Decade-Old State Law Curtails City’s Capacity to Say ‘No’ to Some Developments

Lakeland city commissioners are under fire from constituents for approving new development in areas where roads are already congested, allowing new people and businesses to crowd into the city before supporting infrastructure is built or even planned.

“I can’t go anywhere, to a social event, a birthday party” without people demanding to know why the commission is approving new development when traffic is already bad, Commissioner Stephanie Madden said during Monday’s commission meeting.

Commissioner Mike Musick said he receives “email after email” blistering him over growth and traffic and asked city planners to clarify what degree of discretion the commission has when reviewing development proposals. 

“I am trying to balance where we are from a policy standpoint,” said Musick, who last week asked for a listing of all proposed apartment projects in city. “Where do I have room to say ‘No?’ Or to say, ‘If you are going to build this, do X?’”

The answer to Musick’s question is in not in Lakeland City Hall, nor in the Polk County Building in Bartow, but in the State House in Tallahassee where, more than a decade ago, lawmakers adopted the Community Planning Act of 2011, which dramatically scaled back state oversight in development review while weakening local capital improvement plan proportional share requirements for new development.

The bill essentially defunded the state’s Department of Community Affairs, which ensured uniform standards and congruity, including traffic, in comprehensive planning between counties and cities. The department was disbanded on July 1, 2011.

Under the 2011 bill, local governments were prohibited from imposing a financial feasibility mandate in comprehensive plans for new development to pay proportional share for transportation, school and parks and recreation facilities. They could only do so as an option.

Two years later, House Bill 319 further revised allowable provisions for local governments implementing optional “transportation concurrency” requirements in comprehensive plans.

Musick raised the issue while the commission was reviewing a tentative transportation development agreement with Forestar Real Estate Group for its proposed 487-acre 1,051 single-family/180-townhome Hawthorne Mills subdivision south of West Pipkin Road, north of Ewell Road and west of the Riverstone development, where 1,300 homes are being built.

Projected traffic generated by the new subdivision, one of many planned or being built in Southwest Lakeland, will cause Ewell Road to “fail” in meeting traffic capacities and require Forestar make several “traffic concurrency” contributions, Lakeland Transportation & Development Review Manager Charles Barmby said.

But traffic generated by the project onto West Pipkin Road cannot be a factor in approving or denying the development agreement, he said, because even without the additional pressure, West Pipkin has already failed, which is why the county is spending $42 million to widen a 3.8-mile span to four lanes. The 17-month project began in January and will shut down parts of West Pipkin into fall 2024.

Barmby said the city “cannot deny approval for a failure” of a road because of existing or “background” traffic. Under state law, new development cannot be “held accountable” for existing problems, he said.

Under the Community Planning Act of 2011, a development “applicant shall not be held responsible for the additional cost of reducing or eliminating deficiencies,” such as a road that has already failed or would fail with or without the projected new traffic.

State law states: “For any road determined to be transportation deficient without the project traffic under review: (a) the cost of deficiency correction shall be removed from the calculation.”

The 2011 law and subsequent legislation stipulate that the proportionate share formula, which requires developers contribute to offsite infrastructure improvements, “shall be applied only to those facilities determined to be significantly impacted by the projected traffic under review.”

“The improvement to correct the transportation deficiency is the responsibility of the entity with maintenance responsibility,” Florida statute states. “The proportionate share shall be calculated only for the needed transportation improvements that are greater than the identified deficiency.”

Therefore, yes, “The roads are congested,” Barmby said. “But  we cannot use that as a reason to not approve developments. Fifteen years ago, we could get (existing) background impacts addressed by developers. We don’t have that ability anymore.” 

“It has nothing to do with us —  people are coming,” Musick said. “It is a constant struggle for me. Some of these emails, they’re difficult to answer without an answer that waves a magic wand.”

The commission Monday unanimously approved Forestar’s proposed transportation development agreement for its internal road network, which will include a “spine connector road” between West Pipkin and Ewell roads and the completion of the Medulla Road extension.

Hawthorne Mills location and road network

Barmby said Hawthorne Mills’ road network will be connected to, and similar to, that of the nearby Riverstone subdivision.

West Pipkin will operate at an “unacceptable level with or without this project. Regardless of what happens in terms of growth in this arena, this road is projected to fail,” Barmby said. Ewell Road, however, “would not fail without this project.”

The development agreement gives Forestar 10 years to complete its road network, longer than the usual three years because of the prioject’s size and complexity, but Barmby said he expects the subdivision to be built far sooner.

“It may be a year or so before you start to see construction of phase one and (Forestar is) also working on the next two phases,” Barmby said. “There is active movement to move the project forward.”