JANUARY 12, 2006

The Lake County Board of County Commissioners met in special session on Thursday, January 12, 2006, at 10:00 a.m., in the Training Room, Lake County Administration Building, Tavares, Florida.  Commissioners present at the meeting were: Catherine C. Hanson, Chairman; Jennifer Hill; Debbie Stivender; and Robert A. Pool.  Commissioners not present: Welton G. Cadwell, Vice Chairman.  Others present were: Sanford A. “Sandy” Minkoff, County Attorney; Cindy Hall, County Manager; and Toni M. Riggs, Deputy Clerk.



            Mr. Gregg Welstead, Deputy County Manager, introduced Michael J. Lauer, Planning Works, Kansas, and stated that he is working with four counties in the State on the pilot school concurrency project, and he is also a part of the consortium that the State has under contract.

            Mr. Welstead explained that the Board has before them some data from the School Board and, in using the County’s GIS; he was able to put together maps of each of the attendance zones, and the number of students that attend those schools.  There were about 38,000 children in the data base; they were unable to map about 3,000 of them; some of them are out of County; and there may be some duplicates. 

            Discussion occurred about the idea of moving the boundaries and Mr. Lauer explained that, in terms of busing, it would have to be something that would be tolerable by the parents and the jurisdiction that they would be dealing with at that time.  After further discussion, it was noted that staff will provide additional overlays for a series of maps that will include any additional information they can obtain from GIS, and the School Board.      

            Mr. Lauer explained that today they will be focusing on their requirements for the interlocal agreement and concurrency, and they will be talking about issues that need to be addressed in that process.  Under the Statute, they have to address feasible capital facility planning; a uniform level; updating the interlocal agreement and Comprehensive Plan with any new elements; and modifying the Land Development Regulations (LDRs).  In the interlocal agreement topics, he will be talking about how they get to a Public School Facilities Element; level of service standards; and how to define school concurrency areas.  He will talk about some of the procedures for determining school concurrency, as well as proportionate share mitigation.

            In regards to the Public School Facilities Element, Mr. Lauer stated that this will be adopted by all jurisdictions as part of the County’s plan noting that the School Board and cities have to be at the table with the County for these discussions.  He pointed out that, because there will be different needs and ideas, they may have to call those out separately in that Element such as specific policies that apply in specific communities; so it is not one set of policies that fit all; it is one coordinating document.  The problem with doing anything else is that it is too easy to slip away from uniformity and it opens up challenges.  The Department of Community Affairs (DCA) started out by saying that we want you, in the Public Schools Facilities Element, to define those service areas, but every year you have changes in the attendance zones; so you do not want to have to go through a plan amendment every time.  There is also the question about what happens if home town democracy passes and whether you would have to go through an election.  In talking with DCA, they are looking forward to some strong recommendations from them to differentiate between policies; but they need to keep the map separate and the data separate.  He stated that they need to make sure not to put anything in the Element that gets modified on an annual basis.  They also have to discuss the Intergovernmental Coordination Element, and the Capital Improvements Element.

            Mr. Lauer addressed the Level of Service Standards noting the question about how to measure capacity and stated that this would include determining functional capacity, operational capacity, the role of portable buildings, and the role of re-locatable portables, as he explained in detail.

            Commr. Pool had a question about whether or not to count portables, and Mr. Lauer explained that you have to ask the question is that structure integrated adequately to the layout of the school and, if you are mitigating a shortfall in capacity, can you just pay for that portable instead of a permanent classroom.

            Commr. Pool explained that these are two different terms, portable and re-locatable and, if there is no ability to re-locate one of these re-locatable structures, then why does it not count for capacity when it is there; it cannot be moved and it meets all the requirements so at what point does it become a part of permanent capacity.

            Mr. Lauer explained that, in Orange County, some of the schools are designed to have different modules and they satisfy the permanent design need there; there is space and capacity and the core facilities to support it; they have the option to consider that as permanent capacity.  He explained that Hillsborough County is finding that some of the re-locatables are more expensive to install and hookup than the original school because they are being done piece meal, and they have to deal with the plumbing and the infrastructure independently.

            Commr. Hill wanted to know how the State reimburses them for capacity and if there is separate revenue for operational as opposed to functional because she feels that they could just tie those together, because the State audits the School Board and gives them the money based on their numbers, and then they have to decide whether or not it is enough and how much the County should provide, whether with impact fees or some other source of funding.

            Mr. Lauer stated that, in their discussion, the Board wants to know how to cover the gap.  There are two fundamental questions; how do we cover that gap; and how do we deal with the rate of growth so that they can build those facilities at the same rate that the students are coming in when this involves uncertain funding at the State level.  A big reason for this legislation is the recognition that, at the State level, they are not going to provide enough funding to cover all of this so they need to shift the cost burden.  They have impact fees that could shift the cost burden, but they have not dealt with the other side of the question of how they can keep up and close that gap on the capital side.

            Mr. Lauer continued the discussion with the item relating to School Concurrency Service Areas noting that, if they do less than district wide, they will have to have uniformity unless they have a surcharge area, i.e. Palm Beach County, as he explained, noting that they have defined 110% as their acceptable level.  The larger the service area, the more problematic it is for the School Board, because they have to juggle more students; the more refined those areas are, the easier it is to target their capacity determinations and make those student location adjustments when a development comes in.  Orange County’s program looks at capacity for individual schools, which makes it easier to determine whether or not they have capacity, and to make a decision on mitigation.  Palm Beach County took the approach to look at transportation and other natural features that divides the County into different areas, and they ended up with 21 different service areas.  He does not know of anyone who has decided to do it district wide; the Statute says to start district wide, and then refine it within the next five years.  His personal opinion is that, by going district wide, you would end up with an easier analysis at the County level and concurrency level and to say there is capacity left in the system, but you have created a bigger burden on the school district to figure out how to take care of it.  By going less than district wide, you have created a little more complex system for evaluation, but you have put yourself in a better position to say you need mitigation, and you reduce that burden on the school system.  It means that you will have fewer projects that require mitigation.  He explained that, if the School Board is going to use attendance zones or some part of them, then they should look at the adjacent service areas in that capacity.  The Statute requires that, if you take an individual attendance zone, they have to consider the capacity in all of the other school attendance zones, which is a lot more equitable.

             Discussion occurred regarding impact fees and proportionate shares, with Mr. Minkoff explaining that the thinking is that the proportionate share is going to be significantly higher than the impact.  Mr. Lauer explained that mitigation has been used as that gap between the impact fee and proportionate share.  By using proportionate share language in the Statute, it has brought that mitigation fee a lot closer to what that impact fee is going to be, but they still do not know how much more that mitigation fee will be than an impact fee.  Mr. Minkoff noted, too, that, if they do not build the classrooms, they are going to have to pay even more than proportionate share because, if the cafeteria is not large enough, they cannot build the classes unless the School Board has planned that expansion in the three or five year period; then the developer will have to just build it regardless of how much it costs.

            Commr. Pool explained that they certainly do not want to allow development to take place in an area that is already overcrowded but, as stated, they do not want to approve something in one area that affects the whole system when they have capacity elsewhere but, when they were talking about adjoining zones, if those are also at capacity, then a project could be approved if the adjoining zones could absorb it through some slight modification but, if those zones are in a jam, then clearly this area is off limits unless the developer builds a school or does something to offset that capacity, and then they need to identify that dollar figure or gag funding or where those facilities should be.

            Mr. Minkoff explained that concurrency means if capacity is not there, then you do not get to build; the proportionate share is only if the School Board has in the Capital Improvements Element and within the next three years a plan to build it; that is the only time you get to do proportionate share.

            Mr. Lauer explained that right now the DCA team is arguing theories for proportionate share, and these will be discussed and brought forward as they continue to address the issue of concurrency.  He pointed out that impact fees cannot be used for deficiencies.

            Mr. Minkoff explained that the position of the Florida Association of Counties (FAC) is that you cannot come through and avoid concurrency until the deficiency is gone; if the road is already over capacity before you come in and propose improvements, you have to include your trips, but you also have to fix the road; in other words, they are not going to give you that waiver unless you bring it up to standard and take care of the additional people.

            Mr. Lauer addressed the issue of Concurrency Procedures and explained that, at rezoning, unless it is a planned development, the Board does not know how many units they are going to get, how much demand it will have, or when it is going to come on line.  Most jurisdictions that have gotten to the concurrency level will get it to the platting stage.  Usually when you come in for a preliminary plat, there is a set time period before that demand starts coming on line, and you can also look at multi-family projects and site plan approval.  Then there is the question of allocation and when does that start because, if you make your determination at preliminary plat, then that means that every preliminary plat that you have already approved, every vacant lot is a committed demand without having to go through this concurrency test at all.

            Ms. Carol Stricklin, Director of Growth Management, asked Mr. Lauer to address the issue of vested projects, because Lake County has a number of antiquated subdivisions, and there are a lot of single family lots and, under the Statute, she wanted to know if those are vested or is that a determination that the County will make.  She noted that some lots of record are vested and some are not.

            Mr. Lauer explained that, with lots of record, you can presume that they are already through the process and are part of the demand already out there, a committed demand, even though they do not exist.  They can start looking at a timeframe, how long that allocation is good for, before they have to come back in; that is something they clearly have to get comfortable with; usually a time limit is attached with formal vesting actions.

            Discussion occurred regarding proportionate share and the need for interlocal agreements, with Mr. Lauer explaining that the Board will approve a development with mitigation; failure of the School Board to act and to use that mitigation is out of the Board’s hands.

            Commr. Hanson explained that, in all reality, the Board is not approving the number of developments today that were approved about ten years ago in the unincorporated area, so the numbers that they are approving now are so few compared to the inventory that is out there, and this is something that they need to see as a Board.  They need to know where they anticipate being after this has been completed and to determine what dollars they can anticipate for the School Board to meet their needs.

            Mr. Lauer addressed the question that was presented, at what point do you mitigate, and the issue of moratorium noting that the Board needs to be creative in their agreements, and they need to address all of these issues including defining the student generation rate by talking about private schools and charter schools when putting together their local analysis.  In addressing the Key Issues for Projecting Demand, they need to resolve discrepancies between adopted projections to find a creditable number.  He also reviewed issues, as outlined, pertaining to Measuring Capacity; Key Issues – Defining Capacity (estimating student generation rate), and Measuring Demand that included items such as split sessions and year around schools.

            Discussion occurred regarding the information that is being presented to the Development Review Staff (DRS) that includes information about utilities, power and transportation, and the fact that the County is developing joint planning area (JPA) agreements with the cities.  It was noted by Amye King, Deputy Director of Growth Management, that staff is in discussion with the cities right now about the distribution of that population per city and whether or not that is within their JPA, so staff has accepted a control number and projected it out to 2030, but the question is where that distribution falls over the next 20 years.

            Commr. Hanson stated that she agrees with Commr. Cadwell in that they need to start with the district wide, and with the idea that, in time, the capacity is divided up as well as it can be, at that point, and then move to the limited districts.  Then the districts would almost have to be permanent because then you are dealing with almost a contractual relationship with the developer who is putting the money in for the schools and, if the lines are changed after that, they may have paid a proportionate share that is no longer an appropriate proportionate share.  At some point, they need to have it defined on what those districts are going to be, whether they are smaller or larger, at which point they should maybe be permanent.

            Mr. Minkoff explained that there is a big legal problem with impact fees being less than countywide; one of the problems is that you are constitutionally required to have the same level of service for education countywide.

            Discussion occurred regarding level of curriculum with it being pointed out that they are not dictating curriculum; they are helping the School Board to make sure that they have enough seats to match the number of students.  It was also pointed out that, with diminimus tests, you get into equity concerns, as explained by Mr. Lauer, and the fact that the market does not provide affordable housing; it may provide some attainable housing; and not funding capital facilities is not a way to get affordable housing.  Also, with impact fees, depending on how tight the market is, a lot of those costs get shifted to the sale price of the property.

            Mr. Minkoff explained that, in their research, there is an indication that higher impact fees lead to a greater number of affordable housing units, based on the fact that you cannot have affordable housing without infrastructure, and higher impact fees lead to more infrastructure, which leads to more availability of affordable housing.


            Mr. Minkoff informed the Board that staff has received an order from Judge William Law denying the Writ of Certiorari in the Barn case, Neighborhood Lakes appeal; they have two appeals; one was the Certiorari where they appealed the denial of the rezoning and that is what this is; they still have the second litigation case but this will be of assistance in that; but the Board prevailed in the transfer of development rights (TDR) case.


            There being no further business to be brought to the attention of the Board, the meeting adjourned at 11:55 a.m.