It is the intent of this chapter to ensure that the impact of any proposed development shall be measured against the adopted level-of-service standards contained in the comprehensive plan.

Concurrency is the principle that the public facilities and services necessary to support a proposed development shall be available, or shall be made available, concurrent with the impacts of the development. The provisions of this chapter are designed to provide a systematic process for the review and evaluation of all proposed development for its impact on basic public facilities and services, as required by the Local Government Comprehensive Planning and Land Development Regulation Act, F.S. ch. 163, part II, and rule 9J-5.0055, Florida Administrative Code, and as provided under the city's home rule authority for transportation facilities.

In the implementation of this chapter, the city shall measure the potential impact of any development proposal upon the following public facilities: transportation, potable water, sanitary sewer, solid waste, drainage, recreation and open space, and public schools. It is not the intent of this chapter to replace any other development review criteria utilized by the city, unless such review criteria are inconsistent with the provisions of this chapter. Compliance with the provisions of this chapter does not guarantee approval of the development proposal unless all other development review criteria have been met.

No final development order shall be granted for a proposed development until there is a finding that all public facilities and services included in this chapter have sufficient capacity at or above their adopted level-of-service (LOS) to accommodate the impacts of the development, or that improvements necessary to bring facilities up to their adopted LOS shall be in place concurrent with the impacts of the development, as defined herein.

(Ord. No. 2009-21, § 1, 10-27-09)

Unless otherwise provided herein, this chapter shall apply to all development orders, extensions, and modifications. The provisions of this chapter shall be used to assess only the net impacts from development of a parcel of land or the theoretical impacts of a Comprehensive Plan amendment.

(a)

Public facilities and services for which concurrency is required. The provisions and requirements of this chapter shall apply only to those public facilities and services listed below:

(1)

Transportation facilities.

(2)

Sanitary sewers.

(3)

Solid waste.

(4)

Stormwater drainage.

(5)

Potable water.

(6)

Recreation and open space.

(7)

Public schools.

(b)

Development subject to concurrency review. Unless specifically exempted below, all applications for site development plan or subdivision development plan approval, where the individual lots within the subdivision do not require site development plan approval, shall be subject to concurrency review. This shall include applications to change the use or increase the intensity of an existing use. In addition, all future land use amendments that result in an increase in density or intensity of use shall be analyzed pursuant to FDOT concurrency assessment requirements as described in section 4(a)(3).

(c)

Development exempt from concurrency review. Development projects exempt from concurrency review include:

(1)

Vested projects. Projects which have valid development orders or permits issued prior to November 1, 1990, shall be exempt from concurrency review. This shall include all vacant single-family, duplex, and single-family attached dwelling lots in subdivisions which were platted and recorded prior to November 1, 1990. Residential lots of record, as defined herein, shall also be considered vested for the purposes of this chapter.

(2)

Public facilities. Public facilities necessary to ensure the protection of the health, safety and general welfare of the citizens of Port Orange, shall be exempt from concurrency review. This shall include all public facility construction projects included in the capital improvements program required to meet any adopted level-of-service standard.

(3)

De minimus projects. A de minimus project is one that:

(a)

Consists of a single-family or two-family home on a lot of record, platted before April 10, 1990, or a single-family or two-family home on an un-platted parcel created before April 10, 1990; or

(b)

For transportation facilities, would not affect more than one percent of the maximum volume at the adopted level-of-service and, on nonhurricane evacuation routes, would not cause the maximum volume to be exceeded by 110 percent.

All new development applications shall be reviewed for qualification as a de minimus project upon filing. Applications that qualify shall be approved by the administrative official as noting that all public facilities and services would be nondeficient, and the administrative official shall allocate or reserve capacity to those facilities and services pursuant to section 6. However, if such a determination would be contrary to the public health, safety, and welfare, would be inconsistent with the comprehensive plan, or would violate the standards of this code, the reasons for a finding of nondeficiency must be set forth in detail, and the applicant shall have a right of appeal pursuant to section 9. The finding of nondeficiency shall remain valid and in force for the time periods as provided in section 6. Additionally, no development order shall be issued for a de minimus project which would impact a public facility for which a moratorium or deferral on development has been placed.

(4)

For the purposes of public school concurrency, the following developments are deemed to be "de minimus" and are not subject to public school concurrency review, as described below:

(a)

Single-family lots of record on a recorded plat, existing prior to February 1, 2008, the effective date of the school concurrency implementing ordinance, which otherwise would be entitled to build;

(b)

Any residential development or any other development with a residential component that received approval of a final development order or functional equivalent prior to February 1, 2008, the effective date of the school concurrency implementing ordinance;

(c)

Amendments to residential development approvals which do not increase the number of students generated by the development based on the student generation rates for each school type;

(d)

Age-restricted developments that are subject to deed restrictions prohibiting the permanent occupancy by a resident under the age of 55, which are recorded and irrevocable for a period of at least 30 years;

(e)

Group quarters that do not generate students, including residential facilities such as jails, prisons, hospitals, bed and breakfasts, hotels and motels, temporary emergency shelters for the homeless, adult halfway houses, firehouse dorms, college dorms exclusive of married student housing, nursing homes, adult congregate living facilities (ALFs) and religious nonyouth facilities;

(f)

Nonresidential development; and

(g)

The creation of subdivisions and/or single-family lots equal to or less than ten units, provided such lots and/or subdivisions are reported to the school district as part of the annual planning coordination process established by the interlocal agreement for public school facilities planning, and these units are included by the school district in planning student allocations by school.

(5)

TCEA. Developments within the Port Orange Town Center Transportation Concurrency Exception Area (TCEA) shall be exempt from the transportation concurrency review requirements of this section. Notwithstanding this exemption, all development within the designated TCEA shall fund and/or construct operational and mobility improvements to the city's transportation system to ensure its continued capacity, safety and efficiency and to mitigate their transportation impacts. Developer participation in transportation system management (TSM) and transportation demand management (TDM) program and improvements shall be required as part of the mitigation for development.

(d)

Minimum requirements for meeting concurrency. To ensure that public facilities and services necessary to support development are available concurrent with the impacts of said development, the following standards must be met:

(1)

The necessary facilities and services are in place at the time a development permit is issued, or a development permit is issued subject to the condition that the necessary facilities and services shall be in place by a specified date when the impacts of the development are anticipated to occur; or

(2)

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

(3)

The necessary facilities and services are the subject of a binding executed contract for the construction of the facilities or the provision of services at the time the development permit is issued; or

(4)

The necessary facilities and services have been included in the capital improvements program and are programmed for construction prior to or concurrent with the impacts of the proposed development; or

(5)

In the case of transportation facilities, the construction phases of the necessary improvements are committed in the first three years of the applicable adopted Florida Department of Transportation Five-Year Work Program, the city's five-year capital improvements program, or the Volusia County Five-Year Transportation Plan;

(6)

The necessary facilities and services are guaranteed in an enforceable development agreement. An enforceable development agreement may include, but is not limited to, development agreements pursuant to F.S. § 163.3220, or an agreement or development order issued pursuant to F.S. ch. 380, or any other development agreement entered into between the city and a developer. The agreement shall guarantee that the necessary facilities and services shall be in place prior to or concurrent with the impacts of the development. In the case of road facilities, the agreement shall guarantee that the necessary facilities shall be under construction within three years after the issuance of the first building permit for a given development project.

(7)

In the case of public school facilities, a certificate of school concurrency may be issued under the following circumstances:

(a)

Permanent student capacity is currently available (the level-of-service standard is not exceeded) for each school type.

(b)

Permanent student capacity is not currently available (level-of-service standard exceeded) in the impacted concurrency service area (CSA), but there is permanent student capacity available in an adjacent CSA.

(c)

Permanent student capacity is neither available (level-of-service standard exceeded) in the impacted CSA, nor in the adjacent CSA. However, there is capacity information in the first three years of the school district's five-year facilities work program that will address capacity needs. In the event that there is not sufficient capacity available to serve the proposed development, the applicant/property owner, the school district and the city may enter into negotiations in an effort to mitigate the impact from the development, as further described in section 5.1.

(e)

Concurrency administration. The department shall be responsible for the following primary tasks associated with administration of this chapter:

(1)

Creating and maintaining an inventory of existing public facilities capacities or deficiencies;

(2)

Determining concurrency of minor development applications;

(3)

Providing advisory concurrency assessments and recommending conditions of approval to the city council for major development applications; and

(4)

Annually reporting the status of all public facilities capacities covered under this chapter to the city council, the city manager and the public.

(5)

In the case of public school facilities, the school district shall prepare and provide the department with reports on enrollment capacity and maintain and publish data that identifies existing capacity, projected annual capacity, including the reservation of future capacity, consistent with the interlocal agreement for public school facilities planning. The school district shall also prepare and provide the department with school concurrency reviews regarding the impacts of proposed development on public school facilities. The department will include this information in concurrency assessments and recommending conditions of approval to the city council for development applications.

(Ord. No. 2009-21, § 1, 10-27-09)

The adopted level-of-service standards for those public facilities for which concurrency is required shall be as established in the city's comprehensive plan, and as follows:

(a)

Transportation facilities and transit. Roadway level-of-service capacities shall be based on generalized service volume tables established by FDOT. Level-of-service is computed using the generalized daily LOS maximum volume tables for Florida's Urban/Urbanized Areas from the FDOT 2002 Quality/Level-of-service Handbook or latest edition or other acceptable analysis standard. More detailed analysis using highway capacity software, Synchro, ARTPLAN, or other alternative analysis methods may be used if approved by the city and other maintenance jurisdictions whose facilities are impacted by a proposed development project.

(1)

LOS "E". All state, county and city facilities not on the strategic intermodal system (SIS) or the Florida Intrastate Highway System (FIHS) and not designated as a hurricane evacuation route. Level-of-service "E" represents unstable flow and indicates that the road is at or near capacity.

(2)

LOS "D". All facilities designated as hurricane evacuation routes and facilities funded through the transportation regional incentive program (TRIP) (F.S. § 339.2819). Level-of-service "D" consists of high-density yet stable flow.

(3)

LOS "C". For SIS and/or FIHS facilities (Interstate 95) as established by the Florida Department of Transportation. LOS "C" represents a range of stable flow but the operation of individual users is significantly affected by interactions with other vehicles in the traffic stream. Intersections at the off and on ramps to/from I-95 are not required to operate at LOS "C". However, the operation of the on/off ramp intersections shall not cause the operating LOS of the interstate system to operate below the adopted LOS.

(4)

Transit facilities. (Reserved).

(5)

Sidewalk/pedestrian facilities. (Reserved).

(6)

Bicycle facilities. (Reserved).

(b)

Sanitary sewer. Two hundred gallons per equivalent residential unit, per day. One-tenth gallon per square foot of commercial, industrial or institutional development, per day.

(c)

Solid waste. Collection standard of up to 1,350 residential units per curbside collection crew, per day and 3.21 pounds per capita, per day.

(d)

Stormwater drainage. Twenty-five-year, 24-hour storm event.

(e)

Potable water.

(f)

Recreation/open space.

(g)

Public schools. Consistent with the public school facilities element of the comprehensive plan and the interlocal agreement for public school facilities planning, the uniform, district-wide level-of-service standards for public schools are set as follows using Florida Inventory of School Houses (FISH) capacity, based on the traditional school calendar:

(1)

Elementary schools. 115% of permanent FISH capacity for the concurrency service area.

(2)

K-8 schools. 115% of permanent FISH capacity for the concurrency service area.

(3)

Middle schools. 115% of permanent FISH capacity for the concurrency service area.

(4)

High schools. 120% of permanent FISH capacity for the concurrency service area.

(5)

Special purpose schools. 100% of permanent FISH capacity.

(h)

Degradation of prescribed levels-of-service during construction. Notwithstanding the foregoing, the prescribed levels of service may be degraded during construction of new facilities if, upon completion of the new facilities, the prescribed level-of-service shall be met.

(Ord. No. 2009-21, § 1, 10-27-09)

(a)

Transportation facilities.

(1)

Generally.

(a)

Measurement. Concurrency for roadways shall be measured by the amount of traffic a proposed project would generate together with existing traffic, and background traffic, as set forth herein, and comparing it to the level-of-service standard established by the Port Orange comprehensive plan.

(b)

Applicability. All proposed development projects and future land use amendment applications shall be required to include a transportation impact analysis (TIA) report.

With the assessment of transportation impacts on roadways, the total average daily and two-way peak-hour volume trips shall be measured against the respective capacity. In the case where a roadway or intersection is shown as over capacity then the total annual average daily traffic with assigned project trips may be used. If the city determines that the project will create a concurrency failure on a facility that is maintained by a governmental entity other than the city, the developer may be required to obtain a certificate of concurrency from the affected jurisdiction, pursuant to chapter 21, article V, section 6. If the development project or amendment results in a decrease in total two-way peak-hour and daily trips generation, as a result of redevelopment then only a summary assessment of the impact shall be provided rather than a full analysis.

(c)

Methodology review. All applicants must attend a preapplication meeting with the city or other appropriate transportation agencies and submit a methodology review request prior to the submittal of a development review project application or future land use amendment. The TIA methodology proposed shall be reviewed and approved by the city before the traffic analysis is submitted. The methodology shall describe the proposed land use and study area and characteristics consistent with the Volusia County Metropolitan Planning Organization (VMPO) TIA guidelines section 1, Methodology Statement. Changes made to the methodology which occur after the initial approval of the methodology must also be approved by the city.

(d)

Review of TIAs. The TIA shall be reviewed by the city and/or by a transportation consulting firm contracted by the city for that purpose. A developer may elect to have the city's transportation consulting firm prepare the required analysis. If the TIA is either reviewed or prepared by the city's transportation consulting firm, the developer shall reimburse the city for the actual cost of this service, payable within 45 days of issuance of an invoice by the city to the applicant for development, and prior to issuance of a development order for the project.

(e)

Project phasing. The traffic study may reflect a phasing schedule for the development of the proposed project. This schedule shall address the time at which each phase will impact the transportation network.

(f)

Acceptance and expiration. The TIA shall be valid for one year from the time it is accepted by the city. After one year, the TIA will expire and shall be updated, if necessary to obtain project or plan amendment approval.

(2)

Development project TIA review. The TIA shall be prepared following the Transportation Impact Analysis Guidelines approved by the Volusia County Metropolitan Planning Organization (VCMPO) on May 22, 2007, or latest edition. The guidelines define the requirements, procedures, and methodology for the study. The TIA shall be submitted to the city in accordance with the approved methodology and shall be prepared in the standard format described in the TIA guidelines under section (4)(a). In cases when the anticipated trip generation of a project does not necessitate the submittal of a full traffic impact analysis (TIA), yet will likely impact a fair-share improvement project, the applicant shall be required to provide the build-out turning movements at select locations specified by the city.

(a)

Preapplication meeting/methodology. The methodology request shall describe how the following TIA requirements will be addressed, including:

(1)

Traffic study area;

(2)

Base year traffic count data;

(3)

Trip generation, trip distribution, mode share and future traffic assignment to identified roadway segments;

(4)

Analysis years (build-out year);

(5)

Programmed or planned improvements including those identified in the MPO LRTP, TIP, or state, county or city roadway work/capital improvements program;

(6)

Cumulative analysis determination including any identified deficiencies; and

(7)

Mitigation strategies to address transportation impacts caused by the proposed development project.

(b)

Review and conclusion. No development project shall be approved unless the accompanying TIA indicates that no adverse impacts will be created by the proposed project under future conditions, or else demonstrate how any adverse impacts will be mitigated. The developer must also demonstrate that any necessary system modifications are financially feasible and address the future mobility needs consistent with adopted policies.

Mitigation measures shall be evaluated and included in the conclusion section of the TIA report. Documentation to support proposed measures shall be provided as follows:

All signal timings shall be submitted for review and approval to Volusia County. Any changes to existing conditions, including traffic signal cycle or phasing changes, shall be noted on the intersection capacity analysis worksheets and in the conclusions of the report. Arterial analysis worksheets for the base and improved network conditions must also be submitted.

(3)

Comprehensive plan amendment TIA review. A TIA shall be required for all comprehensive plan amendment applications as described in subsection 4(a) of this chapter. These TIAs shall follow Department of Community Affairs (DCA) and FDOT requirements as contained in the "Local Government Comprehensive Planning Review Guidelines," 2007 as amended, and the "Transportation Concurrency Best Practices Guide," 2007, as amended. They are intended to ensure that the proposed amendment can be supported by the available and planned infrastructure as described in various plan elements.

The FDOT guidelines define the requirements, procedures, and methodology for the submission study. The FDOT guidelines are applicable to both small-scale and large-scale comprehensive plan amendments as defined in F.S. 163.3187, except where exempt per subsections 2(c) and (d).

(a)

Preapplication meeting/methodology. The methodology request shall describe how the following TIA requirements will be addressed, including:

(1)

Traffic study area;

(2)

Base year traffic count data;

(3)

Trip generation, trip distribution, mode share and future traffic assignment to identified roadway segments;

(4)

Analysis years (build-out year and LRTP thresholds years);

(5)

Programmed or planned improvements including those identified in the MPO LRTP; and

(6)

Cumulative analysis determination including any identified shortterm and longterm deficiencies.

(7)

Proposed mitigation strategies to address transportation impacts caused by the proposed land use amendment.

(b)

Review and conclusion. No future land use amendment shall be approved unless the accompanying TIA indicates that no adverse impacts will be created by the proposed amendment under future conditions, or else demonstrates how any adverse impacts will be mitigated. The developer must also demonstrate that within five years (shortterm) the mobility improvements are financially feasible and identify for planning purposes those improvements needed in 20 years (longterm).

(4)

Mitigation. Mitigation of impacts to the city's transportation network shall be handled as follows:

(a)

If the developer chooses to construct or fund the needed mobility facilities in their entirety, the developer shall be entitled to be reimbursed by subsequent developers that utilize the capacity or other facilities created by the developer's mitigation project. This may be accomplished through a capital recovery agreement between the developer and the city.

(b)

If a developer chooses to enter into a concurrency and fair-share agreement, the developer shall be required to pay for the project's proportionate fair-share of all capital improvement project costs as indicated in the city's proportionate fair-share ordinance (chapter 21, article V). However, if the city chooses not to accept a proportionate fair-share mitigation based on reasons described in the VCMPO guidelines or if other alternative improvements are identified and agreed to, the city may divert the proportionate fair-share payments to mitigate other transportation deficiencies within the area impacted by the project. The capital improvements shall be itemized in the city's CIP unless the improvement is on a roadway or other transportation corridor maintained by a jurisdiction other than the city. In such case, the developer shall be required to obtain concurrency certification from the other jurisdiction and may be subject to proportionate fair-share agreements and/or other mitigation strategies with the affected jurisdiction. When the development creates an adverse impact, proof of concurrency certification from another jurisdiction shall be provided to the city in order to obtain the final concurrency determination with the city.

The certificate must indicate that capacity has been reserved for the proposed project, along with the duration of the reservation. Upon expiration of the reservation, the applicant will be required to undergo a new concurrency evaluation.

(c)

The improvement shall be part of the five-year schedule of capital improvements in the capital improvements element (CIE), or longterm mobility program no later than the next regularly scheduled update. Beginning in 2011, the proposed improvement(s) must be financially feasible pursuant to F.S. § 163.3180(16)(b)1. Financial feasibility means that additional contributions, payments or funding sources are reasonably expected to fully mitigate impacts to these facilities, in ten years or less.

(d)

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

(e)

The city, being a TCEA, may elect to require alternative mitigation strategies from those described in section 14 of the VMPO TIA guidelines.

(b)

Sanitary sewer.

(1)

Generation standards. The following generation standards shall be used to estimate the sanitary sewer demand of a proposed development.

(a)

Residential. Two hundred gallons per equivalent residential unit per day.

(b)

Commercial/institutional/industrial. One-tenth gallon per square foot of gross building area. These types of developments shall also provide the city with a description and estimate of wastewater generation created by any special processes which will be discharged into the city's system.

(c)

Solid waste.

(1)

Generation standards. The following standards shall be used to estimate the volume of solid waste anticipated to be generated by a proposed development:

(a)

Residential. 3.21 pounds per capita, per day.

(b)

Commercial/industrial/institutional. Developers shall be required to provide the city with a description and estimate of tonnage of solid waste to be generated.

(2)

Collection standard. Up to 1,350 residential units per curbside collection crew, per day.

(3)

Hazardous waste. Commercial, institutional and industrial developments which are potential hazardous waste generators shall be responsible for coordinating with Volusia County for disposal of such waste. Written approval must be obtained from the county and submitted to the city that the hazardous waste to be generated by the proposed development can be accommodated at the county's landfill or directed to an alternative licensed disposal facility.

(d)

Stormwater drainage. A stormwater drainage plan based on the stormwater management requirements of this code shall be prepared for all developments. Such plans shall incorporate the level-of-service design storm, and shall be approved as meeting said standard.

(e)

Potable water. The following use standards shall be used to estimate the potable water needs of proposed developments.

Additionally, commercial, institutional and industrial developments shall provide the city with a description and estimate of water use needs for any special processes involving potable water.

(f)

Recreation and open space.

(1)

Residential developments. Recreational impacts of proposed residential developments shall be based on the anticipated total number of persons residing in the development, calculated by using the population figures per dwelling unit as follows:

(2)

Commercial/institutional/industrial developments. Commercial and industrial developments shall not be assessed as having an impact on recreational facilities. The city may, however, require the provision of recreational facilities as part of planned unit developments.

(g)

Public schools.

(1)

All development applications subject to school concurrency review as required by this chapter shall include a completed school planning and concurrency application to be submitted to the school district by the applicant/property owner.

(2)

School district staff shall review development application information submitted and shall evaluate the impact of the proposed development on the school capacity provided in the school district's five-year facilities work program, the impact on the adopted level-of-service standards for public schools, and the projected timing and delivery of public school facilities to serve the proposed development.

(3)

School district staff shall provide a concurrency report to the city. The report shall detail whether or not school capacity will be available to serve the proposed development. The report shall include a certificate of school concurrency if sufficient capacity exists for the proposed development or it may set forth conditions required to satisfy the requirements of school concurrency, including proportionate share mitigation, as described section 5.1. The department will include this information in concurrency assessments and recommending conditions of approval to the city council for development applications.

(Ord. No. 2009-21, § 1, 10-27-09)

The department shall be responsible for conducting all concurrency reviews as required by this chapter. Concurrency review shall be initiated in conjunction with the review of a development project upon receipt of a completed concurrency review form provided by the city, accompanied by the appropriate fee. The department may also conduct separate concurrency reviews for developments in the preapplication or conceptual development plan stage, based on a preliminary TIA submitted by the developer, and may issue a nonbinding letter of concurrency findings. A binding letter of concurrency may be issued for developers who pay the required fair-share payment or other mitigation. Concurrency reviews for public school facilities shall be conducted by the school district as described in section 5.1.

(a)

Application. All development applications subject to concurrency review as required by this chapter shall include a completed concurrency review form containing the following information:

(1)

Traffic impact analysis (when required).

(2)

Description and estimate of water use needs.

(3)

Description and estimate of wastewater generation.

(4)

Description and estimate of solid waste generation.

(5)

Stormwater drainage calculations.

(6)

Other information required by the department to conduct a complete and accurate review.

Review and approval of a proposed development may be postponed for a reasonable time period in order for required information to be assembled. Failure of the applicant to provide adequate information on the anticipated project impacts within 120 days of the city's request, however, shall constitute sufficient grounds to deny the project.

(b)

Project impact assessment.

(1)

Existing conditions. To conduct its assessment of the anticipated impacts of a proposed development on public facilities, the department shall use its inventory of public facilities capacities as a base for the establishment of existing conditions.

(2)

Impact assessment. Using its own information and that supplied by the developer in compliance with subsection 5(a) above, the department shall calculate the anticipated impacts of a proposed development for all applicable public facilities listed in subsection 2(a). The impacts of the proposed development shall then be assessed against the existing conditions established above. With the assessment of transportation impacts on city roadways, the total peak-hour trip amount, including the peak-hour development trips, shall be measured against the respective peak-hour capacity to determine concurrency. For state and county roadways, the total annual average daily trip amount, including the daily development trips, may be measured against the respective annual average daily capacity to determine concurrency. If the city discovers a concurrency issue(s) with a state or county roadway during the preliminary assessment, the developer shall be required to demonstrate concurrency by the respective jurisdiction, as codified in chapter 21, article V.

(c)

Project phasing/timing of improvements. Public facility improvements associated with a phased development may likewise be phased, so long as all improvements necessary to accommodate the impacts of the entire development are provided and a phasing schedule is established for their construction prior to the issuance of a development order. The phasing schedule shall ensure that all facility improvements necessary to accommodate the impacts of the development (or portion thereof) shall be in place prior to the issuance of the certificate of occupancy. If the public facility does not have the sufficient capacity to service the impacts generated by the development, a concurrency analysis may be required for each phase of the development's separate phases to determine impacts, mitigation costs and/or proportionate fair-share costs for each phase. Signing of a concurrency and fair-share agreement and payment of the total proportionate fair-share costs is required for all projects that impact a public facility that does not have adequate capacity to accommodate the development's impacts, unless all improvements are provided by the developer or another jurisdiction.

(d)

Development agreements. It is the city's policy to require that the necessary infrastructure is available to meet minimum LOS standards. If the minimum requirements for concurrency as outlined in subsections 2(c)1. through 5. cannot be met, concurrency may be achieved by guaranteeing necessary facility improvements in an enforceable development agreement, as permitted by subsection 2(c)6. Said development agreement may include guarantees to construct required facility improvements, or to provide funds equivalent to the cost of providing such facility improvements.

(e)

Concurrency findings. Upon the conclusion of the concurrency review, the department shall prepare a written set of findings concerning the proposed development. These findings shall include, but are not limited to:

(1)

The anticipated public facility impacts of the proposed development;

(2)

The ability of existing facilities to accommodate the proposed development at the adopted level-of-service standards;

(3)

Any existing facility deficiencies that shall need to be corrected prior to the completion of the proposed development;

(4)

The facility(s) improvement or additions necessary to accommodate the impact of the proposed development at the adopted LOS standard(s) and the entity(s) responsible for the design and installation of all required facility improvements or additions; and

(5)

The date such facility(s) improvement or additions shall be completed to be concurrent with the impacts on such facility(s) created by the proposed development.

(Ord. No. 2009-21, § 1, 10-27-09)

(a)

School planning and concurrency application. All development applications subject to school concurrency review as required by this chapter shall include a completed school planning and concurrency application to be submitted to the school district by the applicant/property owner. After review of the information provided school district staff shall provide a concurrency report to the city. The report shall detail whether or not school capacity will be available to serve the proposed development.

The report shall include a certificate of school concurrency if sufficient capacity exists for the proposed development or it may set forth conditions required to satisfy the requirements of school concurrency including proportionate share mitigation. The department will include this information in concurrency assessments and recommending conditions of approval to the city council for development applications.

(b)

Certificate of school concurrency. A certificate of school concurrency shall be issued if the impacts of the proposed development's projected student enrollment do not cause the adopted level-of-service (LOS) to be exceeded. If the projected student growth from the development causes the adopted LOS to be exceeded in the particular concurrency service area (CSA) and that type of school and capacity exists in one or more contiguous CSAs, the development shall receive a certificate of school concurrency, provided that the adjacency is determined by the policies and conditions established by the school board and included in the interlocal agreement for public school facilities planning and the public school facilities element of the comprehensive plan. A certificate of school concurrency shall be valid for the duration of the final development order issued by the city, but no longer than two years. A certificate of school concurrency issued to an applicant/property owner shall be site-specific and not be transferable to other sites without the approval of the school district and the city.

(c)

Proportionate-share mitigation. In the event that the it is determined that there is not sufficient capacity available to serve the proposed development, the applicant/property owner, the school district and the city may enter into negotiations in an effort to mitigate the impact from the development. If the negotiation results in an executed mitigation agreement, a certificate of school concurrency shall be issued and shall be conditioned upon those mitigation measures agreed to by the applicant/property owner and the school district. If mitigation is not agreed to, the school district shall not issue a certificate of school concurrency. The department will include this information in concurrency assessments and recommending conditions of approval to the city council for development applications.

(1)

Mitigation shall be directed to projects on the school district's financially feasible work program that the school district agrees will satisfy the demand created by the proposed development and shall be assured by a legally binding mitigation agreement between the school district, the city, and the applicant. The mitigation agreement shall be executed prior to the city's issuance of the development order.

(2)

The applicant/property owner's total proportionate-share obligation shall be calculated by multi-plying the number of needed student stations generated from the proposed project, times the school district's current cost per student station, plus land cost for each type of school. [(Number of needed student stations × cost per student station) + cost of land for each school type = proportionate-share obligation]

(3)

The student generation rates used to determine the impact of a particular development shall be the student generation rates adopted in the most recent school impact fee study.

(4)

The cost per student station shall be the most recent actual costs per student station, and capitalization costs if applicable, paid by the school board for the equivalent school facility.

(5)

Mitigation options must consider the school district's educational delivery methods and requirements and the state requirements for educational facilities. The identified mitigation options are subject to negotiations between the applicant/property owner, the school district, and the city, and may include, but not be limited to, the following:

(a)

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

(b)

Renovation of existing buildings for use as learning facilities.

(c)

Funding for or construction of permanent student stations or core capacity.

(d)

Construction of schools in the school district's adopted five-year capital facilities work program ahead of schedule, upon agreement with the school board.

(e)

Dedication of a school site as approved by the school board.

(f)

Up-front lump-sum payment of school impact fees.

(g)

Up-front payment of interest and other costs of borrowing.

(h)

Payment of off-site infrastructure expenses needed for schools including but not limited to roads, water, and/or sewer improvements.

(i)

Payment of transportation costs associated with the movement of students as a result of an overcapacity school.

(j)

Funding assistance with acquisition of a school site.

(k)

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

(l)

Establishment of an educational facilities benefit district.

(m)

Establishment of educational facilities mitigation banks.

(n)

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

(Ord. No. 2009-21, § 1, 10-27-09)

(a)

Capacity reservation. If the concurrency findings in subsection 5(e) reveal that the capacity of public facilities is equal to or greater than that required to maintain the adopted level-of-service for said facilities, the department shall reserve or recommend to city council the reservation of capacity necessary for the proposed development. Capacity reservations shall be made on a first-come, first-served basis, based on the date of project approval by the department or the city council. Capacity shall be reserved in conjunction with a development order and shall be valid only for the specific land development activities, densities, intensities and construction and improvement schedules contained in the development order and any applicable development agreements for the property. A finding of concurrency shall reserve public facility capacity for the development project for one year from the date of issuance of the development order. For planned unit developments and planned commercial developments, capacity may also be reserved for the first phase of the project for up to one year from the date of approval of the conceptual plan and master development agreement following the concurrency review and mitigation procedures of this code. Capacity reservations for concurrency shall expire if the underlying development order or development agreement expires or is revoked.

Capacity may also be reserved for proposed development projects that have not received a development order. In such cases, the applicant shall submit a completed TIA indicating compliance with adopted concurrency standards and/or mitigation required in accordance with this code. In no case shall the city be obligated to create a fair-share improvement project to accommodate a proposed development. In cases where the city is willing to allow capacity reservation and accept payment of fair-share payment for a project without a development order, a reservation fee as may be adopted by resolution of the city council shall be required and a certificate of concurrency shall be issued by the city which shall remain valid for one year. If a development order cannot be issued for the project or a phase thereof within that timeframe, the certificate will expire and the applicant shall be required to submit a new or revised TIA. TIA approvals and certificates of concurrency issued for projects submitted without a development order shall not be renewed. Any fair-share payment necessary to maintain concurrency, minus the reservation fee, if applicable shall be refunded upon the written request of the applicant when a development order or certificate of concurrency expires.

(b)

Project deferrals/development moratoriums. If at any time the city's inventory of public facilities capacities indicates that a public facility has dropped below its adopted level-of-service, then the city shall cease to issue development orders for projects which would impact the deficient facility(s) or area of facility operations, as defined within this code. The cessation of development order issuance shall continue until such time as the adopted LOS standard is reestablished, the comprehensive plan is amended to reflect a lower, acceptable community standard for the facility(s) in question, or a concurrency and fair-share project is funded to improve the deficient facility(s) and is scheduled for construction within the first three years of a local government's CIP.

(c)

Concurrency denials. In the event that the city's concurrency review reveals that the proposed development would generate public facility impacts beyond that which can be absorbed by available capacity, the city shall ensure that there is a financial or other legally binding commitment to ensure that improvements necessary to correct the anticipated deficiency shall be in place concurrent with the impacts of the proposed development. Should the city and/or a developer be unable to provide such assurances, the project shall be denied. Projects denied due to failure to meet requirements, but for which all other land development requirements have been met, shall be placed on a prioritized list for approval of development orders once facility improvements have been made.

(d)

Capacity reservation for public purpose. The city may reserve capacity for a particular land area or specific land use, providing such reservation is in accord with a specific development or redevelopment strategy identified in the comprehensive plan which serves an overriding public purpose. This would include such community development objectives as providing affordable housing or diversification of the tax base. Any such capacity reservation shall be noted in the annual report on public facilities and capacities made available to the city council and the public each year, as required by section 7 below.

(Ord. No. 2009-21, § 1, 10-27-09)

The department shall regularly monitor the cumulative effect of all approved development orders and development permits on the capacity of public facilities. Commencing November, 1990, and in each year thereafter, the department shall prepare and present to city council and the public a report on the public facilities capacities and level-of-service inventory for concurrency management. This report shall include the degree of any facility deficiencies and a summary of the impacts the deficiency(s) shall have on the approval of future development orders. The department shall then recommend a schedule of improvements necessary to prevent a deferral or moratorium on the issuance of development orders.

(Ord. No. 2009-21, § 1, 10-27-09)

(a)

Intergovernmental communication. The department shall make available to adjacent municipalities, Volusia County, the school board and the Florida Department of Transportation information on all pending development applications for which concurrency assessments are being conducted.

(b)

Developments of multi-jurisdiction impact. Developments which would impact a public facility in one or more adjacent municipalities shall be subject to an intergovernmental review for concurrency. This review shall be conducted by designated officials from the affected municipalities.

(c)

Urban service area agreements. Provisions consistent with the purpose and intent of this chapter shall be included in all inter-local agreements executed after the effective date of this code to which the city is a party.

(Ord. No. 2009-21, § 1, 10-27-09)

Appeals shall be filed in accordance with chapter 3, section 6 of this Land Development Code.

(Ord. No. 2009-21, § 1, 10-27-09)

A variance to the requirements of this chapter may be considered by the administrative officer when unusual conditions exist that would warrant deviation from the standards, such as to accommodate economic development for qualified job creation projects under F.S. § 288.0656 or § 403.973, provide for affordable housing for low-income, very-low income and low-moderate income eligible persons and families, provide for replacement housing or replacement structures destroyed as a result of natural disaster, a temporary physical condition caused by construction or temporary closure or other situation deemed significant.

(Ord. No. 2009-21, § 1, 10-27-09)

The administrative documents of other agencies as referenced in chapters 4 and 21 shall be adopted by resolution of the city council.

(Ord. No. 2009-21, § 1, 10-27-09)