JULY 27, 2006

The Lake County Board of County Commissioners met in special session with the Lake County School Board and representatives of Lake County’s municipalities on Thursday, July 27, 2006, at 1:00 p.m., at Lake Receptions, Mount Dora, Florida, to discuss school concurrency. Commissioners present at the meeting were Catherine C. Hanson, Chairman; Welton G. Cadwell, Vice Chairman; Jennifer Hill; Robert A. Pool and Debbie Stivender. Others present for Lake County were: Sanford A. “Sandy” Minkoff, County Attorney; Gregg Welstead, Deputy County Manager; Carol Stricklin, Growth Management Director; Brenda DeMartino, Department of Growth Management; and Judy McAuley, Deputy Clerk.

The Lake County Schools were represented by School Board Members Jimmy Conner, Chairman; Larry Metz, Vice Chairman; Becky Elswick; and Scott Strong; and by Superintendent Anna Cowin, Attorney Steve Johnson, and Harry Fix, Director of Growth Planning.

The municipalities were represented by Tim Green, Town of Astatula/City of Minneola/Town of Montverde; Elaine Renick, City of Clermont; Frank Royce, City of Eustis; Greg Beliveau, City of Fruitland Park; Teresa Greenham, City of Groveland; Bonnie Nebel, Town of Howey-in-the-Hills; Janet Shira, Town of Howey-in-the-Hills and City of Mascotte; Sanna Henderson, City of Leesburg; Melissa DeMarco, City of Mount Dora; Nancy Clutts, City of Tavares; Attorney Leslie Campione, City of Umatilla; and Jerry Cox, M.Ed., consultant for the municipalities.


Commissioner Hanson called the meeting to order and asked the participants/representatives to introduce themselves.


Mr. Gregg Welstead, Deputy County Manager, referred to the concurrency service area (CSA) map and additional information which is included in the backup material. He stated that statutes require the parties to develop concurrency on some geographic basis. The option of measuring concurrency is given either on a district-wide basis or delineating “concurrency service areas.” In the event concurrency was initially based district-wide, we were required to transition to a system of concurrency service areas within three years after adoption. Due to the nature of overcrowding and imbalance between schools in different parts of the County, this group decided to go straight to concurrency service areas in an attempt to address localized problems more rapidly.

Mr. Welstead explained that initial discussions centered on using existing attendance zones but this caused concern about bootstrapping available seats in one area of the County to allow development in an overcrowded area. Instead of using the attendance zones, an alternative was developed several months ago that divided the County into smaller areas. He stated that the map presented today contains fifteen concurrency service areas and an additional four “lake” areas. The lake areas are designed to prevent consideration of contiguity between CSAs that require transit through another CSA or outside the County. Each area contains at least one school with contiguity to schools of each level.

On a motion by Commissioner Pool, seconded by School Board Member Strong and carried unanimously, the Lake County Board of County Commissioners, the Lake County School Board and the Lake County Municipalities adopted the Concurrency Service Area (CSA) Map as presented.


Mr. Welstead explained that we are required to establish a service level for concurrency that is financially feasible. At one of the past meetings, discussion led to a suggestion that a service level of 125% of permanent FISH (Florida Inventory of School Houses) capacity would be acceptable. During discussion, it was refined and suggested that 125% of FISH should apply only to schools where excess core capacity was available to serve the student population. What is proposed for adoption today, and was discussed by the School Board July 24, is a level of service (LOS) equaling 100% of permanent FISH capacity, with provisions to accept temporary student stations up to 125% of FISH capacity where dining capacity (core facility capacity) exceeds FISH capacity.

On a motion by Commissioner Cadwell, seconded by Mr. Green and carried unanimously, the Lake County Board of County Commissioners, the Lake County School Board and the Lake County Municipalities approved a level of service (LOS) equaling 100% of permanent FISH capacity, with provisions to accept temporary student stations up to 125% of FISH capacity where dining capacity (core facility capacity) exceeds FISH capacity.


Mr. Welstead stated that the Florida Department of Community Affairs (DCA) has “mandated” that capacity/enrollment of non-conversion charters be included for purposes of determining concurrency. DCA has allowed that some of these charters established as special purpose charters (e.g., National Deaf Academy or DOJ/DCF-chartered schools) need not be included. Several of the municipalities are either actively pursuing city-chartered schools or are considering their use in the future. The cities want to ensure their efforts in this area are considered to provide for future development opportunities within municipal boundaries. Previous discussion by the School Board and staff has centered on the requirement to count capacity that it has no control over and cannot assign students to. Additionally, requirements for hurricane resistant buildings and sheltering capability, as well as the contingency of failing charter schools and subsequent transition of both facilities and students to traditional schools, are in question.

Mr. Welstead stated that the issue for discussion today is whether, and how, to count these schools given the state mandate.

Mr. Harry Fix, Director of Growth Planning for Lake County Schools, explained that the School Board is laying out a capital plan and possibly has to look to the provision of whether there is available space in the charter schools. In some instances, the charter schools could be in business one or two years and then be out of business. Another concern is the fact that students cannot be assigned to non-conversion charter schools.

School Board Member Becky Elswick confirmed that the School Board is obligated to take students that are attending a charter school that fails.

School Board Member Strong agreed that charter schools could be absorbed if the School Board has the ability to take over the structure. Often, there is a financial consideration attached to it.

Superintendent Anna Cowin explained that, if a school does not meet the AYP, students can choose to go to any school, even if it is overcrowded. She stated that there are nine charter schools in Lake County, four of which are conversion charters this coming year. She estimated that there are 4,000 students in those four conversion charters.

Mr. Steve Johnson, School Board attorney, explained that the Interlocal Agreement, as written, only includes non-charter schools. The level of service is based on 100% of FISH capacity and non-conversion charter schools are not included in the State FISH capacity count. He explained that anyone who meets minimum qualifications can apply for a charter school, the State gives them start-up money, and they start getting money through the School Board from the State for the individual student. If that charter school fails, the School Board did not have the ability to plan for those increases in the number of students. He stated that the majority of students in charter schools in Lake County are in conversion charter schools. Those are counted as part of the FISH numbers and are not an issue. He stated that DCA has specifically said that specialty schools, which draw students from other counties, are not included. He stated that we are talking about non-conversion, non-specialty charter schools, over which the School Board has no control except to monitor their financial status from an outside position.

Mr. Johnson agreed with Mr. Welstead that the word “mandated” would be in quotes because there has not been a written opinion or rule from DCA. He added that the School Board would consider contesting such a rule because it defeats the purpose of school concurrency. He stated that they have negotiated through this contract from the beginning with level of service without those charter schools being included and it is the School Board’s position that we should continue that way and not include them until some other time that a DCA ruling might have to be dealt with.

Mr. Jerry Cox, consultant for the cities, stated that there is quite a bit of difference between proposed municipal charter schools and the storefront charter schools. He stated that two or three cities are considering building individual structures that would meet SREF (State Requirements for Educational Facilities) standards. They do not want one city to get capacity, turn it over to the School Board, and have all the money from the capital outlay budget go to update that school because that would take capacity from the adjoining municipality. He stated that he sees no reason why the schools that are being built to SREF standards, that the School Board could assume and could put students in if they took control, could not be counted in capacity. He stated that the cities feel very strongly about that and would suggest to the School Board to put a cap on the contract if they are concerned about being able to place students in it. He opined that not counting charter school that many of the municipalities have been planning may very well be a deal killer. He stated that he fully understands the problems with charter schools, particularly the storefronts, but the municipalities are planning schools in the communities that would be comparable to what the School Board would build.

Mr. Johnson answered that the School Board has no objection, especially with municipal charters or any other charter willing to build schools according to the same standards, if the School Board can take over the school and operate it without any effect on its capacity, in the event the school fails. That is something he believes the School Board can live with and would agree to be able to do that. Mr. Johnson confirmed that statutes do not require that charter schools be built to State standards.

Mr. Jimmy Conner, School Board Chairman, stated that it needs to be crystal clear in that contract that the School Board would want some control over the physical building in the event of default.

Mr. Johnson stated that the proposed contract language will need to be rewritten because it currently says FISH capacity. He stated that it was understood that, not only will charter schools be built according to standards, but, in the event of failure or closure, the School Board would take them over. He clarified that non-conversion charter schools that are built to SREF and Department of Education (DOE) standards will be considered as capacity. He explained that it will not work if the school is built to SREF standards but is built at 100% financing because the School Board would have to essentially pay for the entire building. There will have to be some conditions on how the financing is handled.

In response to Mr. Conner’s inquiry about why someone, perhaps a city and a developer together, would agree to turn over a building to the School Board, Mr. Johnson answered because they want it included in capacity. After additional discussion, Mr. Johnson stated that the bottom line is, if the School Board has no ability to take over that facility and operate it on an economic basis, there is no reason for it to be included in concurrency because we are back to square one on the five-year plan on dealing with all the students that are in there. He confirmed that the statute says, if a school defaults, all the equipment purchased with State money, such as books and desks, defaults to the school district. He explained that most of the time the facilities are built by a third party/management company and then leased to the school to operate. He clarified that conversion schools operate as public schools.

A motion was made by Mr. Johnson for approval to include, for capacity purposes outside of school district owned and operated schools, non-conversion charter schools and charter schools that agree to construct their schools according to School Board/DOE standards that authorize in the charter agreements for the school district to take it over and operate the school in the event of default, as will have to be defined at a later time; at the School Board’s discretion as to certain financing criteria that will have to be met in order to be able to economically operate the school after it takes it over.

A corrected motion was made by Mr. Johnson, and seconded by Commissioner Stivender, to accept, for concurrency purposes, FISH approved schools and seats, conversion charter schools and other charter schools that meet the criteria outlined above.

Further discussion occurred regarding financing and schools built through CDDs (Community Development Districts).

Commissioner Hanson stated that this issue needs to come back to the group when final language is completed.

Mr. Johnson stated that some of these issues will be handled in the charter contracts but there has to be some reference to them in the Interlocal Agreement. Regarding debt, he further explained that the trick will be sufficient language in the charter contracts that the School Board is comfortable with the arrangement it will have with that school and that they can be included as capacity in the interim.

Commissioner Hanson called for a vote on the corrected motion which carried unanimously by the Lake County Board of County Commissioners, the Lake County School Board and the Lake County Municipalities.

Commissioner Hanson noted that quite a few issues have to be addressed as the language is drafted.


Mr. Welstead explained that, traditionally, school boards have been exempt from local planning provisions and could place a school at their discretion based on determined need. Once the decision was made, the school would be built without consultation with local government. Several years ago, state law changed and local governments now assert that schools are required to seek local government approval for site plans and are required to comply with zoning requirements. School boards dispute this. He stated that today’s discussion is not centered on the validity of this requirement but the requirement of the current school concurrency statute for the parties to address “the need for and timing of onsite and offsite improvements to support the proposed educational facility, including identification of the party or parties responsible for the improvements.”

Mr. Sandy Minkoff, County Attorney, opined that, with a couple of language changes to Section 4 of the Interlocal Agreement (included in the backup material), Mr. Johnson is comfortable recommending to his clients that they agree to go through the site plan process. The local governments probably believe that the School Board should have to go through the site plan process for schools that are located in their jurisdictions. He remarked that school boards throughout the state contest that but this is one case where the Attorney General agrees with local governments. He stated that the statute specifically requires, in this agreement, to determine the need and the timing for both onsite and offsite improvements to support new schools. The process of how to pay for those has to be identified. He opined that this item probably is on the agenda so that Mr. Johnson can make sure his clients are okay with the wording changes to agree to go through with that.

Mr. Johnson stated that he discussed with the School Board that it is his opinion, and the opinion of several other school boards, that the school boards are exempt from direct involvement and requirement of following all of the land development regulations (LDRs) in building in cities and counties. He explained that they are required to submit a development plan and to confirm and get a certificate from the local jurisdiction as to whether or not it satisfies the LDRs. The agreement says, as outlined in the statutes, the school board will receive from the local government either a determination that it satisfies the comprehensive plan and LDRs and that is the end of the discussion; or, if there is a disagreement, the intergovernmental dispute resolution process would be followed. Mr. Johnson remarked that School Board staff’s concern would be that unreasonable additions, such as demands from a city for concrete driveways around the school where all the other roads are asphalt, could be included in LDRs. He noted that past disagreements over plans that have been submitted to local governments have been worked out with changes by one party or the other. He does not think this agreement puts them in the position of reaching the ultimate decision of whether they are saying they will waive their right to contest it. There should be a balancing test between the School Board’s right to build a school and the county/city right to enforce their LDRs. He stated that, assuming things work out, this will not cause any change.

Mr. Conner stated that he is not comfortable asking the School Board to approve new language that has not been reviewed. He suggested that this warrants a discussion by the School Board itself.

Mr. Minkoff pointed out that this concept has been in all the draft agreements but has not been fully agreed to by Mr. Johnson.

School Board Member Scott Strong stated that he does not see that this has been a big problem because they have been cooperating and he does not want anything to impede their process in getting additional capacity.

Mr. Conner agreed that the School Board has a solid track record with the municipalities.

Commissioner Cadwell stated that the County cannot abandon its responsibility to the rest of the citizens that live in those areas and that is what they would be doing by not having anything to say about what the School Board wants to do. He stated that there has to be an opportunity for dialogue and that the language should be left in the agreement and talked about later, before final adoption.

Mr. Johnson stated that they are obligated to include Section 4.4.1 with a couple of changes. The statute requires the School Board to submit a site design/development plan to the government entity no later than 90 days before construction starts. The government has 45 days to answer two questions, whether it is consistent with the comprehensive plan and whether it is consistent with its LDRs. The statute allows an alternative process to be developed between the various government entities and the school board in order to work something out where this process can be accomplished.

Mr. Johnson read portions of Section 4, Page 11, of the Interlocal Agreement. He referred to Section 4.1.2 which does not say the School Board will be required to do everything that is in the LDRs even though the School Board is willing to work with everybody. He stated that he looks at it that they are not, in this agreement, saying they are going to concede and have to perform every approval process the same as any other developer. He stated that they are saying they will go through the review process, find out what needs to be done on onsite and offsite improvements and, if everything works out, there will be no more discussion. If it does not work out, they will be going through a dispute resolution process that, hopefully, will resolve the dispute.

In response to an inquiry by Commissioner Hanson regarding the elimination of the public hearing requirement, Mr. Minkoff clarified that this is not a zoning issue.

Mr. Greg Beliveau, representing the City of Fruitland Park, reminded everyone that the Interlocal Agreement is not being voted on today.

Because the School Board will continue their discussion on this issue, Commissioner Hanson noted that there is agreement to move to the next issue.


Mr. Welstead stated that the current agreement specifies that four or fewer lots in residential subdivisions are de minimis. What that means is that, if someone comes in with four or fewer lots, the students generated from those lots would still have to be counted in the concurrency equation, but they could not be stopped from development and they are not subject to proportionate share mitigation. A number of cities have mentioned the possibility that four units may be too small. One reason cited is that infill or community redevelopment may create a need for smaller subdivisions that do not have a huge impact.

Mr. Cox stated that the cities want to ensure that the small builder and the development of the infill is not shut down. He commented that, per school district staff, ten houses would generate two elementary students, one middle school and one high school student. Forty houses would generate eight, four and four students. He asked how that can be mitigated. He stated that the cities are looking for a solution.

Mayor Nancy Clutts, City of Tavares, agreed and stated that the City of Tavares is looking to put forward a priority in redevelopment and infill and is trying to provide incentives while not stretching out its service area.

Commissioner Cadwell asked if there is a way to distinguish what infill would be because there may be pockets in the cities where they want to redevelop where de minimis might be different than extending nontraditional city limits. He remarked that the County has considered de minimis, by practice not policy, to sometimes be ten, twelve or ever four depending on where it is and what the capacity was in the surrounding area. He asked if there is another way to determine what de minimis would be for a city while including a cap. He remarked that he does not have a problem with four, in general, if there is some logic to it but he feels that infill should be looked at differently.

Mr. Fix stated that he would not want someone be able to split a five-acre lot because it would be considered de minimis and have that set off a trend in that area. He stated that would be very different from an infill situation. He added that he would not want a developer to be able to divide a property into many different tracts and be able to come under a threshold. He acknowledged that that is not the intent of the discussion. He stated that the School Board has to be cognizant of the fact that they have to look to those levels of service within that concurrency service area.

Attorney Leslie Campione, representing the City of Umatilla, opined that the discussion is about two numbers. De minimis could be one number and the other number could be an infill allowance. She stated that it would seem to make a lot of sense if the School Board could figure out how to deal with level of service, and, if that was based on a number per unit and a proportionate share mitigation formula, and the dollars would be put up without having to build the whole school.

Mr. Minkoff reminded the audience that whatever number is chosen, the kids have to be accounted for and there has to be a place for them to go to school. He stated that doing de minimis still counts for everyone else in the School Board’s capacity calculations. He stated that they could clearly write something in the agreement that says the School Board and a city could agree, for areas of urban infill, to come up with a higher number and keep that outside of this agreement. The infill could be handled by an agreement separate from this one.

Mr. Cox stated that they are not asking for exemption from school concurrency but are trying, hopefully through the mitigation program or something, to come up with a number so that, under a certain number of lots, the developer could pay their fair share and go ahead and build. He explained that they would like to have the de minimis number higher to encourage infill. Mr. Cox remarked that they are looking at, perhaps, 40 homes at least and they would not be opposed to raising the de minimis number. He reiterated that the big concern is to make sure the builders who are doing the infill can continue to build and will not be locked out because they do not have a project big enough to pay mitigation.

Mr. Minkoff explained that a DCA comment that has been incorporated into this agreement requires coming up with a proportionate share calculation. He referred to Section 5.6 Mitigation Alternatives in the agreement. He stated that language could be included such as any development that is 40 units and less, for example, could pay proportionate share and go whether or not it was on the five-year capital plan. He stated that he does not know if an annual cap should be looked at because, if there were a lot of these, the money may not be there to build the schools and these 40-unit developments could be spread throughout the county where overcrowded schools could be created in some cases. A lot of exemptions could create a lot of problems but that could be included in the mitigation section.

Mr. Strong stated that he does not want to go to 40.

Mr. Cox explained that they are not asking for an exemption for 40 homes. They are asking to ensure that they will be able to build by paying the proportionate share. He suggested that the fee would have to change each year based on construction costs. Mr. Cox stated that ten 40-house developments throughout the county would generate enough money for the School Board to be able to build something somewhere and would help with the impact. It may help accelerate a project that is in the second five-year plan.

Mr. Johnson remarked that this would be the same as an exemption from the concurrency. He stated that, in proportionate share mitigation, the ultimate number they want to pay is the cost per student station under the DCA formula and the impact fee is the cost per student station also. It would be the same number theoretically. He stated that what Mr. Cox is asking is for these 40 units to come in and, regardless of whether there is capacity, pay proportionate share, which is the impact fee, and the students come into the system and the developer is allowed to build. He remarked that he does not know the School Board’s opinion on that.

Mr. Minkoff agreed with Mr. Johnson in that proportionate share is not supposed to be more than the cost of students. He stated that, theoretically, proportionate share should the same as the impact fee. He suggested that it would be easier if language is included that says if a municipality or the County developed a redevelopment plan that they could enter into an agreement with the School Board to have the de minimis number higher or to do proportionate share payments for those. He remarked that, if 40 or less is included in the agreement and proportionate share can just be paid, every subdivision in Lake County would be 40 lots.

Regarding infill, Mr. Johnson suggested that the cities and the County give the School Board an inventory of the number of lots and a map of those areas so that the School Board can respond as to whether that is reasonable.

Mr. Minkoff stated that this may be an issue that has to come out of this agreement. What this agreement may say is that all parties agree to work on different numbers for areas where we are doing infill. We do not want to delay concurrency for two or three months while infill issues are worked out. He suggested that one solution may be to put in language that says we will all agree to come up with a different standard for infill by January 1 or some date.

On a motion by Commissioner Pool, seconded by Commissioner Stivender and carried unanimously, the Lake County Board of County Commissioners, the Lake County School Board and the Lake County Municipalities approved to insert language in the Interlocal Agreement that says all the parties would agree to work together to define where infill projects are necessary or beneficial, within municipalities and in certain areas of the County, and to come up with a different way to do proportionate share for new development in those infill areas.


There were no other issues.


Mr. Minkoff stated that the plan today is not to go over the Interlocal Agreement. The core group of attorneys has been working on the agreement and the drafts have been sent to all the city attorneys. The draft presented today is almost the final draft and written comments or questions are requested from the cities before the August 23 meeting. The goal is to have everyone at that meeting agree to take the agreement back to their councils for approvals. He stated that they will try to send out today’s changes to the participants by July 31.


Mr. Welstead stated that the meeting on August 23 is for this body as well as all elected officials so that everyone has a common understanding of what is in the Interlocal Agreement.


There being no further business, the meeting was adjourned at 2:45 p.m.