On June 27, 2016, Lee County staff presented a series of proposed Land Development Code (LDC) amendments to the Local Planning Agency (LPA). Of significant importance, were staff’s proposed amendments to LDC Sections 2-45 through 2-46 and Sections 66-76, which specifically impact the County’s current provisions governing its “Proportionate Fair-Share” and Concurrency programs. In addition, as a companion amendment, staff has proposed a complete revision to the Administrative Code (AC) 13-16.

The Purposes for the Proposed LDC and AC Amendments

According to staff, the purposes behind the proposed changes are:

  1. consistency with changes in state law regarding concurrency and proportionate share in F.S. 163.3180;
  2. to reflect Lee Plan policy changes regarding concurrency;
  3. to implement Board of County Commissioners (BoCC) direction to work towards streamlining the LDC by reducing redundant text and moving processes and guidelines to Administrative Codes; and
  4. to clarify and bring consistency to the process in the limited number of cases where significant impacts are identified for a project and a Development Agreement for proportionate share is desirable or necessary.

Amendments to Chapter 2 of the LDC

As referenced above, there are several important changes proposed by staff to the LDC provisions in Chapter 2.

The first major proposed changes will be to Section 2-45 of the LDC, which replaces the section’s current definitions with several new ones, the most important of which changes the name of the County’s current program from “Proportionate Fair-Share”, to “Proportionate Share” instead.

Another proposed change to this section removes “parks and recreation” and “roadway facilities” from consideration when determining impacts on concurrency. Also, the existing LDC references to Objectives 37.3 and 37.4 of the Lee Plan relating to a development’s projected traffic will be stricken.

Along with the changes to the concurrency provisions, staff also offers changes to Section 2 of this Chapter of the LDC, which currently provides for the County’s Proportionate Fair Share Program. In staff’s proposal, outdated references to the Florida Statutes have been removed and language is added to Section 2-68 of the LDC to clarify that

Proportionate Share applies to all developments in unincorporated Lee County that have one or more significant impacts, and the total proportionate share calculation exceeds road impact fees. This provides a funding mechanism to implement County transportation needs through the Capital Improvement Element (CIE).”

Additional language in this provision will also indicate that “Proportionate Share shall not be applied in a manner that imposes upon new development any responsibility for funding an existing transportation deficiency.”

In addition, staff’s proposed changes will alter Section 2-69 of the LDC, which states the general requirements for participating in the program. The proposed amendment removes the LDC’s current reference to the County’s five year schedule of capital improvements and its long-term schedule for an adopted long-term concurrency management system and provides that a developer may choose to make a proportionate share contribution only if “the schedule of capital improvements in the County, Map 3A, or the Lee County MPO Long Range Transportation Plan (LRTP), includes, or may be amended to include, a transportation improvement(s) that, upon completion, will mitigate additional traffic generated by the proposed development, and the improvement does not represent an existing or projected transportation deficiency.”

Next, staff proposes to replace the current application process for participation in the Proportionate Fair-Share program in Section 2-70 of the LDC with regulations that provide for an “Agreement Process.” This proposed section outlines the agreement process for mitigation responsibilities and payments under the proposed “Proportionate Share” program “if there are additional developer mitigation responsibilities resulting from one or more significant impacts.”

Staff has also proposed adding language to Section 2-71 of the LDC to clarify exactly what stage in the development process the “Proportionate Share” obligation is to be determined. The amendment adds language in LDC Section 2-71(a) to provide that “unless an application for Development Order is a part of a DRI, significant impacts will be determined based on projected traffic at the end of an approved stage or phase.”

Amendments to AC 13-16

Staff’s proposed amendments also contemplate a complete overhaul to AC 13-16, which has not been revised since 1998. If approved by the LPA and the BoCC this section of the AC will be titled “Transportation Proportionate Share Calculations for New Development Projects.”

According to the proposed amendments to AC 13-16, the new procedures will be used to calculate proportionate share costs for projects that may be subject to development agreements and proportionate share agreements. Section I of AC 13-16 also explains that the purpose of the revised administrative code provision is to require all new development to pay road impact fees under the terms of Lee County Ordinance 15-03, and Lee County LDC, Chapter 2, Article VI, Division 2, as amended. The revised AC 13-16 will also explain that “[s]ome developments may be required to pay a proportionate share of roadway improvement costs in excess of road impact fees pursuant to Chapter 163.3180(5)(i), F.S. and the LDC, based on their larger size, use, character, or location.”

Additionally, just as several newly defined terms were proposed in the amendments to Chapter 2 of the LDC, the same terms have been added to Section III.A. of AC 13-16. Thus, the newly revised AC 13-16 will also refer to the County’s program as “Proportionate Share,” rather than “Proportionate Fair-Share.”

Bottom Line

The above-mentioned changes could significantly impact your rights as a property owner or developer in Lee County. If you wish to appear for public comment on the proposed LDC and AC amendments, the Local Planning Agency (LPA) will again consider approval of staff’s proposed changes on July 25, 2016 at 8:30 AM at the BoCC Chambers.