Ordinance 2006-51
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ORDINANCE NO. 2006.51 ~ ~~~
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS oW-",O ~ "'~
COLLIER COUNTY, FLORIDA, IMPLEMENTING THE LEGISLATIVE "<:2"8[8 1fJ\~'Y
MANDATE OF U63.3180(16), F.S., AND ADOPTING THE "COLLIER llL_~~?~
COUNTY PROPORTIONATE FAIR-SHARE PROGRAM"; PROVIDE
FOR CONFLICT AND SEVERABILITY; PROVIDE FOR INCLUSION IN
THE CODE OF LAWS AND ORDINANCES; AND PROVIDE FOR AN
EFFECTIVE DATE.
WHEREAS, the 2005 Legislature, in enacting Senate Bill 360, amended the Local
Government Comprehensive Planning and Land Development Regulation Act, which
amendments included the requirement that "By December I, 2006, each local government shall
adopt by ordinance a methodology for assessing proportionate fair-share mitigation options."
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA that:
. .
SECTION ONE: Collier County hereby adopts an Ordinance that reads as foUowsc)
ARTICLE I. General
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Sections 75-1 through 74-99. Reserved.
Section 75-101. Short Title.
This chapter shall be known and may be cited as the "Collier County Proportionate Fair-
Share Program."
Section 75-102. Purpose and Authority.
The Board is adopting this chapter in order to implement the Legislative mandate of
~163.3180(16), F.S., which was intended by the Legislature to "provide a method by which the
impacts of development on transportation facilities can be mitigated by the cooperative efforts of
the public and private sectors."
Section 75-103. General Definitions and Abbreviations.
When used in this chapter, the following terms shall have the following meanings, unless
the context clearly indicates otherwise.
Board shall mean the Board of County Commissioners of Collier County, Florida.
CIE refers to the Capital Improvement Element of the comprehensive plan.
CMS refers to the Collier County Transportation Concurrency Management System.
Comprehensive Plan shall mean the comprehensive plan of the County adopted and amended
pursuant to the Local Government Comprehensive Planning and Land Development Act as
contained in FS. ch. 163, pt. II, or its successor in function.
County shall mean Collier County, a political subdivision of the State of Florida.
Developer shall have the same meaning as defined in ~163.3164, F.S. (2005).
Development shall have the same meaning as ~380.04, F.S. (2005).
RDOT means the Florida Department of Transportation.
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SIS means the Florida Strategic Intermodal System as described in ~339.61, FS. (2005).
TIS means Transportation Impact Statement.
Section 75-104. Applicability.
(1) This chapter shall apply to the unincorporated area of Collier County, Florida, and
to all incorporated areas of the County to the greatest extent authorized by the Florida
Constitution or in any intergovernmental or interlocal agreements.
(2) The Proportionate Fair-Share Program shall only apply to the extent as mandated
by ~ 163.3180(16), FS., which provides in part as follows: "In its transportation
concurrency management system, a local government shall, by December 1, 2006, include
methodologies that will be applied to calculate proportionate fair-share mitigation. A
developer may choose to satisfy all transportation concurrency requirements by
contributing or paying proportionate fair-share mitigation if transportation facilities or
facility segments identified as mitigation for traffic impacts are specifically identified for
funding in the 5-year schedule of capital improvements in the capital improvements
element of the local plan or the long-term concurrency management system or if such
contributions or payments to such facilities or segments are reflected in the 5-year
schedule of capital improvements in the next regularly scheduled update of the capital
improvements element." The Proportionate Fair-Share Program does not apply to
developments of regional impact (DRIs) using proportionate fair-share under
~ 163.3180(12), F.S., or to Developments otherwise exempted from concurrency.
(3) The Proportionate Fair-Share Program is intended to apply to and include existing
roadway link deficiencies. If an intersection deficiency is identified in the concurrency
denial determination and the improvements required to remedy that insufficiency can be
incorporated into a link improvement for which a proportionate fair-share is being
calculated under Section 75-203, then such costs may be included in the proportionate
fair-share calculation. The County may consider and approve major intersection
improvements such as grade separations, interchanges, Intelligent Traffic Management
Systems, and through movement capacity improvements as eligible for the Proportionate
Fair-Share Program.
(4) Notwithstanding the above requirements, upon the presentation of evidence by the
County Manager or designee, and finding by the Board, that the proposed project, if
approved, would compromise public health, safety or welfare by allowing operational
deficiencies to exist prior to the construction phase of fully funded improvements
identified in the five year CIE, the proportionate fair-share eligibility may be denied
unless the applicant cures the operational deficiencies prior to commencing Development.
Section 75-105. Findings.
The County, adopting the findings of the Model Ordinance for Proportionate Fair-Share
Mitigation on Development Impacts On Transportation Corridors (Final Edition - February 14,
2006), finds as follows:
(1) The County finds and determines that transportation capacity has a value to both
the public and private sectors and that the County 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) 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;
(c) Contributes to the provision of adequate public facilities for future growth and
promotes a commitment to comprehensive facilities planning, thereby reducing the
potential for moratoria or unacceptable levels of traffic congestion;
(d) Maximizes the use of public funds for adequate transportation facilities to serve future
growth, and may, in certain circumstances, allow the County to expedite
transportation improvements by supplementing the funds currently allocated for
transportation improvements in the CIE; and
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(e) Is consistent with ~ 163.3180(16), F.S., and supports the policies of the Collier County
Growth Management Plan and Land Development Code.
ARTICLE II. Applicability.
Section 75-201. General Requirements.
Provided that a proposed Development is otherwise fully consistent with the
comprehensive plan and all applicable land development regulations, a Developer may choose to
satisfy all transportation concurrency requirements by contributing or paying proportionate fair-
share mitigation if transportation facilities or facility segments identified as mitigation for traffic
impacts are specifically identified for funding in the 5-year schedule of capital improvements in
the capital improvements element of the Comprehensive Plan or the long-term concurrency
management system or if such contributions or payments to such facilities or segments are
reflected in the 5-year schedule of capital improvements in the next regularly scheduled update of
the capital improvements element. The proposed project must be fully funded and financially
feasible to qualify for the Proportionate Fair-Share Program.
Section 75-202. Application 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.
(2) Prior to submitting an application for a Proportionate Fair-Share Agreement
("Agreement"), a pre-application meeting shall be held to discuss eligibility, application
submittal requirements, potential mitigation options, and related issues. If the impacted
facility is on the SIS, then FDOT will be notified and invited to participate in the pre-
application meeting.
(3) Eligible applicants shall submit an application to the County that includes the
requisite application fee and the following:
(a) Name, address and phone number of owner(s), Developer and agent;
(b) Property location, including parcel identification numbers;
(c) Legal description and certified survey of property;
(d) Project description, including type, intensity, density and amount of Development;
(e) Traffic Impact Study performed in accordance to the County's adopted TIS
procedures;
(f) Phasing schedule, if applicable;
(g) Roadway safety audit of significantly impacted roadway segments and intersections as
outlined in the Collier County TIS guidelines and procedures;
(h) Approved abutters list and impacted stakeholders list;
(i) List of all "vested developments" that impacts the segment that the proportionate
share is being applied for;
(j) Analysis showing that all "vested traffic" is included in the remaining roadway
capacity calculation when the additional capacity is considered from the capital
project being considered for proportionate share;
(k) Description of requested proportionate fair-share mitigation methodes);
(1) Copy of concurrency application; and
(m)Such other information and data that the County deems necessary.
(4) The County shall review the application and determine whether the application is
sufficient and complete within 15 business days from submittal. If an application is
determined to be insufficient, incomplete or inconsistent with the general requirements of
the Proportionate Fair-Share Program as set forth herein, then the applicant will be
notified in writing of the reasons for such deficiencies within 20 business days of
submittal of the application. If such deficiencies are not remedied by the applicant within
60 business days of receipt of the written notification, then the application will be deemed
abandoned. The County may, in its discretion, grant an extension of time not to exceed
60 business days to cure such deficiencies, provided that the applicant has shown good
cause for the extension and has taken reasonable steps to effect a cure.
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(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 FDOT. The
applicant shall submit evidence of an agreement between the applicant and FDOT for
inclusion in the Proportionate Fair-Share Agreement.
(6) When an application is deemed complete and sufficient for analysis, the applicant
shall be advised in writing of eligibility for the Program. If eligible, a proposed
Proportionate Fair-Share Agreement will be prepared by the County Attorney, which
Agreement will be delivered to the appropriate parties for review, including a copy to
FDOT for any proposed proportionate fair-share mitigation on a SIS facility.
(7) Approval of a Proportionate Fair-Share Agreement shall require the completion of
a public involvement and notification process that shall include notification of potentially
impacted parties to participate in a public workshop which must be conducted in the same
manner as a Neighborhood Information Meeting. The public workshop will review the
project impacts, the roadway safety audit, and identify improvements that may be needed
to address any health, safety and welfare operational improvements that need to be
completed prior to commencement of Development. The applicant shall be responsible
for all costs associated with the public involvement and notification process, including
County professional staff time, legal advertisements, and rental of facilities.
(8) Once finalized by the parties, the Agreement will be brought before the Collier
County Planning Commission for its review and recommendations. The Agreement and
recommendations of the Planning Commission will then be forwarded to the Board for
final consideration during a regularly scheduled Board meeting. No Proportionate Fair-
Share Agreement will be effective until approved by the Board.
(9) Any documents, plans or other information provided to the County as part of an
application or agreement for proportionate share, including but not limited to design
plans, shall at no cost to the County become the property of the County, regardless of
whether the application is approved or denied.
Section 75-203. Determining Proportionate Fair-Share Obligation.
(1) As provided in ~163.3180(l6)(c), FS., "Proportionate fair-share mitigation for
concurrency impacts includes, without limitation, separately or collectively, private funds,
contributions of land, and construction and contribution of facilities." Such mitigation
must relate to (a) transportation facilities or facility segments specifically identified for
funding in the 5-year schedule of capital improvements in the capital improvements
element of the local plan; (b) transportation facilities or facility segments specifically
identified for funding in the long-term concurrency management system, should the
County elect, in the future, to adopt a long-term concurrency management system; or (c)
those facilities or segments specifically reflected in the 5-year schedule of capital
improvements in the next regularly scheduled update of the capital improvements
element.
(2) As provided in ~ 163.3180(16)(c), FS., a Development shall not be required to pay
more than its proportionate fair-share. The fair market value of the proportionate fair-
share mitigation for the impacted facilities shall not differ regardless of the method of
mitigation.
(3) The methodology used to calculate an applicant's proportionate fair-share
obligation shall be as provided for in 9163.3180(12), F.S., which states as follows:
"The cumulative number of trips from the proposed development expected to reach
roadways during the peak hour from the complete build out of a stage or phase
being approved, divided by the change in the peak hour maximum service volume
of roadways resulting from construction of an improvement necessary to maintain
the adopted level of service, multiplied by the construction cost, at the time of
developer payment, of the improvement necessary to maintain the adopted level of
service." "Construction cost" includes all associated costs of the improvement.
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More specifically:
Proportionate Fair-Share = L [(Development Tripsj )/ (SV IncreaseD x Costj]
Where:
Development Tripsj = Those total project trips from the stage or phase of Development
under review that are assigned to roadway segment "i". Note:
Total project trips from the cumulative impacts of all phases of
Development shall be used to determine impacted roadway
segments, however mitigation will only be required from those
trips which have not previously obtained concurrency.
The total development trips on a segment may exclude project trips
for previous phases of a project if:
1. A Final Certificate of Concurrency was issued for that
phase of development prior to the effective date of the
Proportionate Fair-Share Program; and
2. The project trips for the previously approved phase(s)
significantly impacted the segment and were reserved in the
concurrency management system on the roadway segment.
SV Increasej =
Service volume increase provided by the eligible improvement to
roadway segment "i";
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,
utilities, mitigation, project financing and physical development
costs directly associated with construction at the anticipated cost in
the year it will be incurred, including a 25% contingency. As set
forth below, costs will be adjusted to reflect the actual cost at time
of permitting.
(4) For the purposes of determining proportionate fair-share obligations, the County
will accept improvement costs based upon one of the following methods:
(a) Improvement costs based upon a certified and sealed engineer's cost estimate based
on the County's approved 60% plans. Such cost estimate will be consistent with the
unit bid costs of recent similar unit bid items for public projects, within Collier
County, and within the last twelve months. In the absence of a comparable Collier
County project within the last twelve months, the County may elect to accept bid costs
from an adjacent county or FDOT project. An inflation factor consistent with the
average localized increases reported within the last three years will be added to the
base costs carried forward to the anticipated construction year. This cost estimate will
be reviewed for reasonableness and approved/disapproved by the County. If
disapproved, the grounds for the disapproval will be indicated to the applicant so that
a revised cost estimate may be resubmitted.
(b) Improvement costs based upon a certified and sealed engineer's cost estimate similar
to the development of "60 percent plans" for a project defined in a Proportionate Fair-
Share Agreement. The development of the estimate will follow the same procedures
the County would follow in the process of obtaining 60 percent plans including but
not limited to planning, design, right-of-way determination, mitigation, environmental
permitting review and public involvement. Such cost estimate will be consistent with
unit bid costs of recent similar unit bid items for public projects, within Collier
County, and within the last twelve months. In the absence of a comparable Collier
County project within the last twelve months, the County may elect to accept bid costs
from an adjacent county or FDOT project. An inflation factor consistent with the
average localized increases reported within the last three years will be added to the
base costs carried forward to the anticipated construction year. This cost estimate will
be reviewed for reasonableness and approved/disapproved by the County. If
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disapproved, the grounds for the disapproval will be indicated to the applicant so that
a revised cost estimate may be resubmitted.
(5) If the County has accepted right-of-way dedication for all or part of the
proportionate fair-share payment, credit for the dedication shall be valued at the appraised
fair market value as of the date of the application. Right-of-way that has been dedicated
as part of the mitigation for site access operational impacts shall not be credited for fair-
share calculations. The Developer shall reimburse the County its full expense in acquiring
the requisite independent appraisals, together with all expenses associated with the
dedication, including but not limited to surveying, legal, title and recording expenses.
(6) If the proposed Development applying for proportionate fair-share significantly
impacts one or more deficient segments in a Transportation Concurrency Management
Area (TCMA), and the TCMA does not meet the adopted level of service standard, the
method to calculate the proportionate fair-share shall be consistent with this Section.
Section 75-204. Impact Fee Credit for Proportionate Fair-Share Mitigation.
(I) Proportionate fair-share contributions shall be applied as a credit against 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 County's
Impact Fee Ordinance.
(2) Impact fee credits for the proportionate fair-share contribution will be determined
when the transportation impact fee obligation is calculated for the proposed Development.
Impact fees owed by the applicant will be reduced per the Proportionate Fair-Share
Agreement as they become due per the County Impact Fee Ordinance. If the applicant's
proportionate fair-share obligation is less than the Development's anticipated road impact
fee for the specific stage or phase of Development under review, then the applicant or its
successor must pay the remaining impact fee amount to the County pursuant to the
requirements of the County 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 Impact Fee
Ordinance.
(4) If the actual costs
associated with the improvement identified in the Proportionate Fair-Share Agreement are
less than that paid by the Developer, Developer shall be given a corresponding impact fee
credit. If the number of units set forth in the County certificate of concurrency approval
issued pursuant to the Proportionate Fair Share Agreement for the Development are
substantially completed, such that giving additional impact fee credits would be
insufficient, the County will refund this difference to the Developer. If the actual costs
associated with the improvement identified in the Proportionate Fair-Share Agreement are
greater than that paid by the Developer, then that difference will be deducted against any
impact fee credits previously granted for the Development. If the actual costs exceed the
impact fee credits previously granted for the Development, or if impact fee credits have
been utilized such that the remaining credits are insufficient to meet the increased actual
costs, then Developer shall have 90 calendar days from written demand by the County to
pay the difference to the County, failing which the County may withhold further
development orders, including permits and certificates of occupancy, for the
Development. This obligation shall run with the land.
Section 75-205. Proportionate Fair-Share Agreements.
(I) Upon execution of a Proportionate Fair-Share Agreement and receipt of payment,
the applicant shall receive a County certificate of concurrency approval.
(2) Unless expressly set forth otherwise in the Agreement, payment of the
proportionate fair-share contribution is due in full within 90 calendar days from the
County's approval of the Agreement, failing which on County's written notice to
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Developer, the Agreement shall be deemed terminated in all respects. Developer has no
right to cure this breach.
(3) The Agreement shall require the payment of the actual costs of improvements.
Should construction associated with the Proportionate Fair-Share Agreement not occur
within one year of the adoption of the Agreement, the applicant on request shall provide
sufficient surety in the form of a bond or letter of credit that shall be held until all actual
costs have been determined and the facility is substantially completed.
(4) All Developer site related and off-site related improvements authorized under this
Ordinance must be completed prior to commencing Development.
(5) Dedication of necessary right-of-way for facility improvements pursuant to an
Agreement must be completed prior to issuance of the final development order or
recording of the final plat.
(6) Any requested change to a development project subsequent to a development order
may be subject to additional proportionate fair-share contributions to the extent the
change would generate additional traffic that would require mitigation.
(7) Applicants may submit a letter to withdraw from the Agreement at any time prior to
the execution of the Agreement. The application fee and any associated costs to the
County, including advertising, will be nonrefundable.
Section 75-206. Appropriation of Fair-Share Revenues.
(I) Proportionate fair-share revenues shall be placed in the appropriate project
account for funding of scheduled improvements in the County CIE, or as otherwise
established in the terms of the Agreement. At the discretion of the County, proportionate
fair-share revenues may be used for operational improvements prior to construction of the
capacity project from which the proportionate fair-share revenues were derived.
Proportionate fair-share revenues may also be used as the 50% local match for funding
under the FDOT Transportation Regional Incentive Program (TRIP).
(2) In the event a scheduled facility improvement is removed from the CIE, then the
revenues collected for its construction may be applied toward the construction of another
improvement within that same corridor or sector that would mitigate the impacts of
development.
Section 75-207. Intergovernmental Coordination.
Pursuant to policies in the Intergovernmental Coordination Element of the County
comprehensive plan and applicable policies in Southwest Florida Regional Planning Council, the
County shall coordinate with affected jurisdictions, including FDOT, regarding mitigation to
impacted facilities not under the jurisdiction of the local government receiving the application for
proportionate fair-share mitigation. An interlocal agreement may be established with other
affected jurisdictions for this purpose.
Section 75-208. Alternative Agreements.
(I) A Developer who otherwise qualifies for the Proportionate Fair-Share Program
may, in lieu of entering into a Proportionate Fair-Share Agreement, offer in writing that
the County instead consider entering into (a) a Development Agreement pursuant to the
Florida Local Government Development Act; (b) a Developer Contribution Agreement as
set forth in ~74-205 of the Collier County Code of Laws and Ordinances; or (c) a
Developer Agreement pursuant to the County's Home Rule authority. The County shall
have 10 business days from receipt of this offer to respond. Nothing set forth herein shall
preclude Developer from initiating a Proportionate Fair-Share Program application should
the parties for any reason fail to enter into one of these alternative agreements.
(2) Should the parties agree to enter into a Development Agreement pursuant to the
Florida Local Government Development Act, they shall follow the process and procedure
set forth in Article IV of Chapter 106 of the Collier County Code of Laws and
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Ordinances, with the exception that the Development Agreement pursuant to this
Ordinance may encompass all matters authorized by Sections 163.3220 - 163.3243, FS.,
known as the Florida Local Government Development Agreement Act.
SECTION TWO:
Conflict and Severability.
In the event this Ordinance conflicts with any other ordinance of Collier County, the more
restrictive shall apply. If any phrase or portion of this Ordinance, or the particular application
thereof, shall be held invalid or unconstitutional by any court, administrative agency or other
body with appropriate jurisdiction, the remaining section, subsection, sentences, clauses or
phrases and their application shall not be affected thereby.
SECTION THREE: Inclusion in the code of laws and ordinances.
The provisions of this Ordinance shall become and made a part of the Code of Laws and
Ordinances of Collier County, Florida. The sections of the Ordinance may be renumbered or
relettered to accomplish such, and the word "ordinance" may be changed to "section", "article",
or other appropriate word.
SECTION FOUR: Effective Date.
This Ordinance shall become effective upon filing with the Florida Department of State.
PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier
County, Florida this ~ day of !\Ie J Q. l~b..:. r ,2006.
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ATTEST
Dwight E. Br9.ck~ Clerk
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BOARD OF COUNTY COMMISSIONERS
OF COLLIER, CO~~LORIDA
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FRANK HALAS, Chairman
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J effret AI'~ Klatzkow
Manatin~; Assistant County Attorney
Page 8 of 8
This ordinance filed with the
Secretory of State's Of~e
c:2/'" day of ~ ,
and acknowledgeme~~ that
filing received$IS _'-- doy
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, [Jo,o.ftY C
STATE OF FLORIDA)
COUNTY OF COLLIER)
I, DWIGHT E. BROCK, Clerk of Courts in and for the
Twentieth Judicial Circuit, Collier County, Florida, do hereby
certify that the foregoing is a true copy of:
ORDINANCE NO. 2006-51
Which was adopted by the Board of County Commissioners on
the 14th day of November 2006, during Regular Session.
WITNESS my hand and the official seal of the Board of
County Commissioners of Collier County, Florida, this 15th day
of November 2006.
DWIGHT E. BROCK
Clerk of Courts and Clerk
Ex-officio to Board of
County Commissioners
7l1~}1J~
By:Martha Vergara,
Deputy Clerk