(A) An adequate public facilities ordinance (APFO) ties development approvals to the availability of infrastructure capacity measured by adopted levels of service (LOSs) in the Comprehensive Plan or in the APFO. An APFO accommodates anticipated growth by providing a rational system for expanding improvements while ensuring that the level of growth does not exceed a jurisdiction’s ability to accommodate it.
(B) An APFO differs markedly from exactions and impact fees. APFOs are regulatory measures that are used to deny development applications or to time and sequence development approval based on availability of infrastructure on an adopted, funded and prioritized capital improvements program (CIP). Impact fees and exactions are conditions for financing off-site infrastructure attached to development approvals. APFOs provide the opportunity to enhance certainty in the development approval process. With an APFO, the applicant and the local government know the standards before applications are filed. The APFOs provide the opportunity to structure infrastructure mitigation requirements in a flexible manner. Providing cross access easements, a higher degree of street connectivity and mixed uses can be factored into the traffic impact analyses (TIAs) to reduce development impact on the roadway network and thus create greater capacity.
(C) APFOs must be reasonable and flexible in order to work efficiently. A “one-size-fits-all” LOS would have the unintended consequence of encouraging sprawl because uncongested roads tend to lie at greenfields at the periphery of the urbanized area. This situation is remedied by providing a lower LOS, or an exemption, for:
(1) Downtowns and mature, built-up areas; or
(2) Where the infrastructure network is fixed, infill opportunities and alternative transportation modes such as transit and pedestrian access exist.
(D) An APFO raises numerous policy issues, which by themselves could comprise a separate report. A summary of the issues is as follows.
(1) Adequate public facilities. These include water, sewer, storm water management, police and fire protection solid waste, parks and recreation, schools and transportation. Providers should include capital improvement districts, utilities and local, regional, state or federal jurisdictions. An APFO transportation LOS includes roads of the jurisdiction and state and federal highway passing through or adjacent to the jurisdiction. The same is true with an APFO based upon school facilities located in a separate school district.
(2) Undesirable effects associated with timing or mitigating new development proposals. These must be tempered or mitigated. Roads-based APFOs could require an unacceptable widening of roads. These can be addressed by designating the types of mitigation that will be accepted.
(3) Establishing LOSs. These must be established at levels that protect public health, safety, and welfare while not unreasonably restricting growth. Infill, corridors and downtown areas could be exempt from the APFO in order to encourage development and to recognize the availability of existing facilities.
(4) Development approvals. An APFO could be triggered at early stages of the development approval process (plan amendments, rezoning or discretionary decisions). This provides developers with knowledge of the requirements of the APFO, allowing structuring of proposals before significant expenditures have been committed to a project. APFOs can also be triggered late in the development approval process. This approach more efficiently uses staff and Planning Commission time because only those projects that will proceed to development are reviewed. However, it may also produce unanticipated delays in development after the applicant has committed substantial resources to the project.
(5) Impact areas defining LOS. For water, sewer or piped facilities, the impact area consists of the fixed service area. For open-ended facilities, where demand is not physically restricted to a geographic area, the designation is a policy decision (e.g., roads and parks). An intersection or a park can be used by anyone inside or outside a jurisdiction but demand typically declines with distance from the facility. APFOs either provide a designated distance, a demarcation line (e.g., a designated park or traffic influenced areas) or a procedure for evaluating demand (e.g., evaluating all street links for which the development creates at least 5% of the roadway impact). Some road ordinances require a TIA only to the first intersection.
(6) Existing facilities. When determining whether adequate capacity exists, we count both existing facilities and those included in the CIP. Most programs count facilities within a third or fourth year of the CIP for various reasons (e.g., it takes several years for many developments to become fully occupied, thereby creating some lag time between development approval and the demand for facilities; and counting only existing facilities could unreasonably restrict growth).
(7) Reservation of capacity; pipeline development. When a development is approved and gains vested rights, the amount of capacity it utilizes must be debited against available capacity for future projects. This pipeline development reservation of capacity must be strictly limited to two to four years. Where an APFO is tested early in the process, the development is still in the formative stages and could fail due to financing problems or a changing market. In many communities, only a small percentage of rezoning or preliminary plats actually proceed to construction. In this event, approved projects should be counted toward available capacity only for a three- to four-year window and not a permanent reservation of capacity. Jurisdictions should implement a development approval tracking system.
(8) Application of APFOs. If the LOS is not met, development of approval can either be denied or the development can be given the option of timing and sequencing the project so that future stages of the proposal are not approved until the facilities are available. Developers can also be given the option to voluntarily advance capacity through a development agreement if they wish to proceed at a faster pace. Constitutional requirements of proportionality do not apply to voluntary development agreements.
(Ord. 3020, passed 9-10-2013, § 6)