To carry out the thoroughfare plan, local governments must adopt certain measures to manage corridor development. These include measures to avoid development in the path of a planned transportation improvement and to manage roadway access as development occurs. Ordinances for right-of-way preservation may include, but are not limited to, the following (Williams and Marshall, 1996): • Restrictions on building in the right-of-way of a mapped transportation facility without a variance. • An option for clustering developments by reducing setbacks or other site design requirements to avoid encroachment into the right-of-way. • Allowances for some interim use of transportation right-of-way for uses having low structural impact through an agreement that requires the property owner to relocate or discontinue the use at their expense when the land is ultimately needed for the transportation facility. • Allowances for on-site density transfer from the preserved right-of-way to the remainder of the parcel. • Criteria for right-of-way exactions and a process for determining the amount of right-of-way dedication that is roughly proportionate to the impact of the proposed development. • Allowances for impact fee credits for transportation right-of-way dedication. • Procedures for notifying the state transportation agency of development proposals that would substantially impair the viability of the future transportation corridor. Right-of-way dedication is the conveyance of property needed for future transportation right-of-way from a private owner to the public. Subdivision regulations provide for dedication of land for roads needed to serve that development and any site-related improvements. However, mandatory dedication of right-of-way for thoroughfares is subject to constitutional limitations. For a community to require an exaction from a development there must be an “essential nexus” between the impacts of the property and the permit conditions (Nollan v. California Coastal Commission, US 1987). In addition, the amount of the exaction must be roughly proportionate, both in nature and degree, to the impacts of the regulated activity (Dolan v. City of Tigard, US 1994). For the purposes of administering dedication requirements, local governments generally differentiate between transportation improvements that are deemed site-related, such as right-turn lanes or subdivision streets, and those that are not directly site-related, such as traffic signalization, intersection turn lanes, or thoroughfare right-of-way for capacity enhancement beyond the impacts of the development. Site-related improvements are subject to dedication and need not be compensated. Any dedication of right-of-way deemed non-site-related and beyond the amount considered proportionate to development impacts may be subject to compensation in some fashion. Developers may be compensated through impact fee credits (including mobility fee credits), concurrency mitigation credits, density credits, fee simple payments, or some combination of methods. During development review, techniques such as on-site density transfers, setback waivers, and interim use agreements can be used to preserve development rights and ensure that the right-of-way remains clear of major structural improvements. Providing the ability to permit the request or buy the property in situations where the regulations would pose a substantial hardship (e.g., permit or buy) further ensures a legally defensible process. This combination of factors differentiates contemporary Florida programs from the traditional official map and development moratoria exemplified in the Joint Ventures vs FDOT litigation and suggests the viability of long reservation periods based on long range planning horizons or even build-out plans. However, caselaw suggests that the longer the horizon for preserving future right-of-way, the more tenuous the balance in enforcing preservation policies. Advance acquisition programs may be beneficial in this regard.
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