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Cities Need to Require Adequate Public Facilities for Development Projects

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By James Bourey
July 17, 2021

With passage of the American Rescue Plan Act, the next big federal legislative plan for President Biden focused on the nation’s infrastructure. By virtually any reasonable standard, the investment in our country’s transportation system has fallen behind that of many prosperous nations. The same can be said for other key public facilities. At the local level, we also see many communities not keeping up with the demands growth has put on roads, transit, water, wastewater, stormwater and school facilities as well as parks and recreation and open space systems. Local governing bodies frequently allow development without facilities to serve that development. This has been a concern for communities going back many decades. Some states and localities have attempted to address this problem by tying development approval to the availability of public facilities capable of handling impacts of the development. This column is an abridged version of a much longer piece in my soon to be published book, The Journey to Make a Difference; Advice for City/County Managers.

In 1985, the State of Florida developed what, at the time, was the most progressive growth management legislation in the nation. Arguably the linchpin of this law was the requirement dubbed “concurrency.” This concurrency provision required that public facilities adequate to serve a development must be in place at the time of the impact of the land uses. It further restricted cities and counties from issuing a certificate of occupancy to any development prior to necessary public facilities being in place. This included transportation, water, wastewater, stormwater, solid waste and parks and recreation. One of my responsibilities when I was appointed in 1987 as an Assistant County Administrator with Hillsborough County was to lead the county’s development of regulations to meet this concurrency requirement. 

In formulating regulations to meet concurrency, each community was required to set a level of service standard for each type of facility and ensure that any new development did not cause the level of service standard to be exceeded. If the level of service would be exceeded, the developer could chose to build or expand facilities sufficient to accommodate the impact of their development. This could mean building or expanding a roadway or assisting with traffic signal improvements sufficient to accommodate the development’s impacts. Similar types of improvements could be made to other facilities such as expanding water or wastewater pipes or treatment facilities to accommodate the development.

Examining the type of standards generally set for the transportation system provides an example of setting a standard. Most managers have some familiarity with the system of levels of service for roads which are classified with letters ranging from A through F. A is the best level of service, characterized by a free flow of traffic. B, C, D and E are characterized as progressively more congested and the final level, F, is when the traffic flow totally breaks down and gridlock can occur. The level of service that has been set as a standard is generally either C or D. Level of service at a C has been more often used in less developed communities and those quite urbanized places have more often adopted a level of service at a D.

While implementing the concurrency requirement has some complexity, it is the best approach to reducing the negative aspects of development for a community. The State of Washington has also instituted a requirement for adequate public facilities and implemented a concurrency provision. However, it is only mandated for transportation and is optional for other types of facilities. Maryland state law mandates a public facilities plan be a part of the locality’s comprehensive plan; it must include a funding plan to pay for facilities that are necessary and allows for the adoption of an adequate public facilities ordinance.

While some states have required or enabled localities to adopt such ordinances, it has not gained a broad acceptance. Other approaches result in similar outcomes. For instance, communities that require traffic studies to be made as part of the approval process often require that a development not reduce the level of service on a roadway. However, in many instances the requirement is just that the roadway condition not get any worse than at the time of the proposal. Of course, this does not address the problem of an already inadequate facility. While there are different approaches, the straightforward requirement for adequate public facilities offers an excellent vehicle to address these impacts. This is particularly appropriate for handling transportation facilities which should include transit. While it is also a good approach for water and wastewater, it is not as critical because state laws generally do not allow municipalities to issue permits for development unless adequate capacity exists to supply water or collect and treat wastewater. Localities are also generally not allowed to issue permits without adequate provision for stormwater drainage. While there is a critical role that the federal and state governments must play to maintain the nation’s infrastructure, cities can and must do their part to tie development to infrastructure capacity.


Author: James Bourey served local government for 37 years, including as a city and county manager and regional council executive director. He also worked as a consultant to local government for another six years. He is the author of numerous professional articles as well as the book, A Journey of Challenge, Commitment and Reward; Tales of a City/County Manager.

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