or that of the county are completed.

b.

For the purpose of this division, improvements to state roads resulting in an improvement in the level of service, and which are scheduled to occur by the third year of the FDOT's 5-Year Work Program, shall be considered concurrent. If it is determined that such capacity will not be available, then the specific improvements necessary to enable the road network to reach such capacity shall be identified through the completion of a detailed transportation study conducted by a professional in the field of transportation planning, and the application may be granted with an express condition regarding the adequacy of the town's transportation network. At the sole discretion of the town council, such condition shall require one of the following:

1.

That the applicant shall construct the necessary improvements proportional to the share of the additional capacity that is needed to accommodate traffic generated by the applicant's development; or

2.

That the applicant deposit money into a "road fund" equal to the share of the cost of the improvements that would otherwise be required.

c.

A determination of facility deficiency shall be based on methodology presented in the 1985 or most recent edition of the Highway Capacity Manual of the Transportation Research Board of the American Association of State Highway and Transportation Officials (AASHTO) Research Council, Washington, D.C. It shall be the applicant's responsibility to provide the transportation data and analysis necessary for an adequacy determination.

d.

At the development director's option, and where adequate capacity appears to be available, an alternate methodology may be used to establish nondeficiency. Table 6.1, "Maximum Peak Hour Volume for Each Level of Service by Facility Type," on file in the office of the town clerk, may be used as a general indicator of the current level of service and future level of service based on approval of the proposed development. The methodology may be used as a basis for development approval only if the calculated new level of service is higher than the adopted level of service standard. Where a capacity analysis using table 6.1 indicates the proposed development would create a new level of service equal to or below the adopted standard, a more detailed analysis shall be performed using the 1985 Highway Capacity Manual methodology. The final adequacy determination shall be based on the latter analysis.

e.

Properties served by local roads or other roads for which traffic count information is unavailable shall be evaluated for impact on the nearest roads for which levels of service can be measured. The impact on the transportation system shall be determined by utilizing the trip generation standards set forth in the ITE Trip Generation Manual, 4th edition, or most recent edition. The estimated number of trips generated by the proposed development shall be subtracted cumulatively from the available capacity on the roadway to determine whether the roadway's capacity is adequate to support the development based on the impacted roadway's level of service.

f.

The calculation of total traffic generated by a proposed nonresidential or mixed use project will assume 100 percent buildout and occupancy of the project. Credit against the trip generation of nonresidential land uses may be taken utilizing the percentages shown in table 6.2, on file in the office of the town clerk. Any capture of trips from passing traffic in excess of these percentages must be justified by the applicant.

g.

For mixed use development, the applicant shall justify any trips which will be absorbed internally by the project.

h.

The procedures outlined in chapter 5 of the ITE Trip Generation Manual, 4th edition, pages 10-16, can be used to quantify pass-by trips. The town may consider these procedures in conjunction with locally derived data and table 6.2.

(2)

Adequacy of drainage. The proposed development shall be designed to provide adequate areas and easements for the construction and maintenance of a water management system to serve the proposed development and adjacent public rights-of-way in a manner that conforms to sound engineering standards. The development order shall require that the applicant meet the following LOS standards, where applicable, prior to any plan approval:

a.

Road protection. Residential streets having not more than 50 feet of pavement width shall have crown elevations equal to the 100-year flood elevation. Rights-of-way having greater than 50 feet of pavement width shall have a final edge of pavement elevation no lower than the 100-year flood elevation.

b.

Buildings. The lower flood elevation for buildings shall be no lower than one foot above the 100-year elevation.

c.

Off-site discharge. Off-site discharge is not to exceed the standards allowed by the Southwest Florida Water Management District and this chapter.

d.

Storm sewers. The design frequency applicable to storm sewers is the 25-year, 24-hour storm event.

(3)

Adequacy of potable water service. Potable water service must be available for the needs for the proposed development at the adopted LOS. The proposed development shall be designed so as to reserve rights-of-way, easements, and any other areas that may be needed for the installation and maintenance of a potable water distribution system which will meet all applicable building, health, and environmental regulations.

a.

Where adequate potable water capacity is available in the town's municipal water system, the concurrency test statement shall include a certification from the appropriate town official, stating that sufficient capacity exists as of the date of application. Such certification shall be based on the existing level of demand in addition to permitted development which has not been constructed, and any other development for which capacity has been reserved.

b.

Where adequate potable water service will be made available at a future date concurrent with the impacts of proposed development, an adequacy determination must be based on financially feasible plan to construct or expand a water treatment facility which will have sufficient capacity to provide for the needs of the development. For purposes of the concurrency test statement, the development director shall certify that such a plan exists.

c.

An agreement will be required between the town and the developer prior to approval in order to provide for the expansion of water treatment facilities necessary to serve the proposed development. Town approval of an application for plat approval shall not create a reservation of potable water plant or network capacity, or a commitment to provide service.

(4)

Adequacy of wastewater treatment and disposal services. Sanitary sewer service must be available for the needs of the proposed development at the adopted LOS. The proposed development shall be designed so as to reserve rights-of-way, easements, and other areas that may be needed for the installation and maintenance of a wastewater treatment and disposal system which will meet all applicable building, health, and environmental regulations.

a.

Where adequate sanitary sewer capacity is available in the town's municipal wastewater treatment system, the concurrency test statement shall include a certification from the appropriate town official, stating that sufficient capacity exists as of the date of application. Such certification shall be based on the existing level of demand in addition to permitted development which has not been constructed, and any other development for which capacity has been reserved.

b.

Where adequate sanitary sewer service will be made available at a future date concurrent with the impacts of the proposed development, an adequacy determination must be based on a financially feasible plan to construct or expand a wastewater treatment facility which will have sufficient capacity to provide for the needs of the development. Town approval of an application for plat approval shall not create a reservation of wastewater plant or network capacity, or a commitment to provide service.

(5)

Adequacy of solid waste sites or facilities. Solid waste disposal sites or facilities shall be available prior to development approval to provide for the needs of the proposed development at the LOS shown in section 16-642. Certification shall be made by the county, in a form acceptable to the development director, that adequate landfill capacity is available to meet the needs of the proposed development. Certification may be made on a project-by-project basis, or through a written statement, renewed at regular intervals, that sufficient capacity exists to meet the town's needs during a specific time period. In the latter instance, the development director shall provide solid waste disposal certification on the concurrency test statement. A finding that solid waste disposal sites or facilities are available must be based on a demonstration that existing facilities have sufficient capacity to provide for the needs of the development proposed and for other developments in the service area which are occupied, or available for occupancy, for which building permits have been issued, or for which solid waste disposal capacity has been reserved. If existing capacity is unavailable, conditional approval may be granted if it is shown that there is a financially feasible plan to expand solid waste disposal capacity so that sufficient capacity will be available to accommodate the solid waste of the proposed development and for other developments within the service area which are occupied or available for occupancy, for which building permits are in effect or for which solid waste disposal capacity has been reserved.

(6)

Adequacy of park and recreational facilities. Park and recreational facilities shall be available prior to development approval for any residential development to meet the needs of that development at the adopted LOS. Calculations shall be based on average household size figures provided in the housing element of the comprehensive plan.

a.

A finding that park and recreational facilities are available to serve a proposed residential development must be based upon a level of service calculation that includes other such developments, existing and permitted, for which capacity has been reserved. If existing capacity is not available, conditional approval may be granted if it is shown that there is a financially feasible plan to expand park and recreational facilities so that sufficient capacity will be available for the proposed development at the time that certificates of occupancy are anticipated to be requested.

b.

If sufficient capacity does not exist for park and recreational facilities at the time that he seeks development approval, the developer may elect to donate land of suitable size, topography and general character to serve as a recreation facility which will meet the adopted LOS standard for park and recreational facilities, or make payment in lieu of land dedication.

(Land Development Code 1995, § 5.01.07)

(a)

The concurrency management system shall be monitored and updated annually. Monitoring and updating shall consist of summing all approved services during each year and subtracting those sums from the capacities available at the beginning of the concurrency period. Any capital improvement scheduled during the concurrency period and constructed or placed into service shall then be added to the capacity totals. In addition, any developer-sponsored facility or service placed into service as a result of mitigation shall be accounted for in the specific facility/service provided. Upon calculation of available capacities under this method, all capital improvement projects budgeted and approved by the town council in the first year of its 5-Year Schedule of Capital Improvements shall be added to the relevant capacities. The sums of all aforementioned calculations shall then be available capacities for the next year. The following calculation shall be the basis of the annual concurrency monitoring system:

Available Capacity

+ Programmed Improvements (1st year S.C.I.O.)

- Development approved during year

Available Capacity (Nth year)

(b)

If capital projects identified in the first year of the town's 5-Year Schedule of Capital Improvements were not constructed or placed into service during the identified concurrency period, those projects shall be subtracted from available capacities and, if not provided for in the capital budget, removed from capacity available for concurrency purposes. Development projects approved based on service capacities presumed to be available shall not be permitted to proceed until a method to mitigate any deficiency has been approved. Such mitigation shall include, but not be limited to, phasing of a development project, payment of monies to construct necessary facilities, or the construction of necessary facilities.

(c)

Any subdivision plat or site development plan for which construction has not begun within the time frame specified in this chapter shall be considered lapsed and shall forfeit any allocation of service/facility provider. The concurrency management system shall be approved by resolution of the town council on the first regularly scheduled town council meeting in September of each year.

(Land Development Code 1995, § 5.01.08)

A developer may change any concurrency determination made by the town by appealing the decision to the town council. The appeal shall be accompanied by substantial, competent evidence that sufficient capacity does exist by virtue of the following:

(1)

The impacts of the proposed development will differ from the impacts estimated by the town as a result of special circumstances of that development;

(2)

Based on the town's own information, that analysis being used has an error in its base data;

(3)

In the case of roads, the applicant presents evidence through travel speed, distance and time studies that impacted roadway links actually operate at higher levels of service than indicated by the town's analysis. Methodology for such travel speed/distance/time studies shall be certified by a licensed professional traffic engineer. In the event the travel speed/distance/time studies are warranted, the town or its agent shall conduct or commission such study after receiving a fee from the applicant to cover the costs of conducting and analyzing the study. The applicant shall have the opportunity to review the methodology prior to the commencement of the study.

(Land Development Code 1995, § 5.01.09)

Where it appears, or it has been determined, that there is a lack of capacity to service a proposed development, the developer should consider a variety of methods for achieving compliance. Some possibilities are as follows:

(1)

Plan amendment. The developer may propose a plan amendment which lowers the adopted level of service standard for the affected facilities and/or services.

(2)

Reduce impact of development. The developer may propose a reduction in the scale or impact of the proposed development.

(3)

Phasing of development. The developer may propose a phasing of the proposed development to match the availability of capacity with the timing of each phase of the development. Specific conditions for permitting each phase to proceed shall be included in an enforceable development agreement or development order to ensure that necessary public facilities and services will be in place when the impacts of the development occur.

(4)

Development agreement. The developer may propose a development agreement assuring that the required facility capacity will be provided. Any development agreement must provide one or more of the following assurances, acceptable to the town in form and amount, to guarantee the applicant's pro rata share of the cost of completing or providing any public facilities and services which may be necessary to maintain the adopted level of service standards for the subject property:

a.

Cash escrow;

b.

Irrevocable letter of credit;

c.

Prepayment of the capacity/connection charges.

(5)

Pro rata share or full cost of facility. Whenever an applicant's pro rata share of a public facility is less than the full cost of the facility, the town shall do one of the following:

a.

Contract with the applicant for the full cost in excess of the applicant's pro rata share;

b.

Obtain assurances from other sources similar to those described in subsection (4) of this section; or

c.

Amend the comprehensive plan to modify the adopted level of service standard so as to reduce the required facility to equal the applicant's needs.

(6)

Alternative transportation study. Where a developer disagrees with the results obtained by the town in its concurrency review regarding transportation, a transportation study may be performed at the option and expense of the developer. The results of the study shall be considered by the town in subsequent determinations regarding the development's compliance with concurrency requirements.

(7)

Other transportation studies. For those roadway facilities which indicate a lower LOS than the adopted standard of the town comprehensive plan, the town shall allow applicants to perform an operating LOS assessment based upon procedures outlined in the 1985 Highway Capacity Manual. A discussion of any proposed transportation system management and/or mitigation strategies shall be included in the study. The transportation study shall be signed and sealed by a registered professional engineer. The cost of this assessment shall be borne by the applicant.

(Land Development Code 1995, § 5.01.10)