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Local road-building rules valid, growth official says

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By MIKE SALINERO

msalinero@tampatrib.com

Published: July 12, 2009

TAMPA - Florida's top growth-management official has ruled that densely populated cities and counties can continue requiring developers to improve roads near new construction projects.

The Legislature tried to end the requirement, called transportation concurrency, when it passed Senate Bill 360 earlier this year.

Developers pushed for the bill's passage, saying concurrency adds millions of dollars to development costs and promotes sprawl by forcing development into rural areas.

Although environmentalists, local governments and newspaper editorial boards opposed the bill, Gov. Charlie Crist signed it into law June 1.

Now, however, the man Crist appointed to head the state Department of Community Affairs is saying the law's language allows cities and counties to continue requiring builders to pay for their transportation impacts.

"Those who are trying to argue that it immediately did away with transportation concurrency as a matter of state and local law are simply ignoring the provisions of the statute," DCA Secretary Tom Pelham said.

The bill creates "transportation concurrency exception areas" in eight counties, including Hillsborough and Pinellas, and 240 cities. If the local governments want to continue transportation concurrency in those areas, they must pass an ordinance to do so.

But according to Pelham's interpretation, issued last week, SB 360 cannot override local governments' home-rule authority, granted in state law. He cites this provision in the bill:

"The designation of a transportation concurrency exception area does not limit a local government's home-rule power to adopt ordinances or impose fees."

Pelham argues further that if cities and counties want to end the practice, they have to change their comprehensive growth plans, a process that takes months and numerous public hearings.

Tampa land-use lawyer Ron Weaver disagrees with Pelham's interpretation. Weaver says that the law specifically excludes Broward and Miami-Dade from the counties that will have transportation concurrency exception areas, even though they meet the guideline of having a population in excess of 1 million.

"Obviously, the transportation concurrency exception areas are automatic or they wouldn't have excluded Broward and Miami-Dade counties," Weaver said.

The secretary's decision angered lawmakers who shepherded the controversial bill through the 60-day legislative session. State Rep. Chris Dorworth, R-Lake Mary, who was involved in negotiations over the legislation, said Pelham is "consistently finding things in the bill that aren't there."

"This was the very clear intent of the Legislature to create concurrency exemption areas," Dorworth said. "This is not about the language; this is about him making something out of nothing."

State Sen. Mike Bennett, R-Bradenton, who sponsored the bill in the Senate, said Pelham is exceeding his authority and trying to exert state control over what is essentially a local matter. He said the law gives local governments more power by allowing them to get rid of the concurrency requirements or keep them by passing an ordinance.

"They don't need the state of Florida to be a big brother in all their land-use decisions," Bennett said.

Hillsborough County will follow Pelham's directive and continue requiring developers to build road improvements connected to their developments, said Peter Aluotto, director of Planning and Growth Management. But the policy will have little effect because construction is at a near standstill.

Aluotto said he doesn't expect developers to sue counties that follow Pelham's interpretation.

The industry probably won't rebound for two years, he said, and by that time, cities and counties are to have adopted a mobility fee to compensate local governments for a development's transportation impacts.

Though researchers are still working on the details, Aluotto said the fee is supposed to use a formula that will charge developers for how many miles people living in their subdivisions drive.

Reporter Mike Salinero can be reached at (813) 259-8303.

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