May 16, 2004 The Honorable Thomas Bussing, Mayor City of Gainesville
The Honorable Mike Byerly, Chairman Alachua County Commission Subject: Please enforce existing City and County laws on school overcrowding Dear Mayor Bussing and Chairman Byerly: A couple of months ago, I sent letters to the County and the City about the state laws that were passed to keep local governments from using concurrency as one way to help in their struggle to provide local school facilities for new residents. I fear my letter created an impression that school capacity, as opposed to school concurrency, has been completely taken off the table in reviewing development application by virtue of the provisions in this law, Section 163.3180(13), Florida Statutes. This is not the case. School capacity (or overcrowding) is an entirely different issue from school concurrency. Both Gainesville and Alachua County already have clear and enforceable school capacity standards in their comprehensive plans and land development regulations. They should be enforcing them now to deny applications when school capacity does not exist, or to direct developments to other parts of the community where capacity does exist. All that is waiting to be done to stop school overcrowding in Alachua County is for the governing bodies to acquire the political will to do it, or for a successful challenge to a development order and a final judgment from a circuit court judge forcing both governments to do it. The latter route, litigation by citizens, will place the burden of enforcing these provisions, already adopted political leaders, on private citizens. That will involve (1) establishing standing, (2) creating a record with expensive expert witnesses, (3) hiring counsel, (4) filing and prosecuting a suit in circuit court, and (5) suffering the opprobrium and insult of people in the community who value profit over public interest, including some of their own elected representatives. I know that certain interests have created an urban myth that development is untouchable on school capacity grounds until the county and each city have (1) amended plans to provide schools as a formal level of service (LOS) standard, (2) put a county-wide funding mechanism in place, (3) adopted an interlocal agreement, and (4) taken other complicated steps provided in the statute. But that is only an urban myth. The Legislature sowed the ground for the myth at the request of certain interests after local governments around the state began adopting school concurrency to address their horrible overcrowding situations. Many local governments by that time had adopted and were enforcing impact fees for school that stood up to the inevitable court challenges. But, instead of providing additional funding for schools, the Legislature stepped in and adopted Section 163.3180(1)(d). True, it imposes new requirements on "school concurrency" but only insofar as locals try to establish a specific leval of service standard for school facilities and try to impose a fee-based system to fund new improvements. It has nothing to do with school capacity. The statute does nothing to interfere with the inherent home rule police powers of cities and counties to deny an application when necessary to protect the public health, safety, and welfare interest based on other school capacity laws such as the ones in the City and County plans and regulations. I think that interest is clear: Seeing that children receive an adequate education in adequate facilities Another county in the state has already successfully defended its capacity provisions in Mann v. Orange County, 830 So. 2d 144 Fla. 5th DCA 2002)., review denied, Mann v. Board of County Commissioners, 2003 Fla. LEXIS 655 (Florida Supreme Court, April 8, 2003). There, the District Court of Appeal said Orange County had the "statutory authority to deny the zoning request based on the rezoning`s inconsistencies with" a policy that simply said land had "to be suitable and ready for ultimate development" and an objective that simply said the county "may manage the timing of new development to coordinate with adequate school capacity." Both the City and the County have much more specific and powerful provisions requiring school capacity already on the books, especially the County. The Mann case started in April 2000, when the developer applied to change the zoning on her property from agricultural to single family residential to build a new subdivision. The staff reported that the zoning was compatible with existing development in the area but recommended against it "due to the lack of adequate school capacity." They relied on two provisions in the county comprehensive plan. The first was a general one in Future Land Use Policy 1.1.14, which said: The Zoning Map is subject to continuous amendments so that land, over time, will gradually and systematically be rezoned to be consistent with the planning policies and long-range objectives of the Comprehensive Policy Plan. * * *
Land use compatibility, the location, availability and capacity of services and facilities, market demand, and environmental features shall also be used in determining which specific zoning district is most appropriate. [I]n making the transition for residential development, the Future Land Use Map shall only establish the maximum permitted density and intensity of development. It is permissible to impose a more restrictive zoning district classification as an interim use until such time as the property is found . . . to be suitable and ready for ultimate development. (Emphasis added). The second, more specific, was Objective 4.3, which said: The Board may manage the timing of new development to coordinate with adequate school capacity. After the local planning agency denied the request in Mann, the developer appealed to the board of county commissions, which also turned it down. During that hearing, the county planner`s evidence included testimony establishing that "the area was not adequately served by school facilities" and that "based on the tracts surrounding the subject property, allowing this rezoning would establish a precedent for all the other tracts to rezone to begin residential development." A representative of the school board testified against the rezoning as follows: He explained the enrollment growth problem in Orange County. He also illustrated the aggressive school construction program which has attempted to accommodate the growth in enrollment, but which has had to work with a decrease in funding. In addition, he gave a very comprehensive explanation of how school capacity figures are determined. Then, he explained that the attendant elementary school for the proposed development project was over capacity, and had no funds available to improve its facility or construct a new facility. He also represented that the surrounding schools were also overcrowded, and therefore, rezoning the school districts was not a viable alternative. At the end, the commission voted to deny the application and Mann filed a petition for writ of certiorari with a local three-judge circuit court panel, which affirmed the county`s vote. An appeal to the District Court of Appeal followed. A number of organizations filed friend-of-the-court briefs on Mann`s behalf, including the Association of Florida Community Developers, the Florida Homebuilders Association, the Florida Association of Realtors, and The St. Joe Company. They argued that the entire issue of school capacity was preempted by the state in the adoption of the amendments to Section 163.3180. They said that, due to that law, a local government was not only prohibited from collecting school concurrency fees without following its steps, it could not deny a development order based on capacity on any grounds until it had met all its requirements. In other words, the persons aligned with Mann made a full-bore effort to defeat the county, which withstood the challenge. The District Court of Appeal rejected their arguments and ruled that "the Board observed the essential requirements of law because it had statutory authority to deny the zoning request based on the rezoning`s inconsistencies with the elements of the CPP [Orange County Comprehensive Policy Plan]." It is true that in Mann, unlike our situation here, Orange County had included a school facilities element when it adopted its first modern plan under the Growth Management Act (not under the new amendments to Section 163.3180). But this was not germane to the decision in the case. The element did not include a capital facilities portion or other portion trying to impose a fee-based system. It was only relevant because the page on which Objective 4.3 appeared was located in that element. It could just as well have been located in a future land use element, as it is in Alachua County and Gainesville. In deciding the case, the Court pointed out that the critical question was whether the board was "entitled to deny [the] rezoning request on the basis that the rezoning would be inconsistent with the Orange County Comprehensive Policy Plan." It said Mann was correct in asserting that "Orange County`s CPP does not include a school concurrency requirement" but also said the county nevertheless had existing provisions in its plan allowing it to consider school capacity. It then went on to say: Section 163.3194(1)(a), Florida Statutes, part of the Local Government Comprehensive Planning and Land Development Regulation Act, requires that "After a comprehensive plan, or element or portion thereof, has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted." Subsection (3)(a) of this section provides that a "development order . . . shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order . . . are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan." Orange County`s CPP is a lawfully adopted ordinance. "As such, the county is empowered by statute to disapprove an application for site approval if it finds that a proposed development is inconsistent with any of the objectives in the comprehensive plan." Franklin County v. S.G.I. Limited, 728 So. 2d 1210, 1211 (Fla. 1st DCA 1999).
The Court was careful to point out that: One of the findings of fact made by the Board was that the zoning request was inconsistent with Future Land Use Policy 1.1.14, regarding timing of zoning and adequate facilities.
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The Board also found that the zoning request was inconsistent with Objective 4.3 of the Public Schools Facilities Element, which provides that the Board may "Manage the timing of new development to coordinate with adequate school capacity." The Board`s denial of [Mann`s] zoning request was [based] on its own findings that the rezoning was inconsistent with specific policies and objectives of the CPP. This Court concludes that these policies and objectives are specific enough to be taken into consideration and used as a basis for the Board`s denial of the zoning request. See Franklin v. S.G.I. Limited, 728 So. 2d 1210 (Fla. 1st DCA 1999). Thus, this Court finds that the Board observed the essential requirements of law because it had statutory authority to deny the zoning request based on the rezoning`s inconsistencies with the elements of the CPP. The Florida Supreme Court considered the case on appeal and declined to review it. Mann v. Orange County, 830 So. 2d 144 Fla. 5th DCA 2002)., review denied, Mann v. Board of County Commissioners, 2003 Fla. LEXIS 655 (Florida Supreme Court, April 8, 2003). The decision is now binding and has not been questioned or challenged in any other appellate court opinion in the state. In the past, in Alachua County, staff has testified that it does not make recommendations based on school capacity because the County Commission has not indicated it wants to consider school capacity in development decisions. But the Alachua County Comprehensive Plan (both the 1991 and 2001 versions) has a number of general and specific provisions indicating that development should not be approved without adequate school capacity, including the following:
COUNTY PLAN FLUE Principle 2--Base new development upon the provision of necessary services and infrastructure. Focus urban development in a clearly defined area and strengthen the separation of rural and urban uses FLUE GENERAL STRATEGY 1(f) Time development approval in conjunction with the economic and efficient provision of supporting community facilities, urban services, and infrastructure, such as mass transit, utilities, police and fire protection service, emergency medical service, mass transit, public schools, recreation and open space, in coordination with policies in the Capital Improvements Element. FLUE OBJECTIVE 1.1--Encourage development of residential land in a manner which promotes social and economic diversity, provides for phased and orderly growth consistent with available public facilities, and provides for access to existing or planned public services such as schools, parks, and cultural facilities. FLUE POLICY 1.3.1--Gross residential densities shall be used for the following reasons: a. In order to plan for public facilities and services such as schools[.] FLUE POLICY 1.5.2--IN addition to the facilities for which level of service standards are adopted as part of the concurrency management system of this Plan, other facilities that should be adequate to serve new urban residential development include:
a. local streets;
b. police, fire, and emergency medical service protection;
c. pedestrian and bicycle networks; and
d. primary and secondary schools. FLUE POLICY 7.1.2--Proposed changes in the zoning map shall consider:
a. consistency with the goals, objectives, policies and adopted maps of the Comprehensive Plan.
b. the availability and capacity of public facilities required to serve the development;
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d. those factors identified by law, including that as a general matter an applicant is not entitled to a particular density of intensity within the range of densities and intensities permitted the Comprehensive Plan, given due consideration of legitimate public purposes relating to health, safety, and welfares. FLUE POLICY 7.1.3.B--Any new development proposals for urban residential use within the Urban Cluster but outside the Urban Service Line shall require special review and approval:
a. Applications for such approval shall be considered based on the following factors: 6. Adequacy of public schools to served the development and impacts to school capacity per School Board of Alachua County school zones. The provisions in the County LDRs addressing school capacity are many, and I am sure the County staff can cull these out. The school capacity problem is most directly a County issue but the City regulations and plan provision also indicate school capacity should be a deciding factor in development approvals, but is not. The relevant City provisions include the following: CITY PLAN FUTURE LAND USE ELEMENT POLICY 1.1.1: To the extent possible, all planning shall be in the form of complete and integrated communities containing housing, shops, work places, schools, parks and civic facilities essential to the daily life of the residents. FLUE POLICY 4.1.3 The City will review proposed changes to the Future Land Use Map by considering factors such as, but not limited to, the following:
1. Overall compatibility of the proposal;
2. Surrounding land uses;
3. Environmental impacts and constraints;
4. Whether the change promotes urban infill; and
5. Whether the best interests, community values, or neighborhood support is achieved. CITY LDRs SECTION 30-161. REVIEW PROCESS. (a) Review considerations. The appropriate reviewing board or the development review coordinator shall review any minor plan, intermediate plan, major plan or any amendment to any previously approved plan based upon the competent and substantial evidence presented by the reviewing authority, the petitioner, property owners, who are entitled to notice, affected persons, as determined by the board, and other interested persons related to any of the following factors:
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(2) Whether the proposed development is consistent with the comprehensive plan, the land development code, applicable special area plans and other applicable regulations.
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(4) Whether the proposed development complies with other applicable factors and criteria prescribed by the comprehensive plan, the land development code or other applicable law. SECTION 392.42. DEVELOPMENT STANDARDS. (a) Phased development. A planned development may be required to be developed in phases, based on the availability of public services with an adopted level of service in the comprehensive plan, and fire and rescue, emergency medical services (EMS), solid waste collection, schools, roads, availability of transit facilities, emergency management, and police protection. Each phase shall be approved separately through the development review process and shall be designed to embody proper access, traffic circulation, stormwater management, open space, recreation, and utilities to ensure viability of each and all stages of development. SECTION 392.43. PROCEDURE FOR APPROVAL. The procedure for obtaining a change in zoning district for the purpose of undertaking a planned development shall be as follows:
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4. Analysis of impact of the proposed development on public facilities and services, including but not limited to, Fire/Rescue and Emergency Management, solid waste, mass transit, schools, police, roads and any other facilities and services with an adopted level of service in the comprehensive plan or Concurrency Management Ordinance. None of these standards is being observed now by either local government. If Alachua County and the City of Gainesville do not want to be able to evaluate adequate school capacity in their development reviews, the elected commissioners should amend the plans and regulations to remove these provisions. That way, the choices on school capacity by City and County leaders can be examined and judged by the public. Or, both Commissions could step up to the plate and impose a moratorium on development in certain areas until school construction catches up (which will be the practical effect of an order from a judge enforcing these policies). The enforcement of school capacity would have the immediate effect of directing development into those parts of the City and County that have excess school capacity, mostly East Gainesville, which is one of the primary policies expressed in both plans. It would also discourage urban sprawl, protect our investments in road capacity, and protect the recharge areas in the west. It is terrible public policy (not to mention bad local government law) to maintain provisions on the books that, for whatever reasons, the local government simply chooses not to enforce. The elected officials of the City and County have to decide if school capacity is an important issue to them. They also have to decide whether it is more equitable and better public policy (1) to ignore the law and force unfunded citizens to sue to enforce provisions already on the books or (2) to have the government apply its own provisions at the risk of legal challenge by developers. I suggest that the citizenry is in the least advantageous position to enforce these laws you have adopted. I urge you and your colleagues to begin enforcing these tools now. All it takes is a simple finding that inadequate school capacity is a threat to the public health, safety, and welfare, which I think is a conclusion of universal acceptance, especially in a community like ours facing a crisis in school capacity. There are many interests that want you to retreat from your duty; the people who suffer most from this retreat are the general public and, especially, school children. This is not some lawyer`s game. This has to do with the financial and educational future of our children and our community. The decision is up to you and your colleagues. Sincerely yours,
David Jon Russ | 
