It is the purpose of this article to describe the requirements and procedures for determination of consistency of proposed development projects with the town comprehensive plan, including meeting the concurrency requirements of the plan.

(Ord. No. 91-6, § 3(4.00.01), 2-11-1992)

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Concurrency means a condition where specified facilities and services have, or will have, the necessary capacity to meet the adopted level of service standard at the time of impact of the development project.

(Ord. No. 91-6, § 3(4.00.02), 2-11-1992)

A development shall be presumed to be consistent with the town's comprehensive plan if it conforms to all provisions of this Land Development Code.

(Ord. No. 91-6, § 3(4.01.00), 2-11-1992)

(a)

The system for ensuring concurrency is based on the policies from the capital improvement element of the town comprehensive plan which is included as a part of this article.

(b)

The system is designed to ensure that the issuance of a final development order will not result in a degradation of the adopted levels of service for specified public facilities and services. The system also includes a monitoring system for determination of the availability of adequate capacity of public facilities and services to meet the adopted level of service standards.

(Ord. No. 91-6, § 3(4.02.01), 2-11-1992)

(a)

General rule.

(1)

All applications for development orders shall demonstrate that the proposed development does not degrade adopted levels of service to the town.

(2)

An application for a development permit shall demonstrate that the proposed development does not degrade adopted levels of service if there exists no development order under which the permit is sought, and no development order is required prior to the issuance of the permits, e.g. a residence on a parcel of a previously platted lot (section 12.01.03(2)).

(3)

The latest point at which concurrency is determined is the final development order. If no development is required, the latest point to determine concurrency is the first development permit on a site.

(b)

Exceptions.

(1)

Notwithstanding the foregoing, the prescribed levels of service may be degraded during the actual construction of new facilities, if upon completion of the new facilities the prescribed levels of service will be met.

(2)

Where a development order is issued prior to the adoption of the comprehensive plan (April 14, 1991), the town shall provide all public facilities and services needed for the development and the town shall so certify, in writing, prior to issuance of the certificate of occupancy.

(Ord. No. 91-6, § 3(4.02.02), 2-11-1992)

For the purpose of these regulations the available capacity of a facility shall be determined by:

(1)

Adding together the following:

a.

The total capacity of existing facilities operating at the required level of service; and

b.

The total capacity of new facilities, if any, that will become available on or before the date of occupancy of the development. The capacity of new facilities may be counted only if one or more of the following is shown:

1.

Construction of the new facilities is under way at the time of issuance of the final development order.

2.

The new facilities are the subject of a binding executed contract for the construction of the facilities or the provision of services at the time of issuance of the final development order.

3.

The new facilities 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 pursuant to F.S. ch. 380. Such facilities shall be consistent with the capital improvements element of the town comprehensive plan. The agreement must guarantee that the necessary facilities and services will be in place when the impacts of the development occur.

(2)

Subtracting from that number: the sum of the demand for the service or facility created by existing development as documented in the town comprehensive plan; and the demand for the service or facility created by the anticipated completion of other approved developments, redevelopment or other development activity.

(3)

Action upon failure to show available capacity. Where available capacity cannot be shown, the following methods may be used to maintain adopted level of service:

a.

The project owner or developer may provide the necessary improvements to maintain level of service. In such case, the application shall include appropriate plans for improvements, documentation that such improvements are designed to provide the capacity necessary to achieve or maintain the level of service, and recordable instruments guaranteeing the construction, consistent with calculations of capacity above.

b.

The proposed project may be altered such that projected level of service is no less than the adopted level of service.

(Ord. No. 91-6, § 3(4.02.03), 2-11-1992)

The burden of showing compliance with these level of service requirements shall be upon the developer. In order to be approvable, applications for development approval shall provide sufficient information showing compliance with these standards.

(Ord. No. 91-6, § 3(4.02.04), 2-11-1992)

(a)

The initial determination of concurrency occurs during the review of the preliminary development plan, and shall include compliance with the level of service standards adopted by the town.

(b)

Pages H IV-I through H IV-II of the town comprehensive plan as shown in subsection (c) of this section, which describe:

(1)

The requirement for an annual review of the plan by the town council; the monitoring and evaluation procedures;

(2)

The requirement for a written report to be filed each year based on the review;

(3)

The issuance of development orders and permits;

(4)

The concurrency management system; a capital improvement budget and a five year schedule of capital improvements;

(5)

A realistic, financially feasible funding system;

(6)

A monitoring system;

(7)

Standards for various facilities;

(8)

Coordination of land use decisions with the towns financial capabilities;

(9)

Debt management practices;

(10)

Evaluation of capital improvement projects;

(11)

Levels of service standards; and

(12)

Other administrative requirements.

(c)

All of the requirements, policies and objectives from the comprehensive plan (now pages IV-5 through IV-16), which follow, are incorporated into this Land Development Code:

H

IV. Capital Improvements Goals, Objectives and Policies

(1)

Goal. The town shall undertake innovative actions necessary to adequately provide, through the use of sound fiscal policies, needed public facilities for all residents in a manner which protects investments in existing facilities, maximizes the use of existing facilities and promotes orderly compact growth consistent with the future land use map while retaining the quality of life in the town (F.S. § 187.201(16)(a) and (18)(a)) (ECFRPC 60.18 to 60.21, 60.23, 60.25 to 60.27, 60.29 and 65.5).

(d)

Measurement of the objectives in this element shall be measurable by the implementation of the policies in each objective of the element.

(1)

Objective 1.0. The town shall require that the comprehensive plan is implemented in a timely manner, is updated as conditions within the area change or at a minimum reviewed yearly and in a matter that all interested residents are given ample opportunity to participate in the planning process. (F.S. §§ 163.3177(3)(b), 187.201(26)(a) and (b)(2) and 6), F.A.C. Rules 9J-5.016(3)(b), 9J-5.016(5) and 9J-5.0055(2))

a.

Policy 1.1. The town council (local planning agency) shall conduct at least one public hearing, advertised pursuant to the provisions of F.S. § 163.3161 on an annual basis to review the performance of the town's implementation of the comprehensive plan, to determine if amendments are necessary and to seek public comment on the status of the comprehensive plan. Such public hearing shall be held in conjunction with the annual updates of this element, as required by F.A.C. Rule 9J-5. Subsequent hearings and needed advertising for any amendments of the comprehensive plan shall follow procedures outlines in F.S. § 163.3161. (F.S. § 187.201(26)(b)(6).)

b.

Policy 1.2. The town council will, beginning in 1991, review the effectiveness of its capital improvement program and annual budgeting program in accordance with the following monitoring and evaluation procedures and make such changes in these programs that are appropriate: (F.S. § 187.201(26)(b)(3) and F.A.C. Rule 9J-5.016(3)(c)(9)) (ECFRPC 59.1)

Monitoring and Evaluation Procedures

1.

The role of monitoring and evaluation is vital to the effectiveness of any planning program and particularly for the capital improvements element. This is largely because the town's revenue and expenditure streams are subject to fluctuations in the market and economy. It is the behavior of these streams which will be used to predict fiscal trends in order to maintain the town's adopted level of service standards for public facilities. Therefore, the capital improvements element requires a continuous program for monitoring and evaluation, and pursuant to F.S. ch. 163, this element shall be reviewed on an annual basis to ensure that required fiscal resources are available to provide public facilities needed to support adopted LOS standards.

2.

The annual review at a public hearing and a subsequent written report to be filed with the five-year monitoring and evaluation report shall be the responsibility of the town council. The town manager, the town's CPA and the town planner shall serve as advisory members at all formal deliberations related to capital improvement monitoring and evaluation. The town council shall direct staff to take action deemed appropriate.

3.

The review shall include the following considerations, and will include an examination of these considerations in order to determine their continued appropriateness:

(i)

Any corrections, updates and modifications concerning costs; revenue sources; acceptance of facilities pursuant to dedications which are consistent with the element; or the date of construction of any facility enumerated in the element;

(ii)

The capital improvement element's consistency with the other elements and its support of the future land use element;

(iii)

The town's ability to provide public facilities and services;

(iv)

The priority assignment of existing public facility deficiencies;

(v)

The town's progress in meeting those needs determined to be existing deficiencies;

(vi)

The criteria used to evaluate capital improvement projects in order to ensure that projects are being ranked in their appropriate order of priority;

(vii)

The town's effectiveness in maintaining the adopted LOS standards;

(viii)

The town's effectiveness in reviewing the impacts of plans and programs of the county that provide public facilities within the town's jurisdiction;

(ix)

The effectiveness of mandatory dedications or fees in lieu of, for assessing new development a pro rata share of the improvement costs which they generate;

(x)

The cost effectiveness of imposing impact fees and if imposed, the effectiveness of such impact fees;

(xi)

The ratio of outstanding indebtedness to the property tax base;

(xii)

Efforts made to secure grants or private funds, whenever available, to finance the provision of capital improvements;

(xii)

The transfer of any unexpended account balances;

(xiv)

The criteria used to evaluate proposed plan amendments and requests for new development or redevelopment;

(xv)

Capital improvements needed for the latter part of the planning period, for inclusion in the five-year schedule of improvements;

(xvi)

The adherence to its capital improvement schedule;

(xvii)

The ability to ascertain at any given time the existing infrastructure capacity;

(xviii)

Needed changes to this monitoring and evaluation procedures.

c.

Policy 1.3. The town shall, by 1993, review and amend its regulations and policies so as to improve efficiency and economy in the areas of records-management, information management and competitive bid contracting (F.S. § 187.201(21)(b)(9 and 11)).

(2)

Objective 2.0. Insurance of development orders and permits by the town shall be controlled by a concurrency management system established by the town council which requires that facilities and services which do not reduce the adopted level of service standards are in place, shall be in place or are guaranteed by a binding contract or agreement to be provided prior to the impact of the development (F.A.C. Rules 9J-5.016(3)(b) and (3)(c)(6) and 9J-5.0055).

a.

Policy 2.1. By 1992, the town shall adopt and implement a concurrency management system which includes, as a minimum, the following (F.A.C. Rule 9J-5.055(2)):

1.

A capital improvements budget and a five-year schedule of capital improvements which, in addition to meeting all of the other statutory and rule requirements, must be financially feasible and are adopted annually in the budget process (F.A.C. Rule 9J-5.016(3)(c)(7)).

2.

The five-year schedule of improvements which includes both necessary facilities to maintain the established level of service standards to serve the new development proposed to be permitted and the necessary facilities required to eliminate that portion of existing deficiencies which are a priority to be eliminated during the five-year period under the town's schedule of capital improvements pursuant to F.A.C. Rule 9J-5.016(4)(a)1.

3.

A realistic, financially feasible funding system based on currently available revenue sources which is adequate to fund the public facilities required to serve the development authorized by the development order and development permit and which public facilities are included in the five-year schedule of capital improvements.

4.

The five-year schedule of capital improvements must include the estimated date of commencement of actual construction and the estimated project completion date and which areas will be provided with public funds in accordance with the five-year capital improvement schedule.

5.

A provision that a plan amendment shall be required to eliminate, defer or delay construction of any facility or service which is needed to maintain the adopted level of service standard and which is listed in the five-year schedule of improvements.

6.

A requirement that the town shall, by 1992, adopt local development regulations which, in conjunction with the capital improvements element, require that development orders and permits are issued in a manner that will guarantee that the necessary public facilities and services will be available to accommodate the impact of that development.

7.

A provision that a monitoring system shall be adopted which enables the town to determine on an annual basis whether it is adhering to the adopted level of service standards and its schedule of capital improvements and that the town has a demonstrated capability of monitoring the availability of public facilities and services.

8.

The development of guidelines for interpreting and applying level of service standards to applications for development orders and permits and determining when the test for concurrency must be met. At a minimum, the latest point in the application process for the determination of concurrency is prior to the approval of a development order or permit which contains a specific plan for development, including the densities and intensities of development and which would authorize the commencement of construction or physical activity on the land. Development orders and permits approved prior to the actual authorization for the commencement of construction or physical activity on the land must be conditioned to provide that actual authorization of the final permit which will authorize the commencement of construction or physical activity will be contingent upon the availability of public facilities and services necessary to serve the proposed development.

9.

A provision that the town manager, chairperson of the development review board and the councilmember overseeing the budget shall personally authorize, in writing, all development orders and permits after such approval, as is required by the town council, the town's ordinances or the comprehensive plan.

b.

Policy 2.2. The town's concurrency management system, when adopted by regulation, shall provide that public facilities and services needed to support development are available concurrent with the impacts of such development by meeting the following standards prior to issuance of a permit (F.A.C. Rule 9J-5.055).

1.

For potable water, sewer, solid waste and drainage, at a minimum, the following standards will satisfy the concurrency requirement:

(i)

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

(ii)

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

(iii)

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

(iv)

The necessary facilities and services are guaranteed in an enforceable development agreement that includes the provisions of F.A.C. Rule 9J-5.0055(2)(a)1 through 3. 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. The agreement must guarantee that the necessary facilities and services will be in place when the impact of development occur.

2.

For parks and recreation, at a minimum, the following standards will satisfy the concurrency requirement:

(i)

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

(ii)

The necessary facilities and services are guaranteed in an enforceable development agreement which requires the commencement of the actual construction of the facilities or the provision of services within one year of the issuance of the applicable development permit. An enforceable development agreement may include, but is not limited to, development agreements pursuant to F.S. § 163.3220 or an agreement or development order issued pursuant to F.S. ch. 380.

3.

For roads, at a minimum, the following standards will satisfy the concurrency requirement:

(i)

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

(ii)

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

(iii)

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

(iv)

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

(v)

The necessary facilities and services are guaranteed in an enforceable development agreement which requires the commencement of the actual construction of the facilities or the provision of services within one year of the issuance of the applicable development permit. An enforceable development agreement may include, but is not limited to, development agreements pursuant to F.S. § 163.3220 or an agreement or development order issued pursuant to F.S. ch. 380; or

(vi)

The necessary facilities and services are guaranteed in an enforceable development agreement that includes the provisions of subsections (d)(2)b.3(i) through (iii) of this section. 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. The agreement must guarantee that the necessary facilities and services will be in place when the impacts of the development occur.

4.

In determining the availability of services or facilities, a developer may propose, and the town council by a majority of the votes of its total membership may approve developments in stages or phases so that facilities and services needed for each phase shall be available in accordance with the standards required by F.A.C. Rule 9J-5.0055(2)(a), (2)(b) and (2)(c).

5.

Developers shall assess their needs for essential services (electricity, gas, etc.) and seek confirmation of future availability from appropriate utility suppliers. Confirmation should be provided to the town by the utility during the planning stages of development, but no later than prior to the issuance of a development order.

6.

The latest point in the application process for the determination of concurrency is prior to the approval of an application for a development order or permit which contains a specific plan for development, including the densities and intensities of development.

c.

Policy 2.3. The town manager, chairperson of the development review board and the councilmember overseeing the budget shall personally approve in writing, all development orders and permits after such approval as is otherwise required by current ordinances, regulations or the town council is completed.

d.

Policy 2.4. Should the town prepare projected revenue sources that include the town's intent to increase the amount of a revenue source which is contingent on ratification by a public referendum, for the sole purpose of determining the financial feasibility of the capital improvements element, this plan must be amended to include policies which identify alternatives and actions to be undertaken should the referendum fail. Such an amendment should identify alternative funding sources or other proper actions.

e.

Policy 2.5. Local fiscal policies shall direct expenditures for capital improvements in a manner that policies in other elements of the plan are recognized (F.A.C. Rule 9J5-5016(3)(c)(9)).

(3)

Objective 3.0. The town shall coordinate land use decisions with its financial capability so as to meet level of service standards and provide capital improvements while managing a realistic, financially feasible funding system to correct existing deficiencies, to accommodate desired future growth consistent with the future land use map, and to replace worn out or obsolete facilities, as indicated in the five-year schedule of improvements of this element.(F.A.C. Rule 9J-5.016(3)(b)(1), (3)(b)(5) and 9J-5.055(2)).

a.

Policy 3.1. The town shall use stable revenue sources, fiscally sound and cost-effective financing programs so as to retain financial self-sufficiency while providing necessary facilities and their upkeep (ECFRPC 60.35).

b.

Policy 3.2. The current and future town councils shall, in a fiscally sound manner, establish the millage each year within the limitations of state statutes, so as to provide needed funding for all required expenditures (F.A.C. Rule 9J5.016(4)(a)(2)).

c.

Policy 3.3. The town shall make efforts to secure grants or private funds whenever available to finance, all or part of, capital improvement projects.

d.

Policy 3.4. Debt management practices shall ensure that (F.A.C. Rule 9J-5.016(3)(c)(2)):

1.

Revenue bonds, as a percent of total debt, shall not exceed 50 percent.

2.

The maximum ratio of total debt to total revenue shall not exceed 15 percent.

3.

The maximum ratio of outstanding debt to the property tax base shall not exceed 15 percent.

e.

Policy 3.5. The town shall include all projects necessary to maintain established levels of service standards to serve new developments and to eliminate that portion of existing deficiencies which are a priority to be eliminated during the five-year period of the town's planned schedule of improvements which are identified in any element of this plan and determined to be of relative large scale and high cost ($25,000.00 or greater), as capital improvement projects (and include in any listing thereof, their estimated project completion date) within the five-year schedule of improvements of this element and all capital improvements with costs of less than $25,000.00 shall be included in the six-year capital improvement program as part of its annual budget program.

f.

Policy 3.6. A capital improvements coordinating committee is hereby created, composed of the mayor, town manager and the councilmember overseeing the budget with the responsibility for evaluating and ranking, in order of priority, projects proposed for inclusion in the five-year schedule of improvements.

g.

Policy 3.7. Proposed capital improvement projects, to include the replacement and/or renewal of capital facilities, shall be evaluated and ranked in order of priority according to the following guidelines (F.S. § 187.201(18)(b)(2) and F.A.C. Rule 9J-5.016(3)(c)(1) and (3)(c)(3)) (ECFRPC-60.22, 59.5, 59.7, 66.3):

1.

Is the project needed to protect public health and safety? Does it fulfill the town's legal commitment to provide facilities and services, does it preserve or achieve full use of existing facilities, or does it correct an existing deficiency?

2.

Does the project increase the efficiency of existing facilities, prevent or reduce future improvement costs, provide service to developed areas lacking service or promote in fill development and has efficient use been made in energy conservation?

3.

Should the facility be upgraded or replaced?

4.

Does the improvement represent a logical extension of existing facilities and/or services within the town?

5.

What is the impact of the proposed project upon the local budget?

6.

Is the project financially feasible?

7.

What is the effect on plans of the state or county within the town?

h.

Policy 3.8. The town, by 1993, shall amend its ordinances so that public facilities and services intended to serve future development needs that are inconsistent with the town's comprehensive plan shall not be permitted or provided, unless the comprehensive plan is amended by the town. (ECFRP 60.25.)

i.

Policy 3.9. Prior to the approval for issuance of certificates of occupancy, the town shall provide for all public facilities and services needed to serve a development for which a development order was previously issued and so certify, in writing, to the county (F.A.C. Rule 9J-5.016(3)(c)(5)).

j.

Policy 3.10. The town shall immediately take steps to amend the current agreement or enter into a new agreement with the county which provides that no certificate of occupancy shall be issued by the county without written approval of the town manager.

k.

Policy 3.11. The town shall review the public facility and service recommendations of its capital improvement and other elements of this plan with every future land use plan amendment, in order to ensure continued proper coordination and compatibility between public facilities and changing land use patterns, as well as any redevelopment demands.

l.

Policy 3.12. The town manager shall prepare and annually update a maintenance schedule for public facilities.

m.

Policy 3.13. The capital improvement program shall be coordinated with the county and other agencies through the intergovernmental coordination procedures outlined in this element.

(4)

Objective 4.0. Level of service standards established within the comprehensive plan shall be maintained as a minimum (F.A.C. Rule 9J-5.016(3)(b)(3) and (3)(c)(4)).

a.

Policy 4.1. The level of service standards outlined below have been adopted within the various elements of this plan and such facilities as are needed to meet these minimum levels of service standards shall be available concurrently with the impact of any new developments as outlined in this element.

1.

Recreation levels of service standards. Facility level of service are as follows:

(i)

Neighborhood park: one per 5,000 population.

(ii)

Park acreage: 2.5 acres per 1,000 persons.

(iii)

Tennis courts: one per 1,000 persons.

(iv)

Boat ramp: one per 4,300 persons.

(v)

Bicycle paths: one mile per 1,000 persons.

2.

Potable water level of service standards. The town level of service standards, as established by the county, is 350 gallons per day per equivalent residential unit.

3.

Roads level of service standards. The town establishes the following peak level of service standards for each listed facility as indicated:

(i)

Classification peak.

A.

Collector roads D.

B.

Local E.

(ii)

Constrained facilities. Maintain operating conditions: the peak hour volume shall not increase more than ten percent of that existing.

4.

Sewer level of service standards. Sewer level of service standards (no facility), however the town adopts the county level of service standard of 300 gallons per day, per equivalent residential unit for sanitary sewer usage.

5.

Solid waste level of service standard. Solid waste level of service standard (no facility), however the town adopts the county level of service standard of 4.0 pounds/day/person for residential and 2.0 pounds/day/person for commercial activities with respect to solid waste.

6.

Drainage level of service standard. The minimum level of service standard for drainage facilities shall provide the 100 year 24 hour rainfall event protection and provide retention for water quality consistent with new and innovative techniques.

(5)

Objective 5.0. All future developments shall bear a proportionate share of the cost of facility improvements necessitated by the development in order to maintain adopted level of services standards (F.A.C. Rule 9J-5.016(3)(b)(4) and (3)(c)(8))(ECFRPC 60.38, 60.34, 60.36).

a.

Policy 5.1. The town shall, by 1992, adopt an ordinance requiring developers to provide internal roads, internal stormwater drainage systems and their pro rata share of other needed facilities so as to maintain the previously stated level of service standards. Plat approval shall only be authorized if needed fees are paid or mandatory dedication is completed (F.S. § 187.201(18)(b)(4)).

b.

Policy 5.2. The town, by 1993, shall adopt regulations which require analyses of all new public facilities to determine the allocation of costs amongst the state, county, other local governments, the town and the private sector and through intergovernmental coordination assist in establishing such intergovernmental and developers agreements that are needed prior to approval of such facilities (F.S. § 187.201(18)(b)(4)).

(Ord. No. 91-6, § 3(4.02.06), 2-11-1992)

(a)

The basic requirements of the annual report are listed on pages H IV-2 and H IV-3 (page IV-6 and IV-7) of the plan and shall also include:

(1)

A summary of actual development activity, including a summary of certificates of occupancy, indicating quantity of development represented by type and square footage.

(2)

A summary of building permit activity, indicating:

a.

Those that expired without commencing construction;

b.

Those that are active at the time of the report;

c.

The quantity of development represented by the outstanding building permits;

d.

Those that result from final development orders issued prior to the adoption of this Land Development Code; and

e.

Those that result from final development orders issued pursuant to the requirements of this Land Development Code.

(3)

A summary of preliminary development orders issued, indicating:

a.

Those that expired without subsequent final development orders;

b.

Those that are valid at the time of the report; and

c.

The phases and quantity of development represented by the outstanding preliminary development orders.

(4)

A summary of final development orders issued, indicating:

a.

Those that expired without subsequent building permits;

b.

Those that were completed during the reporting period;

c.

Those that are valid at the time of the report but do have associated building permits or construction activity; and

d.

The phases and quantity of development represented by the outstanding final development orders.

(5)

An evaluation of each facility and service indicating:

a.

The capacity available for each at the beginning of the reporting period and the end of the reporting period;

b.

The portion of the available capacity held for valid preliminary and final development orders;

c.

A comparison of the actual capacity to calculated capacity resulting from approved preliminary development orders and final development orders;

d.

A comparison of actual capacity and levels of service to adopted levels of service from the town comprehensive plan;

e.

A forecast of the capacity for each, based upon the most recently updated schedule of capital improvements in the town capital improvements element;

f.

Cost/benefit studies shall be included as a technical supplement to any transportation capital improvement program, to the drainage sub-element and recreation element revisions.

(b)

Use of the annual report. The annual report shall constitute prima facie evidence of the capacity and levels of service of public facilities for the purpose of issuing development orders during the 12 months following completion of the annual report.

(Ord. No. 91-6, § 3(4.02.06), 2-11-1992)

Development activities shall not be approved unless there is sufficient available capacity to sustain the level of service for the various systems, as shown on (objective 4.0), section 4.02.05 of the comprehensive plan. A majority of the elected town council, plus one, shall be required for an approval of any temporary deviation from the adopted level of service standards.

(Ord. No. 91-6, § 3(4.03.01), 2-11-1992)

The purpose of this division is to establish a method whereby the impacts of development on transportation facilities can be mitigated by the cooperative efforts of the public and private sectors, to be known as the proportionate fair-share program, as required by and in a manner consistent with F.S. § 163.3180(16). This division will also provide methods and procedures for the town to implement the proportionate fair-share program.

(Ord. No. 2006-13, § 2(A), 11-14-2006)

The proportionate fair-share program shall apply to all proposed developments in town that have been notified of a lack of capacity to satisfy transportation concurrency on a transportation facility in the town's concurrency management system (CMS), including transportation facilities maintained by FDOT, the county, the town or an adjacent jurisdiction that are relied upon for concurrency determinations pursuant to the requirements of section D. The proportionate fair-share program does not apply to developments of regional impact (DRIs) using proportionate fair-share under F.S. § 163.3180(12) or to developments exempted from concurrency, as provided by local and state law.

(Ord. No. 2006-13, § 2(B), 11-14-2006)

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Concurrency means transportation facilities needed to serve new development shall be in place or under actual construction within three years after the local government approves a building permit, or its functional equivalent, that results in traffic generation (F.S. § 163.3180).

County means Orange County.

De minimis means an impact that would not affect more than one percent of the maximum service volume at the adopted level of service of the affected transportation facility as determined by the local government; provided, however, that total capacity for any transportation facility shall not exceed 110 percent of the maximum volume of the adopted level of service of the affected transportation facility, all pursuant to F.S. § 163.3180(6).

Municipality means the Town of Windermere, or any adjacent municipality.

(Ord. No. 2006-13, § 2(C), 11-14-2006)

(a)

An applicant may choose to satisfy the transportation concurrency requirements of the town by making a proportionate fair-share contribution, pursuant to the following requirements:

(1)

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

(2)

The five-year schedule of capital improvements in the capital improvements element (CIE) or the long-term schedule of capital improvements for the long-term CMS includes a transportation improvement that, upon completion, will satisfy the requirements of the applicable CMS. The provisions of subsection (b) of this section may apply if a project or projects needed to satisfy concurrency are not presently contained within the applicable CIEs or the adopted long-term schedule of capital improvements; and

(3)

A proportionate share contribution may involve the addition of transportation capacity through several means, including, but not limited to:

a.

The physical widening and/or reconstruction of a roadway to add capacity;

b.

Where the primary roadway is constrained or widening is no longer desired, the addition of transportation capacity could involve creating new reliever roadways;

c.

New network additions; or

d.

Any other means determined by the town to add transportation capacity sufficient to mitigate impacts.

(b)

The town may choose to allow an applicant to satisfy transportation concurrency through the proportionate fair-share program by approving the applicant's contribution to an improvement or improvements that, upon completion, will satisfy the requirements of the applicable CMSs, but is not contained in the five-year schedule of capital improvements in the CIEs or a long-term schedule of capital improvements for an adopted long-term CMS, where the following apply:

(1)

The town adopts, by resolution or ordinance, a commitment to add the improvement to the schedule of capital improvements in the CIE or long-term schedule of capital improvements for an adopted long-term CMS no later than the next regularly scheduled update. To qualify for consideration under this section, the proposed improvement must be reviewed by the appropriate jurisdictions and agencies and must be determined to be financially feasible pursuant to F.S. § 163.3180(16)(b)1, consistent with the comprehensive plan and in compliance with the provisions of this division. Financial feasibility for this section means that additional contributions, payments or funding sources are reasonably anticipated during a period not to exceed ten years to fully mitigate impacts on the transportation facilities. If a transportation facility proposed for the proportionate share program is under the jurisdiction of another entity, such as the county or FDOT, the proposed capacity improvement shall be included in the five-year work program of that jurisdiction or, in the case of the county and when the improvement is not in the work program, through a memorandum of understanding, resolution or ordinance evidencing a commitment to add the improvement to the schedule of capital improvements in the CIE or long-term schedule of capital improvements for an adopted long-term CMS no later than the next regularly scheduled update.

(2)

If the funds allocated for the schedule of capital improvements in the CIE are insufficient to fully fund construction of a transportation improvement required by the CMS, the county and/or town may still enter into a binding proportionate fair-share agreement with the applicant. The agreement may authorize construction of that amount of development if the proportionate fair-share amount in such agreement is determined to be sufficient to pay for one or more improvements which will, in the opinion of the governmental entity or entities maintaining the transportation facilities, significantly benefit the impacted transportation system. The improvement or improvements funded by the proportionate fair-share component must, for each affected local jurisdiction, be adopted into the capital improvements schedule of the comprehensive plan or the long-term schedule of capital improvements for an adopted long-term concurrency management system at the next annual capital improvements element update.

(c)

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

(d)

Pursuant to F.S. § 163.3177, the CIE must include transportation improvements included in the MetroPlan Orlando Transportation Improvement Plan (TIP) to the extent that such improvements are relied upon to ensure concurrency and financial feasibility. If the town is relying upon scheduled improvements to a county facility to ensure concurrency and financial feasibility, the scheduled improvements from the county's work program must be included in the CIE of the town. All CIEs must also be coordinated with the adopted MetroPlan Orlando's Long Range Transportation Plan (LRTP) for planning purposes.

(Ord. No. 2006-13, § 2(D), 11-14-2006)

(a)

In the interest of intergovernmental coordination and to reflect the shared responsibilities for managing development and concurrency, the town may enter an agreement with one or more adjacent local governments to address cross jurisdictional impacts of development on regional transportation facilities. The agreement shall provide for application of the methodology in this section to address the cross jurisdictional transportation impacts of development.

(b)

A development application shall be subject to this section when a transportation concurrency determination is made that indicates the development will have an adverse impact on the adopted level of service standard on one or more facilities in a neighboring jurisdiction. Each affected jurisdiction will be asked to use its own concurrency analysis procedure to project whether the proposed development will cause the impacted regional facility to operate below the adopted level of service standard.

(c)

Upon identification of an impacted regional facility the town shall notify the applicant and the other affected jurisdictions, in writing, of the potential proportionate fair-share agreement with the developer based on the projected impacts of the proposed development on the impacted adjacent facility.

(d)

Pursuant to policies in the intergovernmental coordination element of the town's comprehensive plan and applicable policies in the MetroPlan Orlando 2025 Long Range Transportation Plan, the town shall coordinate with affected jurisdictions, including FDOT, regarding mitigation to impacted facilities not under the jurisdiction of the town. Proportionate fair-share contributions should be applied toward the impacted facility. However, impacted facilities may be maintained by an agency other than the town (e.g., a county or state road within the town limits). Therefore, the town will work with other affected agencies to establish a procedure for coordinating mitigation to impacted facilities that are maintained by another agency. An interlocal agreement may be established with other affected jurisdictions for this purpose.

(Ord. No. 2006-13, § 2(E), 11-14-2006)

(a)

Upon notification of a lack of capacity to satisfy transportation concurrency, the applicant shall also be notified in writing of the opportunity to satisfy transportation concurrency through the proportionate fair-share program, pursuant to the requirements of section D.

(b)

Prior to submitting an application for a proportionate fair-share agreement, a preapplication meeting shall be held with all affected jurisdictions to discuss eligibility, application submittal requirements, potential mitigation options and related issues. If the impacted facility is a state facility, then the FDOT will be invited to participate in the preapplication meeting. The appropriate parties for review of a proposed proportionate fair-share agreement would include the jurisdiction maintaining the transportation facility that is subject to the agreement, if other than the approving jurisdiction.

(c)

The town manager or designee shall review the application and certify that the application is sufficient and complete within 60 business days. If an application is determined to be insufficient, incomplete or inconsistent with the general requirements of the proportionate fair-share program, as indicated in section D, then the applicant will be notified in writing of the reasons for such deficiencies within 60 business days of submittal of the application. If such deficiencies are not remedied by the applicant within 30 days of receipt of the written notification, then the application will be deemed abandoned. The town council may, in its discretion, grant an extension of time not to exceed 60 days to cure such deficiencies, provided that the applicant has shown good cause for the extension and has taken reasonable steps to effect a cure.

(d)

Pursuant to F.S. § 163.3180(16)(e), proposed proportionate fair-share mitigation for development impacts to facilities on the SIS requires the approval of FDOT. The applicant shall submit evidence of an agreement between the applicant and the FDOT for inclusion in the proportionate fair-share agreement.

(e)

When an application is deemed sufficient, complete and eligible, the applicant shall be advised, in writing, and a proposed proportionate fair-share obligation and binding agreement will be prepared by the town, assuming an agreement can be reached, and delivered to the appropriate parties for review, including a copy to the FDOT for any proposed proportionate fair-share mitigation on an FDOT facility, no later than 180 days from the date at which the applicant received the notification of a sufficient application. All parties will have no less than ten business days to provide comments on the proposed mitigation. The town may need to enter into an agreement with FDOT or a neighboring jurisdiction, as appropriate.

(f)

The town shall notify the applicant and any affected governmental agency regarding the date of the elected body meeting when the agreement will be considered for final approval. No proportionate fair-share agreement will be effective until approved by the elected body.

(Ord. No. 2006-13, § 2(F), 11-14-2006)

(a)

Proportionate fair-share mitigation for concurrency impacts may include, without limitation, separately or collectively: private funds, contributions of land and construction of and contribution of facilities.

(b)

A development shall not be required to pay more than its proportionate fair-share. The fair market value of the proportionate fair-share mitigation for the impacted facilities shall not differ regardless of the method of mitigation.

(c)

The methodology used to calculate an applicant's proportionate fair-share obligation shall be as provided for in F.S. § 163.3180(12), as follows:

For the purposes of determining proportionate fair-share obligations, the town shall determine improvement costs based upon the actual cost of the improvement as obtained from cost estimates contained in the CIE, the county transportation construction program or the FDOT work program. Where such information is not available, improvement cost shall be determined by an analysis by the jurisdiction maintaining the facility of costs by cross section type that incorporates data from recent projects and is updated annually and approved by the jurisdiction. In order to accommodate increases in construction material costs, project costs shall be adjusted through time by an inflationary index.

(d)

If the town has accepted an improvement project proposed by the applicant, then the value of the improvement shall be determined using one of the methods provided in subsection (c) of this section.

(e)

If the town has accepted 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 by fair market value established by an independent appraisal approved by the town and at no expense to the town. The applicant shall supply a drawing and legal description of the land and a certificate of title or title search of the land to the town at no expense to the town. If the estimated value of the right-of-way dedication is less than the town's estimated total proportionate fair-share obligation for that development, then the applicant must also pay the difference. Prior to purchase or acquisition of any real estate or acceptance of donations of real estate intended to be used for the proportionate fair-share, public or private partners should contact the FDOT for essential information about compliance with federal law and regulations.

(Ord. No. 2006-13, § 2(G), 11-14-2006)

(a)

Proportionate fair-share contributions shall be applied as a credit against any impact fees established by ordinance to the extent that all or a portion of the proportionate fair-share mitigation is used to address the same capital infrastructure improvements contemplated by the local government's impact fee ordinance.

(b)

Impact fee credits for the proportionate fair-share contribution will be determined when the transportation impact fee obligation is calculated for the proposed development. Impact fees owed by the applicant will be reduced per the proportionate fair-share agreement as they become due per the impact fee ordinance. If the applicant's proportionate fair-share obligation is less than the development's anticipated road impact fee for the specific stage or phase of development under review, then the applicant, or its successor, must pay the remaining impact fee amount to the local government, pursuant to the requirements of the impact fee ordinance.

(c)

The proportionate fair-share obligation is intended to mitigate the transportation impacts of a proposed development at a specific location. As a result, any road impact fee credit based upon proportionate fair-share contributions for a proposed development cannot be transferred to any other location unless provided for within the local impact fee ordinance.

(Ord. No. 2006-13, § 2(H), 11-14-2006)

(a)

Upon execution of a proportionate fair-share agreement (agreement) the applicant shall receive a certificate of concurrency from the town. Should the applicant fail to apply for a development order within 12 months of the execution of the agreement, then the agreement shall be considered null and void, and the applicant shall be required to reapply. In addition, if the proposed development's impacts were the only impacts causing the potential deficient operation of the facility, the specific project may be removed from the CIE.

(b)

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 nonrefundable. If the payment is submitted more than 12 months 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 G and adjusted accordingly.

(c)

All transportation improvements undertaken by the developer authorized under this division must be completed prior to issuance of a final development order, or as otherwise established in a binding agreement that is accompanied by a security instrument that is sufficient to ensure the completion of all required improvements.

(d)

Dedication of necessary right-of-way for facility improvements pursuant to a proportionate fair-share agreement must be completed prior to issuance of the final development order or recording of the final plat.

(e)

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

(f)

Applicants may submit a letter to withdraw from the proportionate fair-share agreement at any time prior to the execution of the agreement. The application fee and any associated advertising costs to the town will be nonrefundable.

(g)

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

(Ord. No. 2006-13, § 2(I), 11-14-2006)

(a)

Proportionate fair-share revenues shall be placed in the appropriate project account for funding of scheduled improvements in the local government's CIE, or as otherwise established in the terms of the proportionate fair-share agreement. At the discretion of the local government, proportionate fair-share revenues may be used for operational improvements prior to construction of the capacity project from which the proportionate fair-share revenues were derived. Proportionate fair-share revenues may also be used as the 50 percent local match for funding under the FDOT transportation regional incentive program (TRIP).

(b)

In the event a scheduled facility improvement is removed from the CIE, then the revenues collected for its construction may be applied toward the construction of another improvement within that same corridor or sector that would mitigate the impacts of development pursuant to the requirements of section D(b)(2).

(c)

Where an impacted regional facility has been designated as a regionally significant transportation facility on the MetroPlan Orlando's Regionally Significant Corridors Map, then the town may coordinate with other impacted jurisdictions and agencies to apply proportionate fair-share contributions and public contributions to seek funding for improving the impacted regional facility under the FDOT TRIP. Such coordination shall be ratified through an interlocal agreement that establishes a procedure for earmarking of the developer contributions for this purpose.

(d)

Where an applicant constructs a transportation facility that exceeds the applicant's proportionate fair-share obligation calculated under section G, the town shall reimburse the applicant for the excess contribution using one or more of the following methods:

(1)

An impact fee credit account may be established for the applicant in the amount of the excess contribution, a portion or all of which may be assigned and reassigned under the terms and conditions acceptable to the town.

(2)

An account may be established for the applicant for the purpose of reimbursing the applicant for the excess contribution with proportionate fair-share payments from future applicants on the facility.

(3)

The town may compensate the applicant for the excess contribution through a payment plan or some combination of means acceptable to the town and the applicant.

(Ord. No. 2006-13, § 2(J), 11-14-2006)