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HomeMy WebLinkAboutOrdinance 2007-006 Rev LDC - Proportioinal Fair Share Mitigation ORDINANCE 2007-006 AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA, AMENDING ARTICLE IX OF CHAPTER 180 OF THE CITY CODE (THE LAND DEVELOPMENT CODE), CREATING A NEW SECTION ENTITLED AS "SECTION 9-9 - PROPORTIONATE FAIR-SHARE MITIGATION OF DEVELOPMENT IMPACTS ON TRANSPORTATION CORRIDORS"; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. Authoritv. The City Commission of the City of Ocoee has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and Chapters 163 and 166, Florida Statutes. SECTION 2. Proportionate Share. Section 9-9 of Article IX of Chapter 180 of the Code of Ordinances of the City of Ocoee, Florida, us hereby adopted as follows: Section 9-9. PROPORTIONATE FAIR-SHARE MITIGATION OF DEVELOPMENT IMPACTS ON TRANSPORTATION CORRIDORS. (A) Purpose The purpose of Section 9-9 is to establish a methodology whereby the impacts of development on transportation facilities can be mitigated by the cooperative efforts of the public and private sectors, to improve transportation mobility within an Infrastructure Planning Area, known as the Proportionate Fair-Share Program, as required by and in a manner consistent with ~ 163.3180(16), F.S. (B) Findings The City Commission finds and determines that transportation capacity is a commodity that has a value to both the public and private sectors and that the City's Proportionate Fair-Share Program: (a) provides a method by which the impacts of development on transportation facilities can be mitigated by the cooperative efforts of the public and private sectors; (b) provides a method by which the impacts of development on transportation facilities can be achieved by providing mobility benefits to high priority projects within Infrastructure Planning Areas; ORLA_ 438136.2 1 (c) allows developers to proceed under certain conditions, notwithstanding the failure of transportation concurrency, by contributing their proportionate fair-share of the cost of a transportation facility to meet defmed mobility needs within Infrastructure Planning Areas; (d) contributes to the provision of adequate public facilities for future growth and promotes a strong commitment to comprehensive facilities planning, thereby reducing the potential for moratoria or unacceptable levels of traffic congestion; (e) maximizes the use of public funds for adequate transportation facilities to serve future growth, and may, in certain circumstances, allow the City to expedite transportation improvements by supplementing funds currently allocated for transportation improvements in the Capital Improvements Program (CIP); and (t) is consistent with ~ 163.3180(16), F.S., and supports the policies of the Transportation Element of the Comprehensive Plan. (C) Applicabilitv The Proportionate Fair-Share Program shall apply to all developments in the City that have been notified of a lack of capacity to satisfy transportation concurrency on a transportation facility in the Concurrency Management System, including transportation facilities maintained by FDOT or another jurisdiction, that are relied upon for concurrency determinations. The Proportionate Fair-Share Program does not apply to (i) Developments of Regional Impact (DR!) using proportionate fair-share under ~ 163.3180(12), F.S., or (ii) developments exempted from concurrency as provided in Section 9-4 of this Article, or (iii) developments that have identified transportation improvements and/or right-of-way dedications/conveyances in an approved Developer Agreement with the City. (D) Definitions for Section 9-9 The following definitions are in addition to the general definitions included in Article II of the Land Development Code: (1) "Proportionate Fair-Share Program" means program established pursuant to this Section 9-9 and Section 163 .3180( 16), F. S. (2) "Infrastructure Planning Areas" or "IP As" means areas within the City which are established by the City as set forth in Figure 1 of this Article and within which future transportation improvements may be made. The city is divided into a North IPA and a South IPA. (E) General Requirements (1) An applicant may choose to satisfy the transportation concurrency requirements of the City by making a proportionate fair-share contribution, pursuant to the following requirements: (a) The proposed development is consistent with the comprehensive plan and the applicable land development regulations. ORLA_ 438136.2 2 (b) The five-year schedule of capital improvements in the City CIP includes a transportation improvement or improvements that, upon completion, will satisfy the requirements of the City's transportation /traffic circulation provision of the Concurrency Management System. The provisions of Section 9-9 (E)(2) may apply if a project or projects needed to satisfy concurrency are not presently contained within the City's CIP. (2) The City may choose to allow an applicant to satisfy transportation concurrency through the Proportionate Fair-Share Program by contributing to an improvement that is identified in an IP A in which the development is located, and upon completion, will satisfy the requirements of the transportation/traffic circulation provision of the Concurrency Management System, but is not contained in the five-year schedule of capital improvements in the CIP, where the following apply: (a) The City adopts, by resolution or ordinance, a commitment to add the improvement to the five-year schedule of capital improvements in the CIP no later than the next regularly scheduled update. To qualify for consideration under this section, the proposed improvement must be reviewed by the City Commission, and determined to be financially feasible pursuant to ~ 163.3180(16)(b)l, F.S., consistent with the comprehensive plan, and in compliance with the provisions of this Section 9-9. Financial feasibility for this section means that additional contributions, payments or funding sources are reasonably anticipated during a period not to exceed five years to fully mitigate impacts on the transportation facilities. (b) If the funds allocated for the five-year schedule of capital improvements in the City's CIP are insufficient to fully fund construction of a transportation improvement required by the Concurrency Management System, the City may still enter into a binding proportionate fair-share agreement with the applicant authorizing construction of that amount of development on which the proportionate fair-share is calculated if the proportionate fair-share amount in such agreement is sufficient to pay for one or more improvements which will, in the opinion of the City and, if applicable, any other 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 be adopted into the City's five-year 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 City's next annual capital improvements element update. (c) The City has defined a transportation improvement(s) in the IPA where the proposed project is located, and upon completion will sufficiently mitigate transportation impacts, and improve mobility within the IP A. (3) To the extent the City issues debt or otherwise borrows money to fund the remaining cost to complete one or more improvements, subsequent projects affected by that improvement for which debt has been issued shall be obligated to contribute their proportionate fair share to towards any such debt, including principal and interest payments of the City associated therewith. ORLA_ 438136.2 3 (F) Intergovernmental Coordination Pursuant to policies in the Intergovernmental Coordination Element of the City comprehensive plan, the City shall coordinate with affected jurisdictions, including FDOT, and Orange County, regarding mitigation to affected facilities not under the jurisdiction of the City. An interlocal agreement may be established with other affected jurisdictions for this purpose. (G) Apvlication Process (1) 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 9-9(E). (2) Prior to submitting an application for a proportionate fair-share agreement, a pre- application meeting shall be held with Ocoee City Staff to discuss eligibility, application submittal requirements, potential mitigation options, and related issues. If the impacted facility is on the Strategic Intermodal System (SIS), then FDOT will be notified and invited to participate in the pre-application meeting. (3) Eligible applicants shall submit a Certificate of Concurrency application to the City that includes a description of the proposed proportionate fair-share mitigation method. Such application shall be submitted on a form approved by the City and shall include such application fee (or Flat Fee) as may from time-to-time be established by the City Commission. The applicant shall be responsible for all Review Costs associated with the processing and review of the application and the preparation of any developer agreements in connection therewith. (4) The City shall review the application and certify that the application is sufficient and complete. 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 9-9(E), then the applicant will be notified in writing of the reasons for such deficiencies. If such deficiencies are not remedied by the applicant within 30 days of receipt of the written notification, then the application will be deemed withdrawn. The City may, in its discretion, grant an extension of time not to exceed 30 days to cure such deficiencies, provided that the applicant has shown good cause for the extension and has taken reasonable steps remedy the situation. (5) Pursuant to ~ 163.3180(16)(e), F.S., proposed proportionate fair-share mitigation for development impacts to facilities on the SIS requires the concurrence of the FDOT. The applicant shall submit evidence of an agreement between the applicant and the FDOT for inclusion in the proportionate fair-share agreement. (6) 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 by prepared by the City and delivered to the applicant for review, including a copy to the FDOT for any proposed proportionate fair-share mitigation on a SIS facility, no later than 90 days from the date at which the applicant received the notification of a sufficient application and no fewer than 15 days prior to the City Commission meeting when the agreement ORLA_ 438136.2 4 will be considered. The 90-day time frame for the City to submit the proposed agreement may be extended by mutual agreement between the City and the applicant. (7) The City shall notify the applicant regarding the date of the City Commission meeting when the agreement will be considered for final approval. No proportionate fair-share agreement will be effective until such time as is stated in the agreement and approved by the City Commission. (8) Pursuant to Section 163.3180(16)(d), F.S., nothing in this Section 9-9 shall require the City to approve a development that is not otherwise qualified for approval pursuant to the comprehensive plan and this Code. (H) Determining Proportionate Fair-Share Obligation (1) Proportionate fair-share mitigation for concurrency impacts may include, without limitation, separately or collectively, private funds, contributions of land, and construction and contribution of facilities. (2) 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 affected facility or facilities shall not differ regardless of the method of mitigation. (3) The methodology used to calculate an applicant's proportionate fair-share obligation shall be as provided for in Section 163.3180(12), F.S., as follows: "The cumulative number of trips from the proposed development expected to reach roadways during peak hours from the complete build out of a stage or phase being approved, divided by the change in the peak hour maximum service volume (MSV) of roadways resulting from construction of an improvement necessary to maintain the adopted LOS, multiplied by the construction cost, at the time of the developer payment, of the improvement necessary to maintain the adopted LOS." OR Proportionate Fair-Share = I [[Development Trips0 / (SV Increasej)] x Coslj] Where: Development Tripsj = Those trips from the stage or phase of development under review that are assigned to roadway segment "i" and have triggered a deficiency per the Concurrency Management System; SV Increasej = Service volume increase provided by the eligible improvement to roadway segment "i" per Section 122.11.04(C). Costj = Adjusted cost of the improvement to segment "i." Cost shall include all improvements and associated costs, such as design, right-of-way acquisition, planning, engineering, inspection and physical development costs directly ORLA_ 438136.2 5 associated with construction at the anticipated cost in the year it will be incurred. (4) For the purposes of determining proportionate fair-share obligations, the City shall determine improvement costs based upon the actual cost of the improvement as obtained from the CIP, the MPO/TIP or the FDOT Work Program. Where such information is not available, improvement cost shall be determined by using one of the following methods: (a) An analysis by the City of costs by cross section type that incorporates data from recent projects and is updated annually and approved by the City Engineer. In order to accommodate increases in construction material costs, project costs shall be adjusted by an inflation factor approved by the City; or (b) The most recent issue ofFDOT Transportation Costs, as adjusted based upon the type of cross-section (urban or rural); locally available data from recent projects on acquisition, drainage and utility costs; and significant changes in the cost of materials due to unforeseeable events. Cost estimates for state road improvements not included in the adopted FDOT Work Program shall be determined using this method in coordination with FDOT District 7. (5) If the City has accepted an improvement project proposed by the applicant, then the value of the improvement shall be determined using one of the methods in this section. (6) If the City has accepted right-of-way dedication or conveyance for the proportionate fair-share payment, credit for the dedication or conveyance of the non-site related right-of-way shall be valued at fair market value established by an independent appraisal prepared by an MAl appraiser approved by the City, at no expense to the City. The value of the right-of-way shall be the total number of acres, and/or fraction thereof, of the conveyed land multiplied by the appraised fair market value of the parent parcel. In the event the City disagrees with the appraised value, the City may select and pay for another appraiser and the credit shall be an amount equal to the average of the two appraisals. Alternatively, if the City and applicant mutually agree on the amount of the credit, then the requirement for an appraisal may be waived by the City. The applicant shall supply a survey and legal description of the land and a certificate of title or title search of the land to the City at no expense to the City. The City may require that the applicant provide, at the applicant's expense, an owner's title insurance policy in the amount of the credit being provided. If the estimated value of the right-of-way dedication or conveyance proposed by the applicant is less than the City 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 information about compliance with federal laws and regulations. Nothing contained in this Artcile shall be construed to require that the city provide road impact fee credits for dedication or conveyance of site-related right-of-way. (I) Road Impact Fee Credit for Proportionate Fair-Share Mitigation ORLA_ 438136.2 6 (1) Proportionate fair-share contributions shall be applied as a credit against road impact fees 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 City's Road Impact Fee Ordinance. (2) Road impact fee credits for the proportionate fair-share contribution will be estimated when the road impact fee obligation is calculated for the proposed development. The Proportionate Fair Share amount will be due and payable to the city prior to the pre-construction meeting with City staff and road impact fees owed by the applicant will be reduced per the Proportionate Fair-Share Agreement as prepaid road impact fee credits, and applied to a credit account maintained by the Finance Department. Any such credits shall be maintained on a dollar basis and shall not exempt the applicant from paying the road impact fees which are in effect under the City's Road Impact Fee Ordinance at the time the credit is applied. 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 road impact fee amount to the City pursuant to the requirements of the City's Road Impact Fee Ordinance. (3) 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 City's Road Impact Fee Ordinance. Any road impact credits which are established pursuant to this section shall be owned by the applicant and may only be used by others within the proposed development to the extent assigned by the applicant in a manner acceptable to the Finance Director or her designee. (J) Proportionate Fair-Share Agreements (1) Upon execution of a proportionate fair-share agreement, the applicant shall be issued a Certificate of Concurrency with respect to transportation/traffic circulation; provided, however, that the foregoing shall not be construed to require the issuance by the City of a Certificate of Concurrency if the applicant fails to satisfy the other concurrency requirements of Article IX, Concurrency, of this Code. Should the applicant fail to apply for a building permit within one year of the execution of the agreement, then the agreement shall be considered null and void, and the applicant shall be required to reapply unless the City, at it's option, agrees to an extension of the agreement. (2) Payment of the proportionate fair-share contribution is due at or before the pre- construction meeting with City Staff and shall be non-refundable. 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 9-9(H) and adjusted accordingly. (3) All developer improvements authorized under this section must be completed prior to the issuance of a Certificate of Completion or Certificate of Occupancy, 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. It is the intent of this section that any ORLA_ 438136.2 7 required improvements be completed before the issuance of a Certificate of Completion or Certificate of Occupancy. (4) Dedication or conveyance to the City of necessary right-of-way for facility improvements pursuant to a proportionate fair-share agreement must be completed prior to the issuance of a Certificate of Completion or Certificate of Occupancy. All such right-of-way must be dedicated or conveyed to the City in fee simple free and clear of all liens and encumbrances and subject only to such matters as may be agreed to by.the City. Real property taxes shall be paid or escrowed by the developer in accordance with the requirements of the proportionate fair- share agreement. (5) Any requested change to a development project subsequent to the approval of a final subdivision plan or final site plan for the development project, as the case may be, may be subject to additional proportionate fair-share contributions to the extent the change would generate additional traffic that would require mitigation. (6) Applicants may submit a letter to withdraw from the proportionate fair-share agreement at any time prior to the execution of the agreement by the City and the applicant. The application fee (Flat Fee) and all Review Costs shall remain the obligation of the applicant as provided in Section 1-12 of this Code and will be non-refundable. (7) The City may enter into proportionate fair-share agreements for selected corridor improvements to facilitate collaboration among multiple applicants on improvements to a shared transportation facility. (K) Appropriation of Fair-Share Revenues (1) Proportionate fair-share revenues shall be placed in the appropriate project account for funding of scheduled improvements in the CIP, or as otherwise established in the terms of the proportionate fair-share agreement. At the discretion of the City, proportionate fair- share revenues may be used for operational improvements prior to the 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% local match for funding under the FDOT Transportation Regional Incentive Program (TRIP). (2) In the event a scheduled facility improvement is removed from the CIP, then the revenues collected for its construction may be applied toward the construction of another improvement within that same IP A that would mitigate the impacts of development pursuant to the requirements of Section 9-9(E)(2)(b). Where an impacted facility has been designated as a regionally significant transportation facility in an adopted regional transportation plan as provided in Section 339.155, F.S., then the City may coordinate with other affected 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 by the City through an interlocal agreement that establishes a procedure for earmarking of the developer contributions for this purpose. (3) Where the applicant constructs a transportation facility that exceeds the applicant's proportionate fair-share obligation calculated under Section 9-9(H), the City may, at ORLA_ 438136.2 8 its option, elect to provide for the reimbursement to the applicant of any excess contribution. If the city elects to provide for any such reimbursement, then the terms and conditions thereof will be addressed in the Proportionate Fair-Share Agreement with the applicant. Such agreement may provide for the reimbursement of the applicant for the excess contribution using one or more of the following methods: (a) An impact fee credit 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 City. (b) 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. (c) The City may compensate the applicant for the excess contribution through payment or some combination of means acceptable to the City and the applicant. The city may limit the life of any such reimbursement to a term of not more than seven (7) years, after which time any portion of such excess payment will have lapsed and thereafter the obligation to provide any such reimbursement will be canceled. Additionally, any such reimbursement agreement shall provide that (i) the reimbursements shall not include any interest upon the amount of the excess payment, and (ii) any advances towards the cost of improvement made by the city will be reimbursed to the city in full before any payment is made to the applicant. _ SECTION 3. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. SECTION 4. Effective Date. This Ordinance shall become effective immediately upon final passage and adoption. PASSED AND ADOPTED this J S} day of ~. 2007. ORLA_438136.2 9 ~ ATTEST: ..... _-; (SEAL) -- --- - ~ --- ........-' ....... ~ ... '" - .... ...- --_....- ~............ FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY Nt this L day of ().., ,2007. FOLEY/fLARDNERLLP By: lf4tl) ~ City Attorney ORLA_ 438136.2 APPROVED: CITY OF OCOEE, FLORIDA s ADVERTISED ~Y' ~ \ \9 ,2007 READ FIRST TIME~, 2007 READSECONDTI~PTED ~ \ ,2007 UNDER AGEk>A ITEM NO. S 10 ~ ~ a o .. ~ ~ I ~I North IPA .~ $RAN" . s~ ! -. - ~r'ST ~~ 1"0- .. ESIl.VER.&TAAdn:-~ ~ I i ., fA -. Figure 1 .. it 1 Infrastructure Planning Areas (IPAs) City of Ocoee, Florida . ... ....... EzldlllJ Land U.. -- _ca./_ -- -- -"" --- _~U"" _... -- _av-~I- _............ Cc.-ylfll-... -- --- -- -- c:: -~ ;, _~I- C~T'TAZ c-.. 11I-- -...... '" ...