Title: Concurrency Management Systems
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Permanent Link: http://ufdc.ufl.edu/WL00004263/00001
 Material Information
Title: Concurrency Management Systems
Physical Description: Book
Language: English
Publisher: by Ronald L. Weaver, Jacob F. Stowers, Steven Godfrey and Steve Logan
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Concurrency Management Systems (JDV Box 89)
General Note: Box 19, Folder 4 ( Chamber Growth Management -Water Wars - 1991 ), Item 3
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004263
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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CONCURRENCY MANAGEMENT SYSTEMS


By:

Ronald L. Weaver, Jacob F. Stowers
Steve Godfrey and Steve Logan


Florida's Growth Management Act (the "Act") states that:

"It is the intent of the Legislature that public facilities
and services needed to support development shall be
available concurrent with the impacts of development."
Subsection 163.3177(10)(h), Florida Statutes.

The oft-quoted statement of Department of Community Affairs ("DCA")
Secretary Tom Pelham is that this "concurrency" requirement is the "teeth of
the Growth Management Act."

Rule 9J-5.0055, Florida Administrative Code, states that:

To ensure that facilities and services needed to support
development are available concurrent with the impacts of
such development, a local government must adopt a
concurrency management system. Prior to the issuance of a
development order and development permit, the concurrency
management, system must ensure that the adopted level of
service standards required for roads, potable water,
sanitary sewer, solid waste, drainage, recreation and mass
transit, if applicable, will be maintained. (Emphasis
added.)

Chapter 163 requires that local governments adopt comprehensive plans
which set standards for locally acceptable levels of service for the listed
public facilities to ensure the availability of adequate public facilities.

Floridians are asking what does concurrency mean? Do any moratoria face
Florida? If so, will they be widespread or isolated? Where and when might
they occur and how long will they last? How can they be prevented or relief
provided? Where will we get the creative interpretations and where will the
money come from to prevent or limit moratoria and their economic and national
recruitment effects? What are reasonable interpretations of consistency and
concurrency? How are concurrency management systems ("CMSs") being formulated
and implemented?


LEGAL ISSUES OF CONCURRENCY MANAGEMENT SYSTEMS:

By: David Smolker and Ronald L. Weaver


As local governments across Florida enforce "concurrency", the controversy
will shift from the county and city commission- chambers to courtrooms as









property owners, their development expectations thwarted, resort to the courts
for relief. Thorny constitutional issues are likely to be raised, the
resolution of which could effect dramatically the politics, economics, and
ultimate success of infrastructure driven growth management in Florida.

To implement concurrency, the Act requires all local governments to adopt
and enforce comprehensive plans, including a capital improvements element
("CIP"). The CIP must contain standards to ensure the availability and
adequacy of roads, sanitary sewers, solid waste, drainage, potable water, parks
and recreation, and in some instances, mass transit. In establishing these
standards, local governments are charged with setting levels of service which
will govern the issuance of development orders and permits. To enforce these
level of service standards, local governments also must adopt land development
regulations. The regulations must require either that public facilities and
services meet or exceed the level of service standards, and be available when
needed for development, or that development orders and permits be conditioned
upon the availability of such public facilities and services. Starting one
year after the submission due date for its revised comprehensive plan, a local
government is prohibited from issuing development orders or permits which would
result in a reduction in the level of service for the affected facilities below
that provided in the CIP.

To aid local governments in enforcing concurrency, the Department of
Community Affairs ("DCA") has adopted Rule 9J-5.0055, Florida Administrative
Code, which requires local governments to adopt a concurrency management
system. The concurrency management system must provide that:

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

(2) a development permit is conditioned upon the necessary
facilities and services being in place when the impacts of the development
occur; or

(3) the necessary facilities and services are under construction at
the time the permit is issued; or

(4) the necessary facilities are guaranteed in an enforceable
developer's agreement.

For roads and mass-transit, the concurrency requirement may also be
satisfied by adoption of a CIP and 5-year schedule of capital improvements
which includes the facilities necessary to maintain the adopted levels of
service, and demonstrates that construction of the necessary facilities are
scheduled to commence on or before the third year of the 5-year schedule of
capital improvements.

Adoption of concurrency management systems should provide the flexibility
needed to enforce concurrency in a just and equitable manner in most instances.
Nevertheless, situations will arise in which enforcement of concurrency will
result in moratoria on new development. The duration and geographic extent of
such moratoria will depend upon established levels of service, the magnitude of


~LL









existing public facility deficiencies, and the degree and timing of public and
private provision of the public facilities and services needed to correct
existing deficiencies and accommodate future growth. A landowner might avoid a
moratorium by proposing less intense development commensurate with available
public facilities. However, this will not be practical where the property is
not reasonably adapted to a less intensive use due to the character of the
surrounding area. Faced with costly and indefinite delays, landowners
subjected to concurrency-based moratoria are likely to challenge the
concurrency provisions of local plans and land development regulations alleging
violations of the due process, equal protection, and takings clauses of the
Florida and Federal Constitutions.

Government's police power to impose moratoria due to inadequate public
facilities, as with any exercise of the police power, is limited in that
regulations imposing moratoria must be necessary to protect the public health
safety and welfare. Accordingly, courts have upheld moratoria against
substantive due process claims based on the need to plan to avoid growth
induced public facility problems, or to cure existing problems caused by
unplanned, unrestricted growth. For example, in the landmark case of Golden v.
Planning Board of Town of Ramapo, the New York Court of Appeals sustained
against a substantive due process challenge a comprehensive ordinance which
restricted development based on the staged and sequential provision of public
facilities within the town over a eighteen year period. In order to develop, a
special permit was required the issuance of which depended upon the
availability of sewer, drainage, parks and recreational, roads, and fire
protection facilities. In upholding the ordinance, the Court held:

In sum, where it is clear that the existing physical and
financial resources of the community are inadequate to
furnish the essential service and facilities which a
substantial increase in population requires, there is a
rational basis for phased growth and hence the ordinance is
not violative of the Federal and State Constitutions.

However, since a moratorium is a rather drastic response to community growth
problems, the courts strictly limit government's ability to impose moratoria
requiring that it be exercised.with great caution. In this regard, the public
facilities problems justifying a moratoria must actually exist or be imminent.
Some courts require government to show that it is acting out of dire necessity
and that its action is reasonably calculated to alleviate or prevent a crisis
condition. Thus, Florida courts are likely to focus on the nature of the
menace posed by inadequate public facilities. A moratoria based on inadequate
water or sewer facilities is likely to be easier to justify than one predicated
on inadequate roads or park and recreational facilities. Florida courts may
also focus on the reasonableness of the levels of service since they determine
the existence of a moratorium based on how high they are set. Adoption of
levels of service is a presumptively valid legislative act. As such, a
landowner will bear an extraordinarily heavy burden of establishing by clear
and convincing evidence that reasonableness of the level of service is not even
"fairly debatable". A landowner's best chance of success is to demonstrate
that the adopted levels of service are clearly higher than is necessary to
protect the public health, safety and welfare, or are financially unrealistic,









or unfeasible to maintain. A pivotal consideration will be the local
government s CIP. The Act requires that the CIP provide for the increases in
capacity and correction of existing deficiencies necessary to implement the
adopted levels of service. If it does not, then a roll back of levels of
service may be necessary to comport with due process and comply with the Act.

In addition to being necessary, a moratorium must also be reasonably
limited in scope and duration, and have a firmly fixed termination point. A
moratorium of excessive or unlimited duration is generally held to be
unreasonable. To ensure against an indefinite moratorium, the courts impose
upon government a duty to expeditiously take steps to rectify the problem upon
which the moratorium is predicated. While some delay in providing the public
facilities will be unavoidable, government must, nevertheless, be firmly
committed to construction of the necessary improvements, actively engaged in
solving the problem, and must make meaningful progress towards a solution. A
local government's good faith efforts to implement its CIP in accordance with
the Act should suffice in most instances. Token efforts, however, will not.
As time passes without visible progress being made towards alleviating the
problems, the courts will take in increasingly dim view of a moratorium. And
if it becomes apparent that the local government is using the moratorium, in
the words of one court, as a means of "avoiding the increased responsibilities
and economic burdens which time and natural growth invariably bring," the
moratorium will be invalidated on due process grounds. As stated by the New
York Court of Appeals in Charles v. Diamond:

[a] municipality may not by withholding the improvements
which the municipality has made the necessary prerequisites
for development, achieve the result of barring development,
a goal that would otherwise be unreachable.

Factors which would be relevant to judicial determination of the
reasonableness of a concurrency-based moratoria include the nature, scope, and
extent of the public facility problem; the costs of solving the problems in
terms of expense and time; the capacity of the government to raise necessary
capital, either by taxes or borrowing, to correct the deficiencies; the role of
state and federal government in planning for and providing the public
facilities; and the diligence and good faith of public officials charged with
planning and providing the public facilities.

The extent of existing public facility deficiencies and established levels
of service may vary from location to location within a given local government
jurisdiction. As a result, concurrency-based moratoria often will be
geographically isolated. While some landowners will be permitted to develop,
others will not. Inevitably, this will lead to claims of unlawful
discrimination. And, indeed, moratoria have been invalidated on equal
protection grounds if enacted or applied in a discriminatory manner. Likely
targets for equal protection challenges will be plans which exempt certain
types and sizes of development from level of service standards or which
establish different levels of service for the same type of public facility.
Local plans which establish development deferral zones around deficient major
roads may also be the subject of equal protection claims where development
within the zone is subjected to a moratorium, while nearby development outside









the zone is permitted even though it impacts the same deficient roadway
segment. Landowners will claim that a moratorium imposed on one development
due to inadequate public facilities is invalid on equal protection grounds
where similar development having similar adverse impacts on the same public
facilities is not also subject to the same moratorium. For example, in New
Jersey Shore Builders Association v. The Township Committee of Township of
Dover, the New Jersey Superior Court invalidated a local moratorium on
construction of multi-family dwellings which was predicated on inadequate water
facilities because of the town's "glaring failure" to include commercial uses
in the moratorium, including laundromats, car washers and restaurants, which
typically consume large quantities of water. However, the burden on the
landowners is a heavy one as great weight is given to the legislative judgment.
Generally, the local government need only show that it has a rational basis for
the disparate treatment. For example, in Leavenworth Properties v. City and
County of San Francisco, "the California Court of Appeal upheld a moratoria on
condominium conversions of apartment buildings 24 units or greater in size.
It rejected the landowner's argument that the classification was irrational
since there was no real difference between conversion of one 24-unit building
and several smaller buildings totalling 24 units, holding that the government
was free to restrict its moratorium to those classes of buildings that have
the "most palpable" impact.

Landowners may also claim that a concurrency-based moratorium effectively
singles out individual property owners to bear a disproportionately heavy
burden caused by inadequate public facilities when the problem is a result of a
general condition of the community. In a now famous footnote, the United
States Supreme Court indicated how it might view the issue in Nollan v.
California Coastal Commission:

If the Nollans were being singled out to bear the
burden of California's attempt to remedy those problems [of
beach access], although they had not contributed to it more
than other coastal landowners, the State's action, even if
otherwise valid, might violate either the incorporated
Takings Clause or the Equal Protection Clause. One of the
principal purposes of the Takings Clause and the Equal
Protection Clause is to bar government from forcing some
people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole.

A concurrency-based moratorium may also be vulnerable to a takings claim.
The United States Supreme Court held in First English Evangelical Lutheran
Church v. County of Los Angeles. California, that "where the government's
activities have worked a temporary taking of all use of property," the
government has a constitutional duty to provide compensation for the period
during which the taking was effective. The Court in First English hinted,
however, that even where all development is barred, if the deprivation was the
result of "normal delays in obtaining building permits, changes in zoning
ordinances, variances, and the like," no taking requiring compensation would
occur. The extent to which delays resulting from otherwise valid, concurrency-
based moratoria will be considered "normal" remains to be seen. The United
States District Court for the Northern District of California held in Zilber v.










Town of Moraga, that a one-and-a-half year moratorium on certain development
applications and passage of an open space ordinance was not sufficiently long
or burdensome as to amount to a taking requiring compensation. On the other
hand, in Seawall Associates. et al. v. City of New York, the Court of Appeals
of New York held that a 5-year moratorium on conversion, alteration, and
demolition of single room occupancy ("SRO") housing, and requiring owners to
restore them to habitable condition and lease them at controlled rents for an
indefinite period constituted a compensable temporary taking:

In our opinion, the provisions of Local Law No. 9, which
not only prevent the SRO property owners from developing
their properties by replacing the existing structures, but
also compel them to refurbish the structures and keep them
fully rented, impose on the property owners more than their
just share of...societal obligations. Whether viewed as
affecting a physical or regulatory taking, Local Law No. 9,
we believe, violates the "Takings" clauses of the Fifth
Amendment of the Federal Constitution and Article I, 7 of
the New York State Constitution.

Faced with having to enforce politically unpopular moratoria on
development permits, many local governments instead will issue development
permits conditioned upon the availability of necessary public facilities.
Where government has no plans to provide the facilities in the near term, then
the landowner will face a de facto moratorium unless he provides them himself.
The courts may view such conditions as tantamount to imposition of the entire
public facilities burden on an individual landowner. If the need for the
required public facilities is reasonably attributable to the individual
development, a development order containing such a condition is likely to be
sustained. However, where the need is attributable to the unmet demands of
past development, the condition may be viewed as violating the basic fairness
and rationality requirements imposed upon government's exercise of the power to
levy development exactions. These basic due process and equal protection
requirements mandate that there be a rational nexus between the exaction and
the impacts of the new development. This generally means that a developer can
only be required to pay his proportionate share of the costs of the public
facilities necessary to accommodate impacts reasonably attributable to its
development. If the new facilities must be built in any event, courts have
held that it is not just and equitable to impose the entire burden upon new
development since to do so singles out some people alone to hear burdens which
should be borne by the public as a whole, while giving existing development a
windfall at the expense of new development.

Under Nollan, the standard of review of a de fact exaction will be
stricter. Rather than a minimum rationality test proscribed by the "fairly
debatable rule, the burden will effectively be placed on government to justify
the exaction by demonstrating that it "substantially advances a legitimate
state interest."

A California trial court in Marblehead v. City of San Clemente (Case X
55-11-82, Super. Ct., Orange County, October 18, 1988), relying on Nollan,
recently invalidated a local initiative which conditioned building permit









issuance upon maintenance of roadway levels of service. In concluding that
the ordinance required property owners to mitigate not only the impacts of
their development, but, in addition, if the levels of service were below the
adopted level of service standard, to improve upon the existing level of
service in order to develop, the court held:

The initiative is fatally defective. Its plain meaning
requires property owners to mitigate conditions not only
caused by their development (a proper goal), but also to
cure the inadequacies of those who developed their
property before them. It is the latter requirement of
improvement of the existing levels of service that fails
the nexus test. Would it be proper to require the last
parcel of land to be developed to bear the entire expense
of all the arterial highways, all the police and fire
response times, all the one hundred year flood control, all
the animal migration corridors, all the aesthetic cones of
vision, and/or all the park and recreational facilities
which have been neglected by prior city councils and real
property owners.

How the Florida courts will answer this question remains to be seen.
Hopefully, effective implementation of local government CIPS will ensure that
any moratoria are of limited duration. However, where minimal progress is made
toward alleviating the problems upon which the moratorium is predicated, a
concurrency-based moratorium will be vulnerable to due process, equal
protection and takings claims. The key consideration will be the extent to
which the ultimate economic costs of the community benefits derived by a
concurrency-based moratorium are being shared by the public at large, or are
being hidden from the public by placement of the entire burden on particular
landowners. In the final analysis, the constitutionality of concurrency-
based moratoria will depend on the willingness of the public at large to share
the costs of providing the public facilities and services necessary to correct
existing deficiencies and accommodate new growth.


A Case Study How the Concurrency
Management System Works in Pinellas County

By: Jake Stowers, Assistant Pinellas County Administrator

Concurrency Management Difficult but Workable

In the development of a concurrency management system, a lot of research
must be done prior to the establishment of levels of service, the capital
improvement element and, ultimately, the concurrency management system. The
statutory requirement of the relationship between level of service and capital
improvement equalling concurrency, requires that a community establish
realistic levels of service based upon its funding capability.

An extensive inventory of existing capabilities is the first step, and the
existing level of service (LOS) should be established from historic information









such as water use per customer, sanitary sewer use, recreation space available,
etc. These become the interim levels of services. The road network LOS should
be reviewed and existing capital improvement expenditures and capabilities such
as local option gas tax, impact fees, etc. must be noted to set initial
framework for LOS and capital expenditures. In all the required levels of
service in Pinellas County, additional funding was needed for the anticipated
growth, but both the county and state road networks presented special needs and
became the "driving force" of the capital improvements plans and establishments
of levels of service for roads and the concurrency management system.

Concurrency wMnagement System

The concurrency management system per se, is nothing more than a data base
tracking system for new development, i.e. site plans or building permits. In
Pinellas County we had an existing site plan review process and the concurrency
management system added a step to that process. Using a concurrency test
statement, which is a new procedure developed for the concurrency management
system, the community is informed annually as to whether or not the levels of
service are available for the ensuing year. This establishes the basis for the
concurrency system. Each March, based on existing development, approved
development plans, the capital expenditures, and the individual level of
service elements, such as sewer, water, etc., the Board of County Commissioners
will establish a concurrency test statement.

As already noted, an attempt was made to simply add concurrency to our
site plan review process and we feel this has been accomplished in Pinellas
County. The process is the following:

1) A site plan is submitted for review. The site plan and its impacts
on the required level of service items is reviewed against the current
concurrency test statement ordinance. This process is anticipated to take a
few minutes, or at most, a few days, at the submittal counter by a technical
level person. A certificate of concurrency (COC) is then provided indicating
one of the following:

a. There are no impacted levels of service and the site plan can
proceed, meeting concurrency and all consistency requirements; or

b. The particular site plan is in a service protection area. This
is an area that protects the available capacity on a roadway system or other
LOS infrastructure that is beginning to approach the undesirable level of
service; or

c. The project is in a deferral area, i.e. a road at service level
"F": and therefore, only de minimus or very limited development or
redevelopment can occur on the parcel.

2) This procedure, as outlined, allows two weeks for review of the
initial site plan submittal and issuance of certificate of concurrency. The
site plan is then submitted for review by staff with a one-year timeline for
approval through the site planning process which would require, obviously,
consistency with all various elements and development regulations. Once









approved, that particular project is then required to turn dirt within a 6-
month period and must continue in good faith in order to maintain its vested
right to be developed. During this time, the site plan is being judged on the
initial certificate of concurrency and the initial concurrency test statement
under which it was accepted. The divesting of a particular COC or site plan
will occur if the development/builder does not proceed in good faith by
continuing the project in a timely manner. The process has been established to
provide assurance early in the site plan process so as to avoid extensive costs
to the applicant. Further, the certificate of concurrency is allowed to
continue through, what we feel is a normal development time process. It is
felt that this allows the greatest flexibility and does not place an undue
burden on the owner/developer. Once the government has issued the development
rights, then the individual moves forward with that package of rights to
completion.

A. Single Family Home Permitting

The adopted concurrency management ordinance does not vest single family
lots in approved subdivisions. Once a subdivision is allowed to go forward and
the capital commitment of infrastructure and acquisition and development and
all the bonding that's required to meet our site planning process in the
platting, we felt it was only fair that the home should logically be allowed to
progress and be built out over time. Therefore, the concurrency management
ordinance provides for de minimus impact, which was established at 140
trips/day. This amount is 1.OZ of the lowest level FDOT-category road, i.e.
two lane undivided highway. A single family home generates approximately 14
trips a day and therefore, under the de minimus clause, all single family home
building permits could be issued in a subdivision that is fully approved and
built to County development standards and is consistent with adopted
comprehensive plan. The de minimus clause will also be utilized within the
corridors along the deferral roadways.

B. Development Rights Through Concurrency Management Implementation

In Pinellas County, we felt that development rights should be maintained
for the parcel owner. It was also felt that we needed to implement a program
for management of those development rights. In doing so, we came up with what
we felt were some good methods of managing the available capacity. For
instance, on a road (or other levels of service elements), the concept of
service protection areas and deferral areas for our level of service elements
was adopted. Obviously, certain elements require immediate implementation in
order to allow development to go forward. For instance, if sewer capacity is
not available, there is no development in that service area for that sewer
plant.

Monitoring of Concurrency

A graphic information system, utilizing the property appraiser's parcel
map and countywide tax roll, will be used to track all development in Pinellas
County in order to establish the annual concurrency test statement, i.e.
existing conditions as well as new approvals. This process allows a continuum
of data management which will, obviously, be refined over time as concurrency









management progresses through the years. The road links, the service areas
for the various utilities and the countywide LOS issues can all be addressed
using this process because it is countywide as well as specifically available,
for instance, in a mile wide corridor along impacted roadways, the development
of this data management package is ongoing, the movement from the previous
package to the current Geographic Information System ("GIS") has taken
approximately eighteen months which illustrates the need to start early in the
process of concurrency management development. In reality, it should begin at
the time initial planning begins for comprehensive planning in a community
because it is all one package moving together, all integrated, all
coordinated.

Roadway Corridors

The impact zone of the roadway and where the need for restrictive levels
of service will be employed in parcels adjacent to that roadway, Pinellas
County chose a one-mile corridor, i.e..1/2 mile on each side of the center
line, and 1/2 mile at the terminus of the road link. The corridor for a
particular roadway and the test statement regarding that road would be the one
utilized in reviewing potential development on parcels directly impacting the
roadway. In addition to the corridor width, there are other determinations
which may require the restricted level of service to be employed, such as, sole
access. In this case, even if you are farther away than 1/2 mile and the only
access directly impacts a roadway, a parcel could be affected by the
restricted level of service. Likewise, if there is another roadway at the
development parcel and the transportation management plan for the site plan can
be developed to send the traffic to an acceptable level of service roadway,
arterial or collector; then the site plan may very well be able to go forward
either with a greater capacity than the de minimus amount or perhaps greater
than the service protection category through the implementation of an
alternative ingress or egress which does not further impact the restricted
roadway. This is a technique offered in our ordinance within the
transportation management plan to allow development to move forward in some
form.

Service Protection Area

Service protection area is defined as:

...an area within which the level of service for roads has reached a
predetermined percentage of projected capacity that requires
protection of the remaining capacity through the implementation of
provisions and measures defined in the current Concurrency Test
Statement. It has been determined that seventy-five (75Z) percent of
capacity at the adopted level of service for State roads, pursuant to
Policies 1.1.6 and 1.1.7 of the Traffic Circulation Element of the
Comprehensive Plan, is rationally related to the intent and purposes
of this Ordinance. This definition shall also apply to County Roads
at seventy-five percent (75Z) of level of service "C" daily/level of
service "D" peak hour capacity or greater."









As indicated, this allows a maximum of 75Z of the development capability
to be site planned and built. For instance, a 10,000 square foot commercial
building would be able to develop only 7,500 square feet initially, until the
roadway is returned to the desired level of service. There is no loss of the
development right to complete the other 2,500 square feet in the future, when
the roadway is improved to meet the adopted level of service. No zoning rights
change, only the actual development allowed at the time of the restrictive
criteria is needed to meet concurrency. Additionally, other transportation
management programs may be required such as: phasing the project, special
ingress, egress, etc. The concept of service protection areas was developed
and adopted in order to prevent first site plan submitted getting all the
capacity, thereby creating a potential for moratorium and/or taking. It would
also protect the small developer from the large developer who could tie up all
the available capacity by one project. We have not been in the process long
enough to see if it will work. We feel it does work on paper and, that it is a
reasonable approach to maintaining capacity and managing new development on
affected road corridors. Contrast the 90Z of Capacity City of Tampa Protection
Procedure below.

Deferral Areas

The deferral areas are those areas that are backlogged and in Pinellas
County they are predominantly the state road systems. The de minimus clause
has been adopted in order to allow some development of parcels within those
corridors. The deferral areas would utilize the de minimus as well as the
transportation management program in order to afford development of their
parcels. For instance, in a parcel, with land use of industrial, approximately
25,000 square feet could be built even in a deferral situation because it would
generate less than 140 trips per day. Redevelopment in the deferral roadways
is supported and it is felt that this will occur as people upgrade the older
developments. As long as there is no net increase in trips generated above
existing and the de minimus, then redevelopment will require consistency with
the plan.

Funding

Concurrency equals adopted level of service plus capital improvement. The
only way that comprehensive planning can survive is if there is available
funding, i.e. capital improvement. In Pinellas County, we went through the
process of establishing and reviewing existing levels of services, considered
what level of service we would choose to adopt and established the short fall
based on future projected growth of our land use plan. Once this was done, our
funding choice was to continue the local option gas tax as well as the various
other funding mechanisms we have in place (i.e. transportation impact fees and
assessments for sewer and water hookup), and to adopt a local option sales tax
of one penny for 10 years. The sales tax projections for Pinellas County
amounted to an estimated 1.0 billion dollars of which approximately 49Z will be
used by the Board of County Commissioners in their capital improvement plan.
These funds allowed the comprehensive plan to be implemented in all areas
except certain backlogged state roads.











A SECOND EXAMPLE -- MANATEE COUNTY


By: Steven A. Logan, Assistant County Administrator, Manatee County

Concurrency became effective in Manatee County, Florida on December 1,
1989, but the effect of concurrency was not immediately noticeable.

Manatee County may be unique among Florida counties in that there are no
staggering deficiencies in any of the public facilities monitored by
concurrency. With an estimated population of a quarter of a million people,
this coastal county located on the southern shore of Tampa Bay has had the
foresight to plan into the future for the public facilities which are within
its control.

The County's water supply is assured into the next century by a reservoir
and currently sells its excess to neighboring Sarasota County. A County-
operated regional waste water disposal system with excess capacity serves not
only the unincorporated portion so of the County, but the beach communities as
well.

Parks, solid waste, transit and drainage all have acceptable levels of
service currently with improvements programmed and regulatory controls in place
to meet future needs.

Only traffic circulation presents any real limits to growth, and then
only on state maintained roads. However, those state roads which are
deficient, have a crippling effect on significant sections of the circulation
system.

Certain areas of the County which have not been considered "prime" for
development are adequately served by all services monitored by concurrency;
these areas will, no doubt, begin to flourish as Developers recognize their
potential. Conversely, most of the inventory of approved and potentially
vested DRIs and subdivisions are located in areas affected by deficient
roadways. Since many of these projects will prove to be vested, construction
may be slowed by the approval process, but the construction industry will not
be crippled by concurrency in Manatee County.

II. Concurrency Management System

Description of the Concurrency Management System

The Manatee County Comprehensive Plan sets forth the Concurrency
Management System which includes the following components.

a. The Certificate of Level of Service Compliance which ensures the
availability of necessary public facilities for proposed land
development projects.









b. The Growth Management Public meeting process which provides a
structure for modifying the County's capital improvement program in
response to changing infrastructure needs.

c. The capital projects list of the Capital Improvement Element which
identifies improvements needed to correct existing deficiencies and
to address growth needs.

d. The capital project's funds (CPFs) are funding packages described in
the Capital Improvements Element or provided elsewhere.

A concurrency management system is little more than a very large data base
which is used to make decisions concerning development approvals in the context
of the standards adopted in the Comprehensive Plan.

Central to the Manatee County Concurrency Management System is the
processing of a Certificate of Level of Service Compliance (LOS Certificate).
The LOS Certificate is issued to applicants on a first come, first serve basis
and may remain valid for a period of .up to three years under certain
circumstances. At the end of three years, or sooner in some cases, the LOS
Certificate expires completely and there is not opportunity for extension or
renewal. Reapplication for a certificate will place the once approved project
at the "end of the line" along with others awaiting approval.

A LOS Certificate is required prior to the issuance of any Final Local
Development Order. Such development orders include, approval of PRELIMINARY
site plans, development plans (for planned developments), and subdivisions
plates, when preliminary approvals are not required for a project, a FINAL site
plan, development plan, or subdivision plat will require a LOS Certificate; or
in these cases not requiring preliminary or final approvals, a building permit
will trigger the requirement.

Of course, exceptions exist which grant exemption to the LOS Certificate
requirement, including projects which have "vested rights" and single-family
residential construction on a legal lot of record existing prior to May 11,
1989 (the adoption date of the revised Comprehensive Plan).

Due to changing regulations and specifically, concurrency, development
will be more difficult for awhile. Yet, the changes are workable and will
provide the type of urban environment we all want. Perhaps, small communities
which have available capacity will experience a growth spurt as small
developers seek out development opportunities. But those growth spurts will be
as short lived as excess capacity is consumed and the ability of the smaller
governments to expand public facilities with limited resources diminishes.
Over the long haul though, most of the development occurring under concurrency
will occur in the larger communities where the problems ar greater, but where
the financial resources exist to solve the problems.

Probably, most of the construction which will occur in the next decade
will be built in developments which have already been approved or soon will be.
In Manatee County, we have 19 DRIs and thousands of existing lots of record
approved prior to May, 1989, all of which are exempt from concurrency. As LOS









Certificates become increasingly difficult to obtain, those DRIs and lots of
record will continue to develop.

A THIRD EXAMPLE -- PASCO COUNTY

by: Ron Weaver and Claire Carraway

Pasco County's concurrency management system also went into effect on
January 1, 1990. Prior to issuance of a final local development order for any
project, the County will review the levels of service for drainage, sanitary
sewer, potable water, roads, solid waste, recreation, and mass transit, and if
the levels of service will be maintained, the County will issue a Certificate
of Level of Service Compliance. Final local development orders include a
Development of Regional Impact ("DRI") development order, a Florida Quality
Development ("FQD") approval, a preliminary site plan approval for certain
classes of developments, preliminary plan approval for certain classes of
developments, a record plat approval or, where no plat is required, a building
permit.or other permit authorizing construction or activity on the land.

Depending upon the type and size of the development approved, Certificates
of Level of Service Compliance shall, as in Manatee County, have an expiration
date of from one to three years. Certificates for DRIs or FQDs may be issued
for longer than three years if the development order is based on a detailed
analysis of the public facility impacts. The Board of County Commissioners may
extend any Certificate if it finds that levels of service will be maintained.

1. For roads and mass transit, for example, the following review
standards shall apply:

a. The facilities are in place when the permit is issued;

b. The permit is conditioned upon the facilities being in
place when the impacts occur; or

c. The facilities are under construction when the permit is
issued; or

d. The facilities are guaranteed in an enforceable development
agreement to be in place when the impacts of the development will occur;

e. If a roadway being reviewed operates at a level of service
of "F", no Certificate of Compliance may be issued if the adopted level of
service for the road is "E". However if the adopted level of service for the
road is "F", a Certificate may be issued if parallel facilities with available
capacity are identified in the Land Use Plan;

f. A certificate may be issued if the average travel speed for
the adopted peak hour level of service on a roadway can be maintained through
acceptable engineering practices;

g. The required facility is identified in the Five Year
Capital Improvement Element or included in the FDOT Five Year Work Program,









provided the proposed improvements are sufficient to maintain adopted levels of
service and the improvements are scheduled to begin within three years of the
final impact of the development. The City of Tampa has a similar rule. By
contrast, in Hillsborough County the improvement is not concurrent unless in
the existing year's budget.

The County may also issue a Certificate of Capacity if the developer can
determine remedial action sufficient to maintain the adopted levels of service
for the facilities needed. The remedial action must be assured through
performance bonds, revised site plans, development agreements or other means.

The concurrency management system provides for an appeal of an unfavorable
concurrency determination by staff or the Development Review Committee to the
Board of County Commissioners. The appeal must be filed within thirty days
after the decision of the staff or committee.

A FOURTH EXAMPLE -- HILLSBOROUGH COUNTY

by: Ron Weaver and David Smith

Hillsborough County's Adequate Public Facilities Ordinance provides for
review of public facility adequacy by anyone upon payment of the appropriate
fee, currently generally $215.00. The ordinance is written to allow
individuals who are at various stages in the development approval process,
short of a Building Permit or other Final Development Order, to request a "snap
shot" of public facility adequacy in the geographic area of their project.
Examples of points in the process at which a person might like to know of
facility adequacy for project planning purposes are rezoning, subdivision
master plan submission, or preliminary or final plat submission. A
determination of capacity does not guarantee any facility capacity; it simply
provides a status report on facility adequacy for that point in time,given the
individual project's parameters being reviewed.

Any application for a Preliminary Development Order not subject to a valid
Certificate of Capacity is required to contain an affidavit, prior to County's
acceptance of the application, recognizing and acknowledging (1) that approval
of such application does not exempt the party from seeking a Determination of
Capacity and Certificate of Capacity on the property, and (2) that no rights to
a Final Development Order or to develop the subject parcel have been granted or
implied without determining the adequacy of public facility capacity. Any
Preliminary Development Orders issued will also contain conditions that reflect
the provisions above.

Certificates of Capacity are valid for an initial two-year period or for
any other time provided for in a Development Agreement (generally limited by
state law in Chapter 163 to 5 years). Additionally, a Certificate of Capacity
must be renewed if infrastructure is in place awaiting only building permit
issuance or if the facilities have been substantially completed and building
permits could be issued, provided Construction Plan approvals are still valid.
Certificates of Capacity may be cancelled by the holder at any time. They also
run with the land.









The ordinance embodies the standards set forth in the County's
Comprehensive Plan Capital Improvements Element to meet the concurrency test
for roads, potable water, sanitary sewer, solid waste, stormwater management
and parks. The ordinance contains important provisions for how a development's
impacts on roads will be determined such as forgiveness of the first 30 average
daily trips or one percent of capacity of "Deficient Segments" within one-
fourth mile, or five percent of capacity for "Deficient Segments" beyond one-
fourth mile or generation of less than 150 average daily trips granted certain
"in fill" conditions are met.

The ordinance exempts from review development orders which are being
issued pursuant to unexpired and valid Final Development Orders, such as
Building Permits and Developments of Regional Impact approved prior to February
1, 1990, which are developing consistent with their approvals or where review
is exempted by state law.

The Ordinance also details the submission and appeal process for
Determination and Certification of Capacity. Appeals of decisions made by an
administrative official are first made to the Department Director, then
subsequently to the County Administrator, and, then to the Board of County
Commissioners, with judicial and administrative remedies thereafter, as
appropriate.


MORE EXAMPLES -- THREE SOUTH FLORIDA CONCURRENCY
MANAGEMENT SYSTEMS: PALM BEACH. BROVARD AND DADE COUNTY CMS

Palm Beach County and Other Jurisdictions Like Lee and
Broward and Martin Counties Contrasted

By: Steve Godfrey

In Palm Beach County, the transportation portion of the concurrency
management system was implemented through the Traffic Performance Code. This
code provides for the same level of service on all facilities: with no
exceptions. The level of service standard is relatively high and provides for
no opportunity to evaluate actual peak hour operating conditions.

While this creates some significant short-term problems, a more critical
problem arises when comparing approved development traffic to the future
transportation system, a number of links of the future system fail with
approved development traffic only, and therefore, cannot accommodate any future
development approvals. For developments which impact these roadway links, a
moratorium has been created.

An approach which is available for the transportation portion of
concurrency management systems is based on an adequate capital improvement
program. Such a program incorporates nine specific criteria which deal with
financial feasibility, reduction of deficiencies consistent with the
Comprehensive Plan, and provision of new facilities to accommodate new
development. The capital improvements program must be cost feasible, based on
current revenue sources, and must include specific construction dates and









estimated dates of completion. It is necessary to demonstrate that the
facilities needed by a proposed development are incorporated within the capital
improvements plan and that their construction is indicated within the first
three years of the plan. There must be provision for amendment of the plan in
order to change the road program. Further, there must be land development
regulations which assure that the necessary facilities are in place to serve
proposed development and a monitoring program, which evaluates level of service
and implementation of proposed improvements, must be undertaken. The
significant recognition in these criteria is all that existing deficiencies
will not necessarily be resolved in the first five years of the capital
improvements program. This would be recognized in the level of service
standards act as part of the Transportation Element and the Capital
Improvements Element in the Comprehensive Plan.

By contrasting Broward County and Palm Beach County, it is possible to
determine the range of possibilities which exist in determining level of
service. In both jurisdictions, the level of service is defined by a set of
generalized criteria. However, in Broward County, detailed peak hour analysis
may be undertaken which will allow refinement of a definition of the roadway
capacities. This allows the effective use of the transportation system.

In Palm Beach County, such a refinement is not possible, and as a result,
certain facilities actually operate at a higher level of service and waste the
investment in the transportation facility.

In Broward County, it is possible to develop an action plan to resolve the
problems of a link of roadway on the regional system which is projected to fail
in the future. The action plan can include such things as:

Operational revisions to create more efficiency in the flow
of traffic.

The use of staggered work hours in a particular area,
especially an area of high employment.

Provision of alternatives such as transit or pooling.

The action plan could identify alternative network improvements which
could help alleviate the traffic demands on the subject roadway link.

What can be done if the level of service standard cannot be met? In
certain cases, capacities are not available and special action is necessary in
order to address the issues related to backlogged and constrained facilities.
An Action Plan would be developed. In general, a backlogged facility is one
which has exceeded or is projected to exceed the adopted level of service
standard for the particular roadway and can be improved to eliminate the
backlogged condition. A constrained facility is similar to a backlogged
facility in that it has exceeded its adopted capacity; but in addition, it has
been improved to its maximum cross-section and no further physical improvements
can be accomplished on the roadway.









An Action Plan for these facilities would identify the types of
improvements which could occur which would help to relieve traffic demands for
the deficient roadway. The plan would address parallel facilities, additional
roadway links which might relieve the overloaded conditions, and opportunities
for increased transit service and staggering of work hours in ares of high
concentration. The Action Plan could also consider short term operational
solution, as well as long term factors which may affect the operating condition
of the roadway.

The results of the Action Plan would identify certain activities to
enhance the operating conditions on the roadway and may include the adoption
of an alternative level of service for the specific roadway.

Alternative Approaches to Transportation Concurrency Management Systems

The single greatest issue in concurrency management relates to providing
adequate facilities for transportation. The major variable from community to
community within the concurrency management system is the methodology in which
the concurrency management system established the presence of adequate
facilities. The following are some alternative approaches to dealing with
this issue.

Lee County

The local government establishes districts for calculating compliance
with the adopted level of service standards. These districts can be coincident
with the Roadway Impact Fee Zones and jurisdictional boundaries. Roadways
cannot be used as dividing lines between districts. District boundaries have
to be offset from roadways so that it is clear in which district the roadway is
located. All State, County and City arterial and collectors are used in the
analysis as long as the roadway is continuous through the district. The
roadways and links, within districts, to be used in calculating compliance
have to be identified by the local government. Traffic volumes and service
volumes on these roadways and links would be summed. As long as the summation
of traffic volumes is less than the summation of service volumes, the roadway
network is in compliance with the adopted level of service standards. The
summation methodology allows for the adoption of varying levels of service.

The concept addresses the following issues:

1) It is important that the roadway network as a whole operate at
an acceptable level of service.

2) Although certain links may be below the adopted level of service
volume, the roadway network within the district operates at an acceptable
level of service.

3) The incremental implementation of roadway improvements is kept
in step with the growth of traffic.


Broward County









In Broward County, a computer model known as "TRIPS" is used to assign
proposed development trips to the roadway system. Two tests are required.
The first test is the adequacy of the existing system to provide the adopted
level of service in the immediate vicinity of the development. If a proposed
development is within one mile on either side of a deficient roadway link or
within one-half mile of the ends of said link, and the project has an impact on
the subject link, development cannot go forward without the adoption of an
action plan which will identify solutions to maintain the level of service or
create a plan amendment to alter the level of service standard. The level of
service standard is Level of Service "D" except where level of Service "D" is
exceeded by existing or committed development. In such cases, the level of
service standard is 10 of the total of existing plus approved development.
The second test deals with the remainder of the regional transportation system
impacted by the development. If any portion of the remainder of the
transportation system fails with existing or projected traffic, but has
adequate capacity when considering the long range (2010) transportation plan,
the development may go forward by paying its fair share contribution to the
specific improvement. This is Broward County's traffic impact fees. If the
link would not accommodate the proposed development impact, then an action plan
must be identified which, at the minimum, accommodates the additional net
impact of the proposed development. The action plan must demonstrate the
effect of the proposed program of improvement or innovations and the funding
for such improvements and provide for monitoring of the program to ensure its
implementation.

In the urban core area, the ordinance adopts the 100th highest hour as
peak hour. Thus they have effectively changed the levels of service by
changing the point in time at which the level of service is measured.

Brevard County

The traffic approach for Brevard County assesses the impact of a proposed
development on the accessed roadway. Level of Service "E" is accepted on all
county roadways and FDOT standards are applied to state roads. The level of
service may degrade by 10 percent below its current operating conditions
before development adjacent to the road must be deferred. Selected roads are
permitted to operate at Level of Service "F" with a volume capacity ratio of
1.53, but the County is required to fund capital improvements to bring all of
these facilities up to Level of Service "E" within five years. Level of
Service "D" outside the urban area boundaries is required.

Dade County

In Dade County, the traffic impact of the proposed development is assigned
to the immediately adjacent roadways and when data is available, existing and
approved development traffic is added. The combination of the forecast
traffic is then compared to existing plus committed capacity to determine if
adequate capacity is available for transportation.

Palm Beach County









In Palm Beach County, a traffic impact analysis is required which
evaluates the impact of proposed development within a defined radius of
influence. This radius of influence is variable based upon the total trip
generation of the proposed development. In the analysis, it is necessary to
demonstrate that the combination of existing plus approved development and the
proposed development can be accommodated by existing plus committed
improvements through the buildout of the proposed development. In addition, a
second test is required which evaluates existing plus approved development and
the proposed development relative to the capacities of the long range
transportation plan. This is in stark contrast to the systems which require
evaluation of peak hour characteristics on the respective links, but rather
uses generalized daily capacities to identify the available capacity and the
existing operating .conditions.

Martin County

Martin County, similar to Palm Beach County, requires a detailed traffic
impact analysis on roads significantly impacted by the proposed development. A
radius of influence is established for various ranges of project size as
established by trip generation. The analysis procedure requires proof that
through buildout of the proposed development, existing plus approved traffic
can be accommodated, as well as the impacts of the proposed development. If
such is not the case, the project is phased to specific improvements, the
Comprehensive Plan has been developed considering reasonable development
growth and, therefore, has balanced potential roadway needs with development
requirements. A level of service standard of "D" (urban) and "C" (rural) has
been set with 110 percent maintain (110 percent of the combination of existing
plus approved development) acceptable for roadway links which are over-capacity
when considering existing or approved development.

Concurrency management in the State of Florida is still evolving.
Concurrency may mean different things in each of her 458 different
jurisdictions as they are all phased in by July, 1992, depending upon the
concurrency management system adopted and the funding available in that
jurisdiction.
















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