Florida Sea Grant's "Environmentally Compromised Roads" Model Ordinance

The “Environmentally Compromised Road Segments” model ordinance provides a framework for local governments in Florida to recognize and proactively address two related challenges: changing environmental conditions that cause natural degradation of public roads and rising maintenance costs. The ordinance does so by creating exceptions to both levels of service and uniform design standards for “environmentally compromised road segments.” Such road segments must meet certain maintenance cost thresholds and be within areas where typical repair activities and standards are infeasible due to naturally-occurring environmental conditions. The ordinance also establishes procedures for the local government to abandon these road segments. The ordinance provides an example of how a local government in Florida might shift towards a disinvestment policy for public roads in high-risk coastal areas.

The Florida Department of Transportation sets uniform design standards for roads within the state (as laid out in the Florida Greenbook1), but allows for exceptions in certain instances, such as when any of the uniform criteria cannot be met and a local government has adopted alternative design criteria by ordinance. The model ordinance thus creates a design exception for “environmentally compromised road segments,” which the ordinance defines as, first, those that are in an “environmentally challenging location.” Such a location is one in which naturally occurring conditions make remediation or repair infeasible. For example, this could be a result of repeated natural damage, the need for non-standard repair materials or processes, or the need to use repair or maintenance processes that have a detrimental impact on a natural resource. Second, to be designated, such road segments must also require annual maintenance costs that greatly exceed2 the county-wide average of non-compromised road costs.

In order for the local government to designate a location as “environmentally challenged” or a road as “environmentally compromised,” they must do so through an ordinance which describes and maps the boundaries of the road or location, and provides names and addresses of any fronting property owners or property owners who need to cross the road or location in order to reach their land. Officials must also give these property owners sufficient notice (generally within 30 days) prior to the first publication of the ordinance. Within a month of being designated “compromised” or “challenged,” these roads or locations must be marked with signage at their ends or access points (or at intervals, if applicable) alerting people to the damage, deterioration, erosion, etc.

When a road is designated as environmentally compromised, the model ordinance enables disinvestment through reduced maintenance. First, designating a road as "environmentally compromised" means the local government is barred from spending 25% beyond the bare minimum needed to maintain it at a 'compromised' level. Second, when maintaining such a road, the government must ensure it spends less, on a per-unit-area basis, than it spends to maintain non-compromised roads3. If additional funding is required for compromised roads, it can be raised through a Municipal Services Benefit Unit4. The practical implications of reduced maintenance are poorer quality roads in certain areas, which will further put property owners on notice that roads and access may be substandard and may remain so.

The ordinance also provides property owners, who otherwise lack meaningful access to their property, with avenues for recourse. But if these efforts do not solve the issue, assuming the local government has acted in good faith, the government cannot be held liable: first, natural causes of degradation are not the fault or responsibility of the government and, second, the government will have met its burden of due diligence by notifying owners and making good faith efforts to resolve access issues.

Finally, the ordinance lays out a means to cease designating a road as compromised, and a means to abandon a compromised road. Environmentally compromised roads will cease to be considered compromised if, during three consecutive years, the road can be maintained up to standard with non-compromised roads in the local government at a cost 1.5 times less than that needed to maintain the latter. Abandoning an environmentally compromised road, on the other hand, requires a supermajority of property owners whose sole means of property access is the compromised road to approve of abandonment in a referendum. The road is then transferred in deed to those property owners, and the local government is not responsible for compensating the property owners. Furthermore, if the road has been designated as environmentally compromised for 6 years, the government can abandon it regardless of support from property owners.

The model ordinance was developed in 2015 by authors affiliated with Florida Sea Grant in direct response to events that culminated in the 2011 ruling in the Florida state case Jordan v. St. Johns County5, which provides a standardized means of balancing private property rights and community interests in Florida. The ordinance is supported by Florida Statutes that require local governments to reduce unnecessary costs6 and risks7  to road, maintenance, and stormwater systems that result from sea-level rise and increased erosion, storm surge, flooding, and other environmental hazards. St. Johns County developed and implemented an ordinance in 2012 of similar purpose to this model ordinance.

Publication Date: October 2015

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