“They are so mad about traffic that they can’t see straight”

In a surprising change in longstanding legal advice that helped open the door to development that has overwhelmed local roads, the Marion County Board of County Commissioners (BOCC) recently were told they have the authority to reject development projects under some conditions.

Toward the end of a four-hour commission workshop April 24 on Marion County roads, County Attorney Matthew “Guy’’ Minter referenced an email he had sent to the board that stated not only could the board reject a development if the adjacent road could not handle the additional traffic, but the commission actually is obligated to do so.

Noting that the laws concerning development and roads “really don’t dovetail super great,’’ Minter said, “If you’ve got a project that’s going to cause the level of service (LOS) to fail … you’re not even supposed to approve that project under the law.’’

The commissioners were quick to note this dramatic change in the legal direction they’ve been receiving for years. 

“Honestly, Guy,’’ Commissioner Carl Zalak said, “I thought you told us exactly the opposite the other day when we were talking about the project on Maricamp.” 

“Well, at that time,” Minter said, gesturing his hands in a kneading motion, “this thing has been kind of like Jell-O.’’ 

Noting the ambiguity of the Florida statute and that no case law has been established, he said, “So far, there haven’t been any cases. Maybe nobody wants to roll the dice and find out from a court which way the courts are going to say because they’re afraid of what the outcome of that decision would be.” 

Zalak pressed Minter for more clarity. “In general,’’ he said, “if (the road) is already failing, and anybody wants to put in another project that’s going to impact that intersection, then based on our comp plan you’re saying it could be turned down?”

Minter replied, “I don’t think if it’s already failing, that means that … the government is obligated to keep piling on and make it five times worse, five times failing. I think you’d have the basis to say no to it.

“Under concurrency,’’ he continued, “we have to demonstrate for our (comprehensive plan’s) required and optional element—transportation would be an optional requirement—that levels of service adopted can reasonably be met. Infrastructure needed to ensure that adopted levels of service standards are achieved and maintained for the five-year period must be identified.”

As for who would pay for the upgrades needed to improve the road’s LOS score, Minter said, “You can’t charge the developer to correct the past deficiency. You can’t force a developer to pay more than their proportionate share. But that doesn’t mean … we just have to say, ‘Well, you get to build it anyway.’ And we have to keep making a bad situation even worse.’’

Minter continued, “If the county government doesn’t have the money to correct the deficiencies right then, the way I read that is that you can say no to that development if it’s going to cause the level of service to fail on that particular segment of roadway.’’

Reached this week about the workshop, BOCC Chair Craig Curry reiterated that state statutes restrict local governments’ ability to implement level of service changes, including upgrades. His recollection of the workshop discussion was “… in some cases, the state does not allow the local governments to change the LOS, as I recall. The discussion was that if we go in and have a LOS that’s a D and we change that LOS to B or C, then we could jeopardize the ability of the county to get a proportionate share of money from the developer. That’s my understanding.”

Minter explained the complex topic further to the “Gazette” in an interview this week. 

“It’s grappling with provisions of Chapter 163 of the FL statutes,’’ he said. “Unfortunately, many parts of these statutes are not models of clarity.” 

The history of the state-level legislation is important, he explained. As of result of the recession (2007-2010), the state authorities in Tallahassee, including then-Gov. Rick Scott and the Legislature, changed from the Community Planning Act model in 2011 to the Department of Economic Opportunity (DEO), the idea being to spur economic development in Florida. 

“A laudable goal,” Minter said, “but as with many things, there were unintended consequences.” 

For one, the DOE no longer reviews plan amendments for any issues or local infrastructure needs; it only looks at impacts on statewide facilities, state roads, etc. Local governments are left to wrestle with development impacts on their own. 

Another key effect is in impact fees for roads, which were originally created by local government ordinance, not the product of state statutes. The development community, Minter said, has been steadily pushing back and “got the state Legislature to adopt an impact fee statute that provides for uniformity and conformity” to the detriment of local governments.

The catalyst for looking at the statute here in Marion County, Minter explained, “Specifically in the last 20 months, is the commissioners have been getting calls from citizens upset about the visible increase in traffic. State Road 200, Maricamp (Road), (County Road) 484, what have you. The board raised questions about what options there are, what we can and can’t do and conditions of roadways. That led to a discussion regarding any benefit to changing the LOS on roads we have.“ 

The challenges before the BOCC and county staffers, are many, Minter said. 

“The key word is balance. That’s what going on here. The BOCC is trying to balance multiple interests—the taxes, the taxpayers, the other sources of finance, the concerns of citizens for roads. It’s easy to take potshots at it, but if anyone is to jump into the fray, they’d quickly find there are no real simple solutions.” 

During the workshop, County Administrator Mounir Bouyones acknowledged there is some confusion about the statutes dealing with developers and road improvement, but he agreed with Minter’s assessment. 

“If the development is going to exceed the level of service that is adopted on that road,’’ he said, “you have a lot of flexibility to have communication with the developer on what needs to be done.” 

“It finally gives us a bargaining chip,” Zalak said.

Failing roads in neighborhoods pose a challenge

The revelation came at the end of the lengthy workshop, during which staff gave the board an overview of the status of roads in the county, including the five-year Transportation Improvement Program (TIP), an updated Pavement Condition Index (PCI) and accompanying proposed Level of Service (LOS) changes, and an extensive and sometimes heated discussion of the Municipal Services Taxing/Benefit Units (MSTU/MSBU) process.

County Engineer Elton Holland introduced proposed changes to the LOS on county roads that would move analysis of projects to an earlier timeline, before the roads were scored at LOS “E” or “F,” failing and failed respectively. One example of an LOS “E” road is the interchange at County Road 484 and Interstate 75; during peak times, Holland said, it’s an “F.”

There are 2,559 miles of paved roads, including the major arterial and collector roads throughout the county, Holland said, and nearly half of county-maintained roads are in subdivisions. Since the 1980s, county policies have decreed that taxes are specifically assessed to those neighborhood residents, not the general public. For example, Rainbow Lakes Estates, Marion Oaks and Silver Springs Shores and similar neighborhoods are funded by assessments. Maintenance includes pavement and right of way mowing.

There are also 387 unpaved roads that get some regular grading.

The commissioners had several ideas for cost-cutting measures. During the discussion about neighborhoods with failing roads but whose residents don’t have the finances to handle a large assessment, Chair Craig Curry asked, “Is there a way to scale back the level of the project? Instead of an inch of asphalt on, take it back to half inch?”

Commissioner Michelle Stone suggested, “Years ago, we used those slag roads. I know it’s not the best, but it’s something.”

Holland said, “In terms of the design specification, it fell off the (Florida Department of Transportation’s) design specs.” Slag or chip seal isn’t normally part of the products the county currently uses. 

Commissioner Kathy Bryant asked for specifics on savings for chip seal versus full asphalt. Staff estimated about a 50% savings. She suggested the residents who can’t afford an asphalt paving be offered the less-expensive chip seal option. 

Buoyones and Assistant County Adminstrator Tracy Straub pointed out the disadvantages to that type of road, including rock and gravel migration, a shorter life span and the lack of county equipment for maintenance. 

Stone replied pointedly, “When you’re on a budget, you build what you can afford. We’re never gonna get to that level. They’re never going to be able to pay for that road. So, what do you suggest we do for these neighborhoods? Are we going to build a champagne road when we know they can’t afford it, or are we going to build them something they can afford?” 

“The roads have failed,” Buoyones replied tersely. “We abandon the roads, or we keep patching. Then they become dirt roads.” 

Bryant said, “We know we have subdivisions that are going to be financially challenged (from a road assessment.) You’re talking about adding five, six, eight hundred dollars to their tax bill? Some of them will lose their homes over that. I’m not willing to do that to somebody.” 

Commissioners also discussed the “three strikes and you’re out” idea suggested by Zalak in previous meetings. For residents who can’t afford road improvements for their neighborhood and reject an MSTU process three times, those county roads would no longer be maintained. 

“If the community is absolutely against it (road costs), then we bring it back for a public hearing three times,” Zalak maintained. “We have a fair and outlined public process.” 

Curry seemingly was not sold on that approach. “You’ve turned over a mess to people who can’t afford it to begin with,” he replied. 

The board also had extensive discussions on how to cut road costs further, the possibility of neighborhood grants, finding a cheaper asphalt product, and community services programs to help with costs. 

“We need sales tax revenue,” Holland emphasized to the board. “Sales tax has had a huge impact on our network health.”

In summarizing the board’s frustration with the roads issue, Curry said, “We don’t have the money. The chances of getting the money aren’t too good. Assume you had the money, we don’t have the materials and equipment to deliver the project. We just have to attack them one at a time and prioritize as we’re doing it.”

Road funding continues as major issue

As always, funding is the biggest hurdle.

“There is no perfect funding solution,’’ Zalak said. “None of us want to drive at an “E’’ (or failed road). By having a level of service D, we’re going to drive at an E.” He added, “There’s no proportionate share [from the developers] being paid. That’s our fault.”

Zalak was referring to the low impact fees put in place by previous boards and also restricted by state statute, which have not kept up with the growth or costs of road work in the county. 

Bryant concurred, saying, “We’ve got more (road) work on the books than we’re ever going to get accomplished in the next 20 years.”

Many of the county roads now are at a LOS of E, which is failing. Bryant summarized the public’s take on the issue. “They are so mad about traffic that they can’t see straight.” 

Several road projects are already slated or are in the works in the county. Of all the county road projects, just over $218 million is funded and programmed; about $659 million is not. 

The Area 1 section of the county is the 80th Avenue Corridor in West Ocala, running from State Road 200 up to the not-yet-built NW 49th Street, north of U.S. 27, which will eventually connect to I-75. The projects here include the widening of SW 38th Street near West Port High School and the Calesa Township development. It also includes the SW 40/49th Avenue segment connecting Marion Oaks with the 42nd Street flyover section. Of the projects, just over $175 million is funded and programmed; about $151 million is not. 

Area 2 is the Marion Oaks section. Projects slated are the widening of CR 484 from Marion Oaks west and north to SR 200; the extension of Marion Oaks Manor from the 49th Avenue area east to I-75; and adding a new interchange. Of those projects, just over $33 million is funded and programmed; about $279 million is not. 

The Silver Springs Shores is Area 3 and has several slated improvement projects. The Emerald Road extension; the 92nd Loop extension; the widening of Maricamp Road and an improved intersection at Maricamp and Baseline Roads. Of the projects, just over $9 million is funded and programmed; about $122 million is not. 

Changes to LOS might speed up projects

Holland reviewed his department’s proposal for upgrades in LOS for county roads. By changing the LOS analysis to take place before roads fail, road improvements could be planned for, funded and implemented before driving on them becomes unbearable. 

Zalak explained the benefits of the change. “It’s actually keeping up with how we want (traffic) to perform. The reality is today when we let it go to E… it is way too far behind the system. By then, people are already yelling at us.

“By the time you buy the land, put the road in and done all those other things, it’s sometimes five to ten years at least down the road of what you should have been.” 

Zalak suggested a change in the comp plan language to examine roads at 50-80% of Level C of LOS. This will trigger the project being in the TIP earlier rather than later. “None of this will stop development… When development is coming, long term it’s cheaper to look at those relief valves earlier in the process.” 

Stone asked, “Where does this put the help from the developer for the roads?”

It will expedite the process, Zalak answered. It moves up the timelines. 

Zalak pointed out it puts other projects on the map and gets them in the process, it still is an effective process. “Yes, we have more than we can do, absolutely. But we figure a way to solve the problem.” He suggested impact fees, sales tax, FDOT programs, bonds and more. “We get it together.” 

Having the penny sales tax has been a huge benefit to the county. The current sales tax expires at the end of 2024, and the board may put a renewal before voters in the 2024 election.

Holland also presented a traffic count study and a traffic congestion map for 2026 based on 2021 figures. After the workshop, the Ocala Marion Transportation Planning Organization released its Traffic Counts Report on June 1, showing updated traffic information for more than 120 county roads including Belleview, Dunnellon, Ocala and unincorporated Marion County. The report is based on 2018-2022 traffic counts. Some roads showed negative five-year growth rates but many showed hefty rates, including County Road 318, west of I-75 at 54.7%; County Road 475B west of County Road 475 at 62.5%; and Martin Luther King Jr. Avenue from NW 22nd Street to NW 31st Street with 41.7% growth rate. 

The growth rates do not reflect recently approved developments slated for construction or under construction such as Calesa Township (5,000 homes between SW 80th Avenue and SW 38th Street); Calibrex on SW 60th Avenue (nearly 1,200 homes and apartments); Pointe Grand Ocala South on SW 60th Avenue (584 apartments); a planned development with a maximum of 750 homes at SW 38th Street and SW 60th Avenue. Dozens of other projects have been approved in the past two years.