Legislation that anticipates interlocal government disagreements about development

Custom caption: File photo reflecting road conditions on Southwest 43rd Court leading up to Saddlewood Elementary on June 22, 2022. [Bruce Ackerman/Ocala Gazette] 2022.

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Posted July 14, 2022 | By Jennifer Hunt Murty
jennifer@ocalagazette.com

As more people discover Marion County, the rising population includes not just retirees but young families, with plenty of children in tow. The people moving into the houses and apartment complexes that are sprouting up present multiple challenges for local governments tasked with providing infrastructure, not least of which is the need for more classroom space.

To address the issue our county, city and the Marion County Board of Public School officials have to have some challenging conversations about how to meet the need.

Currently, schools are not deemed overcrowded in Marion County as space is available in some areas of the school district. But in the southwest corner, Ocala and its environs, some schools are over capacity already. And with much of the development slated for this area, the situation is only expected to get worse.

Historically, developers used to be required to pay to offset the impacts their developments put on local infrastructure through appropriately named impact fees. Those have gone away, as has state funding largely, leaving local governments to find creative ways to make ends meet.

As a new school year beckons, Marion County, Ocala and school district officials have been meeting to revise a 2008 interlocal agreement that addresses these concerns. But there appears to be plenty of uncertainty about not only what is in the new version but when the public will see it. A city spokesperson recently said the new agreement should be finished within a few weeks, whole a school district representative said the sides were at least six months from reaching a consensus.

A new state law took effect July 1 modifying the process of entering into agreements with developers so that the district can require payment to offset the cost of absorbing more students.

The district’s ability to require those agreements from developers, however, is contingent on the city and county agreeing to give them that authority.

Capacity conundrum

At a school board work session in May, Barbara Dobbins, executive director of operations and emergency management, outlined several ways that the district may accommodate the growing number of school-aged residents in Marion County. The most notable measures included conducting ongoing school site review and placing portable classrooms on school campuses that face the highest utilization rates.

These site reviews led school board and district officials to conclude portable classrooms will continue to be the most viable way to handle overcrowding in the short term as efforts to fund new construction continue.

Liberty Middle School is just one of several schools in the southwest area of Marion County that is far overcapacity. The school is at 111% enrollment capacity, with 1,339 students enrolled while the school only has a capacity of 1,203 seats.

The maintenance needs of the schools surpass the capital outlay funding available by millions of dollars, according to Dobbins. She said because of this, there is no available funding for building new schools anytime soon.

“We know that we have to replace Lake Weir Middle School, but we have no capital outlay funds available for new construction,” Dobbins said. “Based on city and county land development, we think we need a K-8 school in the southwest area, and we know we have needs for multiple wings at numerous schools.’’

The first steps for the district to take to begin long-term facility planning are a long-term needs assessment and an impact fee analysis.

“In order to make an informed decision grounded in evidence-based data, we must seek out a credentialed independent analysis that can evaluate and validate our current and future prioritized needs,” Dobbins said.

“We must conduct an in-depth study to validate the need for such fees,” Dobbins said. “We are planning for these two analyses and anticipate that these in-depth assessments will take a minimum of six months once the board approves.”

At an April Ocala City Council meeting, the city’s chief planner explained in part how things have gotten to this point.

“We had school concurrency back in the 2008 to 2010 period, but it went away,” said Tye Chighizola, director of Planning and Development for the City of Ocala. “The state did not require the cities or the counties to have school concurrency, so we don’t really have it.”

Chighizola explained that city staff cannot say there’s no capacity at any given school without looking at capacity for the entire district.

“And there is plenty of capacity districtwide,” he said. “Many schools may be overcrowded, but our hands are tied from our standpoint. We have to look at capacity for the entire district. But we are having a conversation with the school board about that.”

Currently, the school board looks at the Marion County birth rate data, as well as other data and trends, to determine school district capacity, said Chighizola, adding that those numbers “really show what the growth is.”

“You may think there’s a lot of movement and everything but theoretically even during the times in the boom there was only a slight movement,” he continued.

A history of conflict

The Gazette has interviewed multiple Marion County, Ocala and school district employees and elected officials over the past six weeks to determine where they stand on the issue. Generally, the answer generally has been, not so close.

The problem, as usual, is funding. Specifically, whose money.

The key mechanism for helping local governments pay for the impacts on local services from roads to schools to hospitals brough on by newcomers 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 to fund expansion or building new schools has to come from either sales tax, impact fees, or concurrency agreements with developers.

In 2014, and again in 2018, Marion County voters approved and renewed a one-mill property tax increase via a referendum. Unfortunately, the money collected through this referendum can only be used for operations.

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.

As a result, the Marion County School Board allocates 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 a school district spokesperson, state laws also prevent the school board from building “empty seats for students to eventually fill – students must physically exist before new schools are built.”

The second challenge is some exasperation associated with who is responsible for fixing the problem. City and county officials seem to put the burden of solving the school capacity problem squarely on the school district, while the district presents the concern as a countywide problem partially the doing of city and county growth management decisions.

Bad blood

A 2008 interlocal agreement aimed to get the entities on the same page. It created a policy establishing school capacity levels to be considered by local government when making development decisions. But in 2011, the parties decided to stop enforcing the policy.

Two notable things were happening at that time. The nation was deep in a recession and building permits for the county and city were nowhere near today’s levels. Concerns about development impacts on local school capacity were a low priority.

Also, relations between Ocala and the school district had sunk to an all-time low.

The city had filed suit against the district over the district’s refusal to pay fire fees, which the courts would rule 10 years later was an unconstitutional tax. Also, the school district was refusing to pay stormwater fees to the city. At one point, the district had to obtain a temporary injunction against the city to keep it from turning off its electric and water service at schools while they negotiated the disputes over fire and stormwater fees.

A review by the Gazette of minutes of a meeting between city attorney Patrick Gilligan, city council members and city management under a temporary exception to the state’s Sunshine Law because the subject was pending litigation reflects a toxic relationship.

Gilligan told the council, “I made a command decision, without your permission, to file suit. I didn’t serve them with it. It just got filed with the court so that we could have a private mediation conference. … We’re only in suit because of the logistical process to do it privately. We never wanted to be in suit. We just did what we had to, but now that we’re in suit … we should probably push it down the road.”

The conversation went as far to contemplate where the city could stop up the stormwater drains at schools in retaliation of the district’s refusal to pay or how the city would go about turning off electric at schools or quit picking up their garbage. They all admitted such measures would have political ramifications due to the anticipated reaction of the public to such actions.

The dispute eventually was resolved, but the bad feelings and distrust between the boards lingered.

School board member Nancy Thrower told the Gazette last month she hopes the interlocal agreement workshops being held now will help mend these relationships. She is joined by County Commissioner Michelle Stone, City Councilmember Kristin Dreyer, and staff from the three entities.

Finding solutions

Even if the parties agree on a new policy related to development and school capacity, it could be a long time until the community sees any effects. Key questions must be resolved, such as how local governments should determine a fair contribution from developers toward mitigating their impacts?

Take for instance, a development’s impact on roads. If the road was already overcrowded, the developer can’t be held responsible for fixing the entire problem in order to have the development approved. The developer would only be assessed their pro-rated share of the costs for road improvements based on anticipated traffic increases. The government would need to make up the difference.

One would reason that a similar equitable principal would be applied to seeking contributions from developers when the projects are impacting schools already over capacity.

Another aspect holding some schools from being able to expand is the lack of road infrastructure around them. Schools in Belleview and Ocala with two-lane roads are already backed up twice a day dropping students off and picking them up. Even if they could raise the money to expand the school to accommodate more students, the roads under the purview of the county or city aid another layer of complication.

New wrinkle

The new law mentioned earlier that took effect July 1 was initiated by State Sen. Keith Perry, R-Gainesville, whose district includes a large swath of northern Marion County. Perry says he raised the issue with legislators to protect developers when there is conflict between local governments making development decisions and their respective school districts.

Perry explained that having two elected boards with sometimes varying stances on development was ripe for conflict and those caught in the middle, in this case developers, are impacted through no fault of their own.

The issue was brought to Perry’s attention from an incident that arose out of Hillsborough County. A developer had an agreement with the school district and the county, but then got stuck in between the government bodies fighting about the details.

The changes to Fla. 163.3180 are explained this way:

“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 statute grants every local government the choice whether to enter into agreements with their local school districts to apply a standard for development decisions factoring in their impact on schools. And if the local governments and their respective school districts don’t agree to a set policy, the state won’t force them.  In those cases, the statutes only require that they share development information with the district so that the district can plan accordingly.

Without a school concurrency agreement in effect, the Marion school district has no way of forcing developers into mitigation. Therefore, the change to the statute would have no impact on Marion County.

Concerns about transparency

To date, there has been no public discussion about reinstituting the school concurrency element of the 2008 agreement, which may be the quickest way to give the district options for making developers pay their fair mitigation share to offset their impacts.

Two draft minutes from the workshop meetings that the Gazette has reviewed don’t address it. In fact, there seems to be a disagreement about who is responsible for keeping those minutes.

Even the timing of when a new proposed agreement will be ready for review is even in dispute.

Last month Ocala spokesperson Ashley Dobb said the new agreement should be finished this month and will not include a school concurrency element. Thrower told the school board last month 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 and 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.

Meanwhile, Marion County parents and children are counting down the days to the new school year, where once again, district officials will struggle to find space for students at several area schools.