SW FLORIDA CHAMBER & AIA

DEVELOPERS' PERSPECTIVE

and

HOW WE CAN WORK TOGETHER

By Ronald L. Weaver

Stearns Weaver Miller

Tampa, FL

FEBRUARY 24, 2010

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SW FLORIDA CHAMBER & AIA

DEVELOPER PERSPECTIVES INCLUDE:

1. Predictability for Recessionary Economic

Recovery and Phase In and Broad Sharing

of Reasonable Burdens

2. Transparency of Ingredients for Mitigation

So Prospective Buyers Can Understand and

Adapt

3. Fair to All Comers in Most Contexts

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SW FLORIDA CHAMBER & AIA

DEVELOPER PERSPECTIVES INCLUDE (cont.):

4. Historically Integratable or at Least

Reasonable In Relation To What Competitors

Have Already Paid

5. Reasonably Comparable Among Similar

Jurisdictions

6. Common Sense Approaches

7. Nothing is Sacred including the Automobile,

Concurrency, or Impact Fees3

SW FLORIDA CHAMBER & AIA

DEVELOPER PERSPECTIVES INCLUDE (cont.):

8. Project Financing

A. The Role of Property taxes, if any

B. The Role of Gas Taxes

C. The Role of Commuter Taxes, if any

9. Internal Capture Fairness

10. The status of SB 360 TCEA and the timing

of the required mobility plan.

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SW FLORIDA CHAMBER & AIA

• Will mobility fees be offset by

• (1) improvements to offsite intersections and roadways for miles around,

• (2) the percentage of the onsite intersection and roadway improvements not used by the developer, and

• (3) road impact fees?

• Will mobility fees be mandatory nowhere, everywhere, or only in DULAS?

• What are pros and cons of impact fee increases instead?

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SW FLORIDA CHAMBER & AIA

• Are transportation utility fees illegal? And

why?

• Where do income taxes, and commuter

taxes, and property taxes, and sales taxes,

past present and future fit in the equation, if

at all?

• What are multimodal system pros and cons

for developers?

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SW FLORIDA CHAMBER & AIA

• Should properties that are greatly benefited

by improvements be charged the same as

others?

• Pros and cons, of delaying financial

feasibility to December 2011, or by buzz

lightyear infinity, and beyond?

• If a road functions acceptably at 150% of

capacity, what are the fair implications?

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SW FLORIDA CHAMBER & AIA

• What are the real legislative backlog

definitions, issues, and implications?

Fairness?

• Should internal capture be artificially

underestimated or capped, like in

jurisdictions declining to acknowledge

capture across the main road way, even if in

the middle of the same project?

• What is the role of “community capture”?

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SW FLORIDA CHAMBER & AIA

• What is fate of internal capture and Florida legislative dabblings in subject? Does the emperor have no capture calculator?

• Besides BEBR medium population projections, what are some other fair and unfair growth rates during recessionary traffic level declines, and what is fair planning, or calculator horizon?

• How will Marion County needs analysis February 22 rule workshop back into the transportation issues?

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• What is the significance of the Bennett versus Pelham interpretation of SB 360 regarding the timing of TCEA’s mobility plans?

• How will the Weston law suit affect mobility fee implementation choices and time frame, and 2-year permit extensions? Gates Bill 3-year extensions?

• Was concurrency given a funded chance? Did it fail for reasons that can enlighten the replacement, or not?

• Is consumption based pricing flawed, or the only fair approach?

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SW FLORIDA CHAMBER & AIA

• Pros and cons of abandoning DRI’s

• If transportation concurrency went away in

DULAS, what are the real implications for

developers?

• What are fair impact fee credits?

• What job generation and compact urban

growth, and other skewers of mobility fee

calculations are advisable?11

SW FLORIDA CHAMBER & AIA

• How would Amendment 4 (Florida Hometown

Democracy) passage, or non passage back

into transportation issues?

• Pros and cons of transportation concurrency

backlog authorities

• Proportionate fair share problems

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DULA’S

Creation of Dense Urban Land Areas:

• The Act designates certain places as Dense

Urban Land Areas (“DULAs”) which enjoy

relaxed regulation from government oversight.

They include:

• The following 8 densest counties in the state:

Broward, Duval, Hillsborough, Miami-Dade, Orange,

Palm Beach, Pinellas and Seminole; and

• Half (238 out of 411) of the densest cities in Florida.

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DRI REVIEW

• End to the “DRI” Review Process in DULAs:

• A Development of Regional Impact (“DRI”) is a large-scale development which affects more than one county over 400,000 sq. ft. of retail, over 3,000 homes in very populous counties, etc. They can include airports, attractions, hotels, big developments, etc.

• Now, DULAs do not have to endure the DRI review unless over 120% of the old DRI thresholds, and then only if the Department of Community Affairs (“DCA”) finds your development violates the local comprehensive plan somehow.

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TRAFFIC CONCURRENCY

Traffic Concurrency

• Transportation concurrency, the requirement

that roads and highways be improved

“concurrent with” new developments, is

arguably automatically eliminated for DULAs.

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TRAFFIC CONCURRENCY

• However, DCA representatives have tried to silence some interpretations of the automatic sweeping nature of this transportation concurrency provision. For example, Hillsborough County’s Staff interpreted the Act in stating “while the law does indeed create a Transportation Concurrency Exception Area, he [Tom Pelham, Secretary of the DCA] said that it applies only to State (DCA) review of concurrency requirements and does not apply to concurrency rules born of local law such as Hillsborough County’s Comprehensive Plan. That is, DCA no longer has any authority to review development proposals or transportation concurrency. It does not prohibit Hillsborough County from hearing or enforcing its own concurrency rules until such time as its Comprehensive Plan is amended, within two years, to implement the S.B. 360 mobility requirements. . .If, however, the Board does not wish to enforce its concurrency requirements inside the TCEA, then it will have to amend the Comprehensive Plan to do so.” Orange County legal staff was not as certain that the TCEA’s are not automatic.

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TRAFFIC CONCURRENCY

• Senator Mike Bennett, the sponsor of SB 360, said “the bill also states that existing contracts or agreements regarding transportation concurrency will remain in effect. There should not be a sudden stop to any ongoing roadway projects.”

• If you are not located in a DULA, there’s still hope! LOBBY YOUR GOVERNMENT to be designated as a TCEA in the county’s comprehensive plan and meet its facilities funding and other requirements.

• The above exemptions from transportation concurrency do NOT preclude local governments from continuing to enact new transportation ordinances and fees, within a local government's home rule powers.

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MOBILITY FEES

Mobility Fees

• As an additional solution to the transportation concurrency issues, the Legislature envisions the use of a mobility fee that will replace the transportation concurrency system altogether. This year, the State will be reviewing how a mobility fee system (i) might work to permit developments to mitigate impacts on the transportation system, (ii) distributes among governmental entities responsible for road maintenance and (iii) promotes compact, mixed-use and energy-efficient expansion.

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MOBILITY FEES

• In line with this legislative view, local governments should note that, when a TCEA designation is made, the local government now has 2 years to incorporate strategies into its local comprehensive that will support and fund mobility, including alternative modes of transportation.

• However, there is no guarantee or mandate that the mobility fee system will be put into place, or if it is, be more or less stringent than current impact fees; but it could be substantially more expensive.

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FINANCIAL FEASIBILITY

Financial Feasibility and Changes to Impact Fees

• Counties must account for their finances and show their whether or not they can provide capital improvements in connection with new developments. Due to the present economic downturn, the counties now have until 2011 (rather than 2008) to show their hands on such “financial feasibility” or not.

• Also, a county or municipality is no longer required to wait 90 days to decrease, suspend, or eliminate an impact fee. Rather a county or municipality must only provide 90 days notice if an ordinance or resolution creates new or increased impact fees.

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BACKLOG DEFINED

“Backlog” Defined

• In a further attempt to clarify concurrency regulations, House Bill 1021 was signed into law on May 27, 2009 by Governor Crist. This piece of legislation provides a definition for the word “backlog,” which is used throughout F.S. Section 163.3180. The legislature had previously determined that DRIs and other developments should only be required to pay for their projects proportionate share of mitigation costs in trying to reduce transportation backlogs. However, no definition was ever provided for “backlog.”

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BACKLOG DEFINED

• The term now means a facility or facilities where the present level of service standards are surpassed by the number of existing trips, plus additional projected background trips from any source other than the development that is being reviewed that are anticipated based on established traffic standards.

• The forecasted additional trips may be determined by traffic modeling consistent with the University of Florida Bureau of Economic and Business Research (BEBR) medium population projections and should be concurrent with the certain stage or phase of development under review.

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THE WESTON SUIT

Legal Challenge to the Act – The Weston Suit

• An alliance of local governments including, Lee County and the cities of Fruitland Park, Deerfield Beach, Miami Gardens, Parkland, Cutler Bay and Key Biscayne, has filed a law suit claiming that the Act unconstitutional because it is allegedly an unfunded mandate or it illegally contains more than one subject.

• The Cities requested that the court provide expedited consideration to their case to preclude the expense of needless efforts and costs in the application and interpretation of the Act.

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