The purpose of this section is to ensure that any facilities and services needed to support development are available concurrent with the impacts of development.

Except as otherwise provided, no development proposal submitted after the effective date of this Code shall be approved unless public facilities are or will be available, such that the Levels of Service adopted in the Comprehensive Plan are maintained. Prior to concurrency approval for a proposed development, the following conditions shall be met, as applicable.

(A)

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

(1)

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

(2)

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; or

(3)

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

(4)

The necessary facilities and services are guaranteed in an enforceable development agreement that includes provisions 1—3 above. An enforceable development agreement shall include, but is not limited to, the provisions of F.S. § 163.3227, or shall be a development order issued pursuant to F.S. §§ 163.3227-3243, 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 of the development occur.

(B)

Roads. The concurrency requirement may be met by satisfying the conditions listed in paragraphs (A)(1)—(4) above, and by complying with the following standards:

(1)

The capital improvements element and five-year schedule of capital improvements must be financially feasible; and, it must be based on currently available revenue sources that must be adequate to fund the public facilities required to serve the development authorized by the development order and development permit.

(2)

The five-year schedule of capital improvements must include roads necessary to maintain the adopted level of service standards to serve the proposed new development; the estimated date of commencement of actual construction and the estimated date of project completion; and, 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.

(C)

Parks and Recreation. The concurrency requirement may be met by satisfying the conditions listed in paragraphs (A)(1)—(4) above, or by complying with the following standards:

(1)

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

(2)

The necessary recreation facilities are guaranteed in an enforceable development agreement that requires the commencement of the actual construction of the facilities or the provision of services within one year of the issuance of the building permit.

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 City's Five-Year Schedule of Capital Improvements. No development plan or permit may be approved by the City that results in a reduction in LOS below the adopted standard.

(A)

Concurrency test statement. Concurrency test statements shall be filed with and reviewed by the City, 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.

(B)

Procedure. Prepare concurrency test statements on forms available at the city clerk's office. Test statements shall include the following information:

A legal description; a map; a narrative description of the site; all roads; projected potable water demand; projected wastewater demand; projected solid waste generation and identification of the service provider; a description of the stormwater management system; identification of required park and recreation facilities; and, a development schedule identifying the proposed date for the start of construction and the date of project completion.

Where required information is readily available, the development director may, at his own 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.

For any public service not provided by the City of Mulberry, 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. Stormwater management certification for single family development on existing lots may be waived under the same conditions.

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 Code. Proposals not meeting concurrency shall not be processed for review until and unless an agreement has been reached by the City and the developer to mitigate the identified deficiency.

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

All development proposals submitted to the City for review shall be consistent with the data established in the concurrency test statement. 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 City shall not be required to approve a development plan that meets the concurrency requirement, but does not satisfy other provisions of this Code.

Allocations of public facility and service capacities shall be on a first-come, first-served basis.

Through the Concurrency Management System, Mulberry shall maintain the following levels of service for public facilities:

Source: Per the Comprehensive Plan, Updated 12-02.

All development that 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 Code shall be subject to an adequacy determination through the Concurrency Management System. An adequacy determination shall also be required for existing development where any improvement, expansion, or other change is proposed that may result in a greater demand for those public facilities addressed in this section. The development director shall determine whether a proposed change in existing development requires an adequacy determination.

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

(A)

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 that are technically justifiable as determined by the development director. Capacity ratings on the state highway network shall be approved by FDOT.

(B)

Adequacy of stormwater management facility. 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. All developments shall meet the following LOS standards, where applicable:

(1)

Road protection. Residential streets shall have crown elevations equal to the 100-year flood elevation.

(2)

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

(3)

Off-site discharge. Off-site discharge is not to exceed the standards allowed by the SWFWMD and this Code.

(4)

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

(C)

Adequacy of potable water service. Potable water 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 any other areas that may be needed for the installation and maintenance of a potable water distribution system that will meet all applicable building, health, and environmental regulations, including Chapter 17-22, F.A.C.

(D)

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 any other areas that may be needed for the installation and maintenance of a wastewater treatment and disposal system that will meet all applicable building, health, and environmental regulations.

(E)

Adequacy of parks 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.

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. Any developer-sponsored facility or service placed into service shall also be included in the calculations. Upon calculation of available capacities under this method, all capital improvements projects budgeted and approved by the city commission in the first year of its five-year schedule of capital improvements shall be added to the relevant capacities. The sums of all aforementioned calculations shall be the 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.)

-   Development Approved during year
___________

Available Capacity (Nth year)

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

(A)

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

(B)

The information on which the City's analysis was based is erroneous or inadequate;

(C)

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 City'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 City or its agent shall conduct or commission such a 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.

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.

(A)

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

(B)

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

(C)

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.

(D)

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 City in form and amount, to guarantee the applicant's pro rata share of the cost of providing any public facilities and services that may be necessary to maintain the adopted level of service standards for the subject property:

(1)

Cash escrow;

(2)

Irrevocable letter of credit;

(3)

Prepayment of capacity/connection charges.

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

(1)

Contract with the applicant for the full cost of the facility, including terms regarding reimbursement of the applicant for costs in excess of the applicant's pro rata share; or

(2)

Obtain assurances from other sources similar to those described above in this section; or

(3)

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.

(E)

Alternative transportation study. Where a developer disagrees with the results obtained by the City 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 City in subsequent determinations regarding the development's compliance with concurrency requirements.

(F)

Other transportation studies. For those roadway facilities that indicate a lower LOS than the adopted standard of the City of Mulberry Comprehensive Plan, the City shall allow applicants to perform an operating LOS assessment based upon procedures outlined in the most recent FDOT 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.

Authority is granted to the City to enter into development agreements with developers under F.S. §§ 163.3220 through 163.3243. This section shall be regarded as supplemental and additional to the powers conferred upon the City by other laws and shall not be regarded as in derogation of any powers now existing.

(A)

Application for development agreement. The developer shall make application for a development agreement through the development director and pay an application fee set by resolution.

(B)

Public hearing. Before entering into, amending or revoking a development agreement, the City shall conduct at least two public hearings, one of which shall be held by the planning commission.

(1)

Notice of hearing. See section 8.06.00, article 8.

(2)

Contents of notice. The notice shall specify the location of the land subject to the development agreement, the development uses proposed on the property, the proposed population densities, and the proposed building intensities and height and shall specify a place where a copy of the proposed agreement can be obtained.

(A)

Contents. A development agreement shall include the following:

A legal description; names of the legal and equitable owners; duration of the agreement; development uses permitted on the land; description of public facilities that will service the development; description of any reservation or dedication of land for public purposes; and, description of all local development permits approved or needed to be approved for the development of the land.

(B)

Duration of agreement. The duration of a development agreement shall not exceed five years. It may be extended by mutual consent of the City and the developer, subject to a public hearing in accordance with section 6.02.03(A) above.

(C)

Rights vested pursuant to common law. This section does not abrogate any rights that may vest pursuant to common law.

(A)

Periodic review of agreements. The City shall inspect land subject to development agreement at least once every 12 months to determine if there has been demonstrated good faith compliance with the terms of the development agreement. If the City finds, on the basis of substantial competent evidence, that there has been a failure to comply with the terms of the development agreement, the agreement may be revoked or modified by the City.

(B)

Amendment or cancellation of agreement. A development agreement may be amended or canceled by mutual consent of the parties to the agreement or by their successors in interest.

(C)

Modification or revocation to comply with subsequent state and federal law. If state or federal laws are enacted after the execution of a development agreement that are applicable to and preclude the parties' compliance with the terms of a development agreement, such agreement shall be modified or revoked as is necessary to comply with the relevant state or federal laws.

(A)

Recording of agreement. Within 14 days after the City enters into a development agreement, the City shall record the agreement with the clerk of the circuit court. A copy of the recorded development agreement shall be submitted to the DCA within 14 days after the agreement is recorded. 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 to the agreement.

(B)

Enforcement of agreement. Any party, any aggrieved or adversely affect person as defined in F.S. § 163.3215(2), or the DCA, may file an action for injunctive relief in circuit court to enforce the terms of a development agreement or to challenge the validity of the agreement.

(A)

Parks.

(1)

Where an evaluation under the Concurrency Management System indicates that additional usable recreation land and facilities are needed to maintain the adopted level of service standard, the developer shall dedicate land of suitable size, topography and general character to the City or pay a fee that is equal to the fair market value of the land otherwise required to be dedicated. The required acreage or fee shall be determined by the development director based on information supplied in the concurrency test statement submitted in connection with the proposed development.

Conditions for the City's acceptance of dedicated recreation land shall be established in a development agreement under the provisions of section 6.02.00.

(2)

Where dedication of recreation land is not required to maintain the adopted level of service, the City may refuse to accept such land, or establish reasonable conditions for acceptance. Proposed recreational uses must be consistent with the Future Land Use Map of the Mulberry Comprehensive Plan. Other conditions may include, but are not limited to, the following:

a.

Land must be readily accessible and usable for recreational purposes.

b.

Land must be fully or partially developed for recreational use at time of acceptance.

c.

The facility would meet a specific recreational need of the City (i.e., picnic areas, boat launch facilities).

(B)

Right-of-way. Right-of-way required to serve all development shall be dedicated in accordance with the requirements of Article 3 of this Code. Where subdivisions are bordered by public right-of-way, additional right-of-way shall be dedicated so as to meet minimum widths specified in the comprehensive plan. Where dedicated right-of-way is extended to an adjoining property or street, there shall be no reserved strips affording private control of future access. The City may require public reserved strips where such reservations promote the public health and safety and implement the comprehensive plan.

Where right-of-way has been dedicated independent of any requirement of this Code or the Comprehensive Plan, the City may refuse to accept such right-of-way, or establish such conditions for acceptance as the city commission determines to be reasonable.

Except where alleys are provided for the purpose of access and utility placement, easements of no less than 15 feet in width, or wider as the city engineer deems necessary, shall be dedicated for the installation of underground utilities by the City or franchised utility providers. Easements for watercourses or stormwater management facilities traversing a subdivision shall be of a width sufficient to convey the volume of stormwater projected to be generated by the 25-year storm event. Such easements shall be approved by the city engineer.

APPLICATION FOR CONCURRENCY EVALUATION
City of Mulberry

This application, together with all required attachments, shall be completed and filed with the Development Director prior to making application for site development plan, subdivision, or building permit approval. A finding of non- deficiency only entitles the owner to apply for development permits pursuant to the time parameters established in Article 6 of the City of Mulberry Land Development Code.

Type or Print the following information.

CONCURRENCY EVALUATION WORKSHEET

SUMMARY OF CONCURRENCY EVALUATION RESULTS

Using the information provided in items A through F of the worksheet, will the development proposal be served by the following facilities and services with the adopted Level of Service Standards of the City of Mulberry Comprehensive Plan?