THE SCHOOL CAPACITY CHALLENGE

File photo of crossing guard at Eighth Street Elementary in 2021. [Bruce Ackerman, Ocala Gazette]

Home » Education

Posted June 22, 2022 | By Jennifer Hunt Murty
jennifer@ocalagazette.com

Editor’s Note: This article has been updated to clarify what sources the school district can tap to raise money for building schools.

Florida’s class-size law limits the number of students in each classroom, and bricks-and-mortar buildings and portables dictate how many students a school can accommodate. But that has not prevented schools from becoming overcrowded, including here in Marion County.

What happens then? And, in a related question for a growing county like Marion, what should elected officials do when developers seek to build more homes, adding more kids to neighborhoods with packed schools?

Officials from Marion County, Ocala and the Marion County School District are tasked with finding the answers. And, as usual, the key issues revolve around money.

The various parties are supposed to be meeting now to revise an existing plan, known as an interlocal agreement, that spells out how to address these questions. But so far, they seem to be far apart.

The Gazette reported in May that district wide capacity was at 93%, with 42,087 students enrolled across all grade levels and a maximum seat capacity of 45,347, which leaves only 3,260 seats available.

The most troubling of the data has arisen lies in the southwest area of Marion County, where the schools have now reached 99% capacity. West Port High School has faced the most overcrowding in this area, and is now at 112% capacity, according to MCPS.

Meanwhile, more developments are being proposed that would further stress local infrastructure, including Marion County’s schools.

Where’s the money?

The school district projects enrollment primarily based on local birth rates. However, that’s not the only factor in play. New residents moving into Marion, for example, greatly swell the population.

“The district has projected growth at individual schools for years; however, the energetic economy, coupled with Florida’s popularity when it comes to people moving here, contribute greatly to the higher numbers we’re seeing in some areas of Marion County,” said district spokesperson Kevin Christian.

A key mechanism for helping local governments cover the costs of the impacts on local services from roads to hospitals these newcomers create is called, appropriately, impact fees. These are typically paid by developers, who often factor these costs into their customers’ bills.

However, the Marion County School Board suspended collecting the Education Impact Fees in 2013, saying at the time that the fees were not generating much revenue due to little construction activity.

According to the district, the only mechanism left to fund expansion or building new schools is “via voter-approved referendums and/or sales tax initiatives; however, such plans must sunset and be project-specific prior to going before voters for approval.”

In 2014, and again in 2018, Marion County voters approved and renewed a one-mill property tax increase via a referendum. The funds raised were to “fully restore art, music, library media services, physical education, vocational programs, meeting class size requirements, and retaining certified teachers and paraprofessionals along with school security.”

Notably missing was any reference to building new schools. That is because that money can only be used for operations, not facilities.

Adding to the challenge are changes in state funding. Florida no longer provides Public Education Capital Outlay (PECO) funding to maintain schools. The last time Marion County received those funds was more than a decade ago.

“This means districts must raise/allocate their own funds to maintain aging facilities,” explained Christian. Charter schools, however, receive state money to maintain their facilities.

As a result, the Marion County School Board has to allocate more of its budget to maintenance. The current budget allocation for maintaining over 7 million square feet of space is $11.4 million.

According to the district spokesperson, state laws also prevent MCPS from building “empty seats for students to eventually fill – students must physically exist before new schools are built.”

The 2008 interlocal agreement

A good place to start understanding the current disagreement among Marion County, Ocala and the school district over school concurrency is a 2008 contract they all signed. The 45-page agreement is straightforward. The school district needed to be kept in the loop on development projects that Ocala and the county were considering because these would impact the district’s planning.

As far back as the 1970s, the state was encouraging this sort of cooperation.

A January 1997 Florida Bar Journal explained the evolution of growth management legislation, “The 1972 Florida Legislature adopted comprehensive land use planning laws to address the burdens of fast growth. Three years later, the legislature passed the Local Government Comprehensive Planning Act of 1975, which required each local government to adopt a comprehensive land use plan with which zoning had to be consistent. In 1985, the legislature substantially amended Florida’s planning law and adopted the growth management act. Among other things, the growth management act mandates that each local government require adequate infrastructure to accommodate development.”

Legislators called this requirement concurrency.

“Adequate infrastructure” outlined in the statutes include such things as roads, sanitary sewer, solid waste disposal, drainage, potable water supply, parks and recreation, mass transit–and schools.

The 2008 contract set a two part formula for how to assess school concurrency so that it could be applied across the entire county.

One aspect of the formula was the level of service (LOS) standards. School district planner David Herlihy, who was around when the 2008 agreement was created, recalls those terms were very favorable to developers. The parties agreed that the LOS standards would be measured as percentages when it came to capacity: elementary schools, 105%; middle -schools, 105%; high schools, 100%.

The percentages, however, would not apply to a specific, overcrowded school. Instead, they would be applied to an agreed-upon Concurrency Service Area (CSA) which was the second part of the concurrency formula.

Under the agreement, the service area was the entire district until 2011 and then the county was split into two service areas.

The impact of this split becomes clearer through the lens of development approvals. There are relatively low enrollment numbers at schools in rural areas of the county, while schools within the urban growth boundary might be overcrowded. By splitting the county in two service areas it contemplated challenges in certain parts of Marion where more development was expected.

Reassigning students from Belleview to Fort McCoy, where there are open seats, for concurrency purposes was not appealing.

2011, when school concurrency lost its teeth  

In 2011, the Florida Legislature removed the mandate from the statute requiring local governments to consider school concurrency in development decisions and instead made it optional. If the governmental body chose to continue considering school concurrency it needed to have an interlocal agreement to set criteria for applying it evenly.

The local governing bodies already did this in 2008. But in 2011, the parties agreed not to enforce school concurrency during a joint interlocal meeting. However, no new interlocal agreement was created and no formal actions were taken to terminate the 2008 agreement.

All of the government entities indicate the 2008 agreement is still the governing interlocal agreement between the parties; it just that the school concurrency portion of the agreement isn’t enforced.

Although the 2011 change to the statute did not nullify interlocal agreements between school districts and local government bodies, the city and county, took action following the 2011 statute change and removed the school element from their comprehensive plans.

The county removed it in 2011 and the city in 2012.

City attorney Jimmy Gooding provided the Gazette the city’s Aug. 21, 2012 council agenda item which addressed multiple changes to the city’s plan.  The agenda item noted: “The Public Schools Facilities Element is no longer a required Comprehensive Plan Element and as a result of discussions at the Intergovernmental Work Session in August 2011, Marion County and all of the cities within Marion County agreed to eliminate the Element.”

About this time, the nation was still deep in a recession, and building permits for the county and city were nowhere near today’s levels so concerns about school concurrency were probably a low priority.

Also, relations between Ocala and the school district were becoming strained. The school district had to obtain a temporary injunction against the city from turning its electric and water off at schools while they navigated a dispute about fire and stormwater fees the city was adding to their utility bills. (Here is a copy of the temporary injunction entered against the city.)

The term school concurrency is not mentioned at all in the minutes from the city’s Aug. 21, 2012 meeting, however, there was quite a bit of discussion about whether the school district should be allowed to use the city’s pools for students. Mary Sue Rich reminded fellow council members during the meeting that children would pay the cost of the district and city’s squabbles.

Hitting the reset button

Many things have changed since 2012: the economy has recovered, development requests are pouring in, and the three governmental parties are revisiting the 2008 interlocal agreement. Commissioner Michelle Stone is representing the county in discussions, while Councilmember Kristin Dreyer and Nancy Thrower represent Ocala and the school district respectively.

Discussions began earlier this year with staff from each government body. So far, only Thrower has given a progress report to her board. And none of the elected officials have publicly discussed where they stand on school concurrency.

Ocala spokesperson Ashley Dobb said the new agreement should be finished next month and will not include a school concurrency element.

Meanwhile, Thrower told the school board just a few weeks ago that she felt they were at least six months away from working out a consensus.

Ocala city attorney Rob Batsel, Jr., who has cautioned the city council from denying development decisions based on school concurrency because it could result in a lawsuit, puts the lack of school capacity squarely on the district for failing to plan appropriately.

In addition to representing the city, Batsel and law partner Jimmy Gooding in private practice represent some of the highest-profile developers in Marion County. It would seem likely that the firm would also be interested in how school concurrency could potentially impact approval of their private client’s projects.

When the Gazette relayed the city’s position that the agreement would not include school concurrency, the school district’s representatives seemed genuinely surprised. Thrower maintains concurrency must be in the agreement and that government entities need to work together deal with school capacity issues since they are essential parts of the developments being considered by the county and municipalities.

School district attorney, Jeremy Powers, told the Gazette he was of the understanding that the interlocal agreement committee was exploring a “revise” of the 2008 agreement instead of completely disregarding its terms.

The city and county attorneys feel sharing their development decisions is enough for the district to plan and meet needs.

However, without school concurrency clause in the agreement, the school district has no obvious mechanism to get relief from local government and developers when they are in a situation like what they find themselves in now.

If school concurrency is to be considered, the biggest question could be whether it should be evaluated district-wide or by splitting the county as it was in the 2008 agreement.

According to Guy Minter, attorney for the Marion County Board of County Commissioners, local municipalities still can require school concurrency in their comprehensive plans. However, Minter says that “if, school concurrency was adopted or applied locally, the school district was encouraged to evaluate concurrency on a district-wide basis, rather than on a particular school or service area basis.”

Minter agrees the decision on how to proceed is up to the local government bodies.

“While our comprehensive plan no longer has a school concurrency element, it still provides for “coordination” with the school board under the Intergovernmental Cooperation Element. I believe current activities to update an interlocal agreement are under the umbrella of that Intergovernmental Cooperation Element.”

Referring to a recent school district representation on how a development decision would impact local schools well over the capacity, Batsel said, “When a representative from the school board appears at council requesting denial based upon lack of capacity at a neighborhood school serving the proposed project and I am aware that the Interlocal provides for a district-wide concurrency service area (basing capacity on the entire district), which was supposed to be replaced by specific “School Concurrency Service Areas” in 2011, which never occurred, I have major concerns about basing that land use decision on local capacity and have an obligation to advise council not to consider this as competent substantial evidence.”

What’s next?

The school district will continue to struggle with overcrowding at some schools unless the local governments make decisions that give the school district more breathing room to catch up on their capacity.

Yes, there are open seats available in the district, but they are in schools in rural areas, not in the southeast part of Marion. Rezoning students over these distances is problematic.

Where will the money come from if concurrency is rejected?

The Marion County school board will ask voters to renew the one-mill tax increase in a referendum in November. But that money can only be used for operations.

The only sources the district can tap to raise money for facilities are sales tax, impact fees, or money they collect from developers through concurrency agreements.

At a recent school district workshop, Chief Financial Officer Theresa Boston-Ellis informed the school board on how much revenue the tax generated and how much of it was already budgeted.

“This year, our tax base was about $24.5 billion dollars, and that generated approximately $35 million dollars for our fiscal year for capital projects,” Boston-Ellis said. “Unless we get really excited about that…we do use those dollars to pay for debt, so of that $35 million that we are projecting for next year approximately $14 million of that is already relegated to debt payments.”

To make things more complicated, another change to Florida’s concurrency statute regarding schools, initiated by local Sen. Keith Perry, will take effect July 1.

“The bill … provides school concurrency is deemed satisfied when the developer tenders a written legally binding, rather than executes, a commitment to provide mitigation proportionate to the demand created by the development. The district school board must notify the local government that capacity is available for the development within 30 days after receipt of the developer’s commitment to provide school capacity. The bill also provides that proportionate-share mitigation paid by a developer, rather than being immediately directed toward a school capacity improvement, may be set aside and not spent until an appropriate improvement is identified.”

The analysis noted the amendment’s financial impact. “Private sector development may benefit to the extent that the bill streamlines school concurrency requirements.”

As for the financial impact for local governments, the analysis reads: “None.”

The Gazette has reached out for an interview with Senator Keith Perry to ask what legislatures envisioned on the mechanics of developers contributing their proportionate-share mitigation, but that interview was not granted before this article was published.