Title: Concurrency: A Summary of the Issues
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 Material Information
Title: Concurrency: A Summary of the Issues
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Concurrency: A Summary of the Issues December, 1988 Florida Land Design & Engineering, Inc.
General Note: Box 7, Folder 4 ( Vail Conference 1989 - 1989 ), Item 32
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000933
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text




FLD&E


CONCURRENCY




A SUMMARY DISCUSSION OF THE ISSUES


December, 1988


FLORIDA LAND DESIGN & ENGINEERING, INC.


One North Dale Mabry
Suite 700
Tampa, FL 33609


1401 Manatee Avenue
Suite 1120
Bradenton, FL 34205


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TABLE OF CONTENTS


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The "Concurrency" Requirement ..........................
Concurrency A Concern for Developers Only? .............

When Does Concurrency Review Begin? ......................
Are Your Project(s) Impacted by "Concurrency"? ...........
How are Previously Approved DRIs and Non-DRIs Affected:
Grandfathering/Vesting ...................................
Concurrency Review and Very Small Projects................
When is a Project Subject to Concurrency Review? .........
Deficient/Backlogged Public Facilities: Moratorium? .....

Concurrency and the Pipelining Option ....................

What Does "Concurrent" Mean? .............................

Summary ........................................ ........


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THE "CONCURRENCY" RROUIREMENT

Concurrency is the legal requirement that no development orders
(a broad term encompassing rezonings, building permits and other
approvals that permit the development of land) or permits be
issued in a manner that causes a violation of adopted level of
service standards for public facilities. The 1985 Growth
Management Act requires that each local government develop
standards and procedures to implement Concurrency in their
comprehensive plans.

The 1985 Growth Management Act's "Concurrency" requirements are
not to be confused with what are referred to as the Act's
"Consistency" requirements. The latter require that permitted
uses, densities, intensities and other aspects of development
(but not public facility impacts) be consistent with the Future
Land Use Map and with other comprehensive plan policies.

CONCURRENCY A CONCERN FOR DEVELOPERS ONLT?
SAll participants in the Development "chain" should be keenly
interested in the manner in which the concurrency requirement is
implemented throughout the state. The first participant in this
chain the original land owner is directly impacted. Raw land
or property that is slated for redevelopment is reduced in value
if public facilities cannot be provided to development on that
land at or above the adopted level of service standards. This
loss in value is reflective of either:
S the reduction in densities or intensities required
during development of the property to avoid exceeding
adopted level of service standards for roadways or B-Sl
other public facilities; or
O the increased cost to the developer associated wivth
needed improvements to improve public facilities,
to ensure that adopted level of service standards ...
maintained after project development.

This loss in value may be most acute in high value locations:
Consider "prime" commercial property at a highly accessible, h14h
traffic volume location. Complicate the formula used to
calculate the sales price of that property by throwing in site. ,
access via a congested roadway operating below the adopted level
of service standard for that road. Development cannot proceed on



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the "prime" parcel under the new concurrency requirements, and
the sales price will likely reflect the loss in utility.
In the real estate/development process, as the middlemen and
purchasers (developers) insist on fees and profit margins now
common to real estate sales/development, the Concurrency
requirement can only translate to either:
0 deflation of property values in areas with public
facility deficiencies,
0 added premiums on properties located where public
facilities are provided at or above adopted standards.
The politics and economics of "concurrency" have yet to be felt,
and should prove to be extremely interesting. To speculate on
property will now have another caution the increased value of
property now synonymous with greater demand and urbanization must
be carefully weighed against the potential for decreasing value
that is likely to occur once this same urbanization causes
deficiencies in public facilities. Savvy purchasers may soon
negotiate contracts for purchase of a developable parcel
contingent upon local government finding that compliance with all
adopted level of service standards is achieved.
To better understand some of the fine points and issues involved
in implementing the concurrency requirement, the remainder of
this article explores the nuts-and-bolts from a developer's
perspective. However, the items covered have implications for
all.

WHEM DOES CONCURRENCT REVIEW BEGIN

Adoption of each local government comprehensive plan generally w.ant
precedes implementation of the Concurrency provisions. The local.,ia
government submits their comprehensive plan to the Department
Community Affairs (DCA) for review before adopting that plan,
adopts the plan, and then has a deadline to implement
Concurrency. This deadline is no later than one year after >
submitting their plan to DCA. It is therefore important
down the point at which Concurrency will be implemented.-
assume that the full year following plan submittal to DCI
provided for in the law will be used prior to the start of
Concurrency ask your local government.
Deadlines for implementing a Concurrency review procedure vary
county. For example, these deadlines for local governments ina
the counties listed below are as follows: .a




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LOCALQi


BRMMEBTS NWTHwI


Sarasota County
Manatee County
Pasco County
Hillsborough County
Duval County
Polk County
Suwannee County
Gilchrist County


October 1, 1989
December 1, 1989
January 1, 1990
February 1, 1990
April 1, 1991
September 1, 1991
April 1, 1992
June 1, 1992


In any event, the rules do not change until the local
government's "Concurrency Management System" is activated, unless
the local government's regulatory personnel take an early cue (a
likely scenario) and begin to apply the review process to
applications for development orders submitted before the
"Concurrency Management System" is formally implemented.

On the other hand, "Consistency" requirements are immediately
implemented upon adoption of a Local government comprehensive
plan, prior to implementation of "Concurrency" requirements.

ARE TOUR PROJECTS) IMPACTED BY "CORCURRZNCT"

Many of our clients are going to be in the position of having
projects that are either:

midstream in the permitting process on the date when
the local government's comprehensive plan is adopted.


midstream in the permitting process when the
Concurrency provision is implemented (i.e., a date no
later than one year after the submittal of the
Comprehensive Plan to the Department of Community
Affairs), or


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- completely approved but not yet constructed on the -da&
of implementation of the Concurrency provision, or
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- to be initiated after implementation of the Concurre
rule, or -


Indications are that all these types of projects will be *
to review for compliance with locally adopted Level of Serv
Standards (i.e., will have to meet the Concurrency requireaEft)),
with the possible exception of the first category listed whih -h
my not be subject to review if all permitting for which diyol Ao
service review is applicable is completed prior to the date on
which Concurrency is implemented by the local government. The
only way to ensure that this first category of project is not
subject to level of service review is to begin development prior
to Concurrency implementation. We hope that local government's


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Comprehensive Plans adopt a more workable grandfatheringg/
vesting" provision so that construction start is not essential to
avoiding Concurrency review on these projects.
Whatever the status of your project, the first step is to become
familiar on the Level of Service Standards proposed in the local
government's Comprehensive plan for roadways which your project
may impact, and other standards against which your project's
impacts will be compared (e.g., fire flows, availability of
public sewer). Unless the proposed Level of Service Standards
are likely to be violated (after your project impacts have been
added), then the Concurrency provision will not be of immediate
concern to you. If the public facilities already are inadequate,
or will become so after project impacts are added, you may be
adversely impacted by this new rule unless development has begun
on all phases, and is continuing in good faith.
HOW ARE PREVIOUSLY APPROVED DRIs AND NON-DRIs AFFECTED:
GRANDFATHERING/VBSTING
Existing DRIs are to be treated quite differently from existing
non-DRIs under Concurrency. The law has a grandfathering/
vesting provision which ensures that developments that have "been
authorized as a development of regional impact" can be completed
whether or not Concurrency can be established. Despite this ,;
f statement there may be room for additional requirements placed on
DRI phases not given detailed approval in a Development Order.
Your rights to complete these subsequent DRI phases are likely to
be contingent on demonstrating compliance with the public
facility standards contained in the comprehensive plan (i.e.,
Level of Service Standards). This is one area in which we urge
you to seek a project-specific determination.
Non-DRIs are, we believe, the area of greatest exposure. The law.
only grandfathers projects from the "Concurrency" and other ..
comprehensive plan provisions if "a final local development
order" has been issued, and if "development has commenced ag'l
continuing in good faith". Local governments have flexibith*-b i-
determining what is or is not a final development order. -Tibft
could range from a subdivision plat to a building -permit
ask the question! The second requirement for "ongn a
development" is the more troubling. Other state lav.de
"development" to include the division of property idito
more parcels (Ch. 380.04, F.S.), but this is unlike A
interpretation of development used by local governments In
determining grandfathering of a project from the Concurrency" -. ,
requirements. .-
In Manatee County, for example, DCA's informal objection over li*
proposal to consider preliminary subdivision plat approvals (and_,
other similar approvals occurring prior to plan adoption) as
"development" and exempting such projects from Concurrency W
requirements have served notice that DCA may be accepting only a
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construction start as a reason for being exempted from this
requirement when it is implemented.
Variations in this area are likely to exist from one local
government to another. It seems that DCA will accept a more
reasonable system of exempting certain prior approvals from the
Concurrency requirements if the local planners insist on it.
Otherwise DCA will fall back to a letter-of-the-law
interpretation which would require that any previous approvals
(e.g., subdivision plates, site plans, planned zoning districts)
be subject to Concurrency review before additional development
orders (e.g. building permits) can be issued for that project.
This could place projects at significant risk, even if project
permitting was far advanced. The question to be asked of local
government planners is therefore: "Will there be a
grandfathering clause in your Plan's Concurrency Management
System to ensure that projects that are substantially approved at
time of Concurrency implementation are made special exceptions to
the requirement?"
CONCURRIECY REVIEW AND VERT SMALL PROJECTS
For future projects initiated after a local government's
Concurrency Management System is in place, and for partially
r approved projects still requiring certain approvals at time of
local government's implementing their Concurrency review process,
DCA has informally advised us that no project is so small so as
to have negligible impact, and to therefore constitute an
exception to review for Concurrency. Therefore, rules such as
those requiring mitigation for traffic impacts only above the "5%
of LOS 'C' capacity" of a roadway are therefore likely to
revisited.
Comprehensive plans are going to have to contain or provide for
Concurrency review procedures for very small projects. These
procedures should also be such that they do not create severe _,.--a_-
administrative backlogs in permitting. This promises to be' 'C
important procedural issue associated with Concurrency review, -.AM '
particularly for transportation level of service review.
WH[E IS A PROJECT BSUDJ=C! TO C2 CUR0 ~CT EBI3W ?
The law states that Ao development order be issued without.
ensuring that facilities are available. This is practical ly
unattainable as it would require multiple level of service
(Concurrency) reviews for each application submitted: at zoning, 1
at platting/site planning, at construction approval, at buil
permits. Under this scenario, a project (or part thereof) A.k
never "out of" Concurrency review until a final building permit
is issued. This would create a system of great uncertainty so
local governments should be pinpointing certain midstream
permitting processes as the Concurrency "review window". If this

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window is not specified in the Comprehensive Plan, then it is
entirely possible that questions about your project's impacts on
public facilities be raised during multiple, and even final
stages of project permitting.
DEFICIENT/BACKLOGGED PUBLIC FACILITIES: MORATORIUM?

In instances where a parcel is located such that deficient public
facilities serve the parcel, the resultant prohibition on
development raises the issue of an indefinite "moratorium" on
that property, until such time as an adequate Level of Service is
restored. DCA has recognized that the constitutional right to
some beneficial use of property may require that local
governments set maximum time limits for prohibiting development
on these parcels something to look out for in local plans, or
in the next legislative session! Carefully review your local
government's comprehensive plan for the strategy contained to
deal with this issue, particularly if your project or parcel is
located on, or will impact, deficient public facilities (e.g.,
one of a few remaining undeveloped parcels on a backlogged state
roadway).
Keep in mind however that many local governments have established
lower Level of Service Standards for areas/facilities already
exhibiting deficiencies, which may alleviate your short-range
concerns over moratoria in these areas. DCA is requiring any
such strategy to include specific capital improvement commitments r
to meeting an improved Level of Service within a short time
frame.

CONCURRENCY AND THE "PIPELINING" OPTION

Where critical roadway improvements are made as part of a
"pipelining" option in order to meet a developer's fair share
contribution toward addressing project impacts, other roadway
segments impacted by project traffic may remain unimproved. In
the likely event that impacts on these roadways not addressed'; -S
during pipelining are enough to cause a violation of the adopted
Level of Service Standards on those roadways, the Concurrency.
requirement is violated despite a pipelining contribution:a-gl,
to or exceeding the project's fair share. N
Concurrency does therefore pose a threat to the legality of
pipelining an otherwise viable alternative for addressing'
project impacts in a manner fair to both developer and local
governments. If local government comprehensive plans do not
specifically identify pipelining as a viable solution for : .s
addressing infrastructure impacts, it may no longer be available* ;;
This issue needs to be brought to the forefront of the
comprehensive plan development process.



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W HAT DOES "CONCURRINT" MEAN

To what extent will programmed (future) public facility
improvements be considered in defining "concurrent". DCA's
recently proposed amendment to Rule 9J-5, F.A.C. proposes that
only items budgeted in the current year's Capital Improvement
Program, or those already contracted for, be included. We hope
that local governments will make the case to expand this
stringent definition of "Concurrent", particularly if local
governments guarantee funding for an improvement beyond the first
year as part of development order approval for the project.
SUNNAR
In summary, local plans should describe their Concurrency
Management Systems in a manner that includes:
all the regulatory Level of Service Standards.
any grandfatheringg" provisions for projects approved-
or partially approved prior to the implementation of
the Concurrency Management System.
Concurrency review procedures applicable to small
- projects.
the steps in the approval process at which Concurrency
review would, or would not, be required.
provisions recognizing a right to use of property
within a reasonable time frame.

a statement as to the status of "pipelining" under
Concurrency.

the outer time limits within which programmed capital
improvements, and their associated capacity, can be l I
"credited" during review for Concurrency.


a ,


Adam Carnegie, AICP is an Urban Planner and Senior Associate with
Florida Land Design and Engineering, Inc. (FLD&E), a multi-
disciplinary consulting firm headquartered in Tampa. The firm. t iS
has recently prepared two local government comprehensive plans
and provides a broad range of services to private and public
clients.


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