§ 54-8. Proportionate fair-share mitigation program.

(a)

Purpose and intent. The purpose of this section is to establish a method whereby the impacts of development on transportation facilities can be mitigated by the cooperative efforts of the public and private sectors, to be known as the proportionate fair-share program, as required by, and in a manner consistent with F.S. § 163.3180(16).

(b)

Applicability. The proportionate fair-share program ("program") shall apply to all development that does not meet the standards of this chapter division on a roadway or transportation facility within the town that is not the maintenance responsibility of Martin County or the Florida Department of Transportation ("FDOT") or any other agency. This program does not apply to developments of regional impact ("DRI") using proportionate fair share under F.S. § 163.3180(12), development which is exempt from this division, or for development that received traffic concurrency approval prior to December 1, 2006.

(c)

General requirements.

(1)

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

a.

The proposed development is consistent with the Comprehensive Plan and applicable land development regulations.

b.

The road improvement necessary to maintain the adopted level of service ("LOS") concurrency requirements is specifically identified for construction in the five-year schedule of capital improvements in the capital improvements element ("CIE") of the Comprehensive Plan ("plan") and identified for construction in the adopted five-year county road program.

(2)

Any roadway improvement project proposed to meet the applicant's fair-share obligation must meet the town's and Martin County's ("county") design standards for locally maintained roadways and those of the FDOT for the state highway system.

(d)

Intergovernmental coordination. Pursuant to policies in the intergovernmental coordination element of the town's plan, the town shall coordinate with the county or FDOT regarding mitigation to impacted thoroughfare facilities receiving the application for proportionate fair-share mitigation. An interlocal agreement may be established with the county for this purpose.

(e)

Application process.

(1)

In the event of a lack of capacity to satisfy transportation concurrency, the developer may satisfy transportation concurrency through this program pursuant to the requirements of general requirements (c) subsection. If the impacted facility is on the Florida Strategic Intermodal System ("SIS"), then the FDOT shall be notified and invited to participate in a pre-application meeting.

(2)

Eligible developers shall submit an application to the building official on a form provided for by the town and all documentation reasonably requested by the town. The building official may establish an application fee that does not exceed the costs to the town of reviewing and processing the application.

(3)

The building official shall review the application and certify that the application is technically sufficient and complete within 15 business days of receipt of the application. If an application is determined to be insufficient, incomplete or inconsistent with the general requirements (c) subsection, then the developer will be notified in writing of the reasons for such deficiencies within 15 business days of submittal of the application. If such deficiencies are not remedied by the developer within 30 days of receipt of the written building official's notification, then the application will be deemed abandoned, and the application fee shall be forfeited to the town.

(4)

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

(5)

When an application is deemed sufficient and complete, the developer shall be so notified in writing by the building official. A proposed proportionate fair-share agreement will be prepared by the town and/or the developer and delivered to the appropriate parties for review, including a copy to the FDOT for any proposed proportionate fair-share mitigation on a SIS facility, no later than 60 days from the date on which the developer received written confirmation from the town that the application was complete and eligible. If the executed proportionate fair share agreement is not received by the town within the 60-day period, the application shall be deemed abandoned and the application fee shall be forfeited to the town, unless the town determines in its sole discretion that an extension of the deadline is warranted based upon good cause shown by the developer.

(6)

No proportionate fair-share agreement will be effective until approved by the town commission, FDOT and/or the county, if applicable.

(f)

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 eligible for participation under the proportionate fair-share program 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)

Pursuant to F.S. § 163.3180(16), the methodology used to calculate a development proportionate fair-share obligation shall be 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 service volume ("SV") of roadways resulting from construction of an improvement necessary to maintain the adopted LOS, multiplied by the construction cost, at the time of applicant payment, of the improvement necessary to maintain the adopted LOS. For purposes of this subsection, construction shall include all costs associated with the improvement. The methodology expressed as a mathematical equation is as follows:

Proportionate Fair-Share=S[[(Development Trips;sup    \sup; )/(SV Increase;sup    \sup; )] x Cost;sup    \sup; ]

Where:

Development Trips;sup    \sup; = Those trips from the stage or phase of development under review that are assigned to roadway segment "i" and have triggered a deficiency per TPS;

SV Increase;sup    \sup; = Service volume increase provided by the eligible improvement to roadway segment "i" per the general requirements (c) subsection;

Cost: = 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 review, inspection, administration, and physical development costs directly associated with construction at the anticipated cost, including contingencies, in the year it will be incurred.

(4)

For the purposes of determining proportionate fair-share obligations, the building official shall determine improvement costs based upon the actual and/or anticipated cost of the improvement in the year that construction will occur.

(5)

If the town has accepted an improvement proposed by the developer, then the value of the improvement shall be based on an engineer's certified cost estimate provided by the developer and approved by the building official or other method approved by the building official.

(6)

If the Town has accepted a major thoroughfare road right-of-way ("ROW") dedication for the proportionate fair-share payment, credit for the dedication of the ROW shall be valued on the date of the dedication at 120 percent of the most recent assessed value by the Martin County Property Appraiser, or at the option of the developer and in-lieu of the 120 percent of assessed value, by fair market value established by an independent appraisal approved by the town at no expense to the town. This appraisal shall assume no approved development plan for the site. All ROW dedicated shall be part of a roadway segment that triggered the deficiency per TPS, and shall not be site-related. The developer shall supply a drawing and legal description of the land and a certificate of title or title search of the land to the town at no expense to the town. If the estimated value of the ROW dedication proposed by the developer, based on a town approved appraisal, is more than the town estimated total proportionate fair share obligation for the development, then the town will give the developer town road impact fee credit for the difference. Prior to purchase or acquisition of any real estate or acceptance of donations of real estate intended to be used for the proportionate fair share, public or private partners should contact the FDOT for essential information about compliance with federal law and regulations, if on a transportation facility maintained by FDOT or if applicable. The town shall have the option of requiring an environmental assessment by the applicant for right-of-way dedication.

(g)

Impact fee credit for proportionate fair-share mitigation.

(1)

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 road impact fees which may hereafter be established by the town.

(2)

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

(h)

Proportionate fair-share agreements.

(1)

Upon execution of any proportionate fair share agreement, the developer shall receive a certificate of concurrency approval. Should the developer fail to apply for a development permit within 12 months, then the proportionate fair share agreement shall be considered null and void, and the developer shall be required to reapply, unless the town and the developer mutually agree to a time extension.

(2)

Payment of the proportionate fair-share contribution is due in full no later than the date of the issuance of the first building permit, and shall be non-refundable. If the payment is submitted more than 90 days from the date of execution of the proportionate fair share 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 the determining proportionate fair-share obligation (f) subsection and adjusted accordingly.

(3)

In the event proportionate fair share agreement requires the developer to build one or more road improvements, all such improvements shall be commenced prior to issuance of a development order, and all such improvements shall be guaranteed by a binding agreement that is accompanied by a letter of credit or other surety, as determined by the building official, which is in a monetary amount sufficient to ensure the completion of all required improvements as determined by the building official. It is the intent of this subsection that any required improvements be completed concurrent with development of the development.

(4)

Dedication of necessary ROW for facility improvements pursuant to proportionate fair share agreement shall be completed prior to issuance of the first building permit, but shall not include a building permit issued for a dry model (a model home not connected to sanitary sewer and potable water).

(5)

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

(6)

Developers may submit a letter to withdraw from the proportionate fair share agreement at any time prior to the execution of the agreement. The application fee and any associated advertising costs paid to town are non-refundable.

(7)

The town may enter into proportionate fair share agreement for selected roadway improvements to facilitate collaboration among multiple developers on improvements to a shared transportation facility.

(i)

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 CIE, or as otherwise established in the terms of the proportionate fair share agreement. Proportionate fair-share revenues may be used as the 50 percent local match for funding under the FDOT Regional Incentive Program, or any other matching requirement for state and federal grant programs as may be allowed by law.

(2)

In the event a scheduled roadway 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 that would mitigate the impacts of development pursuant to the requirements of the general requirements (c)(2) subsection.

(Ord. No. 332, § 2, 2-27-2007)