Current Developments in Public School Concurrency
Without question, school overcrowding is at the vanguard of current public concern. School overcrowding in relation to Florida’s continuing growth and development is one of the most critical social issues facing our community today. While new development also plays an essential role in a growing society, economic growth is threatened by community problems such as school overcrowding. Florida’s population has quadrupled since 1960 and contributed to the growing problem of school overcrowding and its negative effects. Studies gauge current school needs in Florida to be between $750 million and $3.75 billion. Needs for the next five years approach $10 billion with disputes whether the need can be fully addressed with existing revenue sources.
In October 1997, the Florida Legislature conducted its landmark special session called by Governor Lawton Chiles to address the critical problem of overcrowding in Florida’s public schools. At the session’s conclusion, the legislature enacted a $2.7 billion plan to build more schools. This legislation should provide welcome relief to school boards throughout the state, which are confronted by Florida’s continual growth.
In 1996, in an effort to limit residential development based upon the number of children attending local schools, Broward County adopted amendments to its comprehensive plan which imposed a mandatory public school concurrency requirement. On November 21, 1997, the Department of Community Affairs issued its Determination of Noncompliance and Recommendation to Administration Commission and accepted Administrative Law Judge Larry J. Sartin’s ultimate determination that Broward County’s school concurrency amendments were not in compliance with F.S. Ch. 163, Part II, and Fla. Admin. Code Ch. 9J-5. The failure of Broward County to adopt legally compliant school concurrency provisions raises the question of whether public school concurrency is a viable planning tool which can be successfully implemented.
and Public Facilities
Concurrency is a legislatively enacted growth management tool for ensuring the availability of adequate public facilities and services to accommodate development. The foundation for a legally viable concurrency system is the formulation and implementation of a capital improvements plan for delivering essential public facilities in a timely manner, by linking the approval of new development to the current and future availability of adequate public facilities.1 Ideally, concurrency regulations should seek to avoid the necessity for any moratoria on development by ensuring that both existing and planned public facilities are available as needed in light of a community’s growth. Currently there are seven mandatory facilities that are subject to concurrency requirements as required by F.S. Ch. 163, Part II. These mandatory facilities for which local governments are required to adopt level of service (LOS) standards include roads, sanitary sewer, solid waste, drainage, potable water, parks, and mass transit.2 A capital improvements program must be set forth in the local government’s comprehensive plan and establish both LOS standards for the facilities subject to concurrency and present the means for meeting the LOS standards.3
While Florida’s statewide concurrency requirement currently does not apply to educational facilities, several years ago local governments were given the option to elect to extend the concurrency requirement to other public facilities, including public schools.4
There are specific steps a local government must follow to extend concurrency to schools in compliance with F.S. Ch. 163, Part II, and Fla. Admin. Code Ch. 9J-5. First, the local government must conduct a study to determine how the statutory requirements for concurrency will be met and shared among all affected parties. Second, LOS standards must be adopted as part of the capital improvements element of the local government’s local comprehensive plan. The local comprehensive plan must also include a financially feasible public school capital facilities program which must ensure educational facilities will be available at adequate LOS standards necessary to meet the requirements set forth in the local plan. Third, the requirements for intergovernmental coordination among the local government, school board, and affected entities must be met pursuant to F.S. §§163.3180(1)(b)2 and 163.3177(6)(h)1 and 2. If these and other requirements are met, school concurrency may be implemented to regulate future development, possibly restricting development, under certain limited conditions, until there is adequate capacity among public schools to accommodate the impact of new development.
What Is School Concurrency?
Concurrency in general addresses a community’s need to accommodate, manage, and direct growth, and ultimately to prevent any moratoria on development due to inadequate facilities. A concurrency management system is a regulatory tool used to develop specific plans to ensure that growth does not surpass the capacity of both planned and existing facilities. School concurrency, like any concurrency system, will be based upon LOS standards for measuring the adequacy of facilities in terms of current and future capacity. If concurrency is imposed on the public school system, the school board will be responsible for setting these standards, yet what will it use to determine the LOS? What should be used? Will school concurrency be linked to enrollment, the number of seats available, facilities, teachers? What should be the measuring tool for determining capacity, and should capacity be measured on a school-by-school basis, a county-wide basis, or some other standard? These are critical issues to address and resolve, as school concurrency would condition residential development upon a school’s, or school district’s, ability to meet established LOS standards.
The Florida Constitution requires that a uniform and free public school system be provided for all Florida students.5 Under Florida law, the school board has the specific, limited, and delegated authority to manage the educational system on a county-wide basis, while ensuring that the constitutional requirement of a uniform and free public school system is met and maintained.6 Each county constitutes an individual school district which is controlled and operated by that county school district’s school board. The school board operates the public schools locally, yet it must meet minimum standards established by the state board of education and department of education.
The school board’s authority includes control over the funding, construction, location, and operation of public schools. School boards set the boundaries of school districts, establish and alter enrollment zones, set calendar schedules, allocate and determine school capacity, and undertake all other activities necessary for the operation of the school system.7 Although school boards have exclusive control over the operation of public schools, subject only to the regulations and standards adopted by the state board of education, they do not have the authority to grant land development permits, propose land development regulations, or implement land development restrictions. These are among the powers reserved to the local governments.
Planning to Manage Growth
In contrast to the powers delegated to the school board, local governments lack any authority generally to control, operate, or regulate public schools.8 However, a local government’s planning decisions regarding development do have a direct and significant impact on the public school system. Local governments are required to adopt a local comprehensive plan as a blueprint for future development and, additionally, are responsible for enacting local land development regulations to achieve the goals of the local comprehensive plan.9 Comprehensive plans are required to be reliable, consistent, certain, and meaningful under Florida law.10 For a local government to establish a public school concurrency system it must have the ability to operate public facilities, adopt a financially feasible capital improvements plan for delivering such facilities, establish a LOS standard for its schools, and, most importantly, it must have the ability to control the allocation of capacity for the schools while eliminating existing deficiencies in the system—all in conjunction with the school board.11 In sum, the capital facilities element must demonstrate that the local government will meet both existing and future capacity needs.12
A valid comprehensive plan responds appropriately to available data by formulating meaningful standards, principles, guidelines, goals, objectives, and policies.13 Planning is preparation. The essence of a plan is the identification of likely circumstances and events during a reasonable time in the future and the development of actions to respond both meaningfully and appropriately to such events.14 The local comprehensive plan is the principal instrument for regulating land use in Florida. It is implemented through the adoption of land development regulations consistent with the plan elements. Ultimately, any and all development, whether private or public, approved by local governments must be consistent with the adopted local plan.
F.S. §163.3180(1)(b) provides that a local government seeking to impose a public school concurrency requirement must first conduct a study to determine how the school concurrency requirement will be satisfied and shared by all affected parties.15 The most effective way of accomplishing this goal is through the formation of binding interlocal agreements between the local governments and school boards. Because only local governments control development approvals and only school boards control the financing and operation of public schools, it is vital to the successful adoption of school concurrency that all the powers and responsibilities of the involved authorities be specifically delineated and agreed upon. The study requirement is intended to provide a blueprint of how the local government and the school board will be able to achieve and maintain the established LOS standard and accomplish the necessary intergovernmental coordination.
In addition to preparing a study, a local government which elects to extend concurrency to public schools must amend its capital improvements element to indicate: 1) where and when the local government will provide the new schools needed to serve its projected growth; 2) the cost of the proposed new schools; 3) the projected revenue sources to fund the new schools; 4) the appropriate policies for ensuring that adequate schools will be available concurrent with the impact of future development; and 5) that the capital improvement element, as amended, is internally consistent and coordinated with each of the other elements of the local comprehensive plan.16
If a public school concurrency requirement is adopted, school concurrency must adhere to the same laws regulating the mandatory facilities subject to concurrency. Therefore, LOS standards for schools must be set forth in the capital improvements element of the local comprehensive plan.17 However, local governments do not have authority to set LOS standards for public schools. Only LOS standards set by the school board, which establish what capacity is acceptable for school facilities, will be binding. All adopted LOS standards must be achievable and maintainable throughout the planning period covered by the local comprehensive plan.18 If the LOS standard adopted is neither met nor maintained, the comprehensive plan is deficient and the school concurrency system will be deemed not in compliance with state law.19 Yet, many questions are left unanswered by the laws permitting local governments to adopt school concurrency. What are the LOS standards to be applied and in what manner should they be applied? Should they be applied on a county-wide basis or by some other measure? What measure of service should be used in establishing the LOS standards? How can we project the numbers of new students and the location of those students?20 These are questions which remain unanswered and which must be addressed by a local government that elects to extend concurrency to public schools.
F.S. §163.3180(1)(b)1 requires the inclusion of a financially feasible public school capital facilities program in the capital improvements element of the local comprehensive plan. Most critically, this program must demonstrate how the local government will achieve and maintain the adopted LOS standard.21 Among other problems faced by the various authorities attempting to manage growth and prevent overcrowding are the deficiencies that currently abound in the public school system. How can the current classroom deficits and unmet needs be addressed? How will the school board react or cope with its loss of authority, and the transition to shared authority and responsibility for managing the school system?
The only pragmatic and effective way of addressing this host of complex issues is to establish intergovernmental coordination through formal interlocal agreements among the different authoritative bodies. Although the purpose of regulation may be to reduce negative ramifications resulting from conflicting land uses, too often the impact of regulation is to unnecessarily place a moratorium on development. While it is important to determine whether any facility has the capacity to absorb the impact of growth, it is critical first to determine that the problematic growth is generated from the source being regulated. Conflicting power among different authorities in a school concurrency system is manifested in the fear of a development moratorium and fear derived from school overcrowding and inadequate educational systems.22
If concurrency is extended to the public school system, it is vital that both the local government and the school board collaborate and comply strictly with the mandatory planning requirements. The local government must not only include a financially feasible capital improvements plan for providing necessary school facilities in its local comprehensive plan, it also must meet the specific intergovernmental coordination requirements set forth in F.S. §163.3177(6)(h)1 and 2 (Supp. 1996).23 The intergovernmental coordination element, as amended, must set forth principles and guidelines for coordinating the local comprehensive plan with the school board.28
Each local government must enter into an interlocal agreement with the school board to establish the joint processes for collaborative planning and decisionmaking on public school issues, and the extension of the concurrency requirement to public schools, to achieve the successful integration of educational facilities planning into a local government’s growth management system. F.S.§163.3177(6)(h)2 requires that the county, municipalities and all affected entities within a county enter into the interlocal agreement to ensure that intergovernmental coordinations for school concurrency will be accomplished. Only through such collaborative planning by local governments and school boards can the goals of concurrency be met.
Broward County School Concurrency Experience
Concurrency regulations seek to avoid the necessity for suspending development by coordinating the timing and approval of development with the availability of adequate public facilities in accordance with a capital improvements plan. However, it may be that the goals of school concurrency are better achieved through cooperative planning formalized by voluntary interlocal agreements rather than by the imposition of mandated concurrency regulations. This has been evidenced by the recent recommended order, dated October 8, 1997, entered by Administrative Law Judge Larry J. Sartin, and the subsequent November 21, 1997 Recommended Order issued by the department (and forwarded to the Administration Commission for final agency action within 90 days after November 21, 1997), addressing Broward County’s attempt to extend a mandatory concurrency requirement to public schools. The results and implications are discussed below.
On September 11, 1996, Broward County adopted the public school facilities element, along with amendments to its capital improvements element, intergovernmental coordination element, and future land use element (sometimes collectively referred to as the “amendments”). The amendments reflected the county’s election to extend a concurrency requirement to the public schools in Broward County.
In its initial review of the public school facilities element, the department stated several objections. First, the department found that the proposed amendments did not contain all of the minimum required data, analysis, goals, objectives, and policies for the adoption of a public school concurrency requirement.
Second, the department determined that the data and analysis needed to determine the adequate level of service necessary to implement the adopted local government comprehensive plan had not been provided. The proposed amendments did not set forth the required data and analysis to determine needed school facilities, specifically to the facilities needed to resolve existing deficiencies and to address new growth. The department also determined that the proposed amendments did not contain the minimum required goals, objectives, and policies in the capital improvements element.
Additionally, the department objected to certain deficiencies in the interlocal agreement entered into between Broward County and the school board. The department found that the amendments failed to describe the joint processes for implementing a concurrency system, and merely reiterated the statutory requirements. It determined that, to comply with state law, the proposed amendments must demonstrate a consideration of the particular effects upon the development of adjacent municipalities in the county, adjacent counties, or the region, and upon the state comprehensive plan. The interlocal agreement also contained certain provisions that raised concerns about continuing compliance, particularly ones which allowed termination of the agreement by either Broward County or the school board, and failing to monitor or obligate the school board with respect to setting public school boundaries, selecting and acquiring public school sites, planning, designing, and constructing public school facilities, selecting LOS standards, and approving the public school capital facilities program.
Following the adoption of the amendments on September 11, 1996, the department issued a notice of intent and statement of intent on October 24, 1997, determining that the amendments were not in compliance with F.S. Ch. 163, Part II, and Fla. Admin. Code Ch. 9J-5. In response, Broward County, among other things, amended the interlocal agreement. As a result, on November 24, 1996, the department filed a notice of intent to find the amendments in compliance. On November 27, 1996, the Florida Homebuilders Association, Building Industry Association of South Florida, and Florida Association of Realtors filed a petition for administrative hearing with the department to find the amendments not in compliance. The school board intervened in that action.
On December 13, 1996, the Economic Development Council of Broward, Inc. (EDC) filed a petition for administrative hearing with the department. After an unsuccessful mediation, the two cases were consolidated and a final hearing was conducted in June 1997, before Administrative Law Judge Larry J. Sartin.
•The Administrative Law Judge’s Recommended Order
After a comprehensive two-week trial, the administrative law judge concluded in his recommended order that the amendments were not in compliance with the statutory and rule requirements. Although the administrative law judge identified many deficiencies in the amendments, his finding of noncompliance was based upon three main areas: 1) the absence of a financially feasible capital facilities program to demonstrate that public schools were to be provided and maintained at the adopted level of service; 2) the existence of other deficiencies in the capital improvement element; and 3) the failure to meet the intergovernmental coordination requirements.25
Judge Sartin determined that the amendments lacked the necessary goals, objectives, and policies to provide standards under which the school board, which is charged with the responsibility of setting student attendance areas, must draw student attendance boundaries to assist in the achievement of the adopted LOS standards for public school concurrency. While the legislature has not required that student attendance areas be used as the service area applicable to public schools, Fla. Admin. Code Rule 9J-5.016(1)(b) provides that “[t]he geographic service area and location of major system components for the public education and public health systems within the local governments’ jurisdiction shall be identified.” The service area selected by the county, i.e., school attendance zones, failed to meet this requirement because student attendance areas will change annually outside the local comprehensive planning process without any controlling standards and criteria. The absence of the required goals, objectives, and policies for the setting of school attendance boundaries simply left too much discretion to the school board and undermined the public participation component inherent in the comprehensive planning process.
The inability to control the allocation of school capacity presents serious local administrative problems for the implementation of any local school concurrency system and great uncertainty for developers, homeowners, and parents. For example, a plat could be approved based upon current capacity, then alteration of school attendance zones might reallocate school capacity, then capacity would be insufficient for the plat’s approval. Thus, the absence of the needed standards and criteria for the establishment of school attendance zones was fatal to the amendments. Whether a particular school would meet the adopted level of service after the adoption of the amendments simply could not be determined beyond the first year of the school board’s capital facilities program.
The cardinal implementing principle of Florida’s concurrency system has been that each local government is largely free to determine the quality of public facilities and services that should be provided to its citizens. Local determination, however, is much more limited in the area of educational facilities. How does one determine whether adequate school capacity is available? This is difficult because neither the local government nor the property owner has any control over the creation or allocation of school capacity. The amendments failed to provide any guidance in this respect.
Judge Sartin also found that the capital facilities program adopted by the county was defective for a number of reasons. Florida law mandates that the components of a capital improvement element cover at least a five-year period. Only the school board, pursuant to budgetary processes controlled by the state board of education and the department of education, can adopt a capital outlay program for schools. Judge Sartin determined the capital facilities program covered three years and part of another year, and began after the commencement of one of the years of the program in violation of the controlling administrative rule.
Second, while the public school capital facilities program was adopted as part of the capital improvements element, the substance of the program did not comply with the specific requirements of F.S. §163.3180(1)(b)1 or the general requirements for capital improvement elements of F.S. §163.3177(3) because there was “[n]o textual explanation of the goals, objectives, and policies addressing the construction of capital facilities necessary to meet existing deficiencies, the accommodation of future growth, the replacement of worn out facilities, or how the adopted LOS standards will be achieved and maintained.”26
Additionally, the program failed to establish how public schools will be provided “at an adequate level of service necessary to implement the adopted local government plan,” as required by F.S. §163.3180(1)(b)1. The language of §163.3180(1)(b)1 requires more than simply identifying sources of revenue to match capital facilities.27 The law requires that the capital improvements element clearly demonstrate that the capital facilities program ensures that the public facility be provided at an adequate level of service.
Like all components of the comprehensive plan, the capital improvements element must be economically feasible. Because it is the heart of each local concurrency management system, the capital improvements element merits special attention. The capital improvements element must consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities.28 The capital improvements element must specify when, where, and how the public facilities identified in the comprehensive plan will be located and financed. All comprehensive plan elements, including optional elements, must be based upon appropriate data. Therefore, a local school facilities element must be based upon accurate data and analysis which projects school needs and how the local government intends to meet those needs. Fla. Admin. Code Rule 9J-5.005(3) also requires that any element be based on level of service standards which ensure “that adequate facility capacity will be provided for future development and for purposes of issuing development orders or development permits pursuant to Section 163.3202(2)(g), Florida Statutes.” A public school concurrency management system must be consistent with the capital improvements element which must, in turn, set forth a financially feasible plan for ensuring that adopted level of service standards for schools will be achieved and maintained.
Finally, Judge Sartin determined that the amendments did not satisfy the intergovernmental coordination requirements of F.S. § 163.3177(6)(h)2. The interlocal agreement was not executed by all affected entities, which necessarily included all municipalities located within Broward County. It was, therefore, deficient. In addition, the amendment to the intergovernmental coordination element failed to contain the required joint processes for collaborative planning and decisionmaking regarding public school siting, population projections, and the extension of concurrency to public schools.
The practical effect of any local government school concurrency system based on an interlocal or other formal agreement with a school board will be shared control of the school system by the school board and the local government. The inevitable result of such negotiated agreements, which link the issuance of development permits to the provision of adequate school facilities, will be greater municipal and county involvement in school board decisions concerning the planning, funding, location, and construction of schools, and allocation of school capacity among the various local governments. In this instance, Judge Sartin determined that Broward County failed to adopt amendments to its comprehensive plan which would ensure the required intergovernmental coordination.
The department, as the state land planning agency, recently conducted its statutorily mandated review of Judge Sartin’s recommended order and also determined that Broward County’s adopted amendments were fatally defective for the following reasons: 1) inadequacies in the capital facilities program, 2) insufficient clarity regarding how level of service standards will be applied and met, and 3) inadequate data and analysis supporting the plan. The department’s Determination of Noncompliance and Recommendation to the Administration Commission has been forwarded to the Governor and Cabinet who will act in their capacity as the Administration Commission to take final agency action. The Administration Commission is anticipated to act in the first few months of 1998.
Broward County’s adopted amendments left too much detail to conjecture. The statutory and rule requirements for concurrency in general, and for public school concurrency in particular, are demanding. The county was not able to meet these planning standards. Whether another local government will, as Broward County did, attempt to adopt a public school concurrency requirement remains to be seen. If one does, the question then becomes whether the local government and school board will be able to bridge the gap to adopt a legally defensible public school concurrency amendment.
10 “The basic format of the criteria for each element requires the identification of available data, analysis of such data, and preparation of goals, objectives and policies supported by that data and analysis to accomplish desired ends.” Fla. Admin. Code r. 9J-5.001(8).
11 Fla. Stat. §§163.3180(1)(b), 163.3177(3)(a) (Supp. 1996).
12 Fla. Admin. Code r. 9J-5.016(3)(b)(1).
13 Fla. Admin. Code r. 9J-5.001(8); Fla. Stat. §163.3177(10)(e) (Supp. 1996).
14 Recommended Order, DOAH Case Nos. 91-6138GM and 97-1875, paragraph no. 136, page 37 (October 8, 1997).
15 See also Fla. Admin. Code r. 9J-5.0055(2)(b).
Ronald L. Weaver is a senior managing partner in the Tampa office of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., where his practice includes land use, environmental, real estate acquisition, and real estate finance. He received his undergraduate degree from the University of North Carolina and his law degree, with honors, from Harvard Law School. He has served as chair of the ABA Property Rights Subcommittee.
Mark D. Solov is a shareholder in Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., and is located in the firm’s Miami office. His litigation practice involves cases pertaining to private property rights, land use, comprehensive planning, and other complex commercial matters. Mr. Solov received his J.D., cum laude, in 1985 from the University of Miami School of Law.
The authors wish to express their gratitude to Nicole Sayfie and Nicole Ramirez for their assistance in preparing this article.
This column is submitted on behalf of the Environmental and Land Use Law Section, Robert W. Wells, Jr., chair, and Sid F. Ansbacher,, editor.