9J-2.045. Transportation Uniform Standard Rule (Transferred)

(1) Purpose. This rule establishes how the Department will evaluate transportation facility issues in the review of applications for binding letters, local government development orders, and DRI applications for development approval (ADA).

(a) The Legislature established Chapter 380, Florida Statutes, to facilitate orderly and well-planned development, by authorizing the state land planning agency to establish land management policies to guide local decisions relating to growth and development. Sections 186.002, 186.007, 186.009, and 187.101, Florida Statutes, establish the State Comprehensive Plan as the long-range, state land development policy guide to be considered in the DRI review process in order to ensure orderly growth in Florida, pursuant to subsections 380.06(3), (4), (12), (13), (14), (15), (25), and 380.065(3), Florida Statutes.

(b) Consistent with the land management policies delineated in the State Comprehensive Plan, it is the intent of the Department to set forth in this rule specific transportation facility DRI review guideline standards and criteria.

(c) The statutory authority to promulgate and establish this rule is derived from subsections 380.032(2) and 380.06(23), Florida Statutes.

(2) Definitions. As used in this rule:

(a) “Applicable Local Plan” or “Local government comprehensive plan” means a plan or element or portion thereof prepared, adopted, or amended pursuant to Part II of Chapter 163, Florida Statutes, as amended.

(b) “Applicable Regional Plan” means the Regional Planning Council’s adopted Strategic Regional Policy Plan pursuant to Section 186.508, Florida Statutes.

(c) “Applicable State Plan” means the State Comprehensive Plan.

(d) “Concurrency Management System” means the adopted procedures and/or process that the local government of jurisdiction for the development utilizes to assure that development orders and permits are not issued unless the necessary transportation facilities and services are available concurrent with the impacts of development, consistent with Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.

(e) “Department” means the Florida Department of Community Affairs.

(f) “Florida Intrastate Highway System” means an interconnected network of limited access and controlled access highways designed to accommodate Florida’s high speed and high volume roadway traffic as required by Section 338.001, Florida Statutes, and adopted by the Legislature.

(g) “Level of service” means a qualitative assessment of a roadway’s operating conditions or the average driver’s perception of the quality of traffic flow that is represented by the letters A through F: A representing the freest flow and F representing the least free flow. Quantitative criteria for the different levels of service are provided in the Highway Capacity Manual (1985 Special Report 209) as published by the Transportation Research Board, National Research Council, Washington, D.C., and Chapter 14-94, Florida Administrative Code, Level of Service Standards.

(h) “Proportionate share contribution” means, only in the context of this rule, a contribution from a developer or owner of a DRI to the local government or the governmental agency having maintenance responsibility for those facilities, which makes adequate financial provision for the public transportation facilities needed to accommodate the impacts of the proposed development on roadways outside the local government of jurisdiction’s Concurrency Management System area. The proportionate share contribution shall be deemed to make adequate financial provision for such facilities if it is equal to or greater than the sum of the costs of improvements attributable to the proposed development derived from the application of the following formula. The costs of improvements attributable to the proposed development are based upon the sum of the cost of improving each significantly impacted state and regional roadway which will operate at worse than the level of service standard in the local government’s approved comprehensive plan or the Florida Department of Transportation level of service standards for roads on the Florida Intrastate Highway System at each project stage or project phase and at project buildout. The proportionate share of the cost of improvements of each such roadway is calculated according to the following formula:

DRI trips ______________	=	cost
(SV increase)

 

1. DRI trips = cumulative number of the trips from the proposed development expected to reach the roadway during the peak hour from the complete buildout of a stage or phase being approved.

2. SV increase = the change in peak hour maximum service volume of the roadway resulting from construction of the improvement necessary to maintain the adopted level of service.

3. Cost = cost of construction, at the time of developer payment, of an improvement necessary to maintain the adopted level of service. Construction cost includes all improvement associated costs, including engineering design, right-of-way acquisition, planning, engineering, inspection, and other associated physical development costs directly required and associated with the construction of the improvement, as determined by the governmental agency having maintenance authority over the roadway.

(i) “Project phase” means a discrete, five year or lesser construction timeframe of development, including the local government issuance of certificates of occupancy for that construction or its functional occupancy.

(j) “Regional center” means a major retail, service, public, recreational, entertainment or other type of facility or development area that regularly attracts use by citizens from more than one county, including regional hospitals, civic centers, universities, professional sports stadiums, regional malls, regional airports, regional, state or federal governmental centers, state parks, nationally advertised resorts or amusement parks, or designated regional activity centers.

(k) “Regional Planning Council” means a governmental body created pursuant to Chapter 186, Florida Statutes.

(l) “Roadway” means an existing or planned road segment in its entirety or any portion thereof, including intersections and interchanges.

(m) “Stage” means one in a series of approximately equal increments in the development of a proposed development upon which are placed quantified limits for construction that are reasonably calculated to ensure that the state and regional roadway network affected by the proposed development will not be overburdened by development traffic. As used in this rule, a stage is to be a subset of a particular project phase of development planned for a project by a developer. A stage of development includes both a specific type and amount of development and the associated, approved buildout timeframe for that development.

(n) “State Highway System” means all streets, road, highways, and other public ways open to travel by the public generally and dedicated to the public use according to law or by prescription and designated by the Florida Department of Transportation, consistent with Chapters 334 and 335, Florida Statutes.

(3) Application.

(a) This rule shall be used by the Department to review transportation facility issues in binding letters and applications for development approval, effective the date of this rule. Any proposed development that meets or exceeds the significant impact thresholds identified in this rule shall be determined by the Department to have a significant impact on state and regionally significant transportation facilities. This rule shall not apply to any application submitted to the Department prior to the effective date of this rule, where such an application has continued to remain pending and active, consistent with paragraphs 380.06(4)(d) or (10)(b), Florida Statutes.

(b) This rule shall be used by the Department to review transportation facility issues in local government development orders. This rule shall not apply to any development order rendered to the Department after the effective date of this rule that approves, with or without conditions, an application that was submitted prior to the effective date of the rule and has continued to remain pending and active until the development order’s approval.

(c) A development order shall be determined by the Department to make adequate provision for the transportation facilities addressed by this rule, and shall not be appealed by the Department on the basis of inadequate mitigation of transportation impacts, if it contains the applicable mitigation standards and criteria set forth in this rule.

If a development order does not contain the applicable mitigation standards and criteria set forth in this rule, the Department shall have discretion to appeal the development order, pursuant to the provisions of Section 380.07, Florida Statutes. However, nothing in this rule shall require the Department to undertake an appeal of the development order simply because it fails to comply with the provisions of this rule. A development order failing to comply with the provisions of this rule will be addressed on a case-by-case basis by the Department as to whether it otherwise complies with the intent and purposes of Chapter 380, Florida Statutes. The Department will take into consideration the balancing of this rule’s provisions with the protection of property rights, the encouragement of economic development, the promotion of other state planning goals by the development, the utilization of alternative, innovative solutions in the development order to provide equal or better protection than the rule, and the degree of harm created by non-compliance with this rule’s mitigation criteria and standards.

(d) This rule shall apply to the specific transportation facility issues delineated herein, and shall not limit the ability of the Department to address other transportation related issues, such as air quality, right-of-way protection, railroad crossing safety, hurricane preparedness, project access to state highways, state subsidies in high-hazard coastal and barrier island areas, or consistency with a local government comprehensive plan.

(e) This rule shall not limit the ability of the Department to make a determination of significant impact or appeal a development order on the basis of inadequate, inappropriate, or inaccurate transportation impact analyses carried out by the applicant or his agents, where the findings of such analyses are instrumental to forming the basis of information necessary to evaluate compliance with the application of this rule’s criteria and standards. However, if agreement was reached at the DRI preapplication conference regarding transportation impact analyses assumptions and methodologies to be used in an ADA, then reviewing agencies may not subsequently object to these assumptions and methodologies, consistent with the provisions of paragraph 9J-2.021(1)(h), Florida Administrative Code.

(4) Identification of State and Regionally Significant Roadways. For the purpose of evaluating the state and regional significance of a roadway, the Department shall consider the extent, location and configuration of the roadway, and the number and type of trips which occur or could occur on the roadway. Under no circumstances shall the Department consider a roadway to be state and regionally significant unless it is a paved roadway which crosses local government jurisdictional boundaries, is a component of the state highway system, connects components of the state highway system, provides access to a regional center, or is a hurricane evacuation route. Nothing contained herein shall be construed to automatically result in a determination that a roadway is state and regionally significant simply because it is a component of the state highway system or otherwise falls within the categories of roadways enumerated above, unless it is a segment of the Florida Intrastate Highway System.

(5) Determination of the Adopted Level of Service.

(a) For state and regional roadways that are part of the Florida Intrastate Highway System, the Department will evaluate transportation issues in accordance with the Florida Department of Transportation level of service standards for the Florida Intrastate Highway System consistent with subsection 163.3180(10), Florida Statutes. For all other state and regional roadways, the Department will evaluate transportation issues in accordance with the adopted transportation level of service standards of the applicable local government comprehensive plan.

(b) Where the transportation impacts of the DRI are determined to occur in more than one local government jurisdiction, the development order shall ensure that the multi-jurisdictional impacts are mitigated pursuant to the requirements of Chapter 380, Florida Statutes. For a state and regional roadway that is part of the Florida Intrastate Highway System and occurs in a different local government jurisdiction than the one in which the development is being granted approval, the Department will evaluate transportation issues in accordance with the Florida Department of Transportation level of service standards for the Florida Intrastate Highway System consistent with subsection 163.3180(10), Florida Statutes. For any other state and regional roadway that occurs in a different local government jurisdiction than the one in which the development is being granted approval, the Department will evaluate transportation issues in accordance with the adopted transportation level of service standards of the applicable local government comprehensive plan for the jurisdiction in which the roadway occurs.

(6) Determination of Significant Impacts on State and Regionally Significant Roadways. A state and regionally significant roadway segment shall be determined by the Department to be significantly impacted by the proposed development if, at a minimum, the traffic projected to be generated at the end of any stage or phase of the proposed development, cumulatively with previous stages or phases, will utilize five percent or more of the adopted peak hour level of service maximum service volume of the roadway, pursuant to (5) above, and the roadway is projected to be operating below the adopted level of service standard at buildout of that stage or phase. If a transportation facility significant impact threshold of less than five percent is specifically adopted in an in-compliance local government comprehensive plan, then this lower significant impact threshold shall be utilized by the Department as its significant impact threshold for those state and regional roadways within that local government’s jurisdiction.

(7) Mitigation of Transportation Facility Impacts.

(a) Pursuant to subsection 380.06(15), Florida Statutes, a development order issued by a local government must make adequate provision for the public transportation facilities needed to accommodate the impacts of the proposed development. Consistent with that mandate, it is the intent of the Department to set forth in this rule transportation conditions which, if included in a development order, would be deemed by the department to comply with the requirements of Section 380.06, Florida Statutes, and would, therefore, not be the basis for the appeal of the development order by the Department on issues related to transportation facilities. Where the transportation impacts of the development are determined to occur in more than one local government jurisdiction, the development order shall ensure that any significant multi-jurisdictional facility impacts are mitigated pursuant to the requirements of Section 380.06, Florida Statutes, and the applicable level of service standards of the jurisdiction in which the impacts occur. A development order shall be determined by the Department to make adequate provision for transportation roadway facilities and shall not be appealed by the Department on the basis of inadequate transportation conditions if, at a minimum, it contains one of the sets of conditions enumerated in subparagraphs 1., 2., 3., 4. or 5. below, and, when applicable, complies with paragraph (b) below.

1. SCHEDULING OF FACILITY IMPROVEMENTS.

a. A schedule which specifically provides for the mitigation of impacts from the proposed development on each significantly impacted roadway which will operate below the adopted level of service standard at the end of each project phase’s buildout, or, alternatively, a subset stage of that phase. The schedule shall ensure that each and every roadway improvement which is necessary to achieve the adopted level of service standard for that project stage or phase shall be guaranteed to be in place and operational, or under actual construction for the entire improvement, at buildout of each project stage or phase that creates the significant impact. This guarantee shall be in the form of:

(I) A clearly identified, executed and recorded local government development agreement, consistent with Sections 163.3220 through 163.3243, Florida Statutes, that is attached as an exhibit to the development order, and which ensures, at a minimum, that all needed roadway improvements will be available concurrent with the impacts of development, consistent with paragraph 163.3180(2)(c), Florida Statutes;

(II) A binding and enforceable commitment in the development order by the local government to provide all needed roadway improvements concurrently with the development schedule approved in the development order;

(III) A local government commitment in the current year of their local government comprehensive plan Capital Improvement Element (CIE) to provide all needed roadway improvements, or a local government commitment in the current three years of their CIE to provide all needed roadway improvements when the local government has specifically adopted an in-compliance paragraph 9J-5.0055(3)(c), Florida Administrative Code, concurrency management system in their plan; or

(IV) A Florida Department of Transportation commitment in the current five years of the Adopted Work Program for Florida Intrastate Highway System (FIHS) facilities or in the first three years of the Adopted Work Program for all other facilities to provide all needed roadway improvements;

(V) A binding and enforceable commitment in the development order by the developer to provide all needed roadway improvements concurrently with the development schedule approved in the development order; or

(VI) Any combination of guarantees (I) thru (V) above that ensures that all needed roadway improvements will be provided concurrently with the development schedule approved in the development order.

b. A provision which states that on no less than a biennial basis the status of the guaranteed improvements shall be assessed and reported in a required biennial status report. The local government shall cause further issuance of building permits to cease immediately at the time the biennial monitoring reveals that any needed transportation improvements guaranteed by development commitments 1.a.(I) thru 1.a.(VI) above is no longer scheduled or guaranteed, or has been delayed in schedule such that it is no longer consistent with the timing criteria of sub-subparagraph 1.a. above. The periodic assessment contemplated by this rule is not a monitoring of the actual level of service on a roadway, but is a review of the actual status of guaranteed improvements scheduled for construction. A change to the approved development schedule for the project, as opposed to a change to the schedule of needed improvements, will need to be addressed through the notification of proposed change provisions of subsection 380.06(19), Florida Statutes.

c. In addressing the construction of the needed roadway improvements, the schedule described in sub-subparagraph 1.a. above shall list all needed roadway improvements needed to be constructed by phase or stage, the guaranteed date of completion for the construction of each needed improvement, the party responsible for the guaranteed construction of each improvement, and the form of the binding commitment that guarantees construction of each improvement.

2. ALTERNATIVE CONCURRENCY PROVISIONS. A schedule as set forth in sub-subparagraphs 1.a., b., and c. above, that appropriately addresses each significantly impacted state and regional roadway segment through compliance with that jurisdiction’s specific alternative concurrency provision of subsections 163.3180(5), (7), (8) or (9), Florida Statutes, where such mitigative measures are specifically adopted in an in-compliance local government comprehensive plan and are fully explained and applied in the development order.

3. PROPORTIONATE SHARE PAYMENTS.

a. This option shall only be available to the extent that any affected extra-jurisdictional local government, or the Florida Department of Transportation for facilities on the State Highway System, agrees to accept proportionate share payments as adequately mitigating the extra-jurisdictional impacts of the development on the significantly impacted state and regional roadways within their jurisdiction. If an affected extra-jurisdictional roadway is under the maintenance authority of the Florida Department of Transportation, then agreement to accept proportionate share payments shall be obtained only from that agency for that roadway. Such an agreement shall be attached as an exhibit to the development order and shall be in the form of either a clearly identified, executed and recorded local government development agreement, consistent with Sections 163.3220 through 163.3243, Florida Statutes; an interlocal agreement; a FDOT joint participation agreement; or a written acceptance by the affected local government governing board or the Florida Department of Transportation, as appropriate.

b. This option is also available to the local government of jurisdiction over the development for those significantly impacted state and regional roadways within their jurisdiction which are not addressed for concurrency by their local Concurrency Management System.

c. The development order shall contain a schedule as set forth in sub-subparagraphs 1.a., b., and c. above, that appropriately addresses each significantly impacted state and regional roadway segment. For significantly impacted state and regional roadways within the area around the development site that are specifically covered by the local government of jurisdiction’s Concurrency Management System (CMS), the development order shall ensure that appropriate mitigative measures are clearly and specifically delineated in the development order for each roadway segment, consistent with the concurrency provisions of the in-compliance, adopted local government comprehensive plan and implementing land development regulations of that local government.

d. For each significantly impacted state and regional roadway outside the specified Concurrency Management System area, the development order shall additionally include:

(I) A schedule of the list of the improvements that are needed to be constructed to ensure maintenance of the adopted level of service, an identification of the governmental agency with maintenance responsibility over the improvement, the cost of each needed improvement including right-of-way and other costs for the improvement, the developer’s proportional share contribution for the improvement, and any proposed staging of the development.

(II) A date-certain payment provision which requires that, at a minimum, the developer pay his proportionate share contribution to the agency that has maintenance responsibility over the impacted roadway prior to the issuance of any building permits for the stage or phase which will cause or increase the significant impact to that roadway.

(III) A provision which requires that as a condition of accepting the payment of the proportionate share contribution that the receiving governmental agency with maintenance responsibility over the impacted roadway agrees in writing as an exhibit to the development order that the contributed monies shall only be applied towards the construction of one or more of the significantly impacted improvements which are under their jurisdiction and listed in the schedule. If the contributed money to that agency is sufficient to fully construct one or more of the roadway improvements under its jurisdiction that is on the schedule in (I) above, then the receiving governmental agency shall agree, as a condition of acceptance, to expeditiously apply the received monies for the improvement construction.

(IV) A provision which requires that development activities and issue of permits therefor immediately cease if the proportionate share contribution is not paid in a timely manner.

(V) A requirement that any proposed delay or change of the proportionate share payment due to a change in the approved development schedule shall require a reanalysis of the proportionate payment amount as part of any schedule approval amendment.

4. LEVEL OF SERVICE MONITORING.

a. A modeling and monitoring schedule for the mitigation of impacts from the proposed development on each significantly impacted roadway which will operate below the adopted level of service standard at the end of each project phase’s buildout, or, alternatively, a subset stage of that phase. The schedule shall identify each roadway improvement which is necessary to achieve the adopted level of service standard, and indicate the amount of development and the timing of that development which will cause a roadway to operate below the adopted level of service. In the circumstance where the schedule does not identify the necessity and timing of improvements for a particular phase or substage, the development order shall require that building permits for that phase or substage will not be issued until the appropriate written approvals are obtained and any needed mitigation requirements are complied with, pursuant to sub-subparagraphs 4.b. and 4.c. below.

b. An annual, or alternatively a study period to consist of the next stage of development, traffic study to monitor the existing peak hour level of service, and to project the likely peak hour level of service for the next year or stage of development, for all roadways listed in the schedule of a. above that have been identified as potentially operating below the adopted level of service for the current plus next year, or alternatively next stage, of development. The traffic study may be used to either confirm the necessity and timing of improvements identified in the development order schedule, or to identify the necessity and timing for improvements for phases or stages not addressed by the schedule. The traffic study shall include a projection of background and project traffic for the next study period and the resulting projection of the level of service for those roadways at the end of the study period. Project traffic shall include the impacts of all existing project development, all permitted project development, and all project development likely to receive building permits during the next study period. At a minimum, the traffic study methodology and the study results shall be supplied to the regional planning council and the Florida Department of Transportation for review, and shall be subject to written approval by the local government of jurisdiction and the Department of Community Affairs.

c. If the traffic study indicates a level of service such that a regional roadway is, or is likely to be during the next study period, significantly impacted by project traffic, then the local government shall cease all further issuance of building permits for the project, unless:

(I) The development order already contains a binding commitment to provide the needed roadway improvement consistent with subparagraphs 1., 2., or 3. above; or

(II) Until the development order is amended to contain a binding commitment to provide the needed roadway improvement consistent with subparagraphs 1., 2., or 3. above.

5. COMBINATION OF MITIGATION MEASURES. A combination of the mitigative measures contained in subparagraphs 1., 2., 3., or 4. above that mitigates for each significantly impacted state and regional roadway, or other mitigative measures which are proposed and reviewed in the ADA, including the provision for capital facilities for mass transportation, or the provision for programs that provide alternatives to single occupancy vehicle travel, which reasonably assure that public transportation facilities shall be constructed and made available when needed to accommodate the impacts of the proposed development, consistent with the provisions of Chapters 163 and 380, Florida Statutes.

(b) Interchange Protection. If a developer proposes the need for the construction of a new or modified access to a state or federal limited access facility to serve the development, such access shall be coordinated with the Florida Department of Transportation, pursuant to Chapter 14-97, Florida Administrative Code. The traffic impact analysis methodology and the study area shall be professionally, consistently and uniformly applied by an applicant in both the local government land use approval application and any federal and state submissions required for new or modified access to limited access facilities. Any specific stage or phase of the development that proposes the need for the construction of a new or modified access to a state or federal limited access facility shall not be allowed to initiate development for that stage or phase of development by a local government until the new or modified access has been authorized by the Federal Highway Administration and/or the Florida Department of Transportation, as applicable. When such authorization is not forthcoming, the developer may request to amend his land use approval, based upon the submittal of a revised transportation analysis not utilizing the new or modified access to the limited access facility and any needed additional transportation mitigation, as appropriate.

(8) Construction of Rule. This rule shall not be construed to limit the ability of local governments to impose more stringent mitigative measures than those delineated in this rule, where such measures or policies are contained within local land development regulations, or a local government comprehensive plan.

(9) Effect of Areas of Critical State Concern. This rule shall be superseded by more stringent transportation facility requirements for developments in designated Areas of Critical State Concern.

Specific Authority 380.032(2)(a), 380.06(23)(a), (c)1. FS. Law Implemented 380.021, 380.06, 380.061, 380.065, 380.07 FS. History–New 3-23-94, Amended 2-21-01, 6-1-03.