For many years, the state of Florida has used the "principle of road concurrency" to help determine whether proposed new residential or commercial developments should be built.¹ The idea is that no proposed new development should be approved unless local roads adequate to serve it at a certain desired "level of service" (freedom from congestion) either exist already or will be built at nearly the same time as the proposed development.² This seemingly sensible principle is designed to prevent so much new housing and other building that existing roads would become seriously overloaded. (Florida also applies this principle to other infrastructures, such as schools, but this article focuses solely on its application to road construction.)

But in reality, "road concurrency" is not a workable policy. It suffers from two fatal flaws that make it inoperative in practice, and it generates several unintended but highly undesirable consequences when it is widely applied.³

The First Fatal Flaw: Building More Roads or Expanding Existing Ones Cannot Prevent Many Major Roads from Becoming Overloaded During Peak Periods

The first fundamental flaw is that additional road construction cannot prevent many major highways from becoming congested beyond any desirable "level of service" during normal peak commuting hours. Such congestion occurs because of Americans' proclivity to travel in private vehicles and Downs's Principle of Triple Convergence concerning peak-hour congestion.⁴ In 2000, over 87 percent of all American commuting was done in private vehicles, compared to 5 percent in public transit (only 3.5 percent outside of New York City).⁵ As a result, in almost all large metropolitan areas, major commuting highways become overloaded with vehicles during rush hours because so many people are trying to move at the same time. Once such congestion has arisen, expanding those roadways or even building new ones cannot fully eliminate it. If a major expansion of such a road occurs, initially traffic can move faster during peak hours. But soon the word gets around, and other drivers converge on that roadway (1) from other routes they had been using to avoid congestion, (2) from other time periods they had been using, and (3) from other modes such as buses and trains. Even with added capacity, the road again becomes overloaded in peak periods, though those periods may now be shorter and the road carries more vehicles per hour during those periods. Thus, it is essentially impossible in large metropolitan areas to attain the desired "level of service" on all major roads during peak hours that the concurrency principle requires as a condition for additional development. Major commuting roads there automatically fail to meet full concurrency compliance. So it is never permissible to allow added development there without violating the concurrency principle. As a result, governments must develop means of evading this principle in practice.

One legal form of evasion is having the legislature exempt certain types of development from the requirement. Examples are projects on major in-fill sites, in redevelopment areas, as part of revitalizing downtowns, or needed to encourage more public transit use, all of which are now exempt under Florida law. A second evasion is permitting developers of projects that would generate traffic exceeding desired "levels of service" on existing roads to "buy out" of the requirement. They pay the government amounts equal to the cost of providing enough new capacity to offset the added loads created by their projects. But those proposed roads are rarely built because of high costs or community opposition. So "buying out" often amounts to forcing developers to bear more of the community's roadway costs - that is, legally "bribing" the government to suspend the concurrency principle.

This result is encouraged because existing regulations require local governments to count potential traffic loads from future projects not yet built as though that traffic were already present B thus making any current extra road capacity unavailable to serve other projects proposed later but ready to go now. Complex concurrency calculations also encourage local officials to under-estimate how much potential traffic will arise from possible future developments so they can allow new projects that are ready to go to proceed without heavy burdens from "buy-out" costs.

The Second Fatal Flaw: In a Free Country, Limiting Overall New Development in a State Is Basically Unconstitutional

The second fundamental flaw in the concurrency principle is that, in a free country, a community's future growth should not be - and probably cannot be - determined by the adequacy of its roadways at any given moment. The concurrency principle amounts to a state legislative fiat that Florida should not accept any more citizens unless it has enough roadways to provide both new and existing residents with a constant desired level of roadway mobility. Thus, concurrency is basically a type of growth-limiting regulation. But in America, Florida has no right to restrict the inflow of newcomers from other states, or through natural increase, regardless of how crowded its roads are now or will become. The Constitution guarantees every citizen the right to move freely across state borders, if he or she wishes, and does not restrict childbirth. Existing residents may not like these conditions, since more newcomers can overload existing facilities and reduce the quality of life for those already there. But the proper way to avoid that outcome is to raise enough public funds to build the roads and other infrastructures necessary to provide both current residents and newcomers with desired levels of service. If Florida residents are unwilling to tax themselves enough to do that (which has been the case for several decades, according to the state's own calculations), then they will just have to suffer from reduced levels of service.

This result may be unpopular, and even regarded as "unfair" by existing residents. But it is part of the cost of our society's freedom of movement. The overall ineffectiveness of the road concurrency policy is proven by the fact that Florida's total population has continued to rise sharply - up 23.5 percent in the 1990s alone - in spite of obvious shortfalls in the state's roads and other infrastructures. Many people seem to be willing to keep moving in to gain Florida's climate, job opportunities, low housing costs, and other advantages, in spite of its infrastructure deficiencies. In short, there are other worthwhile goals in life besides uncongested roads.

Hence, in our free society, trying to limit the amount new housing and commercial facilities that can be built to serve additional residents by the adequacy of the roads available to accommodate those new developments is not only undesirable, but also unachievable.

Some Negative Consequences of Applying the Concurrency Principle

Years of experience with concurrency in Florida also show that this principle has several major consequences - some unintentional - that are extremely detrimental to society in general. The first such consequence is that road concurrency drives a lot of new development out of built-up areas into sparsely settled rural areas, thereby aggravating sprawl - even though curbing sprawl is a major Florida planning goal. Traffic in many built-up areas already loads roads beyond the desired "levels of service" during peak hours, as explained above. Hence local governments are supposed to prohibit further development there, which forces developers to shift out to vacant open space.

This same problem discourages "smart growth" policies like developing in-fill sites, redeveloping inner-city neighborhoods, and revitalizing downtowns. So the Florida legislature has exempted such projects from the law, but defines those exemptions rather narrowly, still blocking many proposed "smart growth" projects.

A second negative consequence is that developers who "buy out" of concurrency requirements or pay impact fees must add the road costs they pay to the prices of the housing and other facilities they build. This raises the costs of new housing substantially, harming low and moderate income households. Yet low housing cost is one of Florida's greatest attractions. On the other hand, this loading a large share of the costs of growth onto those who occupy or use new facilities reduces tax burdens on existing residents, thereby benefitting the latter - even though they also make some use of such new facilities.

Another undesirable consequence arises from the litigation-encouraging nature of Florida's legal system. Under Florida law, almost any citizen can file a lawsuit aimed at challenging government permission to develop anything, including new or expanded roads. As a result, proposed large-scale projects, which are often delayed for years by opposition lawsuits, may theoretically soak up any local road capacity available to satisfy concurrency requirements for long periods before those projects are built. That imposes high "buy out" costs on projects proposed later but ready-to-go in the interim. This causes lengthy and costly delays on almost all projects large enough in scale to attract widespread public attention.

Another major problem with concurrency is that key public bodies - including the state legislature - do not want to raise taxes; therefore, they may refuse to fund the road construction that has been planned to offset new developments. Even if governments charge impact fees instead of taxes, those fees are rarely enough to pay fully for the required roads. When the new housing and commercial developments are built anyway, that further overloads existing roads. If the concurrency principle is subsequently enforced rigorously on additional development proposals, those can be built only in sparsely-settled areas. Furthermore, the same unwillingness to raise taxes leads to inadequate maintenance of existing roads and bridges.⁶

Even before concurrency was adopted, Florida exhibited a chronic unwillingness to raise taxes or charge high enough impact fees to build sufficient infrastructures to keep up with its rapid population growth. This has been shown in many state studies of infrastructure needs, and steady increases in traffic congestion. Yet the state's inadequate infrastructure has not deterred construction of enough additional housing and other facilities to accommodate the huge flow of newcomers. This is indicated by the continuous expansion of the state's population without a severe shortage of housing. In other words, concurrency has been unsuccessful in preventing new development inadequately served by new roads. However, concurrency has influenced where that development is located - mainly by making it more sprawling.

Another limitation of the concurrency principle relates to the characteristics of highway networks. Many localities through which major roadways run - especially interstates - experience high traffic flows generated elsewhere and going elsewhere. But the resulting high through-puts in along-the-way communities prevent further local development there because concurrency requirements cannot be met - even if plenty of land is available locally. In theory, interstates should carry mainly long-distance traffic, but actually they have become major local commuter routes. Yet expanding interstate capacity is extremely difficult because of high costs, legislative limits on the number of lanes, and local opposition.

The Basic Reasons Why Concurrency Cannot Work Effectively

These disadvantages of trying to control new development by relating it to roadway capacity spring from three basic facts. First, throughout the United States, peak-hour traffic has expanded much faster than human population since 1970. So in large and growing metropolitan areas, it is impossible to build enough roads to keep peak-hour levels of service down to desired standards. Peak-hour congestion there will inevitably worsen, but that does not necessarily mean no further development should occur, because there are other benefits of more development besides mobility. Those benefits include providing shelter to a growing population, adding to the labor force and the tax base, and increasing economic activity generally.

Second, it is much easier and faster to raise private capital to finance new housing and commercial properties than to raise public capital to build more roads or alternative infrastructures. The former are financially self-supporting in markets, but the latter require political consent from taxpayers and voters B both for funding and for local permission to build. So roads are almost bound to lag behind other forms of development in rapidly-growing regions like Florida. This disparity in timing makes the whole idea of concurrency basically unworkable.

Third, rapid population growth caused mainly by in-migration inevitably creates tensions between existing residents and newcomers. These tensions often generate openly anti-growth sentiments and strengthen environmental protection sentiments that imply less growth. Such tensions cannot be removed or resolved by state-wide regulations that try to apply the same rules or ratios in a bewildering variety of circumstances.

If Concurrency Cannot Work, What Will?

If new development in Florida cannot be effectively managed by a statewide concurrency principle, what can be done? There is no easy answer, especially in areas experiencing major in-migration from the rest of the nation and abroad. Concerning local roads and streets, local communities must strike their own balances between permitting more housing and commercial properties and financing and creating the roads and transit to serve them. But mobility in every locality is also heavily dependent on state and federal financing of major roadways serving that locality. Insofar as such regional roads are involved, the state government must develop an effective overall plan for allocating its transportation resources and coordinating with local governments. But trying to shift much of the burden for the myriad necessary decisions related to development onto a policy that values uncongested roads above all other goals has been, and will continue to be, a failure. That policy should be abolished. A new means for coordinating urban development with the roads to serve it should be developed that does not set inherently unattainable and counter-productive goals.

1. The basic legislation was Florida's Omnibus Growth Management Act of 1985.
2. The time relationship is set forth in Florida Statutes 163:3180, (1)(c) as follows: "Consistent with the public welfare, and except as otherwise provided in this section, transportation facilities needed to serve new development shall be in place or under actual construction no more than 3 years after issuance by the local government of a certificate of occupancy or its functional equivalent."
3. Some of the ideas in this article have been taken from the Florida Transportation and Land Use Study Committee, "Getting Concurrency Right," in Final Report of the Florida Transportation and Land Use Study Committee (Tallahassee: January 15, 1999), pp. 18-30.
4. See Anthony Downs, Stuck in Traffic (Washington: The Brookings Institution and the Lincoln Institute of Land Policy, 1992), chapter 2. The principle of triple convergence was originally set forth as Downs=s Law of Peak-Hour Traffic Congestion in the "The Law of Peak-Hour Express Way Congestion," Traffic Quarterly, XVI, 3 (July 1962), pp. 393-409.
5. Census Bureau website, Demographic Profiles, 100 Percent and Sample Data, from the 2000 Census, data compiled from individual state reports.
6. A survey of Florida's Metropolitan Planning Organizations (MPOs) in the late 1990s reported that their number one problem was lack of funding to construct infrastructure, as follows: "Without exception, the state's 25 MPOs identified funding shortfalls to be their most pressing problem, citing available or reasonably forecast revenues as inadequate for meeting regional transportation needs. The overriding issue for most metropolitan areas was how to adequately fund the improvements identified in the needs assessment with existing revenues. Nearly all of the MPOs had to make substantial cuts to the needs assessments to meet the financial constraints of developing a cost-feasible plan. Hence, in most metropolitan regions, there remains a large discrepancy between the needs assessments and cost feasible plans. The collective shortfalls identified in the 25 plans amounted to $22.3 billion in 1995 dollars, through the year 2020. If anything, it is believed that this may be a conservative estimate." Margaret A. Marshall and Edward A. Mierzejewski, "Challenges in Transportation Planning: A Review of Florida=s Metropolitan Planning Organizations," Proceedings of the 1998 National Planning Conference.