1968 Ramapo NY adequate public facilities, planned over an 18-year period 1985 Florida Growth Management Act mandatory concurrency, but not for

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Oswald Rogers
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3 1968 Ramapo NY adequate public facilities, planned over an 18-year period 1985 Florida Growth Management Act mandatory concurrency, but not for schools 1987 Nollan v. California Coastal Commission all conditions affecting an interest in land must have a nexus to the desired regulatory end 1992 Dolan v. City of Tigard such conditions must also be roughly proportional to the impact of development 3

4 Mid-1990s Broward County ended in repeated litigation Late 1990s Palm Beach County creating and using a statutory option 2003 interlocal agreements (ILAs) silent on concurrency 2005 statute mandated ILA amendments and mandated public school concurrency 4

5 Early 2000s in Miami-Dade, Broward and Orange Counties No specific statutory basis or specific basis in local government land use and zoning powers Purely negotiated mitigation of school impacts, tied in most cases to the state-defined cost of a permanent student station 5

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Fourth largest school district in the nation with February 2013 FTE of approximately 306,000 students, K through 12 th grades 335+ M-DCPS owned and operated schools 120

7 Fourth largest school district in the nation with February 2013 FTE of approximately 306,000 students, K through 12 th grades 335+ M-DCPS owned and operated schools 120 charter schools housing approximately 47,500, K through 12 th grade students (2013 February FTE) Declining population in M-DCPS schools and increasing population in charter schools 7

8 Pre school concurrency (2006) district-wide total FISH capacity utilization of 100% and permanent FISH capacity utilization of 109% district-wide total FISH capacity utilization of 84% and permanent FISH capacity utilization of 88% Somewhat unbalanced capacity distribution with areas experiencing declining enrollment and others experiencing growth 8

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10 » First large urban school district in Florida to have to comply with school concurrency in place date of January 2008» Other than Public School Facilities Element Template, no real life interlocal or school concurrency system in existence» Effort required interaction and agreement with multiple local governments (27 non-exempt) and county government 10

11 » Need to limit capture of student capacity in Concurrency Service Areas adjacent to schools of impact CSA to pre-defined (four) geographic areas (and as opposed to a district-wide CSA)» Need to recognize number of children attending charter and magnet schools as a deduct from total impact, in a consistent and equitable way, from year to year 11

12 » Absolute need to implement an automated school concurrency system under defined Guiding Principles: First (application) in - first (concurrency determination) out Consistency of review Fidelity to established protocol Maximum objectivity (eliminating dependence on staff interpretations) Ability to ramp up as level of activity increases (without staff augmentation) Ability to update data and related GIS layers on a yearly basis (e.g. enrollment, existing capacity, new capacity proposed in first three years, concurrency service area adjustments) Ability to produce (canned) reports for issuance to different entities Capacity to access data real time, web-based for optimum performance 12

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14 Committee 1: Miami-Dade County School Board Concurrency Task Force Pre School Concurrency Implementation» Created by the Miami-Dade County School Board (2005) School Board (2 members) Miami-Dade County (1 member) Miami-Dade County League of Cities (2 members) Builders Association of South Florida (BASF) (2 members) Latin Builders Association (LBA) (1 member) South Florida Regional Planning Council (non-voting member) Citizens Oversight Committee (non-voting member)» Engaged government and community stakeholders and developed recommendations for the implementation of school concurrency» Final Report issued in

Committee 2: Staff Working Group Pre School Concurrency Implementation and On-Going» Created under and governed by the Interlocal Agreement» Membership comprised of technical/professional staff from

15 Committee 2: Staff Working Group Pre School Concurrency Implementation and On-Going» Created under and governed by the Interlocal Agreement» Membership comprised of technical/professional staff from School District, County and non-exempt municipalities (all 27)» Initially helped to develop LOS standards and define Concurrency Service Areas (CSAs); now monitors implementation and provides input on system improvements» Serves as a medium for positive interaction and collaboration between the School District staff and staff from the County and local governments» Great sounding board for issues of mutual concern» Annual Report issued to Citizens Oversight Committee 15

16 Committee 3: Citizens Oversight Committee On-Going School Concurrency Implementation Monitoring» Created under and governed by the Interlocal Agreement» Membership comprised of appointments from the School Board, the County and the League of Cities» The Committee's role is three-fold:» monitor the implementation of the ILA,» report on its effectiveness, and» make recommendations for improvements as it relates to the coordination of public school facility planning in new residential development throughout Miami-Dade County» Annual Report issued to all ILA Signatories 16

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18 Extensive negotiations with the county and the 27 non-exempt municipalities resulted in two separate, non-conflicting agreements: A Consensus ILA between the Board and all 27 municipalities (adopted first) A Bi-Lateral ILA between the Board and the County (adopted last) 18

19 Both the Consensus and the Bi-Lateral ILA include Concurrency Service Areas, Level of Service Standards based on District s (financially feasible) Facilities Work Program, Options for Mitigation, and Updated Coordination Processes. Both ILA fully adopted and in effect to this date 19

20 » No Pay and Go» Smallest unit of mitigation is one classroom» Agreement required among the parties (School Board, County/Municipality and Developer)» Capacity project options must be defined upfront and project included in first three years of next update of five-year capital plan 20

21 » Proportionate share mitigation can be provided in a number of ways: Money contribute full capital cost of planned project (minimum of a classroom) Land donate land and/or capital dollars for purchase equal to the cost of impact Construction build a planned project Mitigation Banking build/advance a project to address impacts with reimbursement provided by other developers impacting same school(s) at time their development order is reviewed/issued Mix and match combine two or more of these options to provide sufficient capacity to mitigate the estimated impact 21

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29 » The Staff Working Group and Citizens Oversight Committee have provided a consistent and inclusive process for implementing, monitoring and maintaining school concurrency in place» The fact that the county and local governments are part of the process, from the inputting of applications, to real time on-line review of concurrency analyses or determinations, to joint review of mitigation options, has made it easier to maintain support of the system 29

30 » The general availability of school capacity resulting from an ambitious school building program from 2003 to 2008, has averted the need for developer mitigation in 99% of the cases over the last five years» Between 2008 and May of 2013, the SCMS: Processed 1,898 applications Reviewed (analysis) or tested (determination) 34,323 total residential units Reserved 9,832 student seats for up to six one-year terms from initial concurrency date (4,976 elementary; 1,902 middle; and 2,954 senior) 30

31 The first application required to mitigate was processed in late 2012 affecting the Miami Beach Senior Concurrency Service Area (CSA) Details: Elementary and middle school concurrency met Senior high school capacity failed by six (6) seats Minimum permitted mitigation option = 1 classroom at 25 seats Opportunity for developer to bank the balance = 19 seats 31

32 Key ingredients to reaching agreement on proportionate share mitigation: Willing parties (Developer, North Bay Village, School Board) Reasonable and creative mitigation option(s) (two possible projects) Total mitigation cost (out of pocket) reduced as a result of impact fee credit Good probability of recovery by the developer of a portion of the mitigation amount over and above impact fees, as other developments impacting same CSA fail concurrency at the high school level Credibility of District with prior project implementation 32

33 The first Mitigation Bank for the Miami Beach Senior CSA was approved by the Board in December of 2012 A total of 19 seats became available for purchase by other developers affecting the same CSA Since establishment of the Bank, eight (8) other applications required to mitigate in the same CSA They were able to purchase a collective eighteen (18) seats from the Bank, with Board approval in June of 2013 (one (1) seat remaining) 33

34 Seven (7) additional applications in same CSA also required to mitigate, are currently under review A proportionate share mitigation agreement for an additional classroom in the same CSA is anticipated late summer with prospective buyers already lined up 34

35 Other rules: Negotiations for proportionate share mitigation agreements are reviewed and processed in the same chronological order as the concurrency determination was issued The same chronological order is applied to applicants eligible to buy from the Bank, as long as agreement is reached within a pre-specified timeframe after notice of failure to meet concurrency is issued When there is more than one Bank established for the same CSA, developers in search of capacity can purchase from different Banks as long as the full required mitigation can be attained in that way 35

36 Other rules: Cost recovery by the original developer of over and above (impact fee) contribution occurs only after permits are issued and final impact fee amount is provided by collecting agency (Miami-Dade County in this case) The ability by original developer to retract the proportionate share mitigation and seek a refund is limited, and is triggered by the occurrence of the earlier of two events: Permits are issued by the municipality for the development, or Six months have elapsed since School Board s issuance of a Finding of Available School Facility Capacity 36

37 St. Johns River Water Management District v. Koontz, June 2013 decision of the U.S. Supreme Court Nollan and Dolan remain good law They apply to purely monetary conditions or exactions The majority of the Court appears to be skeptical with governmental programs for mitigation of impacts of development, and prepared to view them as legalized extortion. Impact? TBD. However, Florida law has required that impact fees and other similar fees meet dual rational nexus, which is very similar to Nollan and Dolan 37

38 2014 Legislative Session Preemption? 2013 saw significant preemption of local governments enforcing transportation proportionate share mitigation and mobility fee programs. Are schools next? Development interests continue to want to pay and go rather than true concurrency. Avoid creating powerful anecdotes which spur legislators to act. De minimis impacts. 38

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Introduced by the Council President at the request of the Joint. Planning Committee & substituted by the Land Use and Zoning Committee:

Substituted //0 Introduced by the Council President at the request of the Joint Planning Committee & substituted by the Land Use and Zoning Committee: ORDINANCE 0--E AN ORDINANCE AMENDING CHAPTER, ORDINANCE