New Smyrna Beach City Zoning Code

ARTICLE IV

CONCURRENCY MANAGEMENT SYSTEM

401.00.- General provisions.

401.01. Intent.

The city commission finds that the safe, convenient, and orderly flow of vehicular traffic; availability of adequate, convenient and accessible park and recreational facilities; availability of safe and adequate supplies of potable water, capacities of wastewater treatment facilities capability of solid waste collection, stormwater management systems and retention facilities; and availability of adequate school capacity to support strong and healthy schools are necessary for the health, safety, welfare, economic order, aesthetics, and convenience of the public. Hereafter, these infrastructure needs shall be referred to as public facilities and services. It is the intent of this article to ensure that public facilities and services are concurrent with the impacts of development and meet the levels of service set in the comprehensive plan so as to provide safe, convenient, and orderly services. Further, this article is intended to implement the goals, objectives, and policies of the comprehensive plan. The city commission finds that the safe, convenient, and orderly furnishing of public facilities and services will be achieved by the standards set forth herein and that, by adopting the standards contained in this article, the city is committed to adhere to and implement the requirements of the comprehensive plan.

The concurrency/development order evaluation shall measure the potential impact of any proposed project or expansion occurring to an existing project for which a development order is required based upon the established minimum acceptable level of service for public facilities and services. The most current available information and data regarding level of service for the above public facilities and services shall be utilized for concurrency/development order evaluations. No development order shall be approved unless adequate public facilities and services are available as determined by the concurrency/development order evaluation, and are consistent with the capital improvements element of the comprehensive plan.

401.02. Vested rights. The following developments are hereby determined to be vested for the purpose of this article:

Physical on-site construction if a building permit has been issued and it is valid on the effective date of this article.

Applications for site plans, tendered on or before the effective date of this article, shall be vested for a period of two years from the approval date. Any amendments or modifications to said site plans shall hereafter be required to have a concurrency/development order review under the provisions of this article.

Subdivision preliminary plats or subdivision final plats approved on or before the effective date of this article shall be vested through January 31, 1996. Thereafter, any and all of the lots platted in said subdivision shall be required to have a concurrency/development order review in accordance with this article. Any amendments or modifications to said plats shall hereafter be required to have a concurrency review under the provisions of this article.

Any subdivision which has received sketch plat approval on or before the effective date of this article shall have six months from the effective date of this article, or one year from the date of approval, whichever date is later, to obtain preliminary plat approval and shall have one additional year from the date of preliminary plat approval to obtain final plat approval. Thereafter, said project shall be required to have a concurrency/development order review in accordance with this article.

The city planner shall choose and develop a methodology for informing owners of above described vested properties under this section of the expiration of said vested rights under this section. Such methodology may include, but not be limited to, newspaper notice, individual notice or notice in the public records. Once that methodology is chosen, the city planner shall proceed to implement such methodology.

401.03. Applicability.

Generally. Unless otherwise provided, this article shall apply to all development orders.

Previously approved development orders.

(1)

Existing use. Any application for a development order on a parcel of land which is presently occupied, using and generating needs for public facilities and services shall be subject to this article to the extent public facilities and services exceed public facilities and services associated with the existing use.

(2)

Amendments to development orders. Any application for an amendment to a development order issued after the effective date of this article shall be subject to the requirements in this section for all public facilities and services generated by the portion of the project approved after the effective date of this article unless the proposed project would result in no increase in public facilities and services.

401.04. Application for concurrency/development order evaluation. Obtain an application in the planning and zoning department and complete the information requested. For all projects, including deminimus projects, submit copies of site plan I, II, or III, as applicable, subdivision preliminary plats or subdivision final plats in accordance with article III of this LDR.

401.05. Concurrency/development order review.

Concurrency/development order evaluation finding of non-deficiency. A finding of non-deficiency by a concurrency/development order evaluation for public facilities and services as set forth in this article shall remain valid until such time as final action is taken by the local planning agency (LPA) for those projects requiring LPA action. De minimus projects are not subject to LPA or PRC review and are approved by the city planner noting that all public facilities and services are non-deficient. Once a development order has been issued, the concurrency/development order evaluation finding of non-deficiency shall remain valid and in force for the following prescribed timeframes:

(1)

For a development order granting approval for a site plan the finding shall remain valid until the development order expires, except where the intensity or density is increased from that considered as part of the concurrency/development order evaluation. Any increase in intensity or density shall require a new concurrency/development order evaluation for the proposed project.

(2)

For a development order granting subdivision final plat approval, or for a phase or unit thereof, the finding shall remain valid for a period not to exceed 36 months from the date of final plat approval, provided that development orders are obtained for structures to be built on the following schedule:

Ten percent of the lots or units in the project within the first 12 months;

An additional 40 percent of the lots or units in the project within the first 24 months after approval of the final plat;

One hundred percent of the lots or units within the 36-month period;

The construction authorized by each development order is diligently pursued to the issuance of a certificate of occupancy; and

That the development orders are not permitted to expire.

(3)

For de minimus projects, the finding shall remain valid for six months.

(4)

If a developer's agreement with the city as provided in section 409.00 herein is utilized, a concurrency/development order evaluation shall be conducted as a component of a developer's agreement, and if concurrency is found or guaranteed, the timeframe for the finding's validity shall be as set forth in [sub]section 401.05A. and referenced in the agreement.

Expiration of concurrency/development order evaluation finding of nondeficiency. Where any of the applicable timeframes, as set forth in [subsection] 401.05A. for a particular project expire, a new concurrency/development order evaluation shall be required prior to the applicant submitting an application for the next development order. Any vesting period relating to concurrency may be considered void if the applicant fails to timely perform all requirements to keep the vesting current, including the payment of all fees pursuant to a capacity reservation for a particular public facility or service. If the applicant maintains a capacity reservation on a first come, first serve basis for a particular public facility or service, as set forth in subsection 401.05F. hereafter the expiration of the concurrency evaluation finding of nondeficiency shall not nullify said capacity reservation.

Cumulative records of level of service.

(1)

The concurrency/development order evaluation system shall require maintenance of a cumulative record, of the traffic determined to be generated by a proposed project and potable water, sanitary sewerage, solid waste, stormwater management system and retention capacity, and parks and recreation capacity, all determined to be necessary to support all proposed projects. These capacity figures, the need for which has been generated by the approval of a concurrency/development order evaluation finding of nondeficiency as set forth in subsection 401.05A., shall be subtracted from the existing capacity of each public facility and service. The Volusia County School District shall be responsible for tracking permanent capacity in public school facilities.

(2)

Upon the expiration of a concurrency evaluation finding of nondeficiency for a proposed project that has not been constructed, or is deemed by the city planner to have been abandoned by the applicant, the capacity allocated to that proposed project or portion thereof for a particular public facility and service, in relation to the overall existing capacity, shall be deleted or "backed-out" of the particular public facilities or services used, reserved, allocated, or unavailable capacity. Said deleted or "backed-out" capacity shall be available for use, reservation, or allocation to other proposed projects on a first come, first serve basis.

Operating procedures, systems and tasks.

(1)

Procedures for monitoring.

In order to monitor the cumulative effect on the capacity of public facilities, a determination of capacity shall be performed for development orders that are exempted as set forth in subsection 401.05D.(2). All allocations of facility capacity from vested projects and exempted projects shall be subtracted from the remaining capacity available. The results of these calculations shall be the available capacity for new development orders for the next calendar year. Facility capacity shall be monitored at least on an annual basis. The extent of the remaining capacity available for each calendar year shall be made available to the general public before the start of the calendar year. The procedure for determining and monitoring public school facilities concurrency shall be as set forth in section 408.00 of this LDR.

Facility capacity shall be allocated to vested projects based on the amount such vested projects are likely to need on an annual basis for a given calendar year. This allocation shall be based on the vested project's historical building patterns over recent years. If no such historical record or pattern can be determined for such vested projects, then the allocation shall be computed by the amount of construction activity remaining to be built in such project divided by either the number of years specified in the approved development order(s) agreement(s), or the remaining years left in the vesting period.

(2)

Exemptions. The following development orders are exempted and may commence development without a certificate of capacity:

Development that is vested pursuant to [sub]section 401.02 of this article;

Construction of public facilities that are identified in the capital improvements element of the comprehensive plan;

An alteration of development otherwise exempt under this LDR which does not create additional impact on public facilities;

The construction of accessory building and structures which do not create additional impact on public facilities;

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

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

Signs;

Public school facilities are exempt, but ancillary facilities such as administrative, transportation, and maintenance facilities are not exempt;

Application for tree permit in accordance with Tree Ordinance No. 81-88;

Application for a wellfield protection permit;

Application for a wetland alteration permit;

Health care facilities to be constructed to meet the obligation to furnish health care services to indigents and residents of the districts and authorities created by the special Legislative acts creating the independent special taxing districts to the extent that such construction is authorized by the special acts as they may be amended; and

Fire or rescue facilities of any independent special taxing district, which provides fire and rescue services.

(3)

Extraterritorial effects. In conducting any concurrency/development evaluation for a proposed project, the city shall consider impacts on public facilities. However, the city shall not consider impacts of a proposed project occurring outside the city's corporate limits, unless the city shall have entered into an interlocal agreement with the local governmental entity having jurisdiction over the area the proposed project impacts, as determined by this article. The interlocal agreement shall require the permitting local government to consider the impacts as defined in the interlocal agreement of proposed projects on public facilities and services within the jurisdictional limits of the nonpermitting local governmental unit that is a party to the interlocal agreement. The public facility and service level of service as set in the permitting local government's comprehensive plan shall be the level of service standard used for concurrency/development order evaluation within the nonpermitting local government jurisdictional limits. The extra-territorial impacts on public school facilities concurrency shall be as set forth in section 408.00 of this LDR.

Conditional approval of development orders. If the concurrency/development order evaluation indicates that the potential impact of issuing a development order for a proposed site plan or subdivision, will cause a deficiency to occur to an established minimum level of service, or temporarily acceptable minimum level of service, the city may conditionally approve the development order upon the availability of adequate capacity to serve the impact of the proposed projects.

(1)

Nonfinal development orders. Development orders other than final development orders may be approved if a deficient public facility or service improvement based on the established acceptable levels of service will have sufficient capacity available to accommodate the impact of the proposed project and is contained in the city capital improvements element, or the capital improvements elements of other governmental agencies.

(2)

Final development order. For the purpose of concurrency/development order evaluation, and unless otherwise provided herein, a final development order may be approved if the necessary public facilities and services are available so as to maintain minimum acceptable levels of service.

First come/first serve rule.

(1)

If the city planner determines that the grant of a development order for a project would violate this article because of the circumstances identified hereafter, the applicant may request the project application be placed on awaiting list for reservation of capacity for all public facilities and services affecting the project.

An affected roadway or link is operating below the level of service set by the comprehensive plan and the transportation impacts generated by the project could not be handled by the link(s) or local roads affected by the project;

Wastewater treatment facility, park and recreation, drainage retention and stormwater management system, solid waste disposal facility, public school facilities capacity, or potable water capacities are not available to adequately serve the proposed project such that said public facilities and services will operate at or above the level of service set by the comprehensive plan after impacts generated by the project occur;

The city planner's determination is not to grant a development order and this determination is not overturned on an appeal pursuant to the appeals section hereof;

No other provision in this LDR is applicable to permit the proposed project to receive a nonfinal development order.

(2)

Simultaneous with the applicant's request to be placed on a reservation list, the applicant shall be required to pay a fee to be fixed as part of a schedule by resolution of the city commission to reserve priority over subsequent applications which are served by the same public facilities and services. Said reservation shall be valid from the date that the application is filed and the fee paid until December 31 of the same year. To keep a reservation of capacity for a project current, a request for renewal of the reservation must be filed by no later than January 31 of the year for which the reservation is being renewed. The request for renewal shall be accompanied by a fee to be fixed as part of a schedule adopted by resolution of the city commission, and the project reservation of capacity may be renewed in like fashion for each succeeding year thereafter, until such time as a letter of determination of concurrency nondeficiency can be issued for all affected public facilities and services. The failure to renew the reservation of capacity by January 31 of any one year shall immediately and automatically invalidate the reservation, and the project's reservation of capacity shall be immediately removed from the waiting list. All applications for reservation of capacity shall then advance forward. The reservation of capacity shall run with the parcel of land and shall be transferable from the original applicant to subsequent land owners and developers of the same parcel of land. Under no circumstances may a reservation of capacity be transferred from one parcel of land to another or be amended to include a different parcel of land, or portion thereof, not originally subject to the capacity reservation.

Conditions. All development orders shall contain such conditions as are necessary to ensure compliance with this article.

401.06. Application review by city planner. The city planner shall review the concurrency/development order evaluation application, except that the Volusia County School District shall review the application for public school facilities concurrency. Applications for public school facilities concurrency shall be reviewed according to the procedures set forth in section 408.00 of this LDR. The city planner shall determine if the proposed project complies with this article or the information submitted is insufficient to make this determination. A conclusion that such information is insufficient shall include a request for the specific information needed. This type of finding shall not be a final determination of an application for a concurrency/development order evaluation.

Determinations of the city planner. Determinations of the city planner must be in writing and any denial shall state the reasons. Within 20 working days of receipt of the study, the city planner, shall issue a rendition letter concluding one of the following:

(1)

The proposed project does not violate the level of service and concurrency standards of this article; or

(2)

The proposed project does not meet the requirements of this article, including the detailed reasons for this conclusion.

Additional information. Within 30 days of receipt of any letter from the city planner requesting additional information, the person submitting the concurrency/development order evaluation application and any traffic study or other data shall either:

(1)

Submit the additional information; or

(2)

Notify the city planner in writing that the requested additional information will not be submitted. Within 30 working days of receipt of any additional information or notification that no additional information will be submitted, the city planner shall issue a rendition letter pursuant to subsection 401.0B.(1) above. Any subsequent request for additional information shall be limited only to information needed to clarify the additional information or answer new questions raised by, or directly related to, the additional information.

Determination of noncompliance. Within 20 days of the rendition letter containing a final determination and stating the proposed project does not meet the requirements of this article, the person submitting the study may submit additional information addressing the reasons listed in the city planner's rendition letter or may appeal the city planner's determination pursuant to [sub]section 401.08. If additional information is provided, the city planner, shall, within 30 working days of receipt of the additional information, issue a new determination stating that the proposed project meets the requirements of this article or detailing the reasons why the proposed project does not meet the requirements of this article. This new determination letter is appealable within 20 calendar days of the date of rendition pursuant to [sub]section 401.08.

Determination where insufficient information. If the person submitting the study has notified the city planner that no additional information will be provided pursuant hereto, and the city planner then issued a rendition letter that the information submitted is insufficient for the city planner to determine the proposed project's compliance with this article or that the proposed project does not meet the requirements of this article, the person submitting the study may within 20 days of the city planner's rendition letter of determination, appeal said determination pursuant to [sub]section 401.08 of this article.

Extension of time. Excepting the limits for appeal, the time limits contained herein may be extended for good cause shown by the applicant with the mutual consent in writing of the city planner and the person submitting the request for determination.

Professional services. Any study, data, or other information, determined by the city planner to be of a technical nature, submitted by an applicant or person other than the city, must be prepared and signed by a qualified professional planner or registered professional civil engineer.

401.07. De minimus project review. A de minimus project is the development of any land use generating fewer than 101 trips per day after the effective date of the land development regulations, as indicated in the ITE Manual. However, for the purpose of public school facilities concurrency, the de minimum standards set forth in section 408.00 shall apply. Any de minimus project shall be reviewed by filing an application meeting the requirements of [sub]section 401.04 hereof. The project application, if completed in proper form, shall be approved by the city planner noting that all public facilities and services are nondeficient, unless the city planner determines the project is inconsistent with the comprehensive plan, and violates the standards of this article. The reasons for such finding must be set forth in detail, and the applicant shall have a right of appeal pursuant to [sub]section 401.08 hereof. For all nondeficient de minimus projects, the city planner shall administratively allocate or reserve capacity to affected public facilities and services pursuant to [sub]sections 401.05C. and D., and the finding of nondeficiency shall remain valid and in force for the time periods as provided in subsection 401.05A. It shall be presumed that the same rate of traffic generation for a de minimus project occurs on the project's directly accessed link(s) and surrounding local roads and intersections within the radius of development influence. However, the city planner may require a traffic impact study as set forth in [sub]section 402.02, if traffic assigned to the directly accessed link(s) and surrounding local roads and intersections is thought to warrant such a study to determine its impact within the radius of development influence.

401.08. Appeals. Appeals from the decision of the city planner shall betaken to the city manager as prescribed in subsection 301.05 of article III. The appeal shall be requested in writing within 20 calendar days of the applicant receiving the rendition letter containing the decision of the city planner. The written request shall state fully the reasons for the appeal.

(Ord. No. 108-07, § 2, 5-13-2008; Ord. No. 35-11, § 4, 6-28-2011; Ord. No. 19-18, § 1, 3-13-2018)

402.00. - Transportation concurrency.

402.01. Standard.

Generally. There is hereby established a transportation concurrency standard for all local roads and for all major roadways within the city as identified in the Comprehensive Plan. Except as specifically provided in this article, no development order shall be issued for a proposed project that would violate this standard. Establishment of concurrency shall be ascertained by this standard. Establishment of concurrency shall be ascertained by determining the amount of traffic a proposed project would generate together with existing, and background traffic, as set forth herein, and comparing it to the level-of-service established in the Comprehensive Plan. Level-of-service is computed by use of peak hour traffic or average daily traffic level-of-service maximum volumes for Florida's urban/urbanized areas in the Florida Department of Transportation (FDOT) "2002 Quality/Level of Service Handbook" on local roads and intersections within the radius of development influence and impacted major roadways and intersections as set forth herein. Transportation Impact Analysis (TIA) shall be prepared, as set forth herein.

Project standard.

Segment standard. Except as specifically provided in this article, no development order shall be issued which would result in total trips generated during the buildout period of the project that would exceed the total trips allowed at the level-of-service (LOS) set forth in the Comprehensive Plan. Total trips shall be computed from DOT guidelines and based on peak hour or average daily traffic. This standard applies at any point on a roadway segment within the project's minimum radius of development influence and any point on an impacted major roadway segment, as set forth herein, where the total traffic on that segment results in a peak hour or average daily traffic volume that exceeds the level-of-service during the buildout period of the project. All intersections within the project's minimum radius of development influence and impacted major intersections, as set forth herein, operating below LOS "D" shall be upgraded to LOS "D" as a condition of issuing the development order pending the availability of these improvements. For purposes of this analysis, assured construction shall be considered.

The calculation of total traffic generated by a proposed nonresidential project will assume 100 percent buildout and occupancy of the project.

Current operating level-of-service shall be based upon the most recent traffic counts available plus projected traffic counts from previously committed developments.

Phasing. Phasing may be utilized by the applicant for projects with buildout dates more than five years in the future to establish compliance with the transportation level-of-service if the following conditions are met:

The proposed phasing results in all roadway segments within the project's minimum radius of development influence, all impacted major roadway segments, all intersections within the project's minimum radius of development influence, and all impacted major intersections of the proposed project complying with the standards set forth in [sub]section 402.01B during the buildout period of the project.

The proposed phasing is in five-year increments and agrees with the extent and timing of the assured construction.

The development services director confirms that construction is in fact assured construction.

Assured construction to be completed by the applicant shall be a condition of approval of the development order. A developer's agreement shall be executed with the city or sufficient performance surety shall be provided by the applicant and approved by the city attorney.

Proportionate fair-share.

A developer may choose to satisfy the transportation concurrency requirements by making a proportionate fair-share contribution, pursuant to the following requirements:

The proposed development is consistent with the Comprehensive Plan and applicable Land Development Regulations; and

The five-year Capital Improvement Program (CIP) includes a transportation capital improvement that, upon completion, will accommodate additional traffic generated by the proposed development.

The city may choose to allow a developer to satisfy the transportation concurrency requirements by making a proportionate fair-share contribution by contributing to an improvement that, upon completion, will accommodate additional traffic generated by the proposed development but is not contained in the five-year CIP, where one of the following conditions apply:

The city adds the improvement to the five-year CIP no later than the next regular capital improvements update of the Comprehensive Plan, provided that the improvement is financially feasible as defined by F.S. § 163.3180(16)(b)(1); or,

If the funds in the five-year CIP are insufficient to fully fund the construction of the improvement, the city may enter into a proportionate fair-share agreement with the developer authorizing construction of that amount of development on which the proportionate fair-share amount in such agreement is calculated if the proportionate fair-share amount in such agreement is sufficient to pay for one or more improvements which will, in the opinion of the city commission, significantly benefit the impacted transportation system, provided that improvement(s) is(are) adopted into the five-year CIP no later than the next regular capital improvements update of the Comprehensive Plan.

Any transportation capital improvement proposed to meet the developer's proportionate fair-share obligation must meet the design standards in the LDR for city-maintained roads and the design standards of the applicable governmental entity for all other roads.

A developer who shall commence any land development activity generating traffic, which results in a failure of a road segment to achieve transportation concurrency, may apply to the city for a proportionate fair-share agreement.

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 other relevant issues. If the road segment that has failed to achieve transportation concurrency is on the Strategic Intermodal System, the Florida Department of Transportation shall be requested to participate in the pre-application meeting.

Procedures for review of application for proportionate fair-share agreement.

(1)

The developer shall submit an application to the development services director that includes a non-refundable application fee of $5,000.00 and the following:

(a)

Name, address and contact information of the developer;

(b)

A drawing and legal description of the land;

(c)

Phasing schedule;

(d)

Description of the requested fair-share mitigation;

(e)

If the requested fair-share mitigation involves a road segment on the Strategic Intermodal System (SIS), evidence of concurrence from the Florida Department of Transportation;

(f)

Traffic study performed by a licensed traffic engineer demonstrating failure of road segment to achieve transportation concurrency.

(2)

Within 20 days of receipt of the application, the development services director shall review the application to determine if the application is complete. If it is determined that the application is not complete, the development services director shall send a written statement to the developer delineating the deficiencies. If the developer does not remedy such deficiencies within 30 days of receipt of the written notification, then the application shall be deemed abandoned. The development services director, in his sole discretion, may grant an extension to cure such deficiencies, provided the developer has shown good cause for the extension and has taken reasonable steps to effect a cure.

(3)

Once the development services director determines that the application is complete, written notification shall be sent to the developer. The development services director shall also forward the developer's application to the city attorney who shall, within 30 days, draft a proportionate fair-share agreement for consideration by the city commission at a meeting no later than 60 days from the date the developer received the notification that the application was complete.

(4)

No proportionate fair-share agreement shall be effective until approved by the city commission.

Proportionate fair-share mitigation includes, without limitation, separately or collectively, private funds, contributions of land, and contribution of transportation facilities.

The methodology used to calculate a developer's proportionate fair-share obligation shall be as provided pursuant to F.S. § 163.3180(12), and as represented by the following formula:

Proportionate Share = ([Development Trips] / [SV Increase]) × Cost

Where:

Development Trips = Those trips from the development that are assigned to roadway segment;

SV Increase = Service volume increase provided by the improvement to the roadway segment;

Cost = Adjusted cost of the improvement.

For the purposes of determining proportionate fair-share obligations, improvement costs shall be based upon the actual cost of the improvement as obtained from the CIP, the Volusia MPO Transportation Improvement Program, or the Florida Department of Transportation Work Program. Where such information is not available, the improvement cost shall be determined using one of the following methods:

(1)

An analysis by the department of development services of costs, adjusted by the Florida Department of Transportation Price Trends Index from the previous year, by cross section type that incorporates data from recent projects; or

(2)

The most recent issue of Florida Department of Transportation "Transportation Costs," as adjusted based upon the type of cross section (urban or rural); locally available data from recent projects on acquisition, drainage, and utility costs; and significant changes in the cost of materials due to unforeseeable events.

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

If the city accepts any right-of-way dedication for the proportionate fair-share payment, credit for the dedication of the non-site related right-of-way shall be valued on the date of the dedication at 120 percent of the most recent assessed value of the land, upon which the right-of-way is or will be located, by the Volusia County Property Appraiser or, at the mutual agreement of the city and the developer, by fair market value established by an independent appraisal approved by the city and at no expense to the city. The developer shall supply a certificate of title or title search of the land to the city at no expense to the city. If the estimated value of the right-of-way dedication proposed by the developer is less than the city estimated total proportionate fair-share obligation for that development, then the developer must also pay the difference.

Proportionate fair-share mitigation shall be applied as a credit against impact fees. Credits will be given for that portion of the impact fees that would have been used to fund the improvements on which the proportionate fair-share contribution is calculated. Additionally, if the proportionate fair-share contribution is based on only a portion of the development's traffic, the credit will be limited to that portion of the impact fees on which the proportionate fair-share contribution is based.

At the time the proportionate fair-share obligation is being determined, the city will also compute the transportation facilities impact fee obligation for the proposed development. If the developer's proportionate fair-share obligation is less than the development's anticipated total transportation facilities impact fee, then the developer must pay the difference to the city.

Should the developer fail to apply for a building permit within two years of the date of execution of the proportionate fair-share agreement, then the agreement shall be considered null and void, and the developer shall be required to reapply in accordance with the provisions of this subchapter.

Payment of the proportionate fair-share contribution is due in full prior to issuance of the final development order or recording of the final plat and shall be non-refundable. If the payment is submitted more than one year from the date of execution of the agreement, then the proportionate fair-share cost shall be recalculated at the time of payment based on the best estimate of the construction cost of the required improvement at the time of payment, pursuant to section 402.01(C)(5)(a) and adjusted accordingly.

Developer improvements authorized under this subchapter involving dedications to the city must be completed upon final acceptance of the improvements and receipt of a warranty bond. The city attorney shall approve the form of the warranty bond.

Developer improvements authorized under this subchapter not involving dedications to the city must be completed upon recording of a final plat or upon issuance of a certificate of occupancy, whichever event first occurs.

10.

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

11.

A developer may submit a letter to withdraw the proportionate fair-share agreement at any time prior to the execution of the agreement. The application fee to the city will be non-refundable.

12.

All proportionate fair-share revenues shall be placed in the appropriate project account for funding of scheduled improvements in the CIP, or for use as otherwise established in the terms of the proportionate fair-share agreement.

13.

In the event a scheduled transportation facility improvement is removed from the CIP, then the revenues collected for its construction shall be applied toward the construction of another improvement within that same corridor that would mitigate the impacts of development pursuant to the requirements of section 402.01(C)(2)(b), as determined by the city commission.

402.02 Transportation Impact Analysis. The City of New Smyrna Beach has adopted the following Transportation Impact Analysis:

TRANSPORTATION IMPACT ANALYSIS, (TIA) Guidelines Methodology For Development Applications Requiring a TIA Within the River to Sea TPO Metropolitan Planning Area, TIA Guidelines dated June 2016.

(Ord. No. 125-06, § 1, 11-28-2006; Ord. No. 21-09, § 1, 4-14-2009; Ord. No. 09-11, § 1, 2-8-2011; Ord. No. 76-16, § 1, 12-13-2016)

403.00. - Sanitary sewer concurrency.

403.01. Standard.

Generally. All wastewater treatment facilities serving development projects within the city shall comply with the sanitary sewer concurrency standard presented in the comprehensive plan and in this section. Except as specifically provided in this article, no development order shall be issued for a proposed project which would violate this standard. Establishment of concurrency shall be ascertained by determining the capacity of the wastewater treatment facilities which shall be determined by utilizing the existing capacity available to serve proposed projects. The existing capacity shall be determined by computing the total of the committed flow to other proposed projects plus present average daily flow of the wastewater treatment facility to be impacted by a proposed project, as reasonably determined by the utilities commission using accepted engineering principles. This gallonage figure shall be subtracted from the design capacity of the wastewater treatment facilities, thereby yielding the wastewater treatment facility capacity that can be supplied to the proposed project. The capacity needed by the proposed project shall be determined by utilizing the level of service standard of 207 gallons per day per equivalent residential unit calculated by use of the formula set forth in Table 3 below.

TABLE 3

LEVEL OF SERVICE
ERU CAPACITY DEMAND SCHEDULE

Category I.

Dwelling units. Structures which are intended to be used for living accommodations, including ancillary facilities specifically designated for residents of the dwelling units. One unit is equivalent to one ERU, with a minimum requirement of one ERU per unit. When dealing with hotels, motels and timeshares, the term unit refers to a rental unit. Ancillary facilities do not include food service facilities. Examples of such are:

Single and multifamily structures

Hotels and motels

Trailer parks

Condominiums

Time shares

Category II.

Retail and churches. Structures include retail shops, light commercial establishments and churches, where sanitary facilities are primarily for use by employees or, in the case of churches, are infrequently used. A value of one ERU should be applied to every 2,000 square feet of building floor space, with a minimum requirement of one ERU per structure. Examples of such use are:

Retail stores

Banks

Barber and beauty shops

Professional offices.

Grocery stores

Convenience stores without gas pumps

Churches

Category III.

Commercial. Establishments include service stations and convenience stores with gas pumps and other structures where sanitary facilities are primarily for use by customers or patrons. A value of one ERU per establishment. Examples of such are:

Convenience stores with gas pumps

Service stations

Category IV.

Institutional/recreational facilities. Public meeting places or gathering establishments, educational, recreational and health related facilities. A value of one ERU is applicable for every 1,000 square feet of building floor space, with a minimum requirement of one ERU per establishment. Examples of such are:

Schools

Clubs

Government buildings—Prisons

Nursing homes

Hospitals—Health care facilities

Auditoriums

Airports

Stadiums (floor space calculated based on stadium structure. Does not include playing field.)

Movie theaters

10.

Health and fitness centers

11.

Meeting and/or banquet rooms

12.

Bowling alley (lanes area not included in floor space calculations)

13.

Parks (building floor space is for restroom facilities)

Category V.

Manufacturing and storage. Factory and warehouse structures where sanitary facilities are used primarily by employees. One ERU is applicable for the first 2,000 square feet of building floor space. For area in addition to the initial 2,000 square feet, a rate of one ERU per 4,000 square feet is applicable. A minimum of one ERU per structure is required. This category calculation applies only to sanitary facilities required for domestic use and does not include process related water and/or wastewater flows. Examples of such are:

Manufacturing

Warehousing

Category VI.

Food service. All establishments involved mainly in the preparation and serving of food and/or beverage on-site for public consumption. A value of 2.5 ERU per 1,000 square feet of building floor space is applicable, with a minimum requirement of 2.5 ERUs per establishment. This category calculation accommodates both sanitary facilities for public use (i.e. restrooms) and water and wastewater capacity requirements for food/beverage preparation and cleanup. Examples of such are:

Restaurant/cafeteria

Carryout restaurant

Fast food restaurant

Bars and lounges

Category VII.

Special uses. Those establishments with an expected high water usage and/or wastewater generation. One ERU should be added to the total facility use calculations for sanitary facilities (i.e. restrooms) for employee and customer use. Examples of such are:

Commercial laundry: 19 ERU/1,000 square feet

Launderette—Self service: 1.33 ERU/washing machine

Carwashes: 3.2 ERU/wash bay

Category VIII.

Individual cases. Facilities whose water and wastewater flow vary significantly based on the specific use of the facility. These facilities must be considered on an individual, case by case, basis. water usage and wastewater generation will be determined based on anticipated capacity needs supplied by the applicant. Examples of such are:

Processing Plants—Industrial Processes

Notes:

Any use not specifically defined in categories I—VIII will be assigned one of the above listed categories, which in the opinion of the utilities commission, best approximates proposed facility use.

If a building or plumbing permit is issued for an existing connection which will increase water and/or waste water demand, or if a building changes from residential to nonresidential occupancy, the total number of ERUs for the old and new parts of the facility shall be computed and the number of additional ERUs determined by subtracting the old ERUs from the new total number of ERUs for the facility.

In order to differentiate between grocery and convenience stores, and for the purposes of this resolution, convenience stores are defined as mercantile establishments which offer food and other products similar to those offered by grocery stores but with a more restricted selection. Convenience stores are therefore defined as establishments which have a gross square footage not exceeding 3,000 square feet.

An equivalent residential unit (ERU) represents a nominal production of 250 gallons of wastewater per day, or 0.833 times the nominal water usage per ERU. The relationship between water and wastewater flow has been determined by utilizing historical customer account records for water sales, and pollution control treatment flows, for the utilities commission's system.

Unless a development order is issued pursuant to subsection 401.06E., hereof, no development order shall be granted, unless conditioned upon the availability to the proposed project of a sufficient capacity in wastewater treatment facilities to provide service to the project. Using the standards set forth herein, wastewater treatment facilities capacity must be supplied to serve the proposed project concurrent with the impacts of the project.

On-site sewage disposal system. The New Smyrna Beach utilities commission, must first determine if sanitary sewer is available and advise the environmental office of the Volusia County health department accordingly. Septic tanks may be used as permitted by the Volusia County health department in compliance with Florida Administrative LDR, ch. 10D-6. No development order shall be granted until the applicant submits a septic tank permit obtained from the Volusia County health department to the city planner and it has been determined that all requirements have been complied with in subsection [403.01.A.] hereof.

Determination of capacity. In order to demonstrate that an application for a development order complies with this article, the city shall compute the capacity available to serve a particular proposed project. The applicant may submit additional data or information pursuant to [sub]section 401.06B. Any additional information shall be based on accepted engineering principles as determined by the utilities commission. If the capacity availability being analyzed is from a wastewater treatment facility operated by a person other than the utilities commission, including but not limited to Volusia County, prior to the issuance of a development order, a certificate from said person operating the wastewater treatment facility must be submitted to the city planner. The certificate must affirm the existence of sufficient wastewater treatment facility capacity based on facility design flow, present average daily flow, committed flow, and Table 3 level of service standards in this article. Further, the certificate must affirmatively indicate that said capacity has been reserved for the proposed project and the duration of the reservation. Upon expiration of said reservation, the applicant will be required to undergo a new concurrency evaluation.

(1)

Projected buildout period. The evaluation shall consider reserved capacity or any capacity to which another proposed project shall have a prior and superior claim during the proposed project's projected buildout period. The projected buildout period of the proposed project shall be set forth in the evaluation and shall be determined by the city planner based on the following criteria:

The size, type and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

Existing available capacity will likely increase or decrease during the buildout period of the proposed project. The study must account for this increase or decrease in available treatment capacity based on conditions during the buildout period of the proposed project. The projection of available treatment capacity shall be based upon the difference between the permitted design capacity of the wastewater treatment facilities, less the cumulative sum of average daily flow and committed flow at the time of submission, and shall be established in accordance with the requirements set forth in this article and accepted engineering principles as determined by the utilities commission. This change in treatment capacity shall be shown as it relates to any proposed phasing.

(2)

Assured construction. Assured construction shall be considered completed as scheduled for the purpose of preparation of the evaluation. Whether it is in fact assured construction and the timing of the assured construction shall be subject to the confirmation of the city planner.

(3)

Project phasing. The study may reflect a proposed phasing schedule for the development of the proposed project. This schedule shall address the time at which each phase will place impacts on the wastewater treatment facility to be impacted at the time of submission of each phase. Wastewater treatment capacity will not be taken into consideration unless the project is permitted by the State of Florida, Department of Environmental Protection during initial application.

(Ord. No. 109-11, § 1, 11-8-2011)

404.00. - Potable water facility concurrency.

404.01. Standard.

Generally. All potable water supply facilities serving development projects within the city shall comply with the potable water concurrency standard presented in the comprehensive plan and in this section. Except as specifically provided in this article, no development order shall be issued for a proposed project which would violate this standard. Establishment of concurrency shall be ascertained by determining the capacity for potable water supply facilities which shall be determined by utilizing the existing capacity. The existing capacity shall be determined by computing the total of the committed flow to other proposed projects plus present average daily flow of the potable water supply facility to be impacted by a proposed project, as reasonably determined by the utilities commission using accepted engineering principles. This gallonage figure shall be subtracted from the design capacity of the potable water supply facilities, thereby yielding the available potable water supply facilities capacity that can be supplied to the proposed project. The capacity needed by the proposed project shall be determined utilizing the potable water level of service standard of 240 gallons per day per equivalent residential unit calculated by use of the formula set forth in Table 4 below.

TABLE 4

LEVEL OF SERVICE
ERU CAPACITY DEMAND SCHEDULE

Category I.

Single and multifamily structures

Hotels and motels

Trailer parks

Condominiums

Time shares

Category II.

Retail stores

Banks

Barber and beauty shops

Professional offices

Grocery stores

Convenience stores without gas pumps

Churches

Category III.

Convenience stores with gas pumps

Service stations

Category IV.

Schools

Clubs

Government buildings—Prisons

Nursing homes

Hospitals—Health care facilities

Auditoriums

Airports

Stadiums (floor space calculated based on stadium structure. Does not include playing field.)

Movie theaters

10.

Health and fitness centers

11.

Meeting and/or banquet rooms

12.

Bowling alley (lanes area not included in floor space calculations)

13.

Parks (building floor space is for restroom facilities)

Category V.

A minimum of one ERU per structure is required. This category calculation applies only to sanitary facilities required for domestic use and does not include process related water and/or wastewater flows. Examples of such are:

Manufacturing

Warehousing

Category VI.

Restaurant/cafeteria

Carryout restaurant

Fast food restaurant

Bars and lounges

Category VII.

Commercial laundry: 19 ERU/1,000 square feet

Launderette—Self service: 1.33 ERU/washing machine

Carwashes: 3.2 ERU/wash bay

Category VIII.

Processing Plants—Industrial Processes

Notes:

Any use not specifically defined in categories I—VIII will be assigned one of the above listed categories, which in the opinion of the utilities commission, best approximates proposed facility use.

If a building or plumbing permit is issued for an existing connection which will increase water and/or wastewater demand, or if a building changes from residential to nonresidential occupancy, the total number of ERUs for the old and new parts of the facility shall be computed and the number of additional ERUs determined by subtracting the old ERUs from the new total number of ERUs for the facility.

An equivalent residential unit (ERU) represents a nominal usage of 300 gallons of water per day as determined by using historical customer account records and water sales for the utilities commission's system.

Unless a development order is issued pursuant to subsection 401.06E. hereof, no development order shall be granted, unless conditioned upon the availability to the proposed project of a sufficient capacity in potable water treatment facilities to provide service to the project. Using the standards set forth herein, potable water treatment facilities capacity must be supplied to serve the proposed project concurrent with the impacts of the project.

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

(1)

The size, type, and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

Existing available capacity will likely increase or decrease during the buildout period of the proposed project. The evaluation should account for this increase or decrease in available treatment capacity based on conditions during the buildout period of the proposed project. The projection of available treatment capacity shall be based upon the difference between the permitted design capacity of the potable water supply facilities, less the cumulative sum of average daily flow and committed flow at the time of submission, and shall be established in accordance with the requirements set forth in this article and accepted engineering principles as determined by the utilities commission. This change in treatment capacity shall be shown as it relates to any proposed phasing.

(2)

(3)

(Ord. No. 109-11, § 1, 11-8-2011)

405.00. - Solid waste disposal concurrency.

405.01. Standard.

[Compliance.] All solid waste disposal facilities serving development projects within the city shall comply with the solid waste disposal concurrency standard presented in the comprehensive plan and in this section. Except as specifically provided in this article, no development order shall be issued for a proposed project which would violate this standard. Establishment of concurrency shall be ascertained by determining the capacity for solid waste disposal facilities which shall be determined by utilizing the existing capacity. The existing capacity shall be determined by computing the total of the committed capacity to other proposed projects plus the existing amount of solid waste generated. This figure shall be subtracted from the design capacity of the solid waste disposal facility (city's transfer station) impacted, thereby yielding the solid waste impacted disposal facility capacity that can be used by a proposed project. The present design capacity of the transfer station is 100 tons per day and the station is operating at 80 percent capacity. By 1996, the city proposes to upgrade the transfer station to a 200-ton-per-day capacity to meet future needs in compliance with the future land use plan contained in the comprehensive plan. The amount of solid waste generated by the proposed project, and impacting a solid waste disposal facility, shall be determined by utilizing the existing applicable solid waste disposal facility level of service of 7.3 pounds of solid waste per capita per day. Nonresidential solid waste is provided for in the 7.3 pounds per capita figure, since it was obtained by dividing total daily tonnage by city population. No development order shall be granted unless conditioned upon the availability to the project of a sufficient capacity of solid waste disposal facilities to provide service to the project. No final development order shall be granted unless, using the standards set forth herein, solid waste disposal facility capacity can be supplied to serve the proposed project concurrent with the impacts of the project.

(1)

Projected buildout period. The concurrency evaluation shall consider reserved capacity or any capacity to which another proposed project shall have a prior and superior claim during the proposed project's projected buildout period. The projected buildout period of the proposed project shall be set forth in the evaluation and shall be determined by the city planner based on the following criteria:

The size, type, and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

(2)

(3)

Project phasing. The study may reflect a proposed phasing schedule for the development of the proposed project.

(4)

Issuance of development order. Concurrency for solid waste disposal facilities for each project shall be documented by letter from the public works superintendent simultaneously with the issuance of a development order.

406.00. - Parks/recreation concurrency.

406.01. Standard.

Generally. All residential projects proposed within the city shall comply with the recreation and open space concurrency standard presented in the comprehensive plan and in this section. Except as specifically provided in this article, no development order shall be issued for a residential proposed project which would violate this standard. Establishment of concurrency shall be ascertained by determining the need expressed in acreage, rounded downward to the nearest one-tenth acre, for neighborhood, community, and regional parks that a proposed project will generate, as set forth herein. The need generated by a proposed project, expressed in fractional acreage, shall be added to the existing demand also expressed in fractional acreage, rounded to the nearest one-tenth acre, for each neighborhood, community, and regional parks. For the purposes of this article, each residential unit or single-family dwelling shall be considered to have a population of 2.4 persons. Existing demand, as that term is used in this article IV, shall include demand created by constructed residential projects and proposed projects permitted but unbuilt which have been allocated or reserved capacity as set forth in this LDR within the radius of development influence (as set forth in Table 6 hereof) for a particular type of park. Existing demand plus demand or need generated by the proposed project shall represent total demand. Existing design capacity for each neighborhood, community, and regional parks, shall be computed and total demand within the applicable park's radius of development influence shall be subtracted therefrom to yield the existing capacity of each park type available to serve a proposed project. This figure shall be compared to the demand or need generated by a proposed project to ascertain whether there is a deficiency in the level of service for each neighborhood, community or regional parks. With regard to a neighborhood park, concurrency may be satisfied by meeting the concurrency standard as set forth above, or alternatively, by establishing a suitable neighborhood park within a proposed residential subdivision within the radius of development influence.

TABLE 5

LEVEL OF SERVICE FOR RECREATION AND OPEN SPACE

Park Type	Level of Service
Neighborhood Park	1 acre per 1,000 people
Community Park	1.15 acres per 1,000 people
Regional Park	20 acres per 1,000 people

TABLE 6

RADIUS OF DEVELOPMENT INFLUENCE FOR
RECREATION AND OPEN SPACE

Park Type	Radius of Development Influence
Neighborhood Park	¼ mile to ½ mile
Community Park	½ mile to 3 miles
Regional Park	Drive time 30 minutes to 1 hour

(1)

Projected buildout period. The projected buildout period of the proposed project shall be set forth in the evaluation and shall be determined by the city planner based on the following criteria:

The size, type, and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

Existing available capacity will likely increase or decrease during the buildout period of the proposed project. The evaluation should account for this increase or decrease in available treatment capacity based on conditions during the buildout period of the proposed project. The projection of available neighborhood, community, and regional park facilities, shall be based upon the difference for each type of park facility within the radius of development influence between the design capacity of the park facility less the sum of the cumulative existing usage and park size plus the committed usage at the time of submission as a result of other proposed projects. This change in capacity shall be shown as it relates to any proposed phasing.

(2)

Assured construction. Assured construction shall be considered completed as scheduled for the purpose of preparation of the evaluation, whether it is in fact assured construction and the timing of the assured construction shall be subject to the confirmation of the city planner.

(3)

407.00. - Drainage concurrency.

407.01. Standard.

Generally. All parcels of land within the city shall comply with the drainage retention and stormwater management system concurrency standard presented in the comprehensive plan and in this section. Except as specifically provided in this article, no development order shall be issued for a proposed project which would violate this standard. All development orders shall be conditioned upon satisfaction of the level of service standards in this Section. Establishment of satisfaction of the concurrency standard herein shall be ascertained through submission of a stormwater management plan as provided in this LDR. The level of service standard for concurrency evaluation herein shall require on-site retention of the first inch of runoff. Post-development discharge for the 25-year 24-hour storm event shall not exceed 110 percent of predevelopment discharge. Frequently occurring two-, five- and ten-year storm events and seldom occurring 25- and 50- year storm events will be accommodated by maintaining existing drainage systems and constructing new drainage systems.

407.02. Stormwater management plan.

Generally. In order to demonstrate that an application for a development order complies with this article, the applicant shall be required by the city to submit a stormwater management plan simultaneously with the issuance of a development order. The stormwater management plan shall address the requirements and standards of this article, [sub]section 604.02 of this LDR, and Code of Ordinances, [1975] chapter 27, Stormwater Management and Conservation ordinance. Said plan shall ensure the proposed project will have drainage retention capacity and that stormwater management system capacity is sufficient to meet or exceed the level of service set forth herein. The form and level of detail required in the stormwater management plan shall be established by the city engineer in accordance with accepted engineering principles.

Professional services. The stormwater management plan shall be prepared, sealed, and signed, by a qualified professional engineer, licensed to practice in the State of Florida.

Editor's note— Stormwater utility provisions are found in Chapter 82, Article VI of this code.

408.00 - Public school facilities concurrency.

408.01. Standard.

Generally. All comprehensive plan amendments and rezonings which would increase density, and all subdivision plats and site plans associated with residential projects proposed within the city shall comply with the public school facilities concurrency standard presented in the comprehensive plan and in this section. Except as specifically provided in this article, no development order shall be issued for a residential proposed project that would violate this standard. In considering whether to adopt any comprehensive plan amendment or rezonings that would increase allowable residential densities, or residential subdivision plats or site plans, the city shall consider the factors set forth in the written report of the school district. No comprehensive plan amendment or rezoning that increases residential density shall be adopted, nor shall any residential subdivision plat or site plan be approved if adequate public schools cannot be timely planned and constructed to serve the projected increase in the student population.

TABLE 7 LEVEL OF SERVICE FOR PUBLIC SCHOOL FACILITIES

Concurrency Service Area
Type of School	Level of Service	Date Effective
Elementary	115 of permanent capacity	July 1, 2011
	Interim LOS: 115% 165%	Constrained July 1, 2017 Coronado Elementary* Samsula Elementary*
Middle	115% of permanent capacity	July 1, 2010
	Interim LOS:	New Smyrna Beach Middle July 1, 2012**
High	120% of permanent capacity	July 1, 2010

*For purposes of public school facilities concurrency, Coronado Elementary and Samsula Elementary are considered constrained facilities and shall be subject to the LOS listed in Table 7, above.

**New Smyrna Beach Middle School is considered a backlogged facility that must meet the required LOS by July 1, 2012.

Determination of capacity for future land use element plan amendments.

(1)

Future land use element plan amendments subject to review. The city shall require that every applicant seeking an amendment to the future land use map or text which affects existing or proposed residential land uses shall provide a copy of the proposed amendment to the Volusia County School District at the time of submitting the application to the city. A copy of the application provided to the school district shall be included with the application package submitted to the city.

(2)

Application review by school district.

Any proposed amendment to a land use element initiated by the city shall be submitted to the school district at least 45 working days prior to the hearing before the local planning agency (LPA).

Any proposed amendment not initiated by the city which increases residential density shall be forwarded to the school district at least 30 days prior to the hearing before the governing body.

At least five days prior to the local planning agency hearing the city shall provide to the school board a copy of the amendment, all supporting materials including data and analysis, staff reports and staff recommendations. The city shall include the findings of the school district, as set forth below, in the supporting materials. The city shall also provide the notice of date, time and location of the local planning agency hearing.

The school district shall review the amendment information submitted and shall evaluate the impact of the proposed amendment on the school capacity provided in the school district's tentative district educational facilities plan, the impact on permanent capacity of the affected school facilities as well as the impact on the adopted level of service standard for affected public schools and the projected timing and delivery of public school facilities to serve any residential land use authorized by the proposed comprehensive plan amendment.

Within 15 working days of receipt of the future land use map or text amendment the school district shall submit to the city and any other affected local governments a written report setting forth the findings and recommendations of the school district, and specifically setting forth the capacity, or lack thereof, of existing facilities or planned facilities as identified in the current school district tentative district educational facilities plan to serve additional students without exceeding permanent capacity.

If the school district determines that school capacity is adequate to serve the proposed increase in residential density, the school district shall issue a finding of adequate school capacity, which shall constitute competent substantial evidence that adequate public school capacity is likely to be available at the time it is required to serve planned new development.

In the event that the school district reports that there is not adequate school capacity to serve the proposed increase in residential density, then the city shall not approve the proposed future land use amendment until such time as the school district can issue a finding that adequate school capacity will exist and shall notify the applicant accordingly.

The city or the applicant may request the school district report on what actions could be undertaken in order to provide adequate school capacity. Thereupon the school board, the city and the applicant may enter into negotiations to evaluate options such that adequate school capacity can be timely planned and constructed to serve the anticipated students associated with the proposed land use at such time as the development is projected to occur, and recommend terms and conditions for a capacity enhancement agreement. Such agreements may provide from among the following options:

Dedication of school site as approved by the school board; or

ii.

Construction or donation of buildings for use as a primary or alternative learning facility, provided that such facilities meet the Florida Building Code and the state requirements for education facilities; and/or

iii.

Renovation of existing buildings for use as learning facilities which actually increase capacity; or

iv.

Funding dedicated to, or construction of permanent student stations;

For schools contained in the adopted school district's five-year facilities work program including long term, upon agreement with the school board, the developer may build the school in advance of the time set forth in the school district's five-year facilities work program; or

vi.

Up front lump sum payment of school impact fees; or

vii.

Payment of borrowing costs; or

viii.

Payment of off-site infrastructure expenses associated with new school construction, including but not limited to roads, water, and/or sewer improvements; or

ix.

Funding assistance with acquisition of school site.

Phasing of school construction or delay of development construction in order to timely plan for availability of school capacity.

xi.

Charter school provided that such school is approved by the school board and its construction meets the Florida Building Code and state requirements for educational facilities and any enhanced hurricane protection area requirements as determined by Volusia County Emergency Management, and provides for a reverter clause to the school board in the event that the school should close.

xii.

Any other measure approved by the school board which actually increases school capacity or accelerates a project on the five-year work program.

Upon the successful negotiation of a capacity enhancement agreement, the school board may issue a finding of adequate school capacity conditioned upon the execution of a capacity enhancement agreement with the school board, the city, and the applicant as parties to the agreement which shall be enforceable by the school board and the affected local governments.

As part of a capacity enhancement agreement, the applicant, school board, and the city may agree on a means to convert the agreement to a mitigation agreement so as to allocate credit for donation of land, construction of facilities, and provide for reservation of capacity.

The city shall include the report and recommendations of the school district at its local planning agency (LPA) and transmittal hearing, and if the city decides to transmit the proposed plan amendment to the department of community affairs and Volusia Growth Management Commission, the city shall include the written report and recommendations of the school district in its transmittal package.

Determination of capacity for residential rezonings.

(1)

Rezonings subject to review. The city shall require that every applicant seeking a rezoning that increases existing residential densities shall provide a copy of the proposed rezoning request to the Volusia County School District at the time of submitting the application to the city. A copy of the application to the school district shall be included with the application package submitted to the city.

(2)

Applicant review by the school district.

Any administrative rezoning initiated by the city which modifies and/or adds additional residential units shall be submitted to the school district at least 45 working days prior to the hearing before the local planning agency.

At least five days prior to the local planning agency hearing the city shall submit to the school board the application information along with a copy of the development plan, supporting materials, staff reports and staff recommendations and the date, time and place of the local planning agency hearing. The city shall include the findings of the school district as set forth below in the supporting materials.

The school district shall review the rezoning information submitted and shall evaluate the impact of the proposed rezoning on the school capacity provided in the school district's tentative district educational facilities plan, the impact on permanent capacity of the affected school facilities as well as the impact on the adopted level of service standard for public schools, and the projected timing and delivery of public school facilities to serve any residential development authorized by the rezoning approval.

Within 15 working days of receipt of the rezoning application the school district shall submit to the city and any other affected local governments a written report setting forth the findings and recommendations of the school district, and specifically setting forth the capacity, or lack thereof, of existing facilities or planned facilities identified in the current school district tentative district educational facilities plan to serve additional students without exceeding the permanent capacity and the adopted level of service.

In the event that the school district reports that there is not adequate capacity to serve the proposed rezoning, then the city shall not approve the proposed rezoning until such time as the school district can issue a finding that adequate school capacity will exist and shall notify the applicant accordingly.

The city or the applicant may request the school district report on what actions could be undertaken in order to provide adequate school capacity. Thereupon the school board, the city and the applicant may enter into negotiations to evaluate options such that capacity can be timely planned to serve the anticipated students associated with the proposed rezoning at such time as the development is projected to occur, and recommend terms and conditions for a capacity enhancement agreement as more particularly set forth above in section 408.01 B.(2)(h) of this LDR.

Upon the successful negotiation of a capacity enhancement agreement, the school board may issue a finding of adequate school capacity conditioned upon the execution of a capacity enhancement agreement with the school board, the city and the applicant as parties to the agreement which shall be enforceable by the school board and the affected local governments.

The city shall include the report and recommendations of the school district at its local planning board hearing, and if the city commission decides to approve the proposed rezoning, the city shall include the written report and recommendations of the school district in its findings.

Determination of concurrency for residential subdivision plats and site plans subject to review.

(1)

Residential subdivision plats and site plans subject to review. The city shall require that every applicant seeking approval of a residential subdivision plat or residential site plan shall provide a copy of the proposed development to the Volusia County School District at the time of submitting the application to the city. A copy of the application provided to the school district shall be included with the application package submitted to the city.

(2)

Application review by school district.

Within five days the city agrees to inform the school district of the projected date where the site plan or subdivision plat or functional equivalent is scheduled to be considered by city technical review staff.

If the site plan or subdivision plat requires approval by the local planning agency or governing board, then the city shall inform the school district of the date, time and place of the authorizing agency hearing and provide staff reports and supportive materials at least five days prior to the hearing. The city shall include the school district's report as set forth below in its information to its authorizing agency.

If a development is precluded from commencing because there is inadequate capacity to mitigate the impacts of the development, the development may nevertheless commence if there are accelerated facilities in an approved capital improvement element scheduled for construction in year four or later of such plan which, when built, will mitigate the proposed development or if such accelerated facilities will be in the next annual update of the capital facilities element, the developer enters into a mitigation agreement with the school district to construct an accelerated facility within three years of an approved capital improvement plan and the cost of the school facility is equal to or greater than the development's proportionate share.

The school district shall review the residential subdivision plat or site plan information submitted and shall evaluate the impact of the proposed request on the school capacity provided in the school district's five-year facilities work program, the impact on the adopted level of service standard for public schools, and the projected timing and delivery of public school facilities to serve the proposed residential development.

Within 15 working days of receipt of the residential subdivision plat or site plan the school district shall submit to the city a written report setting forth the findings and recommendations of the school district, and specifically, setting forth the capacity or lack thereof of existing facilities or planned facilities or planned facilities identified within the first three years of the school district's capital improvement plan to serve additional students without exceeding the adopted level of service.

The city shall consider the report and recommendations of the school district at its local authorizing hearing or its functional equivalent, and if the city decides to approve the proposed request for the residential site plan and/or subdivision, the city shall include the written report and recommendations of the school district in its findings.

If the school district determines that school capacity is adequate to serve the proposed development, the school district shall issue a certificate of school concurrency, which shall constitute competent substantial evidence that the affected public school or schools can accommodate the additional students.

In the event that the school district reports that there is not adequate capacity available to serve the proposed development within three years, then the city agrees not to approve the proposed subdivision or sit plan until such time as the school board can certify that adequate capacity exists and shall notify the applicant accordingly.

The city of the applicant may request the school district report on what actions could be undertaken in order to provide capacity. Thereupon the school district, the city and the applicant may enter into negotiations to evaluate options for proportionate share mitigation or recommend terms and conditions for a mitigation agreement. Mitigation options must consider the school district's educational delivery methods and requirements, and the state requirements for educational facilities (SREF) and may include but not be limited to the following:

(i)

Donation of building for use as a primary or alternative learning facility; and/or

(ii)

Renovation of existing buildings for use as learning facilities; or

(iii)

Funding dedicated to, or construction of permanent student stations or core capacity; or

(iv)

For schools contained in the adopted school district's five-year facilities work program only, upon agreement with the school board, the developer may build the school in advance of the time set forth in the school district's five-year facilities work program; or

(v)

Agreement to contribute funds or other assets toward a specific capacity project sufficient to advance the project into the district five-year facilities work program for the subsequent year;

(vi)

Dedication of school site as approved by the school board; or

(vii)

Up-front lump sum payment of school impact fees; or

(viii)

Payment of borrowing costs; or

(ix)

Payment of off-site infrastructure expenses, including but not limited to roads, water, and/or sewer improvements and pedestrian facilities; or

(x)

Payment of transportation costs associated with the movement of students outside two mil zone as a result of overcapacity school; or

(xi)

Funding assistance with acquisition of school site.

(xii)

Phasing of construction or delay of construction in order to timely plan for availability of school capacity.

(xiii)

Establishment of an educational facilities benefit district, as provided in F.S. § 1013.355.

(xiv)

Impact fee credits may be granted as permitted by law and agreed upon by school board.

(xv)

Construction of a charter school provided that such school is approved by the school board and its construction meets the Florida Building Code and state requirements for educational facilities and any enhanced hurricane protection area requirements as determined by Volusia County Emergency Management, and provides for a reverter clause to the school board in the event that the school should close.

(xvi)

Any other measure approved by the school board which actually increases school capacity or accelerates a project on the five-year work program.

Upon the successful execution of a mitigation agreement, the school board shall issue a certificate of school concurrency conditioned upon the execution of a mitigation agreement with the school board, the city and the applicant as parties to the agreement which shall be subject to monitoring and enforceable by the school board.

The city may not deny an application for site plan, subdivision plat, or the functional equivalent for a development or phase of a development authorizing residential development for failure to achieve and maintain the level-of-service standard for public school capacity in a local school concurrency management system where adequate school facilities will be in place or under actual construction within three years after the issuance of final subdivision or site plan approval, or the functional equivalent.

Exemptions. The following residential projects are deemed to be de minimum and not subject to school concurrency review:

(1)

Single family lots of record on a recorded plat, existing as such at the time school concurrency implementing ordinance is adopted for which otherwise would be entitled to build, shall be exempt from school concurrency requirements.

(2)

The creation of subdivisions and/or single family lots equal to or less than ten residential units. All subdivisions creating greater than ten or more lots shall be reviewed for available school capacity.

(3)

Any residential development or any other development with a residential component that received approval of a final development order or functional equivalent prior to the implementation date of school concurrency or is exempt from concurrency under the city's concurrency regulations is considered vested for that component which was previously approved for construction and shall not be considered as proposed new residential development for purposes of school concurrency.

(4)

Any unit exempted under the Volusia County school facilities impact fee ordinance as set forth in section 70-181(a).

(5)

Non-residential development.

(Ord. No. 108-07, § 2, 5-13-2008; Ord. No. 19-18, § 1, 3-13-2018)

409.00 - Statutory development agreements.

409.01. General intent.

The city commission, in its sole and exclusive discretion, may enter into developer's agreements with the legal and equitable owners of parcels of land within the city limits of the city, pursuant to F.S. § 163.3220 or F.S. ch. 380; provided, the requirements set forth under the terms of this article are complied with. The entry into a statutory development agreement by the city shall in no way whatsoever limit or modify any legislative power by the city to adopt ordinances, resolutions, regulations, or to make executive, administrative or legislative decisions of any kind which it had the power to make prior to the entry of such statutory development agreement, except to the degree that the statutory development agreement, by its express terms and not by implication, gives vested rights to the said parcel of landowner, said owner's successor and assigns, as to certain development permissions, required improvements, and similar matters. No statutory development agreement shall, by its express terms or implication, limit the right of the city commission to adopt ordinances, regulations, or policies, that have general or specific application to the parcel of land subject to the statutory development agreement in the city, except as in F.S. § 163.3220 or F.S. ch. 380.

The submission of a request for consideration of a statutory development agreement, the city commission's willingness to pursue discussions, the resultant negotiations regarding a statutory development agreement, the payment of any application fees for the submission of any applications, engineering plans, surveys, and any other expenditures or efforts in prosecution of the statutory development agreement provided for herein by a parcel of land owner, shall not vest any rights whatsoever in any zoning or land use designation in such parcel of land owner, or other individual, nor shall it in any manner whatsoever limit the city commission from undertaking any zoning or land use plan amendments that it would be otherwise legally been titled to undertake, except as may be specifically and without implication set forth in the statutory development agreement.

409.02. Application.

An applicant desiring to enter into a statutory development agreement with the city shall make a written request to enter into said statutory development agreement by filing an application with the city planner, which application shall contain:

(1)

A concise and complete recital of the proposed contents of the statutory development agreement, including the requirements set forth in F.S. § 163.3227, and including but not limited to development uses permitted on the parcel of land(including densities and/or intensities of use and heights of structures on-site), description of the public facilities which will provide services to the parcel of land (including who shall provide such public facilities and services, the date that new public facilities, if needed, will be constructed, and a schedule to assure that the public facilities and services will be available concurrent with the impacts of development) a description of any reservation or dedication of land or public facilities to occur, a capacity enhancement agreement, if required by the Volusia County School District, and a statement demonstrating consistency of the proposed statutory development agreement with the comprehensive plan;

(2)

A legal description of the parcel of land and survey thereof which the applicant wishes to be subject to the statutory development agreement;

(3)

The name, address, and telephone number of the applicant and any attorney or agent who is or will be representing the applicant;

(4)

A title opinion of a Florida attorney (which opinion is in a form acceptable to and in favor of the city), abstract of title, or other evidence of title which shall identify all legal and equitable owners having any interest in such parcel of land, as well as all mortgage or lien holders, holders of easement interests, and other encumbrances, all upon the parcel of land. In the event that any partnerships, corporations, joint ventures or other entities, other than the applicant for a statutory development agreement, might own a legal or equitable interest in such parcel of land, all such principals in and other such partnerships, corporations, and joint ventures shall be revealed. As of the date of recordation of any statutory development agreement, the applicant may be required by the city to update the foregoing information to the date of recording of the statutory development agreement;

(5)

An affidavit under penalty of perjury verified by a notary public by the applicant attesting to the truth, accuracy and veracity of the application and all attachments thereto; or alternatively, an application executed subject to the following statement: "Under penalties of perjury, I declare that I have read the foregoing application for statutory development agreement and all attachments thereto and that the facts stated in it are true";

(6)

Payment of any required application fee as may from time to time be set by resolution of the city commission;

(7)

The desired duration of the statutory development agreement not to exceed ten years. An extension may be approved by the city commission for up to two years;

(8)

Identification of zoning district modifications or land use plan district amendments that will be required if the proposed development project proposal were to be approved;

(9)

A survey of the parcel of land showing the location of all environmentally sensitive lands, or lands subject to the jurisdiction of the U.S. Army Corps of Engineers, State Department of Environmental Regulation, or the St. John's River Water Management District;

(10)

A description of all existing and proposed utilities and the manner in which existing utilities will be extended to the site and/or expanded for the use of the development, including water, sewer, gas, electricity, cable television, and other utilities;

(11)

A master drainage plan for the proposed project indicating thereon the existing drainage features and land topography, along with and superimposed thereon, the proposed drainage features indicating clearly the means by which the final development parcel of land will collect, regulate, and conduct the drainage runoff from the parcel of land developed and tributary thereto;

(12)

The location, type, size, and height of fencing or masonry wall, earth berms, retaining wall or screen planting to buffer abutting properties or as is otherwise required by city regulations;

(13)

A grading plan and included therewith the elevation requirements of the National Flood Insurance Program as applicable to the city;

(14)

A landscape plan and existing tree survey;

(15)

Any deed restrictions existing or being imposed upon the parcel of land for development;

(16)

A list of all federal, state, and local permit requirements; and

(17)

Any further information that the city may require because of the particular nature or location of the development.

The applicant shall attach to the application, original or photographically reproduced copies, of all documents or other relevant evidence. Said attachments shall be deemed to be a part of the application.

409.03. Statutory development agreement review procedures.

Staff negotiation. The city planner shall review the proposed project and shall meet and negotiate with the applicant regarding the appropriate terms and conditions on which said parcel of land should be developed.

Reduction of proposal to writing.

(1)

In the event that the city planner and the applicant have negotiated the terms of a mutually acceptable statutory development agreement, the terms of that statutory development agreement shall be reduced to writing by the city attorney, a contractual form for further consideration as provided herein.

(2)

In the event that the city planner and the applicant have been unable to negotiate a mutually satisfactory statutory development agreement, within 30 days of said determination by the city planner, the applicant may prepare a proposed statutory development agreement consistent with all requirements hereof for review by the local planning agency.

Local planning agency public hearing.

(1)

At such time as the city attorney has reduced the term of the proposed statutory development agreement to written contractual form, or the applicant has prepared a statutory development agreement as set forth above in sub-section 408.03B.(2), the city planner shall transmit such statutory development agreement to the local planning agency with the city planner's written recommendation regarding adoption of the statutory development agreement. A public hearing shall be held by the local planning agency on said application. At the public hearing the local planning agency shall accept any public comment, oral or written, regarding the terms of the statutory development agreement. At the public hearing, oral notice shall be given of a second public hearing to be held by the city commission. The date, time, and place will be announced by the city clerk. Thereafter, the local planning agency shall forward its written recommendation to the city commission. Said recommendation shall be advisory in nature.

(2)

Notice of intent to consider a statutory development agreement pursuant hereto shall be advertised approximately seven days before the local planning agency's public hearing thereon in a newspaper of general circulation in New Smyrna Beach, and said notice shall be mailed to all owners of the affected parcel of land. Said advertisement and notice of the public hearing shall include:

Location of the parcel of land proposed to be considered subject to the statutory development agreement;

Proposed development project land uses, building intensities, building densities, and building heights;

Location where a copy of the proposed statutory development agreement may be reviewed by interested parties;

Date, time, and place of the public hearing;

Advise that the public hearing may be continued from time to time; and

Advise that an individual desiring to appeal a determination of the local planning agency may be required to furnish a reviewing authority with a transcript of the proceeding, which transcript must be prepared at the expense of the individual appealing the determination.

City commission public hearing.

(1)

Upon receipt of the recommendation of the local planning agency, the city commission shall hold a public hearing on the application for approval of the statutory development agreement. At the public hearing the city commission shall accept any public comment on the terms of the statutory development agreement. The city commission shall vote on the proposed statutory development agreement, and the city clerk shall immediately dispatch postage prepaid by regular, first class, U.S. mail and in writing, a copy of the determination of the city commission to the applicant or whenever requested a copy of the determination, advising them of the city commission's decision. A copy of the determination shall be forwarded to the city planner. The determination shall state that a substantially affected party shall have 30 days in which to file a petition for writ of certiorari contesting the determination.

(2)

Notice of intent to consider a statutory development agreement pursuant hereto shall be advertised approximately seven days before the city commission public hearing thereon in a newspaper of general circulation in New Smyrna Beach, and said notice shall be mailed to all affected parcel of land owners. Said advertisement and notice of the public hearing shall include:

Location of the parcel of land proposed to be considered subject to the statutory development agreement;

Proposed development project land uses, building intensities, building densities, and building heights;

Location where a copy of the proposed statutory development agreement may be reviewed by interested parties;

Date, time, and place of the public hearing;

Advise that the public hearing may be continued from time to time; and

Advise that an individual desiring to appeal a determination of the city commission may be required to furnish a reviewing authority with a transcript of the proceeding, which transcript must be prepared at the expense of the individual appealing the determination.

409.04. Contents of statutory development agreement.

Any statutory development agreement approved under the provisions hereof shall contain not less than the following requirements:

(1)

A legal description of the land subject to the agreement and the identification of all persons having legal or equitable ownership therein;

(2)

The duration of the statutory development agreement, which duration shall not exceed ten years, together with a potential extension of up to two years, if granted by the city commission said extension being subject to the public hearing process necessary for the initial approval of the said statutory development agreement as set forth in [sub]section 409.03 hereof;

(3)

The development project uses permitted on the land including population densities, building intensities, and building height(s);

(4)

A conceptual site plan containing such information as may be required by the city to properly consider the development project proposal;

(5)

A description of the public facilities and services, including on-site and off-site improvements, including public school facilities, that will service the proposed project, including designation of the entity or agency that shall be providing such facilities. Additionally, if new facilities are needed to serve the project, the date will be provided by which such facilities will be constructed together with a schedule assuring that public facilities and services shall be available concurrent with the impact of the development project. The statutory development agreement may provide for a letter of credit, escrow agreement, tri-party agreement obligating the owner of the parcel of land, as well as any lender thereon, or other performance security, to be deposited with the city to secure the construction or expansion of new public facilities. Alternatively, such construction may be a condition to the issuance of any development order, other development permits, or certificates of occupancy. In the event that the new public facilities and services, including on-site improvements, are in place and operating at the time development permits are requested, no such letter of credit or other performance securities shall be necessary unless such facilities are not adequate to serve the proposed project;

(6)

A description of any reservation or dedication for public purposes. The statutory development agreement shall provide specifically how the land dedication obligation for the project, if any, is to be met. In the event that land or an interest therein is to be conveyed to the city or other entity in discharge of the foregoing, the statutory development agreement will provide that such conveyance will be by warranty deed or other instrument in form and substance acceptable to the city attorney, together with evidence of title in form acceptable to the city attorney prepared by an attorney who is a member of the Florida Bar, a title company, or an abstract company, all depicting who is the owner in fee simple of the parcel of land subject to the statutory development agreement and the holders of any other interest or liens affecting said parcel of land;

(7)

A description of all local development permits approved or needed to be approved for the development of the parcel of land, specifically to include at least any required zoning amendments, any required land use plan amendments, any required submissions to the East Central Florida Regional Planning Council or to the Department of Community Affairs, any required permissions of the State of Florida Department of Environmental Regulation, the Army Corps of Engineers, the St. Johns River Water Management District, the U.S. Environmental Protection Agency, any required approvals from the Volusia County School District, including a finding of adequate school capacity and/or capacity enhancement agreement and a certificate of school concurrency and/or a mitigation agreement, and any other governmental permissions that are required for the project. The statutory development agreement shall specifically provide that said development permissions will be obtained at the sole cost of the owner of the parcel of land and that, any approvals previously given, including the statutory development agreement, shall not in any manner obligate the city or any other governmental agency to grant other permit approvals. Under these conditions, action in reliance on the statutory development agreement or expenditures in pursuance of its terms or any rights accruing to the project owner thereunder, shall not vest any development rights in the owner of the project, nor shall it constitute partial performance entitling the owner of the project to a continuation of the statutory development agreement;

(8)

A specific finding in the statutory development agreement that the proposed project permitted or proposed is consistent with the city's comprehensive plan and the land development regulations of the city or that, if amendments are necessary to the zoning district designations or land use plan designations on the subject parcel of land, that such statutory development agreement is contingent upon those amendments being made and approved by the appropriate governmental agencies;

(9)

The city commission may provide for any conditions, terms, restrictions, or other requirements determined to be necessary for the public health, safety, aesthetics, or welfare of its citizens and such conditions, terms or restrictions may be more onerous or demanding than those otherwise specifically required by the land development standards then existing in the city and may provide for off site improvements, screening, buffering, setbacks, building height restrictions, land coverage restrictions and similar types of matters that would not otherwise be required of the development under the existing city ordinances and regulations;

(10)

A statement indicating that failure of the statutory development agreement to address a particular permit condition, term, or restriction, shall not relieve the parcel of land owner developer of the necessity of said permitting requirements, conditions, terms or restrictions, and that any matter or thing required to be done under existing ordinances of the city shall not be otherwise amended, modified, or waived, unless such modification, amendment, or waiver is expressly provided for in the said statutory development agreement with specific reference to the LDR provision so waived, modified, or amended;

(11)

At the city commission's discretion, the statutory development agreement may provide that the entire proposed project or any phase thereof, shall be commenced or be completed within any specific period of time and may provide for penalties in the nature of monetary penalties, the denial of future development orders, the termination of the developer's agreement statutory development agreement, or the withholding of certificates of occupancy for the failure of the parcel of land owner to comply with any such requirement.

409.05. Applicability of ordinances and resolutions of city to statutory development agreement.

The ordinances and regulations of the city governing the development of the land at the time of the execution of any statutory development agreement provided for hereunder shall continue to govern the development of the parcel of land subject to the statutory development agreement for the duration of the statutory development agreement, except as otherwise provided herein. At the termination of the duration of the statutory development agreement, all then existing LDR's shall become applicable to the development regardless of the terms of the statutory development agreement. The application of such laws and policies governing the development of the parcel of land shall not provide for any vesting as to any fees or fee structure, including any impact fees, then in existence or thereafter imposed.

The city may apply ordinances and policies adopted subsequently to the execution of the statutory development agreement to the parcel of land subject to the statutory development agreement, only if the city has held a public hearing and determined that:

(1)

Such new ordinances or policies are not in conflict with the laws and policies governing the statutory development agreement and do not prevent development of the land uses, intensities or densities as allowed under the terms of the statutory development agreement; or

(2)

Such new ordinances or policies are essential to the public health, safety, or welfare and the new ordinances or policies expressly state that they shall apply to a development that is subject to a statutory development agreement; or

(3)

Such new ordinances or policies are specifically anticipated and provided for in the statutory development agreement; or

(4)

The city has demonstrated that substantial changes have occurred in pertinent conditions existing at the time of the approval of the statutory development agreement; or

(5)

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

All statutory development agreements shall specifically provide that subsequently adopted ordinances and policies of general application in the city, specifically including but not limited to rates of impact fees, shall be applicable to the parcel of land subject to the statutory development agreement and that such modifications are specifically anticipated in the statutory development agreement.

In the event that state and federal laws are enacted after the execution of a statutory development agreement which are applicable to and preclude the parties' compliance with the terms of the statutory development agreement, such agreement shall be modified or revoked as is necessary to comply with the relevant state or federal laws, such modification or revocation to take place only after the notice provisions providing for the adoption of a statutory development agreement have been complied with. Such persons as are defined by state law shall have standing to enforce the statutory development agreement.

The city shall review all parcel(s) of land within the city subject to a statutory development agreement not less than once every 12 calendar months to determine if there has been demonstrated good faith compliance with the terms of the statutory development agreement. The city planner shall report his findings to the city manager. In the event that the city finds, on the basis of substantial competent evidence, that there has been a failure to comply with the terms of the statutory development agreement, the agreement may be revoked or modified by the city upon 30 days' notice to the parcel of land owner as shown on the records of the property appraiser for Volusia County. Such termination or amendment shall be accomplished only after a public hearing and notice as is herein required for the adoption of a statutory development agreement. Amendment or cancellation of the statutory development agreement by mutual consent of the city and the owner of the parcel of land may be accomplished following the notice requirements required for initial adoption of the statutory development agreement as is above set forth.

409.06. Recordation of statutory development agreement.Not later than 14 days after the execution of a statutory development agreement, the city shall record the said agreement with the clerk of the circuit court in Volusia County, and a copy of the recorded statutory development agreement shall be submitted to the state land planning agency within 14 days after the agreement is recorded. The burdens of the statutory 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. The cost of recordation of the statutory development agreement shall be the responsibility of the applicant.

409.07. Execution of statutory development agreement. All statutory development agreements shall be executed by all persons having legal or equitable title in the parcel of land subject to the agreement, including the fee simple owner and any mortgagees, unless the city attorney approves the execution of the statutory development agreement without the necessity of such joinder or subordination in that the substantial interests of the city will not be adversely affected thereby. Adoption or modification of a statutory development agreement is determined to be a legislative act of the city in the furtherance of its powers to zone, comprehensively plan, and regulate development within its boundaries and, as such, shall be superior to the rights of existing mortgagees, lienholders or other persons with a legal or equitable interest in the parcel of land subject to the statutory development agreement. The statutory development agreement and the obligations and responsibilities arising thereunder on the owner of the parcel of land subject thereto, shall be superior to the rights of said mortgagees or lien holders and shall not be subject to foreclosure under the terms of mortgages or liens entered into or recorded prior to the execution and recordation of the statutory development agreement.

(Ord. No. 40-02, § 2, 8-21-2002; Ord. No. 108-07, § 2, 5-13-2008)

New Smyrna Beach City Zoning Code

ARTICLE IV

CONCURRENCY MANAGEMENT SYSTEM

401.00.- General provisions.

401.01. Intent.

401.02. Vested rights. The following developments are hereby determined to be vested for the purpose of this article:

Physical on-site construction if a building permit has been issued and it is valid on the effective date of this article.

401.03. Applicability.

Generally. Unless otherwise provided, this article shall apply to all development orders.

Previously approved development orders.

(1)

(2)

401.05. Concurrency/development order review.

(1)

(2)

Ten percent of the lots or units in the project within the first 12 months;

An additional 40 percent of the lots or units in the project within the first 24 months after approval of the final plat;

One hundred percent of the lots or units within the 36-month period;

The construction authorized by each development order is diligently pursued to the issuance of a certificate of occupancy; and

That the development orders are not permitted to expire.

(3)

For de minimus projects, the finding shall remain valid for six months.

(4)

Cumulative records of level of service.

(1)

(2)

Operating procedures, systems and tasks.

(1)

Procedures for monitoring.

(2)

Exemptions. The following development orders are exempted and may commence development without a certificate of capacity:

Development that is vested pursuant to [sub]section 401.02 of this article;

Construction of public facilities that are identified in the capital improvements element of the comprehensive plan;

An alteration of development otherwise exempt under this LDR which does not create additional impact on public facilities;

The construction of accessory building and structures which do not create additional impact on public facilities;

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

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

Signs;

Public school facilities are exempt, but ancillary facilities such as administrative, transportation, and maintenance facilities are not exempt;

Application for tree permit in accordance with Tree Ordinance No. 81-88;

Application for a wellfield protection permit;

Application for a wetland alteration permit;

Fire or rescue facilities of any independent special taxing district, which provides fire and rescue services.

(3)

(1)

(2)

First come/first serve rule.

(1)

The city planner's determination is not to grant a development order and this determination is not overturned on an appeal pursuant to the appeals section hereof;

No other provision in this LDR is applicable to permit the proposed project to receive a nonfinal development order.

(2)

Conditions. All development orders shall contain such conditions as are necessary to ensure compliance with this article.

(1)

The proposed project does not violate the level of service and concurrency standards of this article; or

(2)

The proposed project does not meet the requirements of this article, including the detailed reasons for this conclusion.

(1)

Submit the additional information; or

(2)

(Ord. No. 108-07, § 2, 5-13-2008; Ord. No. 35-11, § 4, 6-28-2011; Ord. No. 19-18, § 1, 3-13-2018)

402.00. - Transportation concurrency.

402.01. Standard.

Project standard.

The calculation of total traffic generated by a proposed nonresidential project will assume 100 percent buildout and occupancy of the project.

Current operating level-of-service shall be based upon the most recent traffic counts available plus projected traffic counts from previously committed developments.

The proposed phasing is in five-year increments and agrees with the extent and timing of the assured construction.

The development services director confirms that construction is in fact assured construction.

Proportionate fair-share.

A developer may choose to satisfy the transportation concurrency requirements by making a proportionate fair-share contribution, pursuant to the following requirements:

The proposed development is consistent with the Comprehensive Plan and applicable Land Development Regulations; and

The five-year Capital Improvement Program (CIP) includes a transportation capital improvement that, upon completion, will accommodate additional traffic generated by the proposed development.

Procedures for review of application for proportionate fair-share agreement.

(1)

The developer shall submit an application to the development services director that includes a non-refundable application fee of $5,000.00 and the following:

(a)

Name, address and contact information of the developer;

(b)

A drawing and legal description of the land;

(c)

Phasing schedule;

(d)

Description of the requested fair-share mitigation;

(e)

If the requested fair-share mitigation involves a road segment on the Strategic Intermodal System (SIS), evidence of concurrence from the Florida Department of Transportation;

(f)

Traffic study performed by a licensed traffic engineer demonstrating failure of road segment to achieve transportation concurrency.

(2)

(3)

(4)

No proportionate fair-share agreement shall be effective until approved by the city commission.

Proportionate fair-share mitigation includes, without limitation, separately or collectively, private funds, contributions of land, and contribution of transportation facilities.

The methodology used to calculate a developer's proportionate fair-share obligation shall be as provided pursuant to F.S. § 163.3180(12), and as represented by the following formula:

Proportionate Share = ([Development Trips] / [SV Increase]) × Cost

Where:

Development Trips = Those trips from the development that are assigned to roadway segment;

SV Increase = Service volume increase provided by the improvement to the roadway segment;

Cost = Adjusted cost of the improvement.

(1)

(2)

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

10.

11.

A developer may submit a letter to withdraw the proportionate fair-share agreement at any time prior to the execution of the agreement. The application fee to the city will be non-refundable.

12.

13.

402.02 Transportation Impact Analysis. The City of New Smyrna Beach has adopted the following Transportation Impact Analysis:

TRANSPORTATION IMPACT ANALYSIS, (TIA) Guidelines Methodology For Development Applications Requiring a TIA Within the River to Sea TPO Metropolitan Planning Area, TIA Guidelines dated June 2016.

(Ord. No. 125-06, § 1, 11-28-2006; Ord. No. 21-09, § 1, 4-14-2009; Ord. No. 09-11, § 1, 2-8-2011; Ord. No. 76-16, § 1, 12-13-2016)

403.00. - Sanitary sewer concurrency.

403.01. Standard.

TABLE 3

LEVEL OF SERVICE
ERU CAPACITY DEMAND SCHEDULE

Category I.

Single and multifamily structures

Hotels and motels

Trailer parks

Condominiums

Time shares

Category II.

Retail stores

Banks

Barber and beauty shops

Professional offices.

Grocery stores

Convenience stores without gas pumps

Churches

Category III.

Convenience stores with gas pumps

Service stations

Category IV.

Schools

Clubs

Government buildings—Prisons

Nursing homes

Hospitals—Health care facilities

Auditoriums

Airports

Stadiums (floor space calculated based on stadium structure. Does not include playing field.)

Movie theaters

10.

Health and fitness centers

11.

Meeting and/or banquet rooms

12.

Bowling alley (lanes area not included in floor space calculations)

13.

Parks (building floor space is for restroom facilities)

Category V.

Manufacturing

Warehousing

Category VI.

Restaurant/cafeteria

Carryout restaurant

Fast food restaurant

Bars and lounges

Category VII.

Commercial laundry: 19 ERU/1,000 square feet

Launderette—Self service: 1.33 ERU/washing machine

Carwashes: 3.2 ERU/wash bay

Category VIII.

Processing Plants—Industrial Processes

Notes:

Any use not specifically defined in categories I—VIII will be assigned one of the above listed categories, which in the opinion of the utilities commission, best approximates proposed facility use.

(1)

The size, type and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

(2)

(3)

(Ord. No. 109-11, § 1, 11-8-2011)

404.00. - Potable water facility concurrency.

404.01. Standard.

TABLE 4

LEVEL OF SERVICE
ERU CAPACITY DEMAND SCHEDULE

Category I.

Single and multifamily structures

Hotels and motels

Trailer parks

Condominiums

Time shares

Category II.

Retail stores

Banks

Barber and beauty shops

Professional offices

Grocery stores

Convenience stores without gas pumps

Churches

Category III.

Convenience stores with gas pumps

Service stations

Category IV.

Schools

Clubs

Government buildings—Prisons

Nursing homes

Hospitals—Health care facilities

Auditoriums

Airports

Stadiums (floor space calculated based on stadium structure. Does not include playing field.)

Movie theaters

10.

Health and fitness centers

11.

Meeting and/or banquet rooms

12.

Bowling alley (lanes area not included in floor space calculations)

13.

Parks (building floor space is for restroom facilities)

Category V.

Manufacturing

Warehousing

Category VI.

Restaurant/cafeteria

Carryout restaurant

Fast food restaurant

Bars and lounges

Category VII.

Commercial laundry: 19 ERU/1,000 square feet

Launderette—Self service: 1.33 ERU/washing machine

Carwashes: 3.2 ERU/wash bay

Category VIII.

Processing Plants—Industrial Processes

Notes:

Any use not specifically defined in categories I—VIII will be assigned one of the above listed categories, which in the opinion of the utilities commission, best approximates proposed facility use.

If a building or plumbing permit is issued for an existing connection which will increase water and/or wastewater demand, or if a building changes from residential to nonresidential occupancy, the total number of ERUs for the old and new parts of the facility shall be computed and the number of additional ERUs determined by subtracting the old ERUs from the new total number of ERUs for the facility.

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

(1)

The size, type, and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

(2)

(3)

(Ord. No. 109-11, § 1, 11-8-2011)

405.00. - Solid waste disposal concurrency.

405.01. Standard.

(1)

The size, type, and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

(2)

(3)

Project phasing. The study may reflect a proposed phasing schedule for the development of the proposed project.

(4)

406.00. - Parks/recreation concurrency.

406.01. Standard.

TABLE 5

LEVEL OF SERVICE FOR RECREATION AND OPEN SPACE

Park Type	Level of Service
Neighborhood Park	1 acre per 1,000 people
Community Park	1.15 acres per 1,000 people
Regional Park	20 acres per 1,000 people

TABLE 6

RADIUS OF DEVELOPMENT INFLUENCE FOR
RECREATION AND OPEN SPACE

Park Type	Radius of Development Influence
Neighborhood Park	¼ mile to ½ mile
Community Park	½ mile to 3 miles
Regional Park	Drive time 30 minutes to 1 hour

(1)

Projected buildout period. The projected buildout period of the proposed project shall be set forth in the evaluation and shall be determined by the city planner based on the following criteria:

The size, type, and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

Existing available capacity will likely increase or decrease during the buildout period of the proposed project. The evaluation should account for this increase or decrease in available treatment capacity based on conditions during the buildout period of the proposed project. The projection of available neighborhood, community, and regional park facilities, shall be based upon the difference for each type of park facility within the radius of development influence between the design capacity of the park facility less the sum of the cumulative existing usage and park size plus the committed usage at the time of submission as a result of other proposed projects. This change in capacity shall be shown as it relates to any proposed phasing.

(2)

(3)

407.00. - Drainage concurrency.

407.01. Standard.

407.02. Stormwater management plan.

Professional services. The stormwater management plan shall be prepared, sealed, and signed, by a qualified professional engineer, licensed to practice in the State of Florida.

Editor's note— Stormwater utility provisions are found in Chapter 82, Article VI of this code.

408.00 - Public school facilities concurrency.

408.01. Standard.

TABLE 7 LEVEL OF SERVICE FOR PUBLIC SCHOOL FACILITIES

Concurrency Service Area
Type of School	Level of Service	Date Effective
Elementary	115 of permanent capacity	July 1, 2011
	Interim LOS: 115% 165%	Constrained July 1, 2017 Coronado Elementary* Samsula Elementary*
Middle	115% of permanent capacity	July 1, 2010
	Interim LOS:	New Smyrna Beach Middle July 1, 2012**
High	120% of permanent capacity	July 1, 2010

*For purposes of public school facilities concurrency, Coronado Elementary and Samsula Elementary are considered constrained facilities and shall be subject to the LOS listed in Table 7, above.

**New Smyrna Beach Middle School is considered a backlogged facility that must meet the required LOS by July 1, 2012.

Determination of capacity for future land use element plan amendments.

(1)

(2)

Application review by school district.

Any proposed amendment to a land use element initiated by the city shall be submitted to the school district at least 45 working days prior to the hearing before the local planning agency (LPA).

Any proposed amendment not initiated by the city which increases residential density shall be forwarded to the school district at least 30 days prior to the hearing before the governing body.

Dedication of school site as approved by the school board; or

ii.

iii.

Renovation of existing buildings for use as learning facilities which actually increase capacity; or

iv.

Funding dedicated to, or construction of permanent student stations;

vi.

Up front lump sum payment of school impact fees; or

vii.

Payment of borrowing costs; or

viii.

Payment of off-site infrastructure expenses associated with new school construction, including but not limited to roads, water, and/or sewer improvements; or

ix.

Funding assistance with acquisition of school site.

Phasing of school construction or delay of development construction in order to timely plan for availability of school capacity.

xi.

xii.

Any other measure approved by the school board which actually increases school capacity or accelerates a project on the five-year work program.

Determination of capacity for residential rezonings.

(1)

(2)

Applicant review by the school district.

The city or the applicant may request the school district report on what actions could be undertaken in order to provide adequate school capacity. Thereupon the school board, the city and the applicant may enter into negotiations to evaluate options such that capacity can be timely planned to serve the anticipated students associated with the proposed rezoning at such time as the development is projected to occur, and recommend terms and conditions for a capacity enhancement agreement as more particularly set forth above in section 408.01 B.(2)(h) of this LDR.

Upon the successful negotiation of a capacity enhancement agreement, the school board may issue a finding of adequate school capacity conditioned upon the execution of a capacity enhancement agreement with the school board, the city and the applicant as parties to the agreement which shall be enforceable by the school board and the affected local governments.

Determination of concurrency for residential subdivision plats and site plans subject to review.

(1)

(2)

Application review by school district.

(i)

Donation of building for use as a primary or alternative learning facility; and/or

(ii)

Renovation of existing buildings for use as learning facilities; or

(iii)

Funding dedicated to, or construction of permanent student stations or core capacity; or

(iv)

(v)

Agreement to contribute funds or other assets toward a specific capacity project sufficient to advance the project into the district five-year facilities work program for the subsequent year;

(vi)

Dedication of school site as approved by the school board; or

(vii)

Up-front lump sum payment of school impact fees; or

(viii)

Payment of borrowing costs; or

(ix)

Payment of off-site infrastructure expenses, including but not limited to roads, water, and/or sewer improvements and pedestrian facilities; or

(x)

Payment of transportation costs associated with the movement of students outside two mil zone as a result of overcapacity school; or

(xi)

Funding assistance with acquisition of school site.

(xii)

Phasing of construction or delay of construction in order to timely plan for availability of school capacity.

(xiii)

Establishment of an educational facilities benefit district, as provided in F.S. § 1013.355.

(xiv)

Impact fee credits may be granted as permitted by law and agreed upon by school board.

(xv)

(xvi)

Any other measure approved by the school board which actually increases school capacity or accelerates a project on the five-year work program.

Exemptions. The following residential projects are deemed to be de minimum and not subject to school concurrency review:

(1)

(2)

(3)

(4)

Any unit exempted under the Volusia County school facilities impact fee ordinance as set forth in section 70-181(a).

(5)

Non-residential development.

(Ord. No. 108-07, § 2, 5-13-2008; Ord. No. 19-18, § 1, 3-13-2018)

409.00 - Statutory development agreements.

409.01. General intent.

409.02. Application.

(1)

(2)

A legal description of the parcel of land and survey thereof which the applicant wishes to be subject to the statutory development agreement;

(3)

The name, address, and telephone number of the applicant and any attorney or agent who is or will be representing the applicant;

(4)

(5)

(6)

Payment of any required application fee as may from time to time be set by resolution of the city commission;

(7)

The desired duration of the statutory development agreement not to exceed ten years. An extension may be approved by the city commission for up to two years;

(8)

Identification of zoning district modifications or land use plan district amendments that will be required if the proposed development project proposal were to be approved;

(9)

(10)

(11)

(12)

The location, type, size, and height of fencing or masonry wall, earth berms, retaining wall or screen planting to buffer abutting properties or as is otherwise required by city regulations;

(13)

A grading plan and included therewith the elevation requirements of the National Flood Insurance Program as applicable to the city;

(14)

A landscape plan and existing tree survey;

(15)

Any deed restrictions existing or being imposed upon the parcel of land for development;

(16)

A list of all federal, state, and local permit requirements; and

(17)

Any further information that the city may require because of the particular nature or location of the development.

409.03. Statutory development agreement review procedures.

Reduction of proposal to writing.

(1)

(2)

Local planning agency public hearing.

(1)

(2)

Location of the parcel of land proposed to be considered subject to the statutory development agreement;

Proposed development project land uses, building intensities, building densities, and building heights;

Location where a copy of the proposed statutory development agreement may be reviewed by interested parties;

Date, time, and place of the public hearing;

Advise that the public hearing may be continued from time to time; and

City commission public hearing.

(1)

(2)

Location of the parcel of land proposed to be considered subject to the statutory development agreement;

Proposed development project land uses, building intensities, building densities, and building heights;

Location where a copy of the proposed statutory development agreement may be reviewed by interested parties;

Date, time, and place of the public hearing;

Advise that the public hearing may be continued from time to time; and

409.04. Contents of statutory development agreement.

Any statutory development agreement approved under the provisions hereof shall contain not less than the following requirements:

(1)

A legal description of the land subject to the agreement and the identification of all persons having legal or equitable ownership therein;

(2)

(3)

The development project uses permitted on the land including population densities, building intensities, and building height(s);

(4)

A conceptual site plan containing such information as may be required by the city to properly consider the development project proposal;

(5)

(6)

(7)

(8)

(9)

(10)

(11)

409.05. Applicability of ordinances and resolutions of city to statutory development agreement.

(1)

(2)

(3)

Such new ordinances or policies are specifically anticipated and provided for in the statutory development agreement; or

(4)

The city has demonstrated that substantial changes have occurred in pertinent conditions existing at the time of the approval of the statutory development agreement; or

(5)

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

(Ord. No. 40-02, § 2, 8-21-2002; Ord. No. 108-07, § 2, 5-13-2008)

New Smyrna Beach City Zoning Code

ARTICLE IV

CONCURRENCY MANAGEMENT SYSTEM

401.00.- General provisions.

401.01. Intent.

401.02. Vested rights. The following developments are hereby determined to be vested for the purpose of this article:

Physical on-site construction if a building permit has been issued and it is valid on the effective date of this article.

401.03. Applicability.

Generally. Unless otherwise provided, this article shall apply to all development orders.

Previously approved development orders.

(1)

(2)

401.05. Concurrency/development order review.

(1)

(2)

Ten percent of the lots or units in the project within the first 12 months;

An additional 40 percent of the lots or units in the project within the first 24 months after approval of the final plat;

One hundred percent of the lots or units within the 36-month period;

The construction authorized by each development order is diligently pursued to the issuance of a certificate of occupancy; and

That the development orders are not permitted to expire.

(3)

For de minimus projects, the finding shall remain valid for six months.

(4)

Cumulative records of level of service.

(1)

(2)

Operating procedures, systems and tasks.

(1)

Procedures for monitoring.

(2)

Exemptions. The following development orders are exempted and may commence development without a certificate of capacity:

Development that is vested pursuant to [sub]section 401.02 of this article;

Construction of public facilities that are identified in the capital improvements element of the comprehensive plan;

An alteration of development otherwise exempt under this LDR which does not create additional impact on public facilities;

The construction of accessory building and structures which do not create additional impact on public facilities;

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

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

Signs;

Public school facilities are exempt, but ancillary facilities such as administrative, transportation, and maintenance facilities are not exempt;

Application for tree permit in accordance with Tree Ordinance No. 81-88;

Application for a wellfield protection permit;

Application for a wetland alteration permit;

Fire or rescue facilities of any independent special taxing district, which provides fire and rescue services.

(3)

(1)

(2)

First come/first serve rule.

(1)

The city planner's determination is not to grant a development order and this determination is not overturned on an appeal pursuant to the appeals section hereof;

No other provision in this LDR is applicable to permit the proposed project to receive a nonfinal development order.

(2)

Conditions. All development orders shall contain such conditions as are necessary to ensure compliance with this article.

(1)

The proposed project does not violate the level of service and concurrency standards of this article; or

(2)

The proposed project does not meet the requirements of this article, including the detailed reasons for this conclusion.

(1)

Submit the additional information; or

(2)

(Ord. No. 108-07, § 2, 5-13-2008; Ord. No. 35-11, § 4, 6-28-2011; Ord. No. 19-18, § 1, 3-13-2018)

402.00. - Transportation concurrency.

402.01. Standard.

Project standard.

The calculation of total traffic generated by a proposed nonresidential project will assume 100 percent buildout and occupancy of the project.

Current operating level-of-service shall be based upon the most recent traffic counts available plus projected traffic counts from previously committed developments.

The proposed phasing is in five-year increments and agrees with the extent and timing of the assured construction.

The development services director confirms that construction is in fact assured construction.

Proportionate fair-share.

A developer may choose to satisfy the transportation concurrency requirements by making a proportionate fair-share contribution, pursuant to the following requirements:

The proposed development is consistent with the Comprehensive Plan and applicable Land Development Regulations; and

The five-year Capital Improvement Program (CIP) includes a transportation capital improvement that, upon completion, will accommodate additional traffic generated by the proposed development.

Procedures for review of application for proportionate fair-share agreement.

(1)

The developer shall submit an application to the development services director that includes a non-refundable application fee of $5,000.00 and the following:

(a)

Name, address and contact information of the developer;

(b)

A drawing and legal description of the land;

(c)

Phasing schedule;

(d)

Description of the requested fair-share mitigation;

(e)

If the requested fair-share mitigation involves a road segment on the Strategic Intermodal System (SIS), evidence of concurrence from the Florida Department of Transportation;

(f)

Traffic study performed by a licensed traffic engineer demonstrating failure of road segment to achieve transportation concurrency.

(2)

(3)

(4)

No proportionate fair-share agreement shall be effective until approved by the city commission.

Proportionate fair-share mitigation includes, without limitation, separately or collectively, private funds, contributions of land, and contribution of transportation facilities.

The methodology used to calculate a developer's proportionate fair-share obligation shall be as provided pursuant to F.S. § 163.3180(12), and as represented by the following formula:

Proportionate Share = ([Development Trips] / [SV Increase]) × Cost

Where:

Development Trips = Those trips from the development that are assigned to roadway segment;

SV Increase = Service volume increase provided by the improvement to the roadway segment;

Cost = Adjusted cost of the improvement.

(1)

(2)

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

10.

11.

A developer may submit a letter to withdraw the proportionate fair-share agreement at any time prior to the execution of the agreement. The application fee to the city will be non-refundable.

12.

13.

402.02 Transportation Impact Analysis. The City of New Smyrna Beach has adopted the following Transportation Impact Analysis:

TRANSPORTATION IMPACT ANALYSIS, (TIA) Guidelines Methodology For Development Applications Requiring a TIA Within the River to Sea TPO Metropolitan Planning Area, TIA Guidelines dated June 2016.

(Ord. No. 125-06, § 1, 11-28-2006; Ord. No. 21-09, § 1, 4-14-2009; Ord. No. 09-11, § 1, 2-8-2011; Ord. No. 76-16, § 1, 12-13-2016)

403.00. - Sanitary sewer concurrency.

403.01. Standard.

TABLE 3

LEVEL OF SERVICE
ERU CAPACITY DEMAND SCHEDULE

Category I.

Single and multifamily structures

Hotels and motels

Trailer parks

Condominiums

Time shares

Category II.

Retail stores

Banks

Barber and beauty shops

Professional offices.

Grocery stores

Convenience stores without gas pumps

Churches

Category III.

Convenience stores with gas pumps

Service stations

Category IV.

Schools

Clubs

Government buildings—Prisons

Nursing homes

Hospitals—Health care facilities

Auditoriums

Airports

Stadiums (floor space calculated based on stadium structure. Does not include playing field.)

Movie theaters

10.

Health and fitness centers

11.

Meeting and/or banquet rooms

12.

Bowling alley (lanes area not included in floor space calculations)

13.

Parks (building floor space is for restroom facilities)

Category V.

Manufacturing

Warehousing

Category VI.

Restaurant/cafeteria

Carryout restaurant

Fast food restaurant

Bars and lounges

Category VII.

Commercial laundry: 19 ERU/1,000 square feet

Launderette—Self service: 1.33 ERU/washing machine

Carwashes: 3.2 ERU/wash bay

Category VIII.

Processing Plants—Industrial Processes

Notes:

Any use not specifically defined in categories I—VIII will be assigned one of the above listed categories, which in the opinion of the utilities commission, best approximates proposed facility use.

(1)

The size, type and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

(2)

(3)

(Ord. No. 109-11, § 1, 11-8-2011)

404.00. - Potable water facility concurrency.

404.01. Standard.

TABLE 4

LEVEL OF SERVICE
ERU CAPACITY DEMAND SCHEDULE

Category I.

Single and multifamily structures

Hotels and motels

Trailer parks

Condominiums

Time shares

Category II.

Retail stores

Banks

Barber and beauty shops

Professional offices

Grocery stores

Convenience stores without gas pumps

Churches

Category III.

Convenience stores with gas pumps

Service stations

Category IV.

Schools

Clubs

Government buildings—Prisons

Nursing homes

Hospitals—Health care facilities

Auditoriums

Airports

Stadiums (floor space calculated based on stadium structure. Does not include playing field.)

Movie theaters

10.

Health and fitness centers

11.

Meeting and/or banquet rooms

12.

Bowling alley (lanes area not included in floor space calculations)

13.

Parks (building floor space is for restroom facilities)

Category V.

Manufacturing

Warehousing

Category VI.

Restaurant/cafeteria

Carryout restaurant

Fast food restaurant

Bars and lounges

Category VII.

Commercial laundry: 19 ERU/1,000 square feet

Launderette—Self service: 1.33 ERU/washing machine

Carwashes: 3.2 ERU/wash bay

Category VIII.

Processing Plants—Industrial Processes

Notes:

Any use not specifically defined in categories I—VIII will be assigned one of the above listed categories, which in the opinion of the utilities commission, best approximates proposed facility use.

If a building or plumbing permit is issued for an existing connection which will increase water and/or wastewater demand, or if a building changes from residential to nonresidential occupancy, the total number of ERUs for the old and new parts of the facility shall be computed and the number of additional ERUs determined by subtracting the old ERUs from the new total number of ERUs for the facility.

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

(1)

The size, type, and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

(2)

(3)

(Ord. No. 109-11, § 1, 11-8-2011)

405.00. - Solid waste disposal concurrency.

405.01. Standard.

(1)

The size, type, and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

(2)

(3)

Project phasing. The study may reflect a proposed phasing schedule for the development of the proposed project.

(4)

406.00. - Parks/recreation concurrency.

406.01. Standard.

TABLE 5

LEVEL OF SERVICE FOR RECREATION AND OPEN SPACE

Park Type	Level of Service
Neighborhood Park	1 acre per 1,000 people
Community Park	1.15 acres per 1,000 people
Regional Park	20 acres per 1,000 people

TABLE 6

RADIUS OF DEVELOPMENT INFLUENCE FOR
RECREATION AND OPEN SPACE

Park Type	Radius of Development Influence
Neighborhood Park	¼ mile to ½ mile
Community Park	½ mile to 3 miles
Regional Park	Drive time 30 minutes to 1 hour

(1)

Projected buildout period. The projected buildout period of the proposed project shall be set forth in the evaluation and shall be determined by the city planner based on the following criteria:

The size, type, and location of the proposed project;

Customary buildout periods for projects of similar size, type, and location; and

Any other factors or conditions relevant to the specific project, including special market conditions and schedules of assured construction.

Existing available capacity will likely increase or decrease during the buildout period of the proposed project. The evaluation should account for this increase or decrease in available treatment capacity based on conditions during the buildout period of the proposed project. The projection of available neighborhood, community, and regional park facilities, shall be based upon the difference for each type of park facility within the radius of development influence between the design capacity of the park facility less the sum of the cumulative existing usage and park size plus the committed usage at the time of submission as a result of other proposed projects. This change in capacity shall be shown as it relates to any proposed phasing.

(2)

(3)

407.00. - Drainage concurrency.

407.01. Standard.

407.02. Stormwater management plan.

Professional services. The stormwater management plan shall be prepared, sealed, and signed, by a qualified professional engineer, licensed to practice in the State of Florida.

Editor's note— Stormwater utility provisions are found in Chapter 82, Article VI of this code.

408.00 - Public school facilities concurrency.

408.01. Standard.

TABLE 7 LEVEL OF SERVICE FOR PUBLIC SCHOOL FACILITIES

Concurrency Service Area
Type of School	Level of Service	Date Effective
Elementary	115 of permanent capacity	July 1, 2011
	Interim LOS: 115% 165%	Constrained July 1, 2017 Coronado Elementary* Samsula Elementary*
Middle	115% of permanent capacity	July 1, 2010
	Interim LOS:	New Smyrna Beach Middle July 1, 2012**
High	120% of permanent capacity	July 1, 2010

*For purposes of public school facilities concurrency, Coronado Elementary and Samsula Elementary are considered constrained facilities and shall be subject to the LOS listed in Table 7, above.

**New Smyrna Beach Middle School is considered a backlogged facility that must meet the required LOS by July 1, 2012.

Determination of capacity for future land use element plan amendments.

(1)

(2)

Application review by school district.

Any proposed amendment to a land use element initiated by the city shall be submitted to the school district at least 45 working days prior to the hearing before the local planning agency (LPA).

Any proposed amendment not initiated by the city which increases residential density shall be forwarded to the school district at least 30 days prior to the hearing before the governing body.

Dedication of school site as approved by the school board; or

ii.

iii.

Renovation of existing buildings for use as learning facilities which actually increase capacity; or

iv.

Funding dedicated to, or construction of permanent student stations;

vi.

Up front lump sum payment of school impact fees; or

vii.

Payment of borrowing costs; or

viii.

Payment of off-site infrastructure expenses associated with new school construction, including but not limited to roads, water, and/or sewer improvements; or

ix.

Funding assistance with acquisition of school site.

Phasing of school construction or delay of development construction in order to timely plan for availability of school capacity.

xi.

xii.

Any other measure approved by the school board which actually increases school capacity or accelerates a project on the five-year work program.

Determination of capacity for residential rezonings.

(1)

(2)

Applicant review by the school district.

The city or the applicant may request the school district report on what actions could be undertaken in order to provide adequate school capacity. Thereupon the school board, the city and the applicant may enter into negotiations to evaluate options such that capacity can be timely planned to serve the anticipated students associated with the proposed rezoning at such time as the development is projected to occur, and recommend terms and conditions for a capacity enhancement agreement as more particularly set forth above in section 408.01 B.(2)(h) of this LDR.

Upon the successful negotiation of a capacity enhancement agreement, the school board may issue a finding of adequate school capacity conditioned upon the execution of a capacity enhancement agreement with the school board, the city and the applicant as parties to the agreement which shall be enforceable by the school board and the affected local governments.

Determination of concurrency for residential subdivision plats and site plans subject to review.

(1)

(2)

Application review by school district.

(i)

Donation of building for use as a primary or alternative learning facility; and/or

(ii)

Renovation of existing buildings for use as learning facilities; or

(iii)

Funding dedicated to, or construction of permanent student stations or core capacity; or

(iv)

(v)

Agreement to contribute funds or other assets toward a specific capacity project sufficient to advance the project into the district five-year facilities work program for the subsequent year;

(vi)

Dedication of school site as approved by the school board; or

(vii)

Up-front lump sum payment of school impact fees; or

(viii)

Payment of borrowing costs; or

(ix)

Payment of off-site infrastructure expenses, including but not limited to roads, water, and/or sewer improvements and pedestrian facilities; or

(x)

Payment of transportation costs associated with the movement of students outside two mil zone as a result of overcapacity school; or

(xi)

Funding assistance with acquisition of school site.

(xii)

Phasing of construction or delay of construction in order to timely plan for availability of school capacity.

(xiii)

Establishment of an educational facilities benefit district, as provided in F.S. § 1013.355.

(xiv)

Impact fee credits may be granted as permitted by law and agreed upon by school board.

(xv)

(xvi)

Any other measure approved by the school board which actually increases school capacity or accelerates a project on the five-year work program.

Exemptions. The following residential projects are deemed to be de minimum and not subject to school concurrency review:

(1)

(2)

(3)

(4)

Any unit exempted under the Volusia County school facilities impact fee ordinance as set forth in section 70-181(a).

(5)

Non-residential development.

(Ord. No. 108-07, § 2, 5-13-2008; Ord. No. 19-18, § 1, 3-13-2018)

409.00 - Statutory development agreements.

409.01. General intent.

409.02. Application.

(1)

(2)

A legal description of the parcel of land and survey thereof which the applicant wishes to be subject to the statutory development agreement;

(3)

The name, address, and telephone number of the applicant and any attorney or agent who is or will be representing the applicant;

(4)

(5)

(6)

Payment of any required application fee as may from time to time be set by resolution of the city commission;

(7)

The desired duration of the statutory development agreement not to exceed ten years. An extension may be approved by the city commission for up to two years;

(8)

Identification of zoning district modifications or land use plan district amendments that will be required if the proposed development project proposal were to be approved;

(9)

(10)

(11)

(12)

The location, type, size, and height of fencing or masonry wall, earth berms, retaining wall or screen planting to buffer abutting properties or as is otherwise required by city regulations;

(13)

A grading plan and included therewith the elevation requirements of the National Flood Insurance Program as applicable to the city;

(14)

A landscape plan and existing tree survey;

(15)

Any deed restrictions existing or being imposed upon the parcel of land for development;

(16)

A list of all federal, state, and local permit requirements; and

(17)

Any further information that the city may require because of the particular nature or location of the development.

409.03. Statutory development agreement review procedures.

Reduction of proposal to writing.

(1)

(2)

Local planning agency public hearing.

(1)

(2)

Location of the parcel of land proposed to be considered subject to the statutory development agreement;

Proposed development project land uses, building intensities, building densities, and building heights;

Location where a copy of the proposed statutory development agreement may be reviewed by interested parties;

Date, time, and place of the public hearing;

Advise that the public hearing may be continued from time to time; and

City commission public hearing.

(1)

(2)

Location of the parcel of land proposed to be considered subject to the statutory development agreement;

Proposed development project land uses, building intensities, building densities, and building heights;

Location where a copy of the proposed statutory development agreement may be reviewed by interested parties;

Date, time, and place of the public hearing;

Advise that the public hearing may be continued from time to time; and

409.04. Contents of statutory development agreement.

Any statutory development agreement approved under the provisions hereof shall contain not less than the following requirements:

(1)

A legal description of the land subject to the agreement and the identification of all persons having legal or equitable ownership therein;

(2)

(3)

The development project uses permitted on the land including population densities, building intensities, and building height(s);

(4)

A conceptual site plan containing such information as may be required by the city to properly consider the development project proposal;

(5)

(6)

(7)

(8)

(9)

(10)

(11)

409.05. Applicability of ordinances and resolutions of city to statutory development agreement.

(1)

(2)

(3)

Such new ordinances or policies are specifically anticipated and provided for in the statutory development agreement; or

(4)

The city has demonstrated that substantial changes have occurred in pertinent conditions existing at the time of the approval of the statutory development agreement; or

(5)

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

(Ord. No. 40-02, § 2, 8-21-2002; Ord. No. 108-07, § 2, 5-13-2008)