HB 319: New Legislation Impacting Traffic Concurrency

Governor Scott recently signed into law new legislation affecting traffic concurrency in Florida.  This legislation is intended to clarify and amend parts of the traffic concurrency legislation passed in 2011.  These changes contain a number of provisions that will be helpful to development projects wrestling with traffic concurrency issues.

In 2011, the Florida Legislature made sweeping changes to Florida Chapter 163, which included a number of changes affecting transportation concurrency.  This was just the latest in a series of changes to Florida’s transportation concurrency statutes over the past ten years.  The Legislature’s 2011 revisions to the traffic concurrency statutes established certain guidelines, set forth in Section 163.3180, that must be followed if a local government adopts a transportation concurrency system.  However, local governments that adopted alternative mobility funding systems were not required to follow the transportation concurrency guidelines set forth in Statute 163.3180.  For example, local governments that adopted alternative mobility funding systems could refuse to accept “proportionate share” payments from developers trying to meet their traffic concurrency obligations.  This year, the legislature passed HB 319, which now requires that any local government implementing an alternative mobility funding system must follow the same general principles as local governments implementing traffic concurrency.

HB 319 amends Statute 163.3180 to provide that any local government implementing a transportation funding system must meet certain requirements set forth in the statutes, even if that government is not implementing a Section 163.3180 transportation concurrency system.  Most significantly for developers, local governments that do not implement a Section 163.3180 transportation concurrency system cannot refuse to allow a developer to pay its proportionate share and proceed with development.  The local government must allow an applicant for a DRI, development order, development agreement, rezoning or other land use development permit to satisfy the transportation concurrency requirements of the local comprehensive plan and the local government’s concurrency management system if (i) the applicant in good faith offers to enter into a binding agreement to pay for or construct its proportionate share of the required improvements in a manner consistent with Florida Statutes 163.3180, and (ii) the proportionate share contribution or construction is sufficient to accomplish one or more mobility improvements that will benefit a regionally significant transportation facility.  The statute also permits a local government to accept contributions from multiple applicants for a planned improvement if it maintains contributions in a separate account designated for that purpose.

HB 319 requires that the local government provide the basis upon which the land owner will be assessed a proportionate share of the cost of addressing the transportation impacts resulting from the proposed development.  The statute also makes clear that if a local government elects to adopt an alternate mobility funding system, other than transportation concurrency, such system may not be used to deny, time or phase an application for site plan approval, plat approval, final subdivision approval, building permits or the functional equivalent of such approvals, provided that the developer agrees to pay for the development’s identified transportation impacts via the funding mechanism implemented by the local government.

If a local government imposes a mobility fee-based funding system, it must comply with the same “dual rational nexus test” applicable to impact fees (i.e. (1) there must be a reasonable connection between the need for capital facilities such as road improvements and the population growth generated by a development; and (2) there must be a reasonable connection between the expenditure of the funds collected, and benefits to those who pay the fees).  An alternative system that is not mobility fee based may not be applied in a manner that imposes upon new development any responsibility for funding an existing transportation deficiency.

If you have questions regarding HB 319 or traffic concurrency, please contact Lee Dobbins, shareholder, at ldobbins@www.deanmead.com or other members of the Real Estate Development Industry Team at Dean Mead for further information.