The 1985 Florida Growth Management Act mandates that local governments must develop plans with minimum levels of service for certain specified facilities. The Act prohibits local governments from issuing development permits unless the infrastructure is either already in place or will be available when the development's off-site impacts are to be generated. Interestingly enough, Florida's statewide concurrency requirement does not apply to educational facilities. The state's local comprehensive planning legislation does not require local governments to adopt level of service (LOS) standards for educational facilities or to include schools or educational facilities elements in their local comprehensive plans. Therefore, in developing the state's original concurrency rule, the Department of Community Affairs (DCA) concluded that schools were not subject to the statewide concurrency requirement. In addition, DCA determined that the legal and institutional framework for Florida's public school system made it impractical, if not impossible, to subject schools to the concurrency requirement. The wisdom of this judgment is confirmed by Florida's less than successful attempts to impose concurrency on state roads which are controlled by the state transportation agency. Although local governments may voluntarily include schools in their local concurrency management systems, only one, Monroe County, has exercised this option. Monroe County's experiment with school concurrency has not been successful, and the requirement is now being removed from the County's local comprehensive plan.
The concurrency requirement is a growth management tool for ensuring the availability of adequate public facilities to accommodate development. By seeking to ensure that the necessary facilities will be available, the concurrency requirement seeks to avoid the necessity for development moratoria. Under well-established planning and legal principles and Florida's growth management laws, a financially feasible capital improvement plan for providing the necessary facilities is an essential basis for the concurrency requirement. The capital improvements plan must indicate how, when and where public facilities will be provided and how existing facility deficiencies will be eliminated; project the estimated cost of providing the facilities and the revenue sources which will be used to raise the necessary funds; establish acceptable LOS standards for each facility; and, demonstrate how these LOS standards will be met. If local governments voluntarily include school facilities in their local concurrency management systems, Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code, require that the local government include a financially feasible capital improvements plan for schools in its local comprehensive plan.
Subjecting schools to concurrency is greatly complicated by the legal and institutional framework for Florida's public school system. By state constitutional mandate, education is a state function and responsibility. The state is required to provide for a uniform system of free public schools. The Florida Constitution also provides that each county shall constitute a school district. At the local level, the state's public school system is controlled and operated on a countywide basis by the county school district. The county school district is a part of the state system of education, and its actions at the local level must be consistent with state educational statutes and with minimum standards established by the State Board of Education and the Department of Education.
Combined with the legal requirements for a valid school concurrency system, the legal and institutional framework for Florida's public school system presents substantial barriers to adoption and effective implementation of local school concurrency systems. Local governments lack the ability to control the funding, construction, and operation of public schools which are managed on a countywide basis by independent school boards. Perhaps most significantly, local governments have no control of two essential ingredients of a valid school concurrency system--level of service standards and capital improvements plans for schools. Many other variables, including the establishment of school attendance zones and the allocation of school capacity, are also controlled by the school boards. Further complicating any effort by local government to subject schools to concurrency is the existence of substantial deficiencies in school capacity and inadequate state funding for Florida's public school system. All of these factors make it extraordinarily difficult for any local government, and particularly individual municipalities, to devise an effective local school concurrency system. Consequently, local governments should proceed with great caution as they consider the possibility of adding schools to their concurrency systems.
School boards should also carefully consider whether they wish to participate in local concurrency systems which link the issuance of development approvals to the availability of adequate school capacity. Currently, county school boards have the exclusive control of the operation of public schools, subject only to regulations and standards adopted by the state. If county school boards enter into interlocal agreements with local governments to establish school concurrency systems, the practical effect of these arrangements will be shared control of the public school system by the school board and local governments. Inevitably, city and county governments will be involved, to a much greater extent, in school board decisions concerning the planning, funding, location, and construction of schools and in the allocation of school capacity among the various local governments. In addition, the school board's capital improvements plan for schools will be subjected to DCA's local comprehensive plan compliance review process pursuant to Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. In order to establish a school element and concurrency system in their comprehensive plans, the local government will have to submit to DCA for state review a plan amendment which demonstrates a financially feasible capital improvements plan for schools. By necessity the local government will have to rely on the school board's capital improvements plan and will therefore submit it to DCA for review. Local school concurrency systems will also dramatically increase the financial and political pressures on school boards. Both the local government and the development community will increase their demands for delivery of school facilities and will point the finger of blame at the school board if those facilities are not available. If litigation ensues over the local school concurrency requirement, the school board will in all likelihood be made a party defendant because of its alleged failure to provide the necessary school facilities. Finally, the public schools, which are already beset by tremendous problems, will be embroiled in the additional controversies surrounding the application of a school concurrency requirement.
A local regulatory school concurrency permitting process is not the only means of integrating the planning and construction of educational facilities into Florida's growth management system. A better approach is to deal with the school issue at the planning level through more coordinated and cooperative planning by local governments and school boards. The ELMS III Committee and the Florida Legislature have recognized that growth management issues arising between separate and independent governmental entities should be handled differently than those arising between local governments and private developers seeking development permits. Accordingly, pursuant to the recommendations of the ELMS III Committee, the 1993 Florida Legislature greatly strengthened the intergovernmental coordination requirements for the local comprehensive plan and directed local governments to use this mechanism in dealing with school issues. Local governments and school boards should focus on this approach to the integration of educational facilities planning into the growth management process.
The new ICE requirements provide that the intergovernmental coordination element (ICE) of local comprehensive plans must set forth principles and guidelines for coordinating the local comprehensive plan with the plans of school boards. These principles and guidelines are to be supported by interlocal agreements. Each county, all of its municipalities, and the district school board are required to enter into formal written agreements which establish "joint processes for collaborative planning and decision-making" on school issues. These joint planning and decision-making processes must also be included in the local government's ICE. Through an interlocal agreement which establishes a collaborative planning process for schools, local governments and school boards can resolve issues regarding the planning and provision of adequate educational facilities without the necessity for a regulatory concurrency permitting process for schools.
If a local government insists on adopting a school concurrency regulatory permitting system, an interlocal agreement is still a practical necessity. Section 163.3180(l), Florida Statutes, provides that before a local government can extend the concurrency requirement to public schools, it must first conduct a study to determine how the requirement will be met by all affected parties, including school boards. The only effective way to make this determination is through a formal interlocal agreement between the local government and the school board. Only through such an agreement can the local government obtain a binding commitment from the school board as to how it will satisfy the concurrency requirement, including the preparation of a financially feasible capital improvements program for schools. Because the county school district has a constitutional obligation to maintain and operate a uniform public school system on a countywide basis, any interlocal agreement for schools should also have countywide application. Efforts by individual municipalities to unilaterally impose school concurrency without the participation of the county and other municipalities will undermine the constitutional mandate for a uniform public school system. Therefore, the county school board should insist that all local governments within the county must be parties to any interlocal agreement for schools.
Thomas G. Pelham, Esquire
Apgar & Pelham, Tallahassee, Florida