STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ECONOMIC DEVELOPMENT COUNCIL ) OF BROWARD, INC., )
)
Petitioner, )
)
vs. ) Case No. 96-6138GM
)
DEPARTMENT OF COMMUNITY ) AFFAIRS and BROWARD COUNTY ) BOARD OF COUNTY )
COMMISSIONERS, )
)
Respondents, )
)
and )
) THE SCHOOL BOARD OF BROWARD ) COUNTY, )
)
Intervenor. )
) FLORIDA HOME BUILDERS )
ASSOCIATION, BUILDING )
INDUSTRY ASSOCIATION OF ) SOUTH FLORIDA, and FLORIDA ) ASSOCIATION OF REALTORS, )
)
Petitioners, )
)
vs. ) Case No. 97-1875GM
)
DEPARTMENT OF COMMUNITY ) AFFAIRS and BROWARD COUNTY ) BOARD OF COUNTY )
COMMISSIONERS, )
)
Respondents, )
)
and )
) THE SCHOOL BOARD OF BROWARD ) COUNTY, )
)
Intervenor. )
)
RECOMMENDED ORDER
A formal hearing was held in these cases before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on June 4 through 6, and 9 through 12, 1997, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner, Economic Development Council of Broward, Inc.:
Mark D. Solov, Esquire
Sterns, Weaver, Miller, Weissler, Alhadeff and Sitterson, P.A.
Museum Tower, Suite 2400
150 West Flagler Street Miami, Florida 33130
For Petitioners, Florida Home Builders Association, Building Industry Association of South Florida, and Florida Association of Realtors:
John W. Little, III, Esquire Steel, Hector, and Davis, LLP 1900 Phillips Point West
777 South Flagler Drive
West Palm Beach, Florida 33401-6189 and
Jonathan Sjostrom, Esquire Jacob D. Varn, Esquire Donna E. Blanton, Esquire Keith Hetrick, Esquire
Steel, Hector, and Davis, LLP
215 South Monroe Street, Suite 601 Tallahassee, Florida 32301
For Respondent, Department of Community Affairs:
David L. Jordan, Deputy General Counsel Kathleen R. Fowler, Assistant General
Counsel
Department of Community Affairs
2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Respondent, Broward County Board of County Commissioners:
John J. Copelan, Jr., County Attorney Sharon Cruz, Assistant County Attorney Lisa Zima Bosch, Assistant County Attorney Office of the County Attorney, Broward
County
115 South Andrews Avenue, Suite 423 Ft. Lauderdale, Florida 33301
For Intervenor, School Board of Broward County:
Nancy Stroud, Esquire Burke, Weaver and Prell 1900 Glades Road, Suite 350 Boca Raton, Florida 33431
STATEMENT OF THE ISSUE
The issue in these cases is whether amendments to the Broward County Comprehensive Plan are "in compliance" as defined in Section 163.3184(1), Florida Statutes.
PRELIMINARY STATEMENT
On September 11, 1996, Broward County adopted an amendment to the Broward County Comprehensive Plan by Ordinance
Number 96-30. Of pertinence to this proceeding, the amendments included a new Public School Facilities Element, amendments to the Capital Improvements Element, amendments to the Intergovernmental Coordination Element, and amendments to the Broward County Land Use Plan.
The amendments were reviewed by the Department of Community Affairs. On November 11, 1996, the Department of Community Affairs caused Notice of Intent to find the amendments not "in compliance" to be published.
On November 13, 1996, Broward County and the School Board of Broward County carried out the remedial action recommended by the Department of Community Affairs to bring the amendments into compliance. As a consequence, on November 24, 1996, the Department of Community Affairs caused a second Notice of Intent, finding the plan amendments to be "in compliance," to be issued.
On November 27, 1996, Florida Home Builders Association, Building Industry Association of South Florida, and Florida Association of Realtors filed a Petition for Administrative Hearing with the Department of Community Affairs. The petition was "directed to the [second Notice of Intent] to find the amendment in compliance with statutory requirements." It was asserted in the petition, nonetheless, that the petition should be considered as filed pursuant to Section 163.3184(10), Florida Statutes, in light of the fact that it had been filed within twenty-one days of the first Notice of Intent.
On December 10, 1996, Petitioners in Case Number 97-1875GM, Broward County Board of County Commissioners, and the Department of Community Affairs entered into an Agreement to Mediate.
Therefore, the petition filed by Petitioners in Case
Number 97-1875GM was not immediately filed with the Division of Administrative Hearings.
On December 2, 1996, twenty-one days after the Department's publication of the first Notice of Intent, Economic Development Council of Broward, Inc., filed a Petition to Intervene with the
Division of Administrative Hearings. The Petition to Intervene was filed in an effort to intervene in any case initiated by the Department of Community Affairs against Broward County as a result of the initial determination that the amendments were not "in compliance." No petition had been filed at that time, however, with the Division of Administrative Hearings by the Department of Community Affairs. The Petition to Intervene was filed with the Department of Community Affairs on or about December 6, 1996.
On or about December 13, 1996, Economic Development Council of Broward, Inc., filed a Petition for Administrative Hearing and Motion to Convert or Alternatively Quash or Dismiss Proceedings with the Department of Community Affairs. The petition was filed in response to the second Notice of Intent finding the plan amendments "in compliance." The petition and motion were filed with the Division of Administrative Hearings by the Department of Community Affairs on December 31, 1996. The Department of Community Affairs requested that the matter be assigned to an Administrative Law Judge to conduct a proceeding pursuant to Section 163.3184(9)(a), Florida Statutes.
The request for hearing filed by Economic Development Council of Broward, Inc., was designated Case Number 96-6138GM. The case was assigned to the undersigned. A Notice of Assignment and Order was entered by the undersigned on February 21, 1997.
On January 10, 1997, the School Board of Broward County filed School Board's Motion for Intervention. By order entered February 5, 1997, the motion was granted. The School Board of Broward County was given twenty days from the date of the order to file a petition in conformance with Rule 60Q-2.004(5), Florida Administrative Code. The petition was filed February 24, 1997.
On March 14, 1997, argument was heard on the Motion to Convert or Alternatively Quash or Dismiss Proceedings. Florida Home Builders Association, Building Industry Association of South Florida, and Florida Association of Realtors participated in the motion hearing. They participated because of the petition challenging the amendments pending before the Department of Community Affairs. Argument on the Petition to Intervene filed by Economic Development Council of Broward, Inc., was also heard. The motion and the petition were ultimately denied in an order entered March 20, 1997. The assertion of Petitioners that this proceeding should be conducted pursuant to Section 163.3184(10), Florida Statutes, was rejected.
The formal hearing was scheduled for the week of June 9, 1997, by a Notice of Hearing entered March 21, 1997. On April 17, 1997, Broward County Board of County Commissioners
filed a Demand for Expedited Hearing. Pursuant to the demand, Broward County Board of County Commissioners exercised its right to demand an expedited hearing pursuant to Section 163.3189(3), Florida Statutes. On March 28, 1997, a Notice of Hearing
scheduling the formal hearing within thirty days of receipt of the Demand for Expedited Hearing was entered.
On or about April 16, 1997, mediation between Petitioners and Respondents in Case Number 97-1875GM was terminated. On the same date, Broward County Board of County Commissioners served a Demand for Expedited Hearing on the parties in that case. An Amended Petition for Administrative Hearing was filed by Petitioners in Case Number 97-1875GM with the Department of Community Affairs. On April 21, 1997, the original petition, mediation agreement, and amended petition were filed by the Department of Community Affairs with the Division of Administrative Hearings. A copy of the Demand for Expedited Hearing, a Notice of Related Case and Motion for Consolidation, and other pleadings were also filed by the Department of Community Affairs.
The amended petition was designated Case Number 97-1875GM. The case was assigned to the undersigned on April 23, 1997.
Petitioners filed a number of pleadings concerning the Demands for Expedited Hearings. The formal hearing in Case Number 96-6138GM had already been scheduled to commence May 12, 1997, in response to the Demand for Expedited Hearing filed in that case. Case Number 97-1875GM was not assigned to the undersigned, however, until April 23, 1997, only eighteen days prior to the scheduled commencement of the hearing in Case
Number 96-6138GM. Additionally, the Demand for Expedited Hearing served in Case Number 97-1875GM had been served prematurely.
Section 163.3189(3)(b), Florida Statutes, provides that demands for expedited hearings may be filed, but not until the matter has been filed before the Division of Administrative Hearings.
On April 29, 1997, a motion hearing was conducted by telephone. As a result of the hearing, a number of rulings were entered: (1) the cases were consolidated; (2) a Motion for Continuance filed by Economic Development Council of Broward, Inc., was denied; (3) the School Board of Broward County was allowed to intervene in both cases; (4) requests for expedited discovery were granted; and, (5) the formal hearing was scheduled for the first available period of time on the undersigned's calendar within thirty days of the receipt by the Division of the Demand for Expedited Hearing in Case Number 97-1875GM. The formal hearing of these cases was scheduled to commence the week of June 2, 1997. An order memorializing the rulings entered during the April 29, 1997, hearing was entered April 30, 1997.
On May 6, 1997, a Motion in Limine was filed by Respondents and Intervenor. Responses in opposition to the motion were filed by Petitioners. On May 20, 1997, an order was entered granting the motion, in part. It was ordered that no evidence would be allowed with regard to paragraphs 32 and 67 of the petition in Case Number 96-6138GM. It was also ordered that evidence
concerning constitutional issues raised in Case Number 96-6138GM would only be allowed to be proffered in writing. On
September 3, 1997, Economic Development Council of Broward, Inc., filed proffered evidence concerning the constitutional issues it had raised. On September 26, 1997, Respondents and Intervenor filed a response to the proffer.
A number of discovery disputes arose prior to the commencement of the formal hearing. Orders were entered disposing of most of those disputes. Those disputes not disposed of by order were ruled on during the formal hearing and are a part of the record of these proceedings. As a result of one discovery dispute, the commencement of the formal hearing was delayed one day, to Tuesday, June 3, 1997.
At the commencement of the formal hearing, Petitioners filed Petitioners' Joint Prehearing Stipulation. Respondents and Intervenor filed a separate Prehearing Statement.
During the formal hearing Economic Development Council of Broward, Inc., presented the testimony of Richard Jernigan; Peter Ross; Thomas Pelham, Esquire; and Donald L. Waldron, III. Economic Development Council of Broward, Inc., offered twenty-one exhibits for identification. All of the exhibits offered by Economic Development Council of Broward, Inc., were marked as "EDC" Exhibits and were accepted into evidence. EDC Exhibits 2- 4, 6-8, 10-14, and 16 were accepted to the extent determined to
be relevant. EDC Exhibits 3-4, 15, and 20 were objected to as hearsay.
Petitioners in Case Number 97-1875GM presented the testimony of Timothy L. Lunney, Mike McDaniel, Christopher Akagbosu, and Robert Pennock. Mr. Pennock was also called as a rebuttal witness. They also presented the deposition testimony of Paul DiGiuseppe, Charles Gauthier, and Mr. Pennock. Petitioners in Case Number 97-1875GM offered twenty exhibits for identification. They were marked as "FHBA" Exhibits. FHBA Exhibits 15 and 16 were withdrawn. The rest of the exhibits were accepted into evidence. FHBA Exhibits 9-12, and 17-19 were accepted to the extent determined to be relevant. FHBA Exhibit 11 was objected to as hearsay.
Broward County Board of County Commissioners presented the testimony of Peter Ross. Broward County Board of County Commissioners offered three exhibits for identification.
Exhibits 1 and 3 were accepted into evidence. Exhibit 2 was rejected as a duplicate of EDC Exhibit 21.
Intervenor presented the testimony of George Latimer, John Quercia, Arthur Wittman, and Lee Stepenchak. Intervenor offered fifteen exhibits for identification. All were accepted into evidence, except School Board Exhibits 8 and 9. A ruling on School Board Exhibits 8 and 9 was reserved. School Board Exhibits 2-3 were accepted to the extent determined to be relevant.
The Department of Community Affairs presented the testimony of Michael McDaniel. One exhibit was offered by the Department of Community Affairs. The exhibit was accepted into evidence.
The parties also offered seventeen exhibits as Joint Exhibits. The Joint Exhibits were accepted into evidence.
At the conclusion of the formal hearing, it was agreed that the parties would file proposed recommended orders within ten days following the filing of the transcript of the formal hearing. On July 18, 1997, the court reporter for the first week of the formal hearing filed a letter addressed to the undersigned and part of the transcript of the formal hearing. The court reporter indicated that a portion of the testimony of Robert Pennock during the formal hearing had been lost.
Petitioners in Case Number 97-1875GM filed Petitioners' Notice of Incomplete Transcript and Motion to Replace Lost Testimony. A hearing was conducted on July 23, 1997, to consider the motion. It was ordered during the telephone hearing that Petitioners in Case Number 97-1875GM would be allowed to attempt to reconstruct the lost portion of Mr. Pennock's testimony. The reconstructed testimony was to be served on or before August 1, 1997. Objections to the replacement testimony were to be filed on or before August 8, 1997. The filing of proposed recommended orders was delayed until ten days after the filing of Mr.
Pennock's reconstructed testimony and the disposition of any
objections thereon. These rulings were memorialized in an order entered July 24, 1997.
By order dated July 29, 1997, notes taken during Mr.
Pennock's testimony by the undersigned were provided to Petitioners in Case Number 97-1875GM for use in reconstructing Mr. Pennock's testimony.
On July 29, 1997, Petitioners in Case Number 97-1875GM filed a motion requesting additional time, through and including August 8, 1997, to file Mr. Pennock's reconstructed testimony.
Following a motion hearing conducted by telephone, August 7, 1997, was established as the date for filing Mr. Pennock's reconstructed testimony. Objections were to be filed on or before August 13, 1997. The motion hearing was conducted, due to the undersigned's absence, by Administrative Law Judge Charles Adams. Judge Adams entered an order on August 4, 1997.
Mr. Pennock's reconstructed testimony was filed August 8, 1997. Respondents and Intervenor filed objections to the reconstructed testimony on August 14, 1997. Oral argument on the objections was heard by telephone on August 21, 1997. The parties were informed by telephone on August 22, 1997, that the objections were overruled, except for the following proposed replacement testimony, which was struck: (1) at page 721.20, lines 3 and 4, the phrase "and policy 08.07.12 of the Broward County Land Use Plan"; and (2) at page 721.20, lines 8 and 9, the
sentence "Essentially identical language is used in Policy
of the Broward County Land Use Plan amendments."
The parties were also informed that proposed recommended orders should be filed on or before September 3, 1997.
Petitioners filed a joint proposed order on September 3, 1997. Respondents and Intervenor also filed a joint proposed order on September 3, 1997. Those proposed orders have been fully considered in preparing this Recommended Order.
The Department of Community Affairs also filed a Motion to Modify Standard Notice of Right to Submit Exceptions and Notice of Time Period to File Exceptions. The Department of Community Affairs requested that the time period for filing exceptions provided in Section 163.3184(9)(b), Florida Statutes, be referenced in the Notice of Right to File Exceptions at the end of this Recommended Order. The motion is hereby granted.
FINDINGS OF FACT
The Parties.
Economic Development Council of Broward, Inc. (hereinafter referred to as "EDC") is a not-for-profit corporation organized and existing under the laws of Florida. EDC's principal place of business is 1263 East Las Olas Boulevard, Fort Lauderdale, Broward County, Florida.
The Florida Home Builders Association (hereinafter referred to as "FHBA") is a not-for-profit corporation organized and existing under the laws of Florida. FHBA's principal place
of business is 210 East Park Avenue, Tallahassee, Leon County, Florida.
The Building Industry Association of South Florida (hereinafter referred to as "BIASF") is a not-for-profit corporation organized and existing under the laws of Florida. BIASF's principal place of business is 15225 Northwest 77th Avenue, Miami Lakes, Dade County, Florida.
The Florida Association of Realtors (hereinafter referred to as "FAR") is a not-for-profit corporation organized and existing under the laws of Florida. FAR's principal place of business is 7025 Augusta National Drive, Orlando, Orange County, Florida.
The Department of Community Affairs (hereinafter referred to as the "Department") is an agency of the State of Florida. The Department, among other things, is charged with responsibility for the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act").
The Broward County Board of County Commissioners (hereinafter referred to as the "Broward County Commission"), is the governing body of Broward County, Florida. Broward County is a political subdivision of the State of Florida. The Broward County Commission is responsible under the Act for the preparation, processing, and review of land use plans and amendments thereto within its jurisdiction.
The School Board of Broward County (hereinafter referred to as the "School Board") is the governing body of the school district of Broward County. Section 4(a), Article IX of the Constitution of the State of Florida. The School Board is charged with responsibility to "operate, control and supervise all free public schools" within Broward County. Section 4(b), Article IX of the Constitution of the State of Florida.
Standing.
EDC was formed in 1979 to represent the interests of residential land developers in Broward County. EDC is active in representing the interests of its members before governmental bodies in the southeastern region of Florida, including Broward County.
FHBA represents approximately 16,000 members statewide. BIASF represents approximately 900 members from several counties. FAR represents approximately 63,750 members statewide.
The subject matter of the plan amendments at issue in these cases is within the general scope of interest and activity of Petitioners.
Petitioners submitted oral and written comments, recommendations, and objections to Broward County throughout the adoption process of the plan amendments at issue in these cases.
The parties stipulated, and the facts support a finding, that Petitioners have standing to institute these proceedings.
The evidence also supports a finding that the School Board has standing to participate in these proceedings. The School Board was involved in the preparation of the plan amendments at issue in these cases, and the amendments directly impact the manner in which funds for the construction of educational facilities are raised.
The Charter of Broward County Florida.
Broward County enacted the Charter of Broward County Florida (hereinafter referred to as the "Charter"), granting Broward County final authority over land use planning in Broward County and all municipalities located therein. The Charter establishes requirements and standards that municipalities located in Broward County must follow for land use planning and development approval.
All municipal land use plans must be approved and certified by the Broward County Planning Council (hereinafter referred to as the "Planning Council") and the Broward County Commission. The Planning Council has been designated as a "local planning agency" by the Broward County Commission.
The Charter was adopted November 5, 1974. The Charter was effective January 1, 1975.
Section 6.05, Article VI of the Charter requires that municipal land use plans must be in "substantial conformity" with the Broward County Land Use Plan. To the extent that a
municipality does not adopt a land use plan, the Broward County Land Use Plan applies in that municipality.
Section 6.04, Article VI of the Charter provides that Broward County ordinances dealing with land use planning prevail over municipal ordinances.
As a result of a 1976 referendum, Section 6.12, Article VI of the Charter was amended to grant Broward County authority over platting of lands throughout Broward County. It also grants Broward County authority to implement a countywide growth management system, including a concurrency management system.
School Board Authority.
Chapter 230, Florida Statutes, provides for the creation of school districts throughout Florida and their regulation by school boards. Among other things, school boards are vested with the responsibility and authority for the operation and administration of all public schools within their respective school districts.
Section 230.23, Florida Statutes, grants the following powers, among others, to school boards:
ESTABLISHMENT, ORGANIZATION, AND OPERATION OF SCHOOLS.--Adopt and provide for the execution of plans for the establishment, organization, and operation of the schools of the district, as follows:
Schools and attendance areas.--After considering recommendations of the superintendent, to authorize schools to be located and maintained in those communities in the district where they are needed to accommodate, as far as practicable and without
unnecessary expense, all the youths who should be entitled to the facilities of such schools and to approve the area from which children are to attend each such school.
. . . .
(j) Cooperate with other agencies in joint projects. Adopt plans for cooperating with school boards of other districts in this state or in adjoining states or with other governmental agencies . . . for such joint projects or activities as may be authorized by regulations of the state board.
. . . .
SCHOOL PLANT.--Approve plans for locating, planning, constructing, sanitating, insuring, maintaining, protecting, and condemning school property as prescribed in chapter 235 . . . .
FINANCE.--Take steps to assure children adequate educational facilities through the financial procedure authorized in chapters 236 and 237 . . . .
Other pertinent statutory provisions governing school boards include Chapter 235, Florida Statutes (planning and construction of educational facilities), Chapter 236, Florida Statutes (Finance and Taxation by School Districts), and Chapter 237, Florida Statutes (Financial Accounts and Expenditures for Public Schools).
Public Schools Concurrency.
Section 163.3177(10)(h), Florida Statutes (Supp. 1996), provides the following with regard to "concurrency" provisions of comprehensive growth management plans adopted pursuant to the Act:
(h) It is the intent of the Legislature that public facilities and services needed to support development shall be available concurrent with the impacts of such development in accordance with s. 163.3180. In meeting this intent, public facility and service availability shall be deemed sufficient if the public facilities and services for a development are phased, or the development is phased, so that the public facilities and those related services which are deemed necessary by the local government to operate the facilities necessitated by that development are available concurrent with the impacts of the development. .
. .
The terms "public facilities" are defined in Section 163.3164(24), Florida Statutes (1995), to mean "major capital improvements, including, but not limited to . . . educational
. . . ."
Despite the Legislative intent with regard to concurrency set out in Section 163.3177(10)(h), Florida Statutes, concurrency is not required for all public facilities and services. Section 163.3180(1)(a), Florida Statutes (Supp. 1996), sets out the circumstances under which "concurrency" is mandatory:
(1)(a) Roads, sanitary sewer, solid waste, drainage, potable water, parks and recreation, and mass transit, where applicable, are the only public facilities and services subject to the concurrency requirement on a statewide basis.
Additional public facilities and services may not be made subject to concurrency on a statewide basis without appropriate study and approval by the Legislature; however, any local government may extend the concurrency requirement so that it applies to additional public facilities within its jurisdiction.
Pursuant to the foregoing provisions of the Act, local governments are not required to provide in their comprehensive plans that educational public facilities (hereinafter referred to as "Public Schools") needed to support development must be made available concurrent with the impacts of such development. Local governments may, however, elect to include such a requirement in their plans.
Any local government that elects to require concurrency for Public Schools must do so pursuant to the provisions of Section 163.3180, Florida Statutes. Section 163.3177(10)(h), Florida Statutes.
In particular, Section 163.3180(1)(b), Florida Statutes, requires that local governments that elect to require concurrency for Public Schools must first conduct a study (hereinafter referred to as the "Study"):
If a local government elects to extend the concurrency requirement to public schools, it should first conduct a study to determine how the requirement would be met and shared by all affected parties. The local government shall provide an opportunity for full participation in this study by the school board. . . .
Once the Study is completed, Section 163.3180(1)(b), Florida Statutes, requires that any local government that adopts a plan amendment providing for Public Schools concurrency must comply with the following:
Adopt level-of-service standards for public schools with the agreement of the school board. Public school level-of-service standards shall be adopted as part of the capital improvements
element in the local government comprehensive plan, which shall contain a financially feasible public school capital facilities program established in conjunction with the school board that will provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan.
Satisfy the requirement for intergovernmental coordination set forth in s. 163.3177(6)(h)1. and 2.
Broward County's Comprehensive Plan.
Broward County has adopted a comprehensive plan (hereinafter referred to as the "Plan") which has been found "in compliance" as defined in the Act.
The Plan consists of, among other things, a future land use element (hereinafter referred to as the "Land Use Plan"), a capital improvements element (hereinafter referred to as the "Capital Improvements Element"), and an intergovernmental coordination element (hereinafter referred to as the "Intergovernmental Coordination Element"). Joint Exhibit 17 and EDC Exhibit 21.
Broward County has implemented a county-wide concurrency management system for traffic and regional parks through the Land Use Plan. See Policies 08.06.03 and 11.01.01 of the Land Use Plan.
Until the adoption of the amendments which are the subject of these proceedings, Broward County had not extended concurrency requirements to Public Schools.
Broward County's Decision to Require Public Schools Concurrency; The Broward County Study.
Broward County amended the Plan in 1993 to authorize a Study. Broward County added Policy 08.07.03. to the Land Use Plan authorizing preparation of a Study:
Broward County, in coordination with the School Board of Broward County, shall prepare a study, to be completed by the end of 1993 and updated no later than annually, addressing long range planning of public elementary and secondary school sites and facilities necessary to meet the demands of Broward County's projected population and to determine if public elementary and secondary schools concurrency requirements shall be met and shared by all affected parties in accordance with Chapter 163.3180 of the Florida Statutes.
The School Board agreed to participate with Broward County in the preparation of the Study. No formal agreement dealing with the Study was entered into between the School Board and Broward County. No such agreement is, however, required by Section 163.3180(1)(b), Florida Statutes, or any other provision of the Act. All that is required is that the "local government" conduct the study and allow participation by the local school board.
On November 19, 1993, the Broward County Public School Concurrency Study (hereinafter referred to as the "Broward County Study") was issued. The cover of the Broward County Study is stamped "Draft." No further modifications, however, were made to the Broward County Study marked Draft.
The Broward County Study was prepared jointly by Broward County's Department of Strategic Planning and Growth Management, the County Attorney's Office, the Planning Council,
and the School Board's Property Management Department. Broward County afforded the School Board full opportunity to participate in the preparation of the Broward County Study.
At the time that the Broward County Study was completed, the Broward County Commission had not officially voted to adopt Public Schools concurrency.
The Broward County Study did not include a recommendation as to whether the Broward County Commission should adopt Public Schools concurrency. Why a specific recommendation was not included, and what the Broward County Study does include, was summarized in the Introduction to the Broward County Study:
. . . . The first chapter of the study presents and analyzes the steps and procedures necessary to implement a concurrency requirement and concurrency management system for public schools.
. . . Also addressed is the question of when in the development process the test for concurrency would be met including which development permits would be affected. Finally, this chapter analyzes the feasibility of establishing a county-wide concurrency management system for public schools within Broward County.
The second chapter reviews and evaluates potential level of service (LOS) standards for public schools. Alternative methods for determining school capacity, [sic] are identified and analyzed. Several options for applying a LOS, ranging from a school by school application to a county-wide systems approach, are evaluated. Potential ways development could address or mitigate school LOS deficiencies are identified. Maps showing the possible impacts of implementing public school concurrency are included in the Appendix.
The final chapter reviews the legal implications of a concurrency requirement. . . .
This study does not include a recommendation as to whether or not Broward County should pursue a concurrency requirement for public schools.
There are numerous policy issues which must be addressed prior to such a decision being made. Rather, the study attempts to identify the most feasible method for implementing a concurrency requirement for public schools in Broward County. The study also evaluates the likely impacts of a concurrency requirement on future development within the County. The study provides the School Board of Broward County and Broward County Commission with the information needed to make an informed decision regarding public school concurrency.
A Summary of Findings is included on pages 3 through 6 of the Broward County Study.
The Broward County Study met the requirements of Section 163.3180(1)(b), Florida Statutes.
Broward County's Local Planning Agencies.
Section 163.3174, Florida Statutes, requires that all local governments designate a "local planning agency." The local planning agency, which may be the governing body of the local government, is charged with the responsibility for preparing comprehensive plans and plan amendments under the Act. The local planning agency is required to conduct public hearings after giving notice and to make recommendations to the local government.
The Broward County Commission has designated by ordinance two bodies to act as the local planning agency for Broward County: (a) the Planning Council; and (b) the Broward
County Department of Strategic Planning and Growth Management (hereinafter referred to as "Planning Department").
The Planning Council is an entity established by the Charter. The Planning Council has been designated in Sections
5-115 and 5-116 of the Broward County Code as the local planning agency for the Land Use Element and the Plan's Future Land Use Map. The Planning Council is also charged with the duty and responsibility to certify whether comprehensive plans of Broward County municipalities are at least as restrictive as the Land Use Plan.
The Land Use Plan applies to incorporated and unincorporated areas of Broward County.
The Planning Council is responsible for the publication of all notices for public hearings which relate to the amendment of the Land Use Plan or the Plan's Future Land Use Map.
The Planning Department is the local planning agency for all elements of the Plan applicable to the unincorporated areas of Broward County. In particular, the Planning Department serves as the local planning agency for purposes of the Capital Improvements Element and the Intergovernmental Coordination Element, among others.
On June 22, 1994 and June 28, 1994, Broward County and the School Board entered into an Interlocal Agreement titled "Agreement Between Broward County and the School Board of Broward County, Florida, for the Preparation and Implementation of a
Public School Element" (hereinafter referred to as the "Element Preparation Agreement").
Pursuant to the Element Preparation Agreement, the Broward County Commission designated the School Board as the local planning agency for purposes of preparing a countywide Public School Facilities Element. The School Board agreed to the designation.
On July 11, 1994, the Broward County Commission adopted Ordinance 95-31, amending the Charter of Broward County to provide that the School Board would act as the local planning agency for the Public School Facilities Element.
The School Board had not been designated as a local planning agency at the time the Broward County Study was conducted. Nor was the Broward County Study modified after the School Board was designated as the local planning agency.
The School Board's Preparation of the Public School Facilities Element and Related Amendments.
The School Board, as a local planning agency, conducted a public workshop on Public Schools concurrency, after public notice, on July 19, 1995.
On August 14, 1995, a second workshop was held. At this workshop, School Board staff presented a draft of the Public School Facilities Element to the Broward County League of Cities Technical Advisory Committee.
A third workshop to consider the draft element was conducted on August 16, 1995. Public notice of this workshop was given.
On October 2, 1995, School Board staff conducted a retreat to consider the draft element. The Five Year Capital Outlay Plan was also considered at the retreat. A second retreat was held on October 31, 1995.
On November 14, 1995, the School Board, in its capacity as a local planning agency, conducted a local planning agency public hearing to consider the adoption of a Public School Facilities Element. The School Board adopted Resolution 96-20, transmitting a draft of a Public School Facilities Element to the Broward County Commission and recommending its adoption.
The draft element consisted of two volumes:
(a) Volume I, "Components for Adoption"; and (b) Volume II, "Supporting Documents."
Included in the Public School Facilities Element was a Financially Feasible Public School Capital Facilities Program.
On November 21, 1995, the School Board adopted its Five Year Capital Outlay Plan (1995-96 to 1999-00). This plan was identical to the Financially Feasible Public School Capital Facilities Program included in the Public School Facilities Element.
The School Board also adopted Resolution 96-19 at its November 14, 1995, local planning agency meeting. This
resolution transmitted proposed amendments to the Land Use Plan to the Planning Council. The amendments related to the Public School Facilities Element. The School Board recommended that the Planning Council recommend to the Broward County Commission that it adopt the amendments to the Land Use Plan.
The Planning Council's Consideration of Proposed Broward County Land Use Plan Amendments.
On March 28, 1996, the Planning Council conducted a duly noticed public hearing at which it considered the amendments to the Land Use Plan proposed by the School Board.
After modification by the Planning Council, the amendments proposed by the School Board were transmitted to the Broward County Commission. The amendments were recommended for approval by the Broward County Commission. The amendments included an amendment to Policy 08.07.02 of the Land Use Plan, and the addition of new Policies 08.07.08 through 08.07.13 to the Land Use Plan. All of these amendments related to Public Schools concurrency and are described in more detail, infra.
Broward County Commission's Review of the Proposed Amendments and Its Decision to Transmit the Proposed Amendments to the Department.
The Broward County Commission provided notice of a public hearing on the proposed Public Schools concurrency amendments to be held on May 1, 1996. At the hearing, the Broward County Commission voted to transmit the Public School Facilities Element recommended by the School Board and the
amendments to the Land Use Plan recommended by the Planning Council to the Department for review pursuant to the Act.
The proposed amendments were transmitted to the Department on May 10, 1996.
The Department's Review of the Proposed Public Concurrency Amendments.
On July 9, 1996, representatives of the School Board met with Department representatives charged with responsibility for review of the proposed amendments. The School Board representatives were advised by Department personnel that the Public School Capital Facilities Program included in the Public School Facilities Element was required by the Act to be included in the Capital Improvements Element of the Plan.
On July 19, 1996, the Department, having reviewed the proposed amendments, issued its Objections, Recommendations and Comments Report (hereinafter referred to as the "ORC"). The ORC was transmitted to the Broward County Commission by cover letter dated July 19, 1996.
The Department raised the following objections in the
ORC:
The failure to include the Financially Feasible Public
School Capital Facilities Program in the Capital Improvements Element;
The failure to enter into an Interlocal Agreement with the School Board;
The absence of certain policies pertaining to the time- frame in which new facilities would be required to be in place to serve new development when mitigation is proposed;
The existence of certain internal inconsistencies in goals, objectives, and policies of the proposed element; and
The existence of certain inconsistencies with the State Comprehensive Plan and the Strategic Regional Policy Plan for South Florida.
The Department recommended in the ORC that the financially feasible Public School Capital Facilities Program be included in the Capital Improvements Element of the Plan.
The Department sent a supplemental letter to Broward County on the same date that it transmitted the ORC. The letter was intended by the Department to supplement the ORC by suggesting that the proposed amendments failed to amend the Intergovernmental Coordination Element of the Plan, consistent with Section 163.3177(6)(h)2, Florida Statutes.
The July 19, 1996, supplemental letter was sent as a result of comments concerning the ORC made to the Department by Mr. Thomas Pelham.
Broward County's Adoption of the Amendments.
Section 6.05 of the Charter provides that the Planning Council "may propose amendments to the County Land Use Plan at any time after consideration at two public hearings." The Planning Council had conducted one public hearing. Therefore, it was required pursuant to the Charter to conduct a second public hearing. On August 22, 1996, the Planning Council, in its role as a local planning agency, held a duly noticed public hearing on the proposed amendments to the Land Use Plan. This second meeting was not required by the Act.
On September 11, 1996, the Broward County Commission held a duly noticed public hearing. This meeting was required by Section 163.3184(7), Florida Statutes, and was conducted consistent with the requirements of Section 163.3184(15), Florida Statutes. During this public hearing Ordinance 96-30 was promulgated, approving, among other things, a Public School Facilities Element; amendments to the Land Use Plan; amendments to the Capital Improvements Element; and amendments to the Intergovernmental Coordination Element (hereinafter referred to jointly as the "Amendments").
On the same date the Amendments were adopted, Broward County and the School Board entered into an Interlocal Agreement Between Broward County and the School Board of Broward County, Florida, for the Implementation of the Public School Facilities Element (hereinafter referred to as the "Interlocal Agreement"). The Interlocal Agreement was executed in response to the Department's supplement to the ORC suggesting that the requirements of Section 163.3177(6)(h)2, Florida Statutes, had not be complied with.
On September 18, 1996, the Planning Council transmitted the Amendments, a response to the ORC, and the Interlocal Agreement to the Department.
The Planning Department did not conduct any public hearings to consider the amendments to the Intergovernmental Coordination Element or the Capital Improvements Element adopted
on September 11, 1996, by the Broward County Commission in response to the ORC.
The substance of the amendments to the Intergovernmental Coordination Element and the Capital Improvements Element suggested by the Department was considered at public hearings prior to transmittal of the proposed amendments and the adoption of the Amendments. The substance of the amendments was approved and recommended to the Broward County Commission, was adopted by the Broward County Commission, and was ultimately reviewed by the Department. Throughout the process, the Planning Department was fully aware of the nature of the proposed amendments and the Amendments. Even though the Planning Department relied heavily on the School Board's review of the Financially Feasible Public School Capital Facilities Program, the evidence failed to prove that the Planning Department would not have relied upon the School Board's expertise even it if the Planning Department had conducted a separate local planning agency hearing.
The amendments to the Capital Improvements Element and the Intergovernmental Coordination Element adopted in response to the ORC were not reviewed by the South Florida Regional Planning Council or any other agency. Nor was a separate ORC issued by the Department following a review of those amendments pursuant to Section 163.3184, Florida Statutes.
The Department's First Notice of Intent and Challenges Thereto.
On October 24, 1996, the Department issued a Statement of Intent finding the Amendments not in compliance. This determination was based upon the Department's conclusion that the Interlocal Agreement was defective. The basis for the Department's determination is explained, infra. The Department recommended that the defect be corrected by deleting paragraph 3.7a from the Interlocal Agreement.
On November 5, 1996, and November 14, 1996, the Broward County Commission and the School Board respectively amended the Interlocal Agreement by deleting paragraph 3.7a of the Interlocal Agreement in an effort to bring the Amendments into compliance.
On November 11, 1996, before the amended Interlocal Agreement could be transmitted to the Department, the Department's Notice of Intent finding the Amendments not in compliance was published.
On December 2, 1996, twenty-one days after publication of the Department's Notice of Intent, EDC filed a Petition to Intervene with the Division of Administrative Hearings. The Petition to Intervene was filed in an effort to intervene in any case that the Department had initiated against Broward County as a result of the Department's determination that the Amendments were not in compliance. On December 6, 1996, the petition was also filed with the Department.
The Department's Second Notice of Intent and Challenges Thereto.
On November 18, 1996, the amended Interlocal Agreement was transmitted by Broward County to the Department.
On November 24, 1996, the Department issued a second Notice of Intent finding the Amendments to be in compliance.
On November 27, 1996, FHBA, BIASF, and FAR filed a Petition for Administrative Hearing with the Department. The petition was "directed to the [second Notice of Intent] to find the amendment in compliance with statutory requirements." It was asserted, however, that the petition should be considered as filed pursuant to Section 163.3184(10), Florida Statutes, in light of the fact that it had been filed within twenty-one days of the publication of the first Notice of Intent.
On December 13, 1996, EDC filed a Petition for Administrative Hearing and Motion to Convert or Alternatively Quash or Dismiss Proceedings with the Department of Community Affairs. This petition was filed in response to the second Notice of Intent. The petition and motion were filed by the Department with the Division of Administrative Hearings on December 31, 1996. EDC's petition was designated Case Number 96- 6138GM.
The petition and an amended petition filed by FHBA, BIASF, and FAR were filed by the Department, after efforts to mediate a settlement had failed, with the Division of Administrative Hearings on April 21, 1997. The petition was designated Case Number 97-1875GM.
Case Number 96-6183GM and Case Number 97-1875GM were consolidated on April 29, 1997.
The School Board intervened in Case Number 96-6183GM on February 5, 1997. The School Board intervened in Case
Number 97-1875GM on April 29, 1997.
Statutory Criteria for Public Schools Concurrency.
The Legislature has established two general criteria which must be complied with if a local government decides to
impose Public Schools concurrency:
The establishment of a "level of service" (hereinafter referred to as "LOS") for Public Schools; and
Satisfaction of certain intergovernmental coordination requirements.
Section 163.3180(1)(b), Florida Statutes (Supp. 1996), establishes the two criteria which must be met:
Adopt level-of-service standards for public schools with the agreement of the school board. Public school level-of-service standards shall be adopted as part of the capital improvements element in the local government comprehensive plan, which shall contain a financially feasible public school capital facilities program established in conjunction with the school board that will provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan.
Satisfy the requirement for intergovernmental coordination set forth in s. 163.3177(6)(h)1. And 2.
The Amendments.
In pertinent part, Broward County adopted the following amendments to the Plan:
The Land Use Plan was amended by revising and adding policies to Objective 08.07.00;
A Public School Facilities Element was added to the Plan;
The Capital Improvements Element was revised by the addition of a new policy to Objective 7 of the Capital Improvements Element; and
The Intergovernmental Coordination Element was revised by the addition of a new policy to Objective 1 of the Intergovernmental Coordination Element.
The Public School Facilities Element.
The Amendments include a new Public School Facilities Element of the Plan. This element includes four new goals. Objectives and polices for each goal are also adopted.
The following are the four new goals of the Public School Facilities Element:
01.00.00 Maximize cooperation and coordination between The School Board of Broward County, Florida . . ., the Broward County Board of County Commissioners
. . ., Broward County's local government entities, and others to effectively plan for public elementary and secondary school facilities to meet the current and future need of Broward County's public school population.
. . . .
02.00.00 Manage and utilize prudently funds from the existing and future sources for school facilities and investigate and identify innovative funding mechanisms to meet the existing and expanding need for future Broward County public school facilities.
. . . .
03.00.00 Develop policies to promote ethnic
and cultural diversity within the student population.
. . . .
04.00.00 Ensure that public school facilities will be available for current and future public school students when needed in accordance with the School Board's financially feasible Public School Capital Facilities Program and adopted level of service standard.
To the extent relevant to this proceeding, the objectives and policies of the Public School Facilities Element are discussed in more detail, infra.
The Adoption of Public School Concurrency.
Newly enacted Objective 04.01.00 of the Public School Facilities Element specifically requires that the framework for implementation of county-wide Public Schools concurrency will be adopted as part of the land development regulations:
The School Board and Broward County shall adopt the necessary goals, objectives, and policies to provide the framework for implementation of a county wide concurrency management system to be contained within the Broward County Land Development Code.
Additionally, a number of new objectives and policies concerning the county-wide Public Schools concurrency program adopted by the Broward County Commission were included in the Public School Facilities Element:
The School Board and Broward County
shall adopt level of service standard B, delineated in Figure PS-20, Public School Facilities Element, as the county wide level of service standard for public school facilities in Broward County.
The School Board's adopted
financially feasible Public School Capital Facilities Program is adopted into the Capital Improvements Element of the Broward County Comprehensive Plan by reference, and in the event of a natural disaster, the School Board may suspend the financially feasible Public School Capital Facilities Program as necessary.
Changes to the Public School Capital Facilities Program will be submitted to the Florida Department of Community Affairs as part of the Broward County Comprehensive Plan amendment process.
The School Board will annually revise and adopt a capital budget consistent with the financially feasible Public School Capital Facilities Program to achieve the adopted level of service standards.
Adopt a concurrency management system within the Broward County Land Development Code for county wide implementation of public school concurrency to ensure that the necessary public school facilities are available concurrent with the impact of proposed residential development to meet adopted level of service standards in accordance with the School Board's financially feasible Public School Facilities Program.
The service districts for public school concurrency determination and implementation shall be the School Board's effective school boundary areas and assigned usage for each school, as adopted annually by the School Board.
Public school concurrency
determination for proposed residential development shall be conducted during the Broward County plat review process.
The school capacity measure used to determine implementation of the public school concurrency provisions, for residential development(s) applying for public school concurrency approval, shall only include student capacities from existing public schools and anticipated capacities from projects funded in the School Board's annually adopted Capital Budget. Portables and portable schools are considered temporary measures and capacity from the School Board's Nineteen New School Plan (revised) shall be first used to meet the existing student station deficit.
The projected student impact of any proposed residential development under consideration will be determined by using the Broward County adopted student generation rates contained within the Broward County Land Development Code.
If the adopted level of service standards cannot be met, the developer will be permitted to mitigate such impacts through School Board approved public school concurrency mitigation alternatives provided for in the Broward County Land Development Code. These mitigation alternatives will ensure that public school capacity will be available at the time the impacts of the development occur and benefit the development providing for mitigation measures. These mitigation alternatives will include, but not be limited to, the following, the use of which must be approved by the School
Board prior to County Commission action on the development approval:
construction of classroom space equal to the anticipated future student impact, less paid impact fees, or
participation in a School Board approved program (i.e. Pembroke Pines Special Assessment District) for the provision school facilities, or
other School Board approved mitigation alternatives which may be provided for in the Code.
The Plan includes a transportation concurrency management system which has been in existence since 1989. The Public Schools concurrency system adopted in the Amendments is very similar to that system.
As required by Rule 9J-5.0055, Florida Administrative Code, the goals, objectives, and policies adopted in the Amendments provide many meaningful and predictable standards for development. The goals, objectives, and policies establish a county-wide LOS, adopt a capital facilities program, establish the geographic area which are served by Public Schools, establish which Public Schools will be considered in determining whether the adopted LOS has been met, adopt by reference student generation rates, provide that Public School concurrency will be imposed at plat review, and establish mitigation standards.
While there is no guarantee that a particular developer will be able to meet Public Schools concurrency, a developer will know
that his or her project will be subject to concurrency review at plat review, and no further concurrency review will take place thereafter.
There are a number of matters which are not sufficiently described or provided for in the Public School Facilities Element. They are discussed, infra. Most, if not all, of the deficiencies are caused in large part by the unique and distinct duties and responsibilities of the Broward County Commission and the School Board. Because of those duties and responsibilities, the Broward County Commission has attempted to adopt a practical means of imposing Public Schools concurrency. The Act, however, does not allow the provisions applicable to Public Schools concurrency to be adhered to only if it is practical.
Petitioners have attacked a number of the objectives and policies adopted as part of the Public School Facilities Element. In particular, Petitioners have challenged Policies 04.01.02, 04.02.03, 04.02.04, 04.02.05, 04.03.01, and 04.03.07(f) of the Public School Facilities Element. Petitioners have also challenged Objective 05.03.00 of the Public School Facilities Element.
Policy 04.01.02 of the Public School Facilities Element does not specifically state which version of the School Board's Capital Facilities Program is being incorporated, when the program will be changed, how changes will be made, or when
changes will be effective. These details are, however, apparent, from the language of the policy and the law governing Capital Facilities Programs.
Policy 04.02.03 of the Public School Facilities Element does not include a specific definition of the terms "anticipated capacity." Based upon the use of the term "capacity" in describing the LOS standards adopted for Public Schools concurrency, it is apparent what is intended by these terms.
Policy 04.02.03 of the Public School Facilities Element references and incorporates information which is part of the School Board's capital budget. There is no requirement specifically included in the Plan that the adoption of the School Board's capital budget be subject to public participation or Department compliance review.
Policy 04.02.04 of the Public School Facilities Element does not specify the edition or date of the "student generation rates" referenced therein. Student generation rates are, however, technical standards, based upon surveys, and will be contained within Broward County's Land Development Regulations. They will be subject to public hearing. The rates are used in a manner which is similar to references for transportation concurrency in the Plan to highway capacity methodologies endorsed by the County Metropolitan Planning Organization.
Policy 04.02.05 of the Public School Facilities Element establishes mitigation standards where a proposed development will impact a school that is not meeting the adopted county-wide LOS standard for that school. The policy specifically identifies mitigation alternatives which are intended to ensure that school capacity will be available at the time the impacts of development occur. While the mitigation standards all relate to actions which a developer may be required to take and not other remedies, they are sufficiently described.
The Amendments include the following objective and policies governing the implementation of Public Schools concurrency by municipalities or Broward County at site plan review:
Subsequent to adoption of the Broward County Public School Facilities Element, municipalities within Broward County and the unincorporated area may only implement a public school concurrency management system, which will be effective at the time of municipal and unincorporated area site plan review, in accordance with established criteria and as specified in an interlocal agreement between the local government and the School Board.
The School Board shall consider approval of a municipal or unincorporated area concurrency management system at site plan review if the following criteria are met:
The critical nature of public school overcrowding in the schools that serve the municipality exceeds that in other parts of the county; and
A substantial number of residential units remain to be developed within already approved plats and/or there are a substantial number of potentially unbuilt residential units in unplatted vacant land within the municipality or the unincorporated areas which would require the construction of new public schools or classrooms within existing public schools; and/or
The municipality or unincorporated area is proposing other innovative measures to address the provision of student stations.
Municipalities or the unincorporated area that elect to implement a public school concurrency determination at site plan review must adhere to the following criteria:
Pubic school(s) affected must be physically located within the jurisdictional boundaries of the municipality or the unincorporated area or have 50% or more of their student membership residing in the municipality or the unincorporated area.
The level of service standard implemented must be the level of service standard adopted by the School Board.
The concurrency service districts must be the effective service districts contained in
the adopted Broward County Comprehensive Plan, Public School Facilities Element.
A formal coordination mechanism with the School Board must be included in the interlocal agreement.
The property has not undergone a concurrency determination for public schools at platting by Broward County.
Such other criteria as the School Board may deem necessary and appropriate.
To the extent that the "established criteria" and criteria established in the "interlocal agreement" are determined in this Recommended Order to be inconsistent with the Act, so too is Objective 04.03.00 of the Public School Facilities Element.
There are several terms used in Policy 04.03.01 of the Public School Facilities Element that are not defined. Those terms, to the extent that they require further explanation or definition than is provided in the Amendments can, however, be provided in the Land Development Regulations.
Policy 04.03.02(f) of the Public School Facilities Element provides for the consideration of "other criteria." No definition of “other criteria” is included in the Public School Facilities Element or any other part of the Amendments. The Policy also allows the School Board, as opposed to the Broward County Commission, to decide what constitutes "other criteria" outside of the Plan and the Act.
Amendments to the Land Use Plan.
The Amendments include textual amendments to the Land Use Plan. In particular, Policy 08.07.02 was amended and new Policies 08.07.08 through 08.07.13 were added to the Land Use Plan. All of these modifications to the Land Use Plan pertain to Public Schools concurrency.
Newly adopted Policy 08.07.11 of the Land Use Plan provides for the implementation of Public Schools concurrency:
Broward County shall adopt a county wide [sic] concurrency management system for public schools to be implemented at the time of Broward County plat review consistent with the Broward County Comprehensive Plan, Public School Facilities Element, the School Board adopted level of service standards, and the financially feasible Public School Capital Facilities Program.
Like the Public School Facilities Element, Policy
08.07.11 of the Land Use Plan contemplates that many details of the concurrency management system for Public Schools will be adopted outside the Plan. Those details are to be adopted in land development regulations promulgated by the Broward County Commission at public hearing.
The Capital Improvements Element.
1137. Section 163.3180(1)(b), Florida Statutes, requires that any local government that adopts Public Schools concurrency must establish LOS standards for Public Schools and adopt a "financially feasible public school capital facilities program
. . . that will provide educational facilities at an adequate level of service necessary to implement the adopted local
government comprehensive plan." The LOS standards and the capital facilities program must be included in the capital improvements element of the local government's comprehensive plan. The LOS standards and the capital facilities program are required to be adopted with the agreement of the school board.
Broward County attempted to meet the requirements of Section 163.3180(1)(b), Florida Statutes, by adding a new Policy
29 to Objective 7 of the Capital Improvements Element of the Plan:
The School Board's adopted financially feasible Public School Capital Facilities Program and the Level of Service Standards delineated in Figure PS-20 of the Public School Facilities Element are adopted into the Broward County Capital Improvements Element by reference. Changes to the Public School Capital Facilities Program will be submitted to the Florida Department of Community Affairs as part of the Broward County Comprehensive Plan amendment process.
The LOS Standards Adopted by Broward County.
Establishing a LOS is a basic land-use planning concept. A LOS standard is defined in Rule 9J-5.003(65), Florida
Administrative Code, as:
an indicator of the extent or degree of service provided by, or proposed to be provided by a facility based on and related to the operational characteristics of the facility. Level of service shall indicate the capacity per unit of demand for each public facility.
Pursuant to the Implementation Agreement, the School Board agreed to include a "[d]iscussion and determination of a level of service for public schools including an analysis of the impact and feasibility of making public schools a public facility subject to review for concurrency" in the Public School Facilities Element.
The School Board determined the appropriate LOS standards, recommended them to the Broward County Commission, and the Broward County Commission adopted the LOS standards as part of the Public School Facilities Element. The LOS standards were included in PS-20 of the Public School Facilities Element. PS-20 was adopted through Policy 04.01.01 of the Public School Facilities Element. The adopted LOS standards were incorporated by reference through the adoption of Policy 29 of the Capital Improvements Element.
In determining what LOS to recommend, the School Board considered a number of methods of measuring the Public Schools which would be necessary to meet the increase in students caused by development and growth in Broward County. Ultimately, the School Board decided to apply a utilization factor to the capacity of each individual public school in Broward County as
determined by the Florida Inventory of Schoolhouses (hereinafter referred to as the "FISH Capacity"). FISH Capacity is the capacity of every individual public school in Florida as annually determined by the Department of Education.
The School Board decided to adopt three LOS standards: one LOS standard each for elementary, middle, and high schools. For each type of school, a "Desired Performance Level"; an "Effective Performance Level"; and a "Critical School Level," Levels A, B, and C, respectively, were developed.
For example, for an elementary school, the Level A, Desired Performance Level, LOS standard established in the Public School Facilities Element, is a "[u]tilization factor of less than or equal to 1.3." This means that, if a particular elementary school is determined to have a FISH capacity of 900 students, its Level A LOS, or Desired Performance Level, is 1,170 students or less (900 X 1.3 = 1,170).
Level A LOS is described in the Supporting Documents for the Amendments as "the membership to FISH capacity that results in a utilization factor below which the school can function effectively without straining core facilities and other school resources."
Level B LOS, the Effective Performance Level, is described in the Supporting Documents as one where the following occurs:
overcrowding at a school becomes problematic and requires the addition of many portable
classrooms; core facilities are stretched beyond a comfortable and normal working status . . . ; every available room is utilized for classroom space; and art and music programs at elementary schools may have to "float" or not have an assigned classroom. The severity of over crowding depends upon the ability to locate portable classrooms and the space available on site. Play fields and athletic areas may start to be affected. . . .
Level C LOS, the Critical School Level, is described in the Supporting Documents as follows:
When this level occurs, lunches are scheduled shortly after breakfast, many portables are on site, all rooms are utilized for classes including offices, conference rooms and resource rooms. In elementary school, the music, art and science programs "float" and in middle and high schools, many teachers move from room to room using classrooms that are not in use by the assigned teacher. Play fields or athletic fields are usually the location of portable classrooms and consequently cannot be fully utilized. In general, the core facilities are servicing many more students than they were designed for and students may experience delays or the inability to use certain aspects of the facility when they normally would. . . .
The School Board recommended that the Broward County Commission adopt Level B LOS as the county-wide LOS for elementary, middle, and high schools. The Broward County Commission accepted the School Board's recommendation and adopted Policy 04.01.01 of the Public School Facilities Element:
The School Board and Broward County shall adopt level of service standard B, delineated in Figure PS-20, Public School Facilities Element, as the county wide level of service standard for public school facilities in Broward County.
Level B LOS is consistent with, and Level C LOS is nearly identical to, the standards for overcrowded schools adopted by the School Board in 1994 as School Board Policy 5000 (hereinafter referred to as "Policy 5000"). Pursuant to Policy 5000, if a school's capacity reaches a Level C LOS, a special review process is undertaken to develop student enrollment options such as double sessions, year-round education programming, attendance zone boundary changes, and other alternatives. Policy 5000 is not, however, a part of the Plan. Nor is it subject to the Act.
Level B LOS is not a "high" standard. Nor is it one that the School Board would ultimately desire. It is, however, an adequate LOS.
Level B LOS for Elementary Schools
Level B LOS for elementary schools is defined as "[u]tilization factor greater than 1.3 and less than Level C." The Level C LOS for elementary schools is defined as "[u]tilization factor of 1.75 or greater or exceeds 1200 students (1400 for elementary schools with a capacity in excess of 900 students)."
Applying the elementary school Level B LOS, to an elementary school with a FISH capacity of 900 students, the elementary school will be considered to have achieved LOS B if the number of students at the school is:
Equal to or greater than its FISH Capacity (900) x 1.3 = 1170
but is less than
FISH Capacity (900) x 1.75 = 1,575 or a maximum of 1200 students
For an elementary school with a FISH capacity of more than 900 students, whether the school will be considered to have achieved LOS B is determined in the same manner, except that the maximum number of students is 1400 students instead of 1200.
Pursuant to the adopted Level B LOS, the maximum capacity for an elementary school with a FISH Capacity of 900 or less students can be expressed mathematically as follows:
(FISH Capacity x 1.75) - 1 [Maximum of 1200]
Pursuant to the adopted Level B LOS, the maximum capacity for an elementary school with a FISH Capacity of more than 900 students can be expressed mathematically as follows:
(FISH Capacity x 1.75) - 1 (Maximum of 1400] Level B LOS for Middle Schools
Level B LOS for middle schools is defined as "[u]tilization factor greater than 1.2 and less than Level C." The Level C LOS for middle schools is defined as "[u]tilization factor of 1.4 or greater or exceeds 1700 students (2000 for middle schools with a capacity in excess of 1700 students)."
Pursuant to the adopted Level B LOS, the maximum capacity for a middle school with a FISH Capacity of 1700 or less students can be expressed mathematically as follows:
(FISH Capacity x 1.4) - 1 [Maximum of 1700]
Pursuant to the adopted Level B LOS, the maximum capacity for a middle school with a FISH Capacity of more than 1700 students can be expressed mathematically as follows:
(FISH Capacity x 1.4) - 1 (Maximum of 2000]. Level B LOS for High Schools
Level B LOS for high schools is defined as "[u]tilization factor greater than 1.2 and less than Level C." The Level C LOS for high schools is defined as "[u]tilization factor of 1.2 or greater or exceeds 2500 students (3200 for high schools with a capacity in excess of 2500 students)."
Pursuant to the adopted Level B LOS, the maximum capacity for a high school with a FISH Capacity of 2500 or less students can be expressed mathematically as follows:
(FISH Capacity x 1.5) - 1 [Maximum of 2500]
Pursuant to the adopted Level B LOS, the maximum capacity for a high school with a FISH Capacity of more than 2500 students can be expressed mathematically as follows:
(FISH Capacity x 1.5) - 1 (Maximum of 3200].
The Addition of FISH Capacity May Not Increase a School's Level of Service
Pursuant to the adopted LOS standards, the addition of FISH capacity to a particular school in Broward County may not result in any increase in that school's ability to meet Level B LOS. This is true of elementary, middle, and high schools. This result is caused by the adoption in the Level B LOS standard of the maximum capacity in the Level C LOS standards.
For elementary schools, elementary schools with a FISH capacity of between 686 and 899, an increase in FISH capacity will have no impact on its LOS.
This phenomena can be illustrated by an example provided in Petitioners' proposed order at proposed finding of fact 47:
For example, assume hypothetical Elementary School "A" has a FISH capacity of 749. The LOS B capacity of Elementary School "A" is 1200 because 749 x 1.75 = 1311 and, thus, exceeds the absolute maximum of 1200 students for an elementary school with a FISH capacity of 900 students or less.
Adding ten seats of FISH capacity to Elementary School "A" results in no change in the LOS B capacity of that school because 759 x 1.75 - 1328 and, thus, it still exceeds 1200 students without reaching the 900 capacity that would increase the maximum LOS B capacity to 1400 students. More than 151 seats of FISH capacity would have to be added to hypothetical Elementary School "A" before a single seat of LOS B capacity would be added. Moreover, no LOS B capacity can ever be added to elementary schools with FISH capacity in excess of 900 students since 900 x 1.75 = 1575 and the absolute maximum LOS B capacity of elementary schools with a FISH capacity in excess of 900 students is 1400.
A similar example of this phenomena applied to middle schools is described in proposed finding of fact 48 of Petitioners' proposed order. The phenomena also applies to high schools.
The Public Schools Concurrency Service Areas.
In order to determine the impact of a proposed development on existing LOS standards of Public Schools, it must be determined what Public Schools will be considered to be
impacted by the proposed development. To make this determination, a concurrency service area must be established. The Broward County Commission determined that the concurrency service area for Public Schools should be each school's student attendance area established by the School Board pursuant to Section 230.23(4), Florida Statutes.
The geographic service area for purposes of Public Schools concurrency (hereinafter referred to as the "Service District"), adopted by the Broward County Commission is described in Policy 04.02.01 of the Public School Facilities Element:
The service districts for public school concurrency determination and implementation shall be the School Board's effective school boundary areas and assigned usage for each school, as adopted annually by the School Board.
Section 230.23(4), Florida Statutes, requires that the School Board annually approve student attendance areas for the upcoming school year. Students are generally assigned to a school within the attendance area in which the student lives. It is these annually approved student attendance areas that were adopted by the Broward County Commission as the Service Districts for Public School concurrency.
Although student attendance areas for the 1994-95 and 1995-96 school years were included in the Supporting Documents for the Amendments, no Service Districts for future years to which Public Schools concurrency is imposed by the Amendments were adopted. Nor do the Amendments contemplate or require the
inclusion of Service Districts adopted in the future to be included as part of the Plan. The Amendments also fail to provide goals, objectives, or policies that control how Service Districts are to be established. Decisions concerning the establishment of Service Districts are left in the sole discretion of the School Board.
The manner in which Service Districts are drawn by the School Board will not impact a particular school's LOS. It will, however, have a direct impact on the determination of whether a particular school is meeting its established LOS standard. Therefore, if a Service District is drawn in such a way that a particular school is not achieving the applicable Level B LOS, a proposed development in the Service District of that school will be negatively impacted.
Due to the fact that Service Districts are not included in the Amendments, but are for the School Board to determine annually through its determination of attendance areas, it is not possible to determine specifically which individual schools will exceed Level B LOS beyond the most immediate school year. As a result, a Service District in which a proposed development is to be located may be below Level B LOS in one year, but due to a change in the Service District, may meet Level B LOS in other years. Thus, whether a proposed development will be required to meet Public Schools concurrency will vary from year to year based upon events outside the Plan.
Although school attendance is projected by the School Board five years into the future, the factors which the School Board must consider in drawing attendance areas in Broward County are varied and do not promote accurate projections of Service Districts for future years. Factors which the School Board considers each year include immigration patterns, weather events, and the type and location of housing production. Issues related to desegregation, enrollment capping, double sessions, multi- track year-round education programs, flexible scheduling, busing, individual student transfers, magnet schools, variable grade- mixed schools, special centers, and charter schools also impact how attendance areas are drawn.
It is apparent from Policy 5000 that one important consideration in the designating of attendance areas is the physical capacity of each school. The Level C LOS standards set out in the Amendments is also reflected in Policy 5000. The School Board is, therefore, committed to a consideration of school capacity in establishing attendance areas.
School attendance area decisions are also based upon a number of other policies established in Policy 5000. Policy 5000 sets out guidelines for the establishing of attendance areas, including maintaining neighborhood elementary schools, the continual over-utilization or under-utilization of particular facilities, and the racial and ethnic backgrounds of students.
The School Board must consider and weigh several competing goals when establishing attendance areas. Therefore, those competing goals may outweigh any effort the School Board may otherwise have been able to make to avoid drawing an attendance area in such a way that a Service District in which there are schools not meeting Level B LOS is created.
Construction of new school facilities also affects how attendance areas are established.
In 1995 the School Board made 92 boundary changes, partly as a result of a change in desegregation requirements imposed by the courts.
The School Board's annual determination of attendance areas is made at School Board public meetings, after public notice.
Obviously, the determination of attendance areas is a function for the School Board to fulfill. It is not a function which the School Board wishes to relinquish, even if it could.
It can also be assumed that the School Board will consider school capacity in drawing attendance areas. The determination of attendance areas and, thus, the determination of Service Districts pursuant to the Public School Facilities Element, is not, however, subject to review pursuant to the Act. It is, therefore, a factor which directly impacts Public Schools concurrency decisions that is determined outside of the provisions of the Act.
The Amendments simply fail to include any guidance as to how Service Districts are to be drawn. The decision is left to the School Board. The Plan fails to establish guidelines for how the School Board will draw the Service Districts.
Public School Capital Facilities Program.
In order to ensure implementation of the adopted LOS standards, Section 163.3180(1)(b)1, Florida Statutes, requires the adoption of a "financially feasible public school capital facilities program" (hereinafter referred to as the "Capital Facilities Program"). The Capital Facilities Program must be adopted as part of the Capital Improvements Element. The Capital Facilities Program is required to "provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan." Finally, the Capital Improvements Program must be established "in conjunction with" the school board.
The Implementation Agreement provided that the School Board would prepare the required Capital Facilities Program. The School Board did so and transmitted the program to the Broward County Commission, along with a draft of the Public School Facilities Element, on November 14, 1995. The draft Capital Facilities Program was for the fiscal years 1995-96 through
1999-00. The Broward County Commission reviewed and accepted the draft Capital Facilities Program.
The Capital Facilities Program prepared and recommended by the School Board was adopted by the Broward County Commission as part of the Capital Improvements Element by the addition of Policy 29 to Objective 7. Rather than being specifically included in the Capital Improvements Element, the Capital Facilities Program was adopted by reference.
The Capital Facilities Program was also adopted by reference in Policy 04.01.02 of the Public School Facilities Element of the Plan:
The School Board's adopted financially feasible Public School Capital Facilities Program is adopted into the Capital Improvements Element of the Broward County Comprehensive Plan by reference, and in the event of a natural disaster, the School Board may suspend the financially feasible Public School Capital Facilities Program as necessary. Changes to the Public School Capital Facilities Program will be submitted to the Florida Department of Community Affairs as part of the Broward County Comprehensive Plan amendment process.
Policy 04.01.03 of the Public School Facilities Element provides that the "School Board will annually revise and adopt a capital budget consistent with the financially feasible Public School Capital Facilities Program to adopt the level of service standards."
At the time of its adoption, the Capital Facilities Program consisted of three figures: Figures PS-16, PS-17, and PS-18. These figures are titled "Estimated Revenue Fiscal Years 1996/2000"; "Tentative Appropriations Fiscal Years 1996/2000";
and "New School Funding Schedule Fiscal Years 1995-1996 through 1999-00."
The Capital Facilities Program was subsequently adopted by the School Board on November 21, 1995, as part of a five-year capital outlay plan for the School Board's 1995-96 through 1999-00 fiscal years. The School Board's fiscal year runs from July 1 to June 30. Adopting a five-year capital outlay plan during the first fiscal year of the plan is consistent with Chapter 230, Florida Statutes, and prior School Board practice.
At the time the Capital Facilities Program was adopted as part of the Amendments, the School Board had not adopted the five-year capital outlay plan for the period 1996-97 through 2000-01. Therefore, the Broward County Commission adopted the Capital Facilities Program for the period 1995-96 through 1999-
00. As a consequence of the fact that the program was adopted after the start of the 1996-97 fiscal year, the first full year of the Capital Facilities Program is the fiscal year 1997-98 and the Capital Facilities Program only contains three full fiscal years.
Financial Feasibility.
Revenues for the Capital Facilities Program are projected to come form several sources. Those sources were determined pursuant to professionally accepted school budgeting practices.
The Capital Facilities Program revenue projections are based, in part, on the use of the maximum property millage available under the law for school capital needs.
Estimates of revenue are based upon conservative, historical data, and other reasonably available information.
Comparing projected revenues with projected expenditures, the Capital Facilities Program is financially feasible from a school budgeting perspective. The projected revenues are consistent with Chapter 9J-5, Florida Administrative Code, to the extent that they are revenues that will come from assured sources of revenue.
Section 163.3180(1)(b)1, Florida Statutes, however, requires that the Capital Facilities Program include reasonable financial projections which will ensure that the Public Schools will be provided at the adopted LOS standards of the Public School Facilities Element. Thus, the Capital Facilities Program must project revenues (from assured sources) and expenditures which will result in the accomplishment of the Public School Facilities Element.
The primary goal of the Public School Facilities Element is stated in Goal 4. That goal is to "[e]nsure that public school facilities will be available for current and future public school students when needed in accordance with the [Capital Facilities Program] and the adopted [LOS]." Based upon this goal, the Capital Facilities Program is required to include
projections as to how "current and future" students will be provided Public Schools at Level B LOS.
Through the fifth school year of the Capital Facilities Program, 1999-00, it is projected that there will be an additional 42,611 students in Broward County.
In addition to the increase in students through the 1999-00 school year, prior to the commencement of the planning period, 1995-96, a number of schools in Broward County were already operating at below Level B LOS. During 1994 and 1995 there were a number of schools in Broward County that were not at Level B LOS. Tables III-1(A) and III-1(B) of the Supporting Documents.
Every September the School Board surveys enrollment at all schools on the twentieth day after the first day of the school year. The results of the survey are produced on a Twentieth Day Membership Report. For 1994, the report indicated there were 34 schools that were below Level B LOS. Table III- 1(A). This amounted to a total deficit of 5,449 student stations out of a total school population of 198,690 students.
The results of the survey for 1995 indicated that there were 26 schools that were below Level B LOS. Table III- 1(B). This amounted to a total deficit of 4,007 student stations out of a total school population of 207,345 students.
The Service Districts in which the overcrowded schools for 1994 and 1995 were located are shown on FHBA Exhibits 6A-C.
The Service Districts with overcrowded schools make up the majority of the geographic area of Broward County.
On an aggregate, county-wide basis, there was an excess of 32,689 student stations in 1995. The total excess stations do not take into consideration the three types of schools (elementary, middle, and high). Excess capacity on an aggregate, county-wide basis, should continue to exists through 1999-00.
It is projected in the Capital Facilities Program that the School Board will increase student stations by constructing additional new schools and making renovations, additions, and replacements to existing schools.
The funding of new schools is set out on Figure PS-18 of the Supporting Documents. Funding of $220 million in capitalized cost for construction of twenty-two new schools is projected.
It is projected that the total increase in the number of student stations as a result of new schools will be 29,014 stations. The total increase in student stations projected as a result of modifications to existing schools will be 2,132 elementary school stations and 1,079 middle school stations. The total projected new stations is 32,225 stations.
Some of the new schools to be constructed, however, will not be available for use by the end of the five-year period of the Capital Facilities Program. They will not be available
until 2002-03. Without those schools, the total new student stations from new schools will be 19,227 stations. Combined with the new stations from modifications to existing schools results in the addition of a total of 22,438 stations.
If all of the 32,225 new stations are considered plus the excess capacity on an aggregate, county-wide basis (32,689 stations or more), there MAY be sufficient Public Schools available in Broward County to meet current and future student need for facilities. The Capital Facilities Program adopted by the Broward County Commission does not, however, ensure that there WILL be sufficient capacity.
The Capital Facilities Program does not specifically provide that aggregate, county-wide excess capacity is to be utilized to meet current or future need for student stations necessary to achieve Level B LOS. Nor do the Amendments require that aggregate, county-wide excess capacity must be utilized to reduce current or future student station need. That decision is left totally to the discretion of the School Board, which must consider many factors in establishing student enrollment districts. While it is true that the School Board "may" modify Service Districts to redistribute student populations, and is even required by Policy 5000 to take into consideration overcrowding, the School Board is not required to do so. Therefore, there is no assurance that excess capacity which may exist will be available. The lack of any requirement that excess
capacity must be used to reduce overcrowding is of greater significance when the fact that the School Board has not used excess county-wide capacity in past years to eliminate overcrowded schools is taken into account.
Additionally, the existence of an aggregate, county- wide excess does not mean that deficits can be eliminated due to the fact that the LOS standards are applied to three different types of schools: elementary, middle, and high. Therefore, if the aggregate excess capacity consists of all high school stations, the School Board may not be able to eliminate a deficit at an elementary or middle school. While it is true that the School Board has the flexibility to modify school attendance at the different type schools by reconfiguring the grades considered to be elementary, middle and/or high school, or through other measures, nothing in the Capital Facilities Program or the Amendments as a whole ensure that the School Board will do so.
The Capital Facilities Program fails to provide projections that will ensure that Level B LOS is met during the program period. The program does not provide for sufficient new stations to meet the need of future increases in students and to provide for how existing deficiencies will be eliminated.
The Supporting Documents do provide some information concerning the reduction of existing overcrowded schools. Table III-15 of the Supporting Documents. Table III-15 lists the 34 schools that were overcrowded in 1994. Columns titled "New
School Relief" and "Estimated Year Open" are printed next to the list of overcrowded schools. For six of the overcrowded schools the New School Relief listed is "to be determined." Therefore, according to the Supporting Documents, there is not yet a plan for how to eliminate the deficit in the LOS for at least 6 of the schools which were overcrowded in 1994. The reduction in overcrowded schools in 1995 does not alleviate this problem. The 1995 list contains five more overcrowded schools for which no specific remedy is provided because they were not on the 1994 list.
Additionally, how “New School Relief” will impact LOS standards at the overcrowded schools is in no way explained in the Table or the Amendments.
Intergovernmental Coordination.
The second criterion specified in the Act for imposing Public Schools concurrency which a local government must meet is to satisfy the requirements of Section 163.3177(6)(h)1 and 2, Florida Statutes (Supp. 1996).
The evidence failed to prove that the Amendments do not satisfy the requirements of Section 163.3177(6)(h)1, Florida Statutes. At issue in these cases is whether the Amendments satisfy the requirements of Section 163.3177(6)(h)2, Florida Statutes (Supp. 1996):
2. The intergovernmental coordination element shall further state principles and guidelines to be used in the accomplishment of coordination of the adopted comprehensive plan with the plans of
school boards . . . providing facilities and services but not having regulatory authority over the use of land. In addition, the intergovernmental coordination element shall describe joint processes for collaborative planning and decisionmaking on population projections and public school siting, the location and extension of public facilities subject to concurrency . . . . Within 1 year of adopting their intergovernmental coordination elements, each county, all the municipalities within that county, the district school board, and any unit of local government service provider in that county shall establish by interlocal or other formal agreement executed by all affected entities, the joint processes described in this subparagraph consistent with their adopted intergovernmental coordination elements.
Broward County's Intergovernmental Coordination Element is included in Volume 2 of the Plan, beginning at page 15-1. The following objectives and policies, which existed before the adoption of the Amendments, are pertinent to these cases:
The Board of County Commissioners adopted Ordinance 76-4 creating Chapter 5. Article VII, "Area Planning Council," Broward County
Code of Ordinances, Section 5-118, "Technical advisory committee." The membership of the TAC consists of the 28 municipalities, the School Board of Broward County, the Broward County Planning Council, and the Broward County Board of County Commissioners. The Broward County League of Cities provides the staff services to the TAC.
. . . .
. . . .
. . . .
. . . .
planning activities with the 28 municipalities, the School Board of Broward County, Port Everglades Authority, and several independent special districts, including all those agencies required to submit public facilities reports to Broward County pursuant to Chapter 189, Florida Statutes. 3(c)(1)
The foregoing provisions establish intergovernmental coordination requirements and the procedures to carry out those requirements. At the time the provisions were created Public Schools concurrency was not required by the Plan. Therefore, the foregoing provisions do not specifically "describe joint processes for collaborative planning and decisionmaking on population projections and public school siting, the location and extension of public facilities subject to concurrency" (hereinafter referred to as the "Joint Processes for Collaborative Planning and Decisionmaking") as required by Section 163.3177(6)(h)2, Florida Statutes, directly relating to Public Schools concurrency.
In addition to the provisions of the Intergovernmental Coordination Element, there are a number of policies included in the Land Use Plan which establish intergovernmental coordination requirements and the procedures to carry out those requirements. Those polices include Policies 08.07.01 through 08.07.06 of the Land Use Plan. They are hereby incorporated by reference into this Recommended Order. Although Policies 08.07.01 through
08.07.06 deal with intergovernmental coordination, they are not a part of the Intergovernmental Coordination Element. More
importantly, they do not specifically "describe" the Joint Processes for Collaborative Planning and Decisionmaking directly relating to Public Schools concurrency.
When originally transmitted to the Department for its initial review, the Amendments did not include an amendment to the Intergovernmental Coordination Element. The Amendments did include amendments to the Land Use Plan concerning intergovernmental coordination. See Policies 08.07.02, and
08.07.08 through 08.01.12 of the Land Use Plan. The Public School Facilities Element also include provisions providing for intergovernmental coordination. See Goal 1.00.00, Objectives 01.01.00, 01.01.01, 01.01.02, and 01.02.00; and Policies 01.02.01 through 01.02.03, 01.02.05, 03.01.01, and 03.03.03 of the Public School Facilities Element. The amendments to the Land Use Plan and the provisions of the Public School Facilities Element do not, however, specifically "describe" the Joint Processes for Collaborative Planning and Decisionmaking directly relating to Public Schools concurrency.
The Department's second letter of July 19, 1996, to the Broward County Commission amended the ORC to object to the Amendments for failing to "satisfy the requirements for intergovernmental coordination set forth in s. 163.3177(6)(h)2, F.S." This objection was based upon the fact that the existing provisions of the Intergovernmental Coordination Element of the Plan and the Land Use Plan, as amended, did not contain a
"description of the processes for collaborative planning and decision making on population projections and public school siting" required by Section 163.3177(6)(h)2, Florida Statutes (Supp. 1996).
In response to the Department’s objection to the lack of compliance with Section 163.3177(6)(h)2, Florida Statutes, the Broward County Commission adopted the following new policy as part of the Intergovernmental Coordination Element:
Policy 3: Broward County shall establish by interlocal agreement with the Broward County School Board joint
processes for collaborative planning and decision making on population projections and public school siting consistent with Chapter 163.3177(6)(h)2 F.S., Chapter 235 F.S., the Public School Facilities Element of the Broward County Comprehensive Plan and Policy 08.07.06 of the Broward County Land Use Plan.
The effect of Policy 3 is simply to provide that the Joint Processes for Collaborative Planning and Decisionmaking required by Section 163.3177(6)(h)2, Florida Statutes, will be included in an interlocal agreement and not the Intergovernmental Coordination Element.
The new policy also suggests that the Joint Processes for Collaborative Planning and Decisionmaking are not already included in the Plan, as argued by Respondents and the School Board. Otherwise, why provide that they will be adopted elsewhere?
Broward County and the School Board entered into an interlocal agreement on September 16, 1996 (hereinafter referred to as the "Interlocal Agreement"). The Interlocal Agreement specifically describes the manner in which population projections will be obtained and the processes for public school siting. The Interlocal Agreement does not, however, constitute a part of the Intergovernmental Coordination Element or any other part of the Plan.
Newly adopted Policy 3 also contemplates that the interlocal agreement contemplated therein will be entered into between Broward County and the School Board. It does not contemplate that the approximately twenty-eight municipalities located within Broward County will also be parties to the interlocal agreement. This interpretation of Policy 3 is supported by the Interlocal Agreement actually entered into. Only Broward County and the School Board are parties to the agreement.
AA. The Interlocal Agreement.
At the time that the Amendments were first transmitted to the Department for review, no interlocal agreement had been entered into.
The ORC included the following objection to the Amendments concerning the lack of an interlocal agreement:
2. Objection: The School Board and Broward County have not entered into an interlocal agreement which addresses joint processes for collaborative planning and decision making on
population projections and public school siting, the location and extension of public facilities subject to concurrency, and siting facilities subject to concurrency. . . .
The Department recommended that such an interlocal agreement be entered into in order for the Amendments to be found "in compliance."
In response to the Department's objection, the Interlocal Agreement was entered into on September 11, 1996. The Interlocal Agreement was, however, determined by the Department to be defective. Therefore, the Department concluded that the Amendments were not "in compliance."
In particular, the Department found the that Amendments were not in compliance because of paragraph 3.7 a. of the Interlocal Agreement:
AGREEMENT TO HAVE NO IMPACT ON SCHOOL BOARD OBLIGATIONS AND DUTIES
The implementation of this Agreement shall in no way obligate the SCHOOL BOARD nor infringe upon the SCHOOL BOARD'S constitutional duties or other requirements which are mandated by law. This includes, but is not limited to: setting public school boundary maps; selecting and acquiring public school sites; planning, designing, and constructing public school facilities; designing educational curriculum; developing procedures and requirements for public school building operations; setting personnel policies; making hiring decisions; setting the level of service standards for public school facilities; and approving the public school capital facilities program.
The Department informed Broward County of its determination that the Interlocal Agreement was defective by letter dated October 24, 1996. The Department explained that its determination was based upon the Department's conclusion that paragraph 3.7 a.
allows the School Board to unilaterally amend or terminate the Public School Facilities Element. In addition, Condition 3.7 a. implies that the School Board does not have to implement school concurrency. Section 163.3177(6)(h)2, Florida Statutes (F.S.), specifically requires an interlocal agreement between the County and School Board which establishes joint processes for collaborative planning and decision making on population projections and public school siting as well as the location and extension of public facilities subject to concurrency. Condition 3.7 a., which states that the School Board can unilaterally set the level of service standards and approve the public school capital facilities program and that the School Board does not have to commit to school concurrency implementation, is not consistent with Section 163.3177(6)(h)2,
F.S. . . .
The Department recommended that Broward County and the School Board "delete this condition from the Interlocal Agreement" in order to bring the Amendments into compliance.
In response to the Department's October 24, 1996, letter, Broward County and the School Board amended the Interlocal Agreement on November 14, 1996, to delete paragraph 3.7 a.
The Interlocal Agreement continues to provide, however, that the agreement may be "terminated by the unilateral action of any one of the parties to the Agreement" after giving
notice and an opportunity for the other party to be publicly heard on the decision to terminate the agreement. Paragraph 3.2 of the Interlocal Agreement. The Department did not object to this provision.
The Joint Processes for Collaborative Planning and Decisionmaking required by Section 163.3177(6)(h)2, Florida Statutes, are included in the Interlocal Agreement. The Interlocal Agreement is not, however, a part of the Intergovernmental Coordination Element or any other element of the Plan. Additionally, even if the Interlocal Agreement were incorporated into the Intergovernmental Coordination Element by reference, either party may terminate the Interlocal Agreement pursuant to paragraph 3.2 of the Interlocal Agreement without plan amendment review pursuant to the Act.
BB. Data and Analysis.
The data and analysis in support of the Amendments prepared by the Broward County Commission and School Board is contained in the Supporting Documents, Volume II of the Public School Facilities Element.
The data and analysis relied upon in adopting the Amendments suffer from the same general deficiencies as the Amendments themselves.
Petitioners have offered a number of findings of fact demonstrating areas where deficits in reaching LOS standards may result through the school year 1999-00. Those findings of fact
are correct, but unnecessary to this determination. Those findings of fact only support the ultimate finding of this Recommended Order that the Capital Facilities Program does not demonstrate that the LOS standards adopted by the Broward County Commission will be achieved.
CC. Consistency with the State Comprehensive Plan and the Strategic Regional Policy Plan for South Florida.
Petitioners failed to present any evidence concerning the consistency of the Amendments with the state comprehensive plan set out in Chapter 187, Florida Statutes.
The South Florida Regional Planning Council found the Amendments to be consistent with the "Strategic Regional Policy Plan for South Florida."
Petitioners failed to present any evidence concerning the consistency of the Amendments with the Strategic Regional Policy Plan for South Florida.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Sections 120,57(1) and 163.3184, Florida Statutes (Supp. 1996).
Standing.
Any "affected person" may participate in proceedings challenging proposed plan amendments under the Act. Sections 163.3184(9) and (10), Florida Statutes.
The terms "affected person" are defined in Section 163.3184(1)(a), Florida Statutes:
"Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review . . . .
Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written comments, recommendations, or objections to the local government during the period of time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment.
All of the Petitioners meet the definition of an "affected person" under Section 163.3184(1)(a), Florida Statutes.
All of the Petitioners are associations. Therefore, they must also meet the requirements for associational standing:
A substantial number of an association's members, although not necessarily a majority, must be substantially affected;
The subject matter of the proposed agency action must be within the association's general scope of interest and activity; and
The relief sought must be of a type appropriate for the association to receive on behalf of its members. Florida Homebuilders Association v. Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982); and Farmworkers Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So. 2d 753 (Fla. 1st DCA 1982).
The evidence in these cases proved that Petitioners meet the requirements necessary for an association to be considered to be substantially affected by the Department's proposed decision.
The evidence also proved that Respondents and Intervenor have standing to participate in these proceedings.
Burden and Standard of Proof.
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993); Antel v. Department of Professional Regulation, 522 So. 2d 1056 (Fla. 5th DCA 1988); and Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Sections 163.3184(9) and (10), Florida Statutes, impose the burden of proof on the person challenging a plan amendment. Therefore, Petitioners have the burden of proof in this proceeding.
Two standards of proof are established under the Act. Which standard applies depends upon whether the proceeding arises after a determination of the Department that a plan amendment is, or is not, "in compliance." If the Department determines that a plan amendment is not in compliance, Section 163.3184(10), Florida Statutes, establishes the following standard of proof:
The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance.
If the Department determines that a plan amendment is in compliance and another party challenges the Department's determination, Section 163.3184(9), Florida Statutes, establishes the following standard of proof:
[T]he local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable.
Initially, the Department determined that the Amendments were not in compliance based upon an objection to the Interlocal Agreement. Before the matter was transmitted to the Division of Administrative Hearings, however, the basis for the Department's objection was eliminated by amendment of the Interlocal Agreement. Therefore, at the time this matter was transmitted to the Division of Administrative Hearings, the Department had determined that the Amendments were in compliance.
Prior to the formal hearing of these cases argument was heard concerning the appropriate standard of proof. Petitioners argued that this matter was governed by Section 163.3184(10), Florida Statutes. That argument was rejected. The rationale for the different standards of proof expressed by the courts supports a conclusion that this proceeding should be governed by Section 163.3184(9), Florida Statutes:
The decision of the legislature to apply different standards of proof in different procedural situations is logical. If both of the governmental agencies charged with the implementation of the Act agree that a plan amendment is in compliance with the Act, it is reasonable to apply a fairly debatable standard to any challengers. However, if those two governmental agencies disagree on whether a plan amendment is in compliance with the Act, it is reasonable to resolve that disagreement based upon the preponderance of the evidence standard of proof.
Zemel v. Lee County and Department of Community Affairs,
15 F.A.L.R. 2735, 2740 (Department of Community Affairs Final Order 1993), aff'd, 642 So. 2d 1367 (Fla. 1st DCA 1994).
Based upon the foregoing, it is concluded that this proceeding is governed by Section 163.3184(9), Florida Statutes. Petitioners were required to prove beyond fair debate that the Amendments are not in compliance.
The terms "fairly debatable" are not defined in the Act or the rules promulgated thereunder. The Supreme Court of Florida recently opined, however, that the fairly debatable standard under the Act is the same as the common law "fairly debatable" standard applicable to decisions of local governments acting in a legislative capacity. In Martin County v. Yusem, 690 So. 2d 1288, at 1295 (Fla. 1997), the Court opined:
The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety.
Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Court stated further:
An ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.
690 So. 2d at 1295. The Court cautioned, however:
[E]ven with the deferential review of legislative action afforded by the fairly debatable rule, local government action still must be in accord
with the procedures required by chapter 163, part II, Florida Statutes, and local ordinances.
Throughout this proceeding, the Department asserted a number of positions which constitute incipient nonrule agency policy. To the extent that such policy has been advanced in support of the Department's application of such policies, the burden of persuasion was on the Department or any other party asserting the policy. See Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993).
The rationale for this requirement has been stated by the District Court of Appeal, First District:
Central to the fairness of administrative proceedings is the right of affected persons to be given the opportunity for adequate and full notice of agency activities. These persons have the right to locate precedent and have it apply, and the right to know the factual basis and policy reasons for the agency action.
Amos v. Department of Health and Rehabilitative Services, 444 So. 2d 43, 47 (Fla. 1st DCA 1983).
In order for any nonrule policies advanced in this proceeding to be accepted, it must have been demonstrated that the policy is consistent with delegated legislative authority as expressed in the Act.
Comprehensive Planning in General.
In promulgating the Act, the Legislature has expressed its intent that comprehensive planning for development in Florida is to be prepared, adopted, and conducted "in conformity with the provisions of [the] Act." Section 163.3161, Florida Statutes.
The provisions of the Act are specifically designated as the "minimum requirements necessary to accomplish the stated intent, purposes, and objectives of [the] act . . . ." Section 163.3161(7), Florida Statutes. Similarly, the Legislature charged the Department with responsibility to adopt "minimum criteria for the review and determination of compliance of the local government comprehensive plan elements required by [the] act." Section 163.3177(9), Florida Statutes. In response to the Legislative mandate, the Department has promulgated Chapter 9J-5, Florida Administrative Code.
Respondents and Intervenor have suggested that certain general provisions of the Act and rules promulgated thereunder need not be complied with in this matter. While there are some portions of the rules that deal specifically with matters other than Public Schools concurrency, the evidence failed to support the Department's policy. Nothing in the Act or rules provides for an exemption from the requirements of the Act which govern comprehensive planning for Public Schools concurrency. Nor does the difficulty of implementing Public Schools concurrency caused by the involvement of two independent governmental bodies excuse compliance with all applicable provisions of the Act and the rules.
Based upon the foregoing, the determination of whether the Amendments at issue in this proceeding are "in compliance" must be based upon all relevant provisions of the Act and the
rules promulgated thereunder; not just those provisions which can be adhered to from a practical standpoint.
There are a number of general requirements under the Act with which the Amendments must be in compliance:
All comprehensive planning must be based upon appropriate, valid data. Section 163.3177(1), Florida Statutes. "All elements of the comprehensive plan, whether mandatory or optional, shall be based upon data appropriate to the element involved." Section 163.3177(8), Florida Statutes. Although such data itself are not subject to compliance review, the Legislature has indicated its intent that "goals and policies be clearly based on appropriate data." Section 163.3177(10)(e), Florida Statutes. See also Rule 9J-5.005(2)(a), Florida Administrative Code.
Data and analysis must be responded to by formulating meaningful actions, standards, principles, guidelines, goals, objectives, and policies. As directed by the Legislature, the Department has emphasized the importance of the development of meaningful standards and principles:
[T]he sections of the comprehensive plan containing goals, objectives, and policies shall describe how the local government's programs, activities, and land development regulations will be initiated, modified or continued to implement the comprehensive plan in a consistent manner.
. . . Goals, objectives and policies shall establish meaningful and predictable standard for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations.
Rule 9J-5.005(2)(a), Florida Administrative Code.
The Act contains other general requirements pertaining to concurrency, capital improvement elements, and intergovernmental coordination elements. Those requirements, to the extent applicable to these cases, are discussed, infra. The Act also contains requirements which pertain specifically to Public Schools concurrency. Those requirements are also discussed, infra.
Specific Statutory Requirements for Public Schools Concurrency.
Section 163.3177(10)(h), Florida Statutes, sets out the Legislature’s intent that public facilities and services needed to support development are to be available concurrent with the impact of the development.
Section 163.3180, Florida Statutes, sets forth the requirements for concurrency. Concurrency is mandated for roads, sanitary sewer, solid waste, drainage, potable water, parks and recreation, and mass transit. Section 163.3180(1)(a), Florida Statutes. Most of Section 163.3180, Florida Statutes, sets out specific requirements addressing those public facilities and services for which concurrency is mandatory.
The Department has promulgated Rule 9J-5.0055, Florida Administrative Code, titled "Concurrency Management System," setting out the minimum requirements for the adoption of concurrency. Much of the rule deals with the requirements for the facilities and services for which concurrency is mandated.
Rule 9J-5.0055, Florida Administrative Code, does, however, include "general requirements," and "level of service standards" for which Public Schools concurrency is not exempted:
GENERAL REQUIREMENTS. Each local government shall adopt, as a component of the comprehensive plan, objectives, policies and standard for the establishment of a concurrency management system. The concurrency management system will ensure that issuance of a development order or development permit is conditioned upon the availability of public facilities and services necessary to serve new development, consistent with the provisions of Chapter 163, Part II, Florida Statutes, and this Rule. The concurrency management system shall include:
A requirement that the local government shall maintain the adopted level of service standards for roads, sanitary sewer, solid waste, drainage, potable water, parks and recreation, and mass transit, if applicable.
A requirement that the local government Capital Improvements Element, as provided by Section 9J-5.016 of this Chapter, shall set forth a financially feasible plan which demonstrates that the adopted level of service standards will be achieved and maintained.
A system for monitoring and ensuring adherence to the adopted level of service standards, the schedule of capital improvements, and the availability of public facility capacity.
Guidelines for interpreting and applying level of service standards to applications for development orders and development permits and determining when the test for concurrency must be met. The latest point in the application process for the determination of concurrency is prior to the approval of an application for a development order or permit which contains a specific plan for development, including the densities and intensities of development.
A requirement that the local government shall adopt land development regulations which specify and implement provisions of the concurrency management system and, as a minimum, provide a program that ensures that development orders and development permits are issued in a manner that will not result in a reduction in the levels of service below the adopted level of service standards for the affected facility.
LEVEL OF SERVICE STANDARDS
For the purpose of the issuance of development orders and development permits, local governments must adopt level of service standards for public facilities and service located within the area for which such local government has authority to issue development orders and development permits. For purposes of concurrency, public facilities and services include the following for which level of service standards must be adopted . . . .
A local government, at its option, may make additional public facilities and services subject to the concurrency management system. Level of service standards of such additional facilities must be adopted in the local government comprehensive plan. If a local government desires to extend the concurrency requirements to public schools, it should first complete a study to determine how the concurrency requirement is to be addressed and implemented by the local government, school board and all other parties responsible for school facilities. . . .
When the Department promulgated Rule 9J-5.0055, Florida Administrative Code, it was aware that local governments could elect to impose concurrency for facilities and services other than those for which concurrency was mandated. The Department did not, however, exempt concurrency for any of the
optional facilities and services, including Public Schools, from the requirements of Rule 9J-5.0055, Florida Administrative Code.
Section 163.3180, Florida Statutes, also allows local governments to adopt concurrency requirements for other public facilities and services. In particular, local governments may elect to adopt concurrency requirements for Public Schools. Section 163.3180(1)(a), Florida Statutes.
Any local government that elects to require concurrency for Public Schools must do so pursuant to the provisions of Section 163.3180, Florida Statutes. Section 163.3177(10)(h), Florida Statutes.
In particular, Section 163.3180(1)(b), Florida Statutes, requires that local governments that elect to require Public Schools concurrency must first conduct a Study:
If a local government elects to extend the concurrency requirement to public schools, it should first conduct a study to determine how the requirement would be met and shared by all affected parties. The local government shall provide an opportunity for full participation in this study by the school board. . . .
See also Rule 9J-5.0055(2)(b), Florida Administrative Code.
Once the Study is completed, Section 163.3180(1)(b), Florida Statutes, requires that any local government that adopts a plan amendment providing for Public Schools concurrency must comply with the following:
Adopt level-of-service standards for public schools with the agreement of the school board. Public school level-of-service standards shall be adopted as part of the capital improvements
element in the local government comprehensive plan, which shall contain a financially feasible public school capital facilities program established in conjunction with the school board that will provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan.
Satisfy the requirement for intergovernmental coordination set forth in s. 163.3177(6)(h)1. and 2.
Unlike most of the public facilities and services for which concurrency is mandatory, the implementation of Public Schools concurrency involves the coordination and cooperation of two independent local governmental entities: (a) the general purpose local government (Broward County); and (b) the county school board (the School Board). For public facilities and services for which concurrency is mandated, the same local government that adopts the concurrency requirements also often has control over the provision of those facilities and services.
School boards are charged by the Constitution of Florida with the operation, control, and supervision of public education in their respective districts. All decisions relating to the provision of Public Schools are to made by the school boards. The general purpose local government, however, is responsible for the adoption, implementation, and supervision of Public Schools concurrency.
In addressing the problems of imposing Public Schools concurrency caused by the involvement of two independent local governmental entities, the Broward County Commission, School
Board, and Department attempted to employ practical solutions. The practical approaches adopted by the Broward County Commission, however, must still be consistent with the general requirements of the Act and the specific requirements for the imposition of Public Schools concurrency absent a clear exemption from such requirements.
The Broward County Study.
Broward County and the School Board jointly prepared a Study prior to adopting the Amendments. An opportunity for full participation in the preparation of the Broward County Study was afforded the School Board. The Broward County Study was formally adopted by the Board County Commission.
Petitioners have argued that the Broward County Study, which was prepared in 1993, was prepared before the Broward County Commission "elected" to extend concurrency to Public Schools. This argument is premised upon the fact that the Broward County Commission had not formally voted to impose Public Schools concurrency at the time the Broward County Study was conducted. This argument is rejected.
Implicit in Broward County Commission's decision to conduct a Study was an "election" of the Broward County Commission and the School Board to extend concurrency to Public Schools. Delaying the formal decision or vote to impose Public Schools concurrency until after the Broward County Study had been conducted and it had been determined whether concurrency for
Public Schools was feasible does not mean that the "election" required by Section 163.3180(1)(b), Florida Statutes, had not been made.
Petitioners have also argued that the Broward County Study was inadequate because the ultimate determinations as to how concurrency would be extended were not established in the Broward County Study. Petitioners argue that the Broward County Study merely contained a "consideration" of issues relating to Public Schools concurrency, but did not "determine how the requirement will be met and shared by all parties." This argument is rejected.
As pointed out by Respondents and Intervenor, although the term "determine" has been defined as "to bring to a conclusion, to settle by authoritative sentence, to decide," it also means "to estimate." Black's Law Dictionary 536 (Rev. 4th Ed. 1968). Respondents and Intervenor have also pointed out the incongruity of the definition of "determine" argued by Petitioners and the term "study." To apply a definition of the term "determine" necessary to accept the Petitioners' argument would necessitate ignoring the fact that it was a "study" that was being performed.
Even if Petitioners' argument was persuasive, Respondents and Intervenor correctly point out that nothing requires that the "study" be reduced to writing or contained in a single document. Thus, the Broward County Study prepared by the
Broward County Commission and the School Board and the Broward County Commission's consideration and selection of some of the alternatives addressed in the Broward County Study may be considered as the Study for purposes of Section 163.3180(1)(b), Florida Statutes. In this matter, the Broward County Commission, in conjunction with the School Board, had before it the Broward County Study; supporting data and analysis contained in the Supporting Documents for the Amendments; and the Amendments themselves. All of these materials can reasonably be considered as part of the Study conducted by the Broward County Commission "to determine how the requirement [of concurrency] would be met and shared by all affected parties."
The Broward County Study met the requirements of Section 163.3180(1)(b), Florida Statutes.
Amendment Adoption Procedures; Public Participation.
Section 163.3174, Florida Statutes, requires that each local government's governing body "designate and by ordinance establish a local planning agency."
Local planning agencies are charged with certain duties, including the responsibility for preparing comprehensive plan amendments. All local planning agencies are required, "prior to any recommendation to the governing body," to "hold at least one public hearing, with public notice, on the proposed plan or plan amendment." Section 163.3174(4)(a), Florida Statutes.
Rule 9J-5.005, Florida Administrative Code, sets out general requirements relating to comprehensive plans and amendments thereto. Rule 9J-5.005(8)(b), Florida Administrative Code, provides the following requirement concerning the adoption of plan amendments by a local planning agency:
[A]mendments shall be considered at a public hearing with due public notice by the local planning agency prior to making its recommendation to the governing body pursuant to Section 163.3167(4) and Section 163.3174, Florida Statutes.
Broward County has three different entities designated as local planning agencies: the Planning Council, the School Board, and the Planning Department.
The Planning Council is the local planning agency for purposes of the Land Use Plan. It has no authority to act as the local planning agency for any other element of the Plan.
The Planning Council, prior to the adoption of the Amendments, held two public hearings to consider proposed amendments to the Land Use Plan. These meetings met the requirements of the Act.
The School Board was designated as the local planning agency for purposes of the Public School Facilities Element. The School Board had no authority to act as the local planning agency for any other element of the Plan.
The School Board, prior to adoption of the Amendments, held a public hearing to consider adoption of the Public School
Facilities Element. This meeting met the requirements of the Act.
Once a plan amendment has been adopted by a local planning agency and transmitted to the local government for consideration, the "process for adoption of comprehensive plan or plan amendment" provided in Section 163.3184, Florida Statutes, begins.
The evidence in these cases proved that the procedures for processing the Amendments established in Section 163.3184, Florida Statutes, was followed by the Broward County Commission. The Amendments were considered by the Broward County Commission and transmitted to the Department. The Amendments were reviewed by the Department and the ORC was issued.
One of the comments in the ORC concerned the Department's finding that the Capital Facilities Program, which was included in the Public School Facilities Element, was required by Section 163.3180(1)(b)1, Florida Statutes, to be included in the Capital Improvement Element of the Plan.
The Department also recommended that the Intergovernmental Coordination Element be amended in order to meet the requirements of Section 163.3177(6)(h)2, Florida Statutes.
The amendments to the Capital Improvement Element and the Intergovernmental Coordination Element of the Plan required to respond to the ORC were adopted by the Broward County
Commission. These amendments were not considered by the Planning Department. Nor did the Planning Department hold any public hearing on these amendments prior to their adoption by the Broward County Commission.
The Planning Department has been designated as the local planning agency with responsibility for the Capital Improvement Element and the Intergovernmental Coordination Element of the Plan. Although the modifications to those elements ultimately adopted by the Broward County Commission had been included in large part in the originally transmitted amendments, at no time did the Planning Department review the factors that made up the Capital Facilities Program. Nor did the Planning Department consider the amendments or make any recommendation concerning the substance thereof to the Broward County Commission after the ORC was issued.
Petitioners have argued that the failure of the Planning Department to hold a public hearing at which it considered, adopted, and recommended the amendments to the Capital Improvement Element and the Intergovernmental Coordination Element to the Broward County Commission, renders the Amendments not in compliance. Petitioners have argued that the amendments to these elements should have been made only after the Planning Department adopted the amendments after a duly noticed public hearing, and recommended them to the Broward County Commission. Petitioners have also argued that these
amendments should have been subject to separate review by the Department and the issuance of an ORC.
Respondents and Intervenor have argued that, once the Public School Facilities Element and the amendments to the Land Use Plan were adopted and transmitted to the Broward County Commission, Section 163.3184, Florida Statutes, governed the adoption process. They argue further that Section 163.3184, Florida Statutes, does not require that modifications to a proposed amendment adopted in response to an ORC must follow all procedures required for the adoption of an amendment to a plan pursuant to the Act.
The evidence in these cases proved that the procedures required for the adoption of the Amendments were adhered to through the issuance of the ORC. Once the ORC was issued, Section 163.3184(7), Florida Statutes, provides the following next step in the amendment process:
(7) LOCAL GOVERNMENT REVIEW OF COMMENTS; ADOPTION OF THE PLAN OR AMENDMENTS AND TRANSMITTAL.--The local government shall review the written comments submitted to it by the state land planning agency, and any other person, agency, or government. Any comments, recommendations, or objections and any reply to them shall be public documents, a part of the permanent record in the matter, and admissible in any proceeding in which the comprehensive plan
or plan amendment may be at issue. The local government, upon receipt of written comments from the state land planning agency, shall have 120 days to adopt or adopt with changes the proposed comprehensive plan or s. 163.3191 plan amendments. . . . The adoption of the proposed plan or plan amendment, other than a plan amendment proposed pursuant s. 163.3191, shall be
made in the course of a public hearing pursuant to subsection (15). The local government shall transmit the adopted comprehensive plan or adopted plan amendment to the state land planning agency as specified in the agency's procedural
rules within 10 working days after adoption. . . .
Section 163.3184, Florida Statutes, does not specifically require that, if an ORC suggests that amendment of an element that is part of the responsibility of a local planning agency not involved the consideration and review of the originally transmitted amendment, the amendment must first be considered by the local planning agency responsible for the required amendments. Nor do Chapters 9J-5 or 9J-11, Florida Administrative Code, contain such a requirement.
The evidence in these cases also proved that the process set out in Section 163.3184(7), Florida Statutes, was complied with by the Board County Commission. The ORC suggested amendments to the Capital Improvements Element and the Intergovernmental Coordination Element. The amendments had been considered and included as part of the Public School Facilities Element. The Broward County Commission, consistent with recommendations of the Department, adopted the amendments consistent with Section 163.3184(7), Florida Statutes.
The conclusions made in this Recommended Order with regard to this issue are not intended to suggest that there are no circumstances where modifications suggested by the Department would require that the plan amendment process in effect start at the beginning. Such a circumstance may arise where the nature of
the modifications suggested by the Department are so substantively different from what a local government first proposed, that the intent of the Legislature concerning public participation in the process would be circumvented absent consideration of the suggested modifications by the local planning agency. This matter, however, does not present such circumstances.
In these cases, the substance of the amendments suggested by the Department were considered at public hearings before and after the Amendments were transmitted to the Department for review. The substance of the changes suggested by the Department was included in the Amendments approved and recommended to the Broward County Commission. Throughout the process, the Planning Department was fully aware of the nature of the Amendments. While it is true that the Planning Department relied upon the School Board's review of much of what was included in the Amendments, the evidence failed to prove that the Planning Department would not have relied upon the School Board's expertise had it conducted a separate local planning agency hearing. See B & H Travel v. Department of Community Affairs and Town of Redington Beach, 602 So. 2d 1362 (Fla. 1st DCA 1992), rev. denied, 613 So. 2d 1.
The process of adoption followed by the Broward County Commission was consistent with the requirements of the Act. In
particular, the Amendments were adopted consistent with the requirements of Sections 163.3174 and 163.3184, Florida Statutes.
The Lack of Meaningful and Predictable Standards.
Every element of a comprehensive plan must include goals, objectives, and policies that establish meaningful and predictable standards for the use and development of land "and provide meaningful guidelines for the content of more detailed land development and use regulations." Section 163.3177(9), Florida Statutes.
The Amendments adopted in this matter do include meaningful guidelines for the imposition of Public Schools concurrency. The Amendments also leave much of the detail for the land development regulations.
Obviously, Respondents and Intervenor argue that sufficient guidelines are adopted in the Amendments. Petitioners, on the other hand, argue that practically every detail of Public Schools concurrency should have been adopted in the Amendments. The "correct" answer lies somewhere between these two positions.
The Act does not require that a comprehensive plan, or the elements thereof, establish every detail of a local government's comprehensive planning. The Act does require, however, that the details to be included in the land development regulations can be predicted. The Act must also include sufficient detail so that the results intended to be reached by
an element of the plan, and the manner in which those results are to be achieved can be understood.
The Public Schools concurrency program adopted by the Broward County Commission leaves too much of the detail to conjecture. Too much of the detail of the program is left for the School Board to provide. Much of the detail to be provided by the School Board is not limited by goals, objectives, or policies included in the Amendments or the Plan. Additionally, some of the decisions left to the School's Board discretion are to made outside the requirements of the Act.
Amendments to the Capital Improvements Element.
Section 163.3177(3), Florida Statutes, requires that all comprehensive plans include a capital improvements element. The capital improvements element must establish "principles for construction, extension, or increase in capacity of public facilities, as well as a component which outlines principles for correcting existing public facility deficiencies which are necessary to implement the comprehensive plan." Section 163.3177(3)(a)1, Florida Statutes.
Rule 9J-5.016, Florida Administrative Code, quoted supra, establishes the minimum criteria for the capital improvements element. The rule provides that the purpose of the capital improvements element is:
to evaluate the need for public facilities as identified in the other comprehensive plan elements and as defined in the applicable definitions for each type of public facility, to
estimate the cost of improvements for which the local government has fiscal responsibility, to analyze the fiscal capability of the local government to finance and construct improvements, to adopt financial policies to guide the funding of improvements and to schedule the funding and construction of improvements in a manner necessary to ensure that capital improvements are provided when required based on needs identified in the other comprehensive plan element. . . .
Rule 9J-6.016(1), Florida Administrative Code, establishes "data requirements" for the capital improvements element:
The element must be based on public facility needs identified in other plan elements;
A geographic service area and location of major system components for Public Schools must be identified;
Existing revenue sources and funding mechanisms to finance capital improvements must be inventoried.
Rule 9J-5.016(3), Florida Administrative Code, establishes the requirements for the goals, objectives, and policies of the capital improvements element. Among other things, the requirements include goals, objectives, and policies to address the construction of capital facilities necessary to meet existing deficiencies, accommodate future growth, replace worn out facilities, and achieve and maintain the adopted level of service. Rule 9J-5.016(3)(b)1, Florida Administrative Code.
Section 163.3180(1)(b)1, Florida Statutes, in requiring the adoption of LOS standards and a Capital Facilities Program, requires that they be adopted as part of the capital
improvements element of the local government's comprehensive plan. Therefore, the LOS standards and Capital Facilities Program must comply with the requirements of the Act and rules governing the capital improvements element.
The general requirements for capital improvements element are consistent in many respects with the specific requirements for Public Schools concurrency of Section 163.3180(1)(b), Florida Statutes. To the extent that the Amendments are not in compliance with the specific requirements for Public Schools concurrency, they are also not in compliance with the general requirements for the capital improvements element.
Section 163.3180(1)(b), Florida Statutes, sets out the specific requirements for the imposition of Public Schools concurrency. Section 163.3180(1)(b), Florida Statutes, requires that any local government that adopts Public Schools concurrency must establish LOS standards for Public Schools and adopt a "financially feasible public school capital facilities program .
. . that will provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan."
The LOS standards and the Public Facilities Program are required to be adopted as part of the Capital Improvements Element.
The Adopted LOS Standards
The Broward County Commission did adopt LOS standards. They were also adopted by reference into the Capital Improvements Element through the adoption of Policy 29.
Rule 9J-5.005(8)(j), Florida Administrative Code, provides that local governments may adopt documents into a plan by reference, rather than including the document verbatim, if certain requirements are met:
The adoption by reference must identify the title and author of the document and indicate clearly what provision or edition of the document is being adopted. . . .
The ability to adopt material into a plan by reference is not unlimited. The Act contemplates public participation in the process of growth management. The Legislature has expressed its intent that public participation in the comprehensive planning process be "to the fullest extent possible." Section 163.3181(1), Florida Statutes. See Rule 9J-5.005(8)(a) through (c), Florida Administrative Code. If materials adopted by reference can be modified outside of the review process of the Act, public participation may be thwarted. Therefore, in order to carry out the Legislature's intent concerning public participation, Rule 9J-5.005(8)(j), Florida Administrative Code,
limits adoptions by reference as follows:
The adoption by reference may not include future amendments to the document because this would violate the statutory procedure for plan amendments and frustrate public participation on those amendments. . . .
The adoption of LOS standards by reference in this matter is consistent with Rule 9J-5.005(8)(j), Florida Administrative Code. The LOS standards are clearly established and are not dependent on future amendments. Public participation is not thwarted by the manner in which LOS standards are adopted in the Amendments.
The adopted LOS standards were required to be made "with the agreement of the school board . . . ." This provision is consistent with Section 163.3180(3), Florida Statutes:
Governmental entities that are not responsible for providing, financing, operating, or regulating public facilities need to serve development may not establish binding level of service standards on governmental entities that do bear those responsibilities.
The LOS standards adopted by the Broward County Commission were adopted and recommended by the School Board, sitting as a local planning agency. They were, therefore, adopted with the "agreement of the School Board."
The terms "level of service" are defined in Rule 9J-5.003(65), Florida Administrative Code, as:
. . . an indicator of the extent or degree of service provided by, or proposed to be provided by a facility based on and related to the operational characteristics of the facility.
Level of service shall indicate the capacity per unit of demand for each public facility.
The LOS standards adopted as part of the Amendments fail to meet the definition of LOS provided in the Department's rules. The LOS standards adopted in the Amendments fail to meet the definition provided in the Department's rules because of the lack of specificity concerning adopted Service Districts; the failure to take into account the impact of the addition of FISH capacity at some facilities; and the failure to specify how Public Schools usage will be modified, if at all, to assist a school in meeting its adopted LOS standard.
The School Board is charged with the responsibility of setting student attendance areas. Section 230.23(4)(a), Florida Statutes. Respondents and Intervenor argue that, since the Legislature did not require that student attendance areas be included in a comprehensive plan if Public Schools concurrency is adopted, it is not necessary to define the Service Districts adopted in the Amendments more precisely and justifies the absence of goals, objectives, and policies to guide how Service Districts may be modified. This argument is rejected.
One problem with the argument of Respondents and Intervenor is that the Legislature has not required that student attendance areas be used as the service area applicable to Public Schools. The use of student attendance areas was a choice made by the School Board and, ultimately, the Broward County Commission. Another problem with the argument of Respondents and
Intervenor is that it is just as significant that the Legislature has not specifically exempted whatever Service District is selected by a local government and school board in imposing Public School concurrency from the specificity required for any other public facilities or service selected service area.
Rule 9J-5.016(1), Florida Statutes, provides the following with regard to service areas:
The geographic service area and location of major system components for the public education and public health systems within the local government's jurisdiction shall be identified.
The service area selected by the Broward County Commission fails to meet this requirement. The geographic service area selected by the Broward County Commission, upon the recommendation of the School Board, will change annually. Therefore, although the Service Districts are identified for the first year of the imposition of Public School concurrency, the Service Districts for later years are not. For future years, the Service Districts applicable to Public Schools concurrency are adopted by reference. And the manner in which they are adopted will not only allow "future amendments" contrary to
Rule 9J-5.005(8)(j), Florida Administrative Code, but will require future amendments. Service Districts will be identified only after their modification, outside the Plan and the Act, by the School Board and not the local government responsible for Public School concurrency.
Respondents and Intervenor have pointed out that the establishment of student attendance boundaries is within the special expertise and duty of the School Board. Therefore, it is argued that Broward County should not and, indeed, cannot be allowed to make the decisions necessary to establish student attendance boundaries. This argument, even if it were acceptable, fails to explain why there are no goals, objectives, and policies explaining the circumstances under which the School Board must draw student attendance boundaries to assist in the achievement of the adopted LOS standards for Public Schools concurrency. Nothing in the Act exempts Public Schools concurrency from such provisions.
The Amendments also fail to provide any guidance concerning steps which may or must be taken by the School Board concerning the manner in which Public Schools are used that may impact whether schools meet the adopted Level B LOS.
Finally, the LOS standards adopted in the Amendments are defective because of the failure to take into account the impact of adding FISH to some schools. The evidence proved that, under some circumstances, even if a school may have an increase in its student capacity, the increase will not have any impact on whether the school is meeting the adopted Level B LOS. As a consequence, it cannot be concluded that the adopted LOS standards are "based on and related to the operational characteristics of the facility." Rule 9J-5.003(65), Florida
Administrative Code. Nor do the adopted LOS standards "indicate the capacity per unit of demand for each public facility." Id.
The Capital Facilities Program
The Capital Facilities Program adopted by the Broward County Commission in response to the requirements of Section 163.3180(1)(b)1, Florida Statutes, is also defective.
First, Section 163.3177(3)(a)1, Florida Statutes, mandates that the components of a capital improvements element cover at least a five-year period. The Department's rules, Rule 9J-5.005(4), Florida Administrative Code, provide for a five-year and ten-year planning period:
Each local government comprehensive plan shall include at least two planning periods: one for a least the first five-year period subsequent to the plan's adoption and one for at least an overall ten-year period.
The Capital Facilities Program was, therefore, required to cover a five-year period and that five-year period was required to commence "subsequent to the plan's adoption." The evidence in these cases proved that the Capital Facilities
Program does not meet these requirements. The Capital Facilities Program only covers three years and part of another year. The Capital Facilities Program commences after the commencement of one of the years of the Program. The first year of the program commences prior to the adoption of Public Schools concurrency.
Secondly, while the Capital Facilities Program was adopted as part of the Capital Improvements Element, the
substance of the Capital Facilities Program does not comply with the specific requirements of Section 163.3180(1)(b)1, Florida Statutes, or the general requirements for capital improvement elements of Section 163.3177(3), Florida Statutes.
The Capital Facilities Program adopted through Policy
29 of the Capital Improvements Element merely sets out sources of revenue and expenditure for new schools. No textual explanation of the goals, objectives, and policies addressing the construction of capital facilities necessary to meet existing deficiencies, the accommodation of future growth, the replacement of worn out facilities, or how the adopted LOS standards will be achieved and maintained have been adopted as part of the Capital Improvements Element.
Most significantly, the Capital Facilities Program fails to establish how Public Schools will be provided "at an adequate level of service necessary to implement the adopted local government plan," as required by Section 163.3180(1)(b)1, Florida Statutes. See also Rule 9J-5.0055(1), Florida Administrative Code.
Respondents and Intervenor have argued that, since there is no definition of "financially feasible" in the Act or the Department's rules, all that is required is that there be a "match between the revenue shown in the program and the capital facilities listed in the program" and that it is "at least fairly debatable that the Public School Capital Facilities Program
adopted by the Amendment will provide public school facilities at an adequate level of service.”
The argument concerning matching revenues and capital facilities is based upon language in Rule 9J-5.016(4)(a)2, Florida Administrative Code. That rule sets out general requirements for implementation of capital improvements elements. It does not deal with, or excuse, the specificity of Section 163.3180(1)(b)1, Florida Statutes, that the capital facilities program "provide educational facilities at an adequate level of service necessary to implement the adopted local comprehensive plan." The language of Section 163.3180(1)(b)1, Florida Statutes, requires more than simply identifying sources of revenue to match capital facilities.
The argument that it is fairly debatable that the Capital Facilities Program will provide Public Schools at an adequate level of service is also not supported by the evidence. Respondents and Intervenor have attempted to rely on excess capacity which may be available on a county-wide, district as a whole basis. Thus, they argue that an area other than the adopted Service Districts should be looked at to determine if the Capital Facilities Program will succeed in meeting an adequate LOS. This argument is not supported by the Act. Nor is it supported by the facts.
The facts in these cases proved that the Capital Facilities Program does not demonstrate that the adopted LOS
standards will be achieved. The facts demonstrated that the Capital Facilities Program does not demonstrate how current deficiencies in facilities, and future needs for facilities, will actually be met. Too much is left to the discretion of the School Board. How that discretion should be exercised is simply not addressed in the Amendments.
Respondents and Intervenor attempted to support the Capital Facilities Program by relying on, among other things, schools to be built outside the five years of the program. They also have relied upon available space outside of the adopted Service Districts. The difficulty with relying on this aggregate, district-wide available space is that nothing in the Amendments requires that Service Districts be drawn by the School Board to take advantage of that available space or that, if made available, it will meet the specific needs for space that currently exists or may exist in the future.
The primary difficulty with the Capital Facilities Program is that there is nothing in it or any other part of the Amendments that explains how the addition of FISH capacity will be taken into account; how Service Districts will be drawn to utilize district-wide capacity; or how the use of schools will be modified, if necessary, to effectively utilize any district-wide capacity.
The Capital Facilities Program does not meet the requirements of Section 163.3180(1)(b)1, Florida Statutes. While
the Capital Facilities Program provides some guidance as to how Public Schools might be provided at an adequate level of service, it does not require that they will be provided.
The Public School Facilities Element.
The deficiencies of the Capital Facilities Program and LOS standards are not corrected in the Public School Facilities Element. Those deficiencies also make the Public School Facilities Element defective.
While it is generally acceptable to leave the details of the concurrency management system to be promulgated in the land development code, the Public School Facilities Element fails to establish sufficient goals, objectives, and policies to meet the requirements of the Act and the rules promulgated thereunder.
In addition to the deficiencies that are discussed with regard to other portions of the Amendment, Policy 04.03.02(f) of the Public School Facilities Element is defective in failing to define the "other criteria" which the School Board may consider in determining mitigation requirements.
The Intergovernmental Coordination Element.
In order to adopt Public Schools concurrency, Broward County was required to "satisfy" the requirements of Section 163.3177(6)(h)1 and 2, Florida Statutes.
While the Amendments satisfy the requirements of Section 163.3177(6)(h)1, Florida Statutes, they do not satisfy the requirements of Section 163.3177(6)(h)2, Florida Statutes.
Those requirements include an amendment to the Intergovernmental Coordination Element and the adoption of an intergovernmental, or other formal agreement, "executed by all affected entities."
The amendment to the Intergovernmental Coordination Element must include the following:
A statement of the principles and guidelines to be used in accomplishing coordination of the Plan with the plans of the School Board; and
A description of the joint processes for collaborative planning and decision making on:
Population projections;
Public school siting; and
The location and extension of public facilities subject to concurrency.
Respondents and Intervenor have suggested that the Intergovernmental Coordination Element of the Plan contained sufficient guidelines and principles to meet the requirements of Section 163.3177(6)(h)2, Florida Statutes, even before the Amendments were adopted. This argument is rejected.
First, the evidence failed to prove that the guidelines and principles contained in the Intergovernmental Coordination Element prior to adoption of the Amendments address the specific requirements of Section 163.3177(6)(h)2, Florida Statutes, as they pertain to Public Schools Concurrency.
Broward County has the authority and responsibility to review and, where appropriate, approve efforts of property owners to develop their property. Broward County carries out its responsibility through the Plan and land development regulations.
The School Board has the authority and responsibility to ensure that the constitutional requirement of a uniform, free public school system is met and maintained throughout Broward County. In particular, the School Board has the authority to construct new schools, determine their location, establish and alter school enrollment boundaries, set calendar schedules for use of schools, and undertake all other activities necessary for the operation of the school system.
Section 163.3177(6)(h)2, Florida Statutes, requires intergovernmental coordination because of the independent authority and responsibilities of Broward County and the School Board. It is the existence of their separate responsibilities that necessitate that they act cooperatively to carry out their respective duties in order for Public Schools concurrency to work.
Although it is true that the Intergovernmental Coordination Element contains provisions dealing with intergovernmental coordination generally, those provisions do not specifically deal with Public Schools concurrency. Nor does the amendment of the Intergovernmental Coordination Element adopted as part of the Amendments.
The only amendment to the Intergovernmental Coordination Element adopted as part of the Amendments was the adoption of Policy 3. This policy, however, does not address any of the matters required by Section 163.3177(6)(h)2, Florida Statutes. Policy 3 does not contain any of the principles and guidelines to be used to coordinate the Plan and plans of the School Board. Policy 3 also does not describe the Joint Processes for Collaborative Planning and Decisionmaking.
Policy 3 merely states that Joint Processes for Collaborative Planning and Decisionmaking will be established by interlocal agreement. Policy 3 fails to meet the requirements of Section 163.3177(6)(h)2, Florida Statutes, for several reasons:
The Joint Process for Collaborative Planning and Decisionmaking to be adopted through the interlocal agreement will be outside the Plan and, in particular, outside the Intergovernmental Coordination Element. Section 163.3177(6)(h)2, Florida Statutes, requires that the joint processes be "described" in the Intergovernmental Coordination Element. Section 163.3177(6)(h)2, Florida Statutes, also requires that the joint processes be "established" through the execution of an interlocal agreement. Broward County has attempted to "describe" and "establish" the joint processes through an interlocal agreement; and
To the extent that the Intergovernmental Coordination Element "describes" the Joint Processes for Collaborative
Planning and Decisionmaking without the Amendments, Policy 3 negates their application by specifically providing that it is the joint processes established in the Interlocal Agreement, and not those which may be contained in the Intergovernmental Coordination Element which apply.
Based upon the foregoing, it is concluded that the amendment to the Intergovernmental Coordination Element adopted by Broward County fails to meet the requirements of Section 163.3177(6)(h)2, Florida Statutes.
Broward County also failed to satisfy the requirement of Section 163.3177(6)(h)2, Florida Statutes, with regard to the adoption of an interlocal agreement.
Broward County and the School Board did enter into the Interlocal Agreement. That agreement was not, however, entered into by municipalities located within Broward County. Those municipalities are "affected entities" of the Amendments and, therefore, were required by Section 163.3177(6)(h)2, Florida Statutes, to be parties to the Interlocal Agreement.
Broward County municipalities were not included as parties to the Interlocal Agreement because of Broward County's conclusion that the Charter exempted Broward County from complying with this requirement of Section 163.3177(6)(h)2, Florida Statutes.
The Respondents and Intervenor point to Sections 163.3171(2) and 163.3174(1)(b), Florida Statutes,
Rule 9J-5.002(2)(f), Florida Administrative Code, and Article VII, Sections 1(g) and 2(b) of the Constitution of Florida, to support their argument.
Section 163.3171(2), Florida Statutes, provides:
A county shall exercise authority under this act for the total unincorporated area under its jurisdiction or in such unincorporated areas as are not included in any joint agreement with municipalities established under the provisions of subsection (1). In the case of chartered counties, the county may exercise such authority over municipalities or districts within its boundaries as is provided for in its charter. (Emphasis added).
Section 163.3174(1)(b), Florida Statutes, provides:
In the case of chartered counties, the planning responsibility between the county and the several municipalities therein shall be as stipulated in the charter.
Rule 9J-5.002(2)(f), Florida Administrative Code, also requires that the Department consider county charters "as it provides local assistance . . . and applies [the Act] in specific situations with regard to the detail of the data, analysis, and the content of goals, objectives, and policies, and other graphic or textual standards required."
Finally, Article VIII, Section 2(b) of the Constitution of Florida grants home rule powers to municipalities unless such powers are expressly prohibited by county charter. Article VIII, Section 1(g) of the Constitution of Florida, provides:
Counties operating under County charters shall have all powers of local self-government not
inconsistent with general law or with special law approved by vote of the electors. The governing body of a County may enact County ordinances not inconsistent with general law. The charter shall provide which shall prevail in the event of conflict between County and municipal ordinances.
It is true that the Charter provides that a County "ordinance" in the area of land use planning and platting will prevail in Broward County. It is also true that municipalities in Broward County cannot enact ordinances in the area of land use planning and platting that conflict with Broward County ordinances. City of Coconut Creek v. Broward County Board of County Commissioners, 430 So. 2d 959 (Fla. 4th DCA 1983); and Kane Homes, Inc. v. City of North Lauderdale, 418 So. 2d 451 (Fla. 4th DCA 1982).
The problem with the position of Respondents and Intervenor is that, while the Charter authorizes Broward County to adopt ordinances governing land use planning and platting, it does not provide that Broward County can act on behalf of municipalities for all purposes. The Constitution of Florida specifically limits Broward County's authority under the Charter to the enactment of county ordinances "not inconsistent with general law."
Section 163.3180, Florida Statutes, is a "general law." Broward County is required to comply with its provisions, including the requirements of Section 163.3177(6)(h)2, Florida Statutes. It requires that all affected entities enter into the required interlocal agreement or "other formal agreement" that
"establishes" the Joint Processes for Collaborative Planning and Decisionmaking. Municipalities in Broward County, "affected entities," are not parties to the Interlocal Agreement.
It has been suggested that the interlocal agreement required by Section 163.3177(6)(h)2, Florida Statutes, is not due for a year. This argument is rejected. Section 163.3180(1)(b)2, Florida Statutes, requires that all of the requirements of Section 163.3177(6)(h)2, Florida Statutes, including the execution of an interlocal agreement, be "satisfied" at the time Public School concurrency is imposed.
Petitioners have also asserted that, even if the adoption of Joint Processes for Collaborative Planning and Decisionmaking could be adopted only in an interlocal agreement, the Interlocal Agreement adopted by the Broward County Commission does not meet the requirements of Section 163.3177(6)(h)2, Florida Statutes.
Petitioners argue that the Interlocal Agreement merely provides that the School Board will make most of the decisions rather than providing "joint processes." This argument is rejected. Section 163.3177(6)(h)2, Florida Statutes, does not require that all or any decisions must be made "jointly." It merely requires that where planning impacts more than one government entity, requiring their cooperation, that the processes for decision making be established in an interlocal agreement. The Interlocal Agreement meets this requirement.
Petitioners have also argued that the Interlocal Agreement is defective because it allows either party to terminate the agreement. Had the Joint Processes for Collaborative Planning and Decisionmaking been described in the Intergovernmental Coordination Element as required, the right to terminate the agreement would not be defective. The ability of either party to terminate the Interlocal Agreement at will, however, does cause the effort of the Broward County Commission to incorporate the processes described therein as a part of the Intergovernmental Coordination Element to be defective.
Petitioners have also suggested that the requirements of Section 163.3177(6)(h)2, Florida Statutes, have not been met because Broward County municipalities have not amended their respective comprehensive plans. Any such requirement is not, however, imposed on Broward County. Broward County is only required by Section 163.3180(1)(b)2, Florida Statutes, to meet those provisions of Section 163.3177(6)(h)2, Florida Statutes, applicable to it.
Based upon the foregoing, it is concluded that the Amendments and Interlocal Agreement fail to satisfy the requirements of Section 163.3177(6)(h)2, Florida Statutes.
Data and Analysis.
Section 163.3177(8), Florida Statutes, that each element of a comprehensive plan, whether mandatory or optional, be based upon data appropriate for the element.
The data and analysis in support of an element is not subject to compliance review by the Department.
Section 163.3177(10)(e), Florida Statutes. But goals, objectives, and policies of an element must be "clearly based on appropriate data." Id.
Rule 9J-5.005(2)(a) and (c), Florida Administrative Code, provide the following with regard to the required data and analysis to support a plan or plan amendment:
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Data or summaries thereof shall not be subject to the compliance review process. However, the Department will review each comprehensive plan for the purpose of determining whether the plan is based on the data and analyses described in this Chapter and whether the data were collected and applied in a professionally acceptable manner.
. . . .
(c ) . . . . The data used shall be the best available existing data, unless the local government desires original data or special studies.
Respondents and Intervenor offered two exhibits into evidence (School Board Exhibits 8 and 9), which consisted of data that existed on the date the Amendments were adopted, but were not submitted to the Department as part of the Supporting
Documents. Petitioners objected to the admissibility of the exhibits on relevancy grounds.
Data not included in the consideration of a plan amendment and not submitted to the Department as part of its review process should not be accepted into evidence if the data was not in existence or was otherwise unavailable at the time the plan amendment was adopted. In these cases, however, the data was in existence and it was available. Therefore, absent some specific exclusion, School Board Exhibits 8 and 9 are accepted into evidence. Zemel v. Lee County and the Department of Community Affairs, 15 F.A.L.R. (Department of Community Affairs Final Order, 1993), aff'd, 642 So. 2d 1367 (Fla. 1st DCA 1994).
The Supporting Documents, combined with School Board Exhibits 8 and 9, do not support a finding that the Amendments are "clearly based on appropriate data."
The State Comprehensive Plan and the Strategic Regional Policy Plan for South Florida.
In order to be found "in compliance" plan amendments must be consistent with the "state comprehensive plan [and] the appropriate strategic regional policy plan." Section 163.3184(1)(b), Florida Statutes.
The state comprehensive plan is set out in Chapter 187, Florida Statutes. The appropriate strategic regional policy plan in these cases is the Strategic Regional Policy Plan for South Florida.
Petitioners failed to present any testimony or other evidence, other than the regional plan itself, concerning the issue of whether the Amendments are consistent with the state or regional plan. Petitioners also failed to offer any legal argument in their proposed order concerning these issues.
The evidence failed to prove that the Amendments are inconsistent with the state comprehensive plan or regional plan independent of the inconsistencies of the Amendments with the Act discussed in this Recommended Order.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Community Affairs find, consistent with this Recommended Order, the Amendments not in compliance and submit the matter to the Administration Commission for the entry of a Final Order.
DONE AND ENTERED this 8th day of October, 1997, in Tallahassee, Leon County, Florida.
LARRY J. SARTIN
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings
this 8th day of October, 1997.
COPIES FURNISHED:
Mark D. Solov, Esquire
Sterns, Weaver, Miller, Weissler, Alhadeff, and Sitterson, P.A.
Museum Tower, Suite 2400
150 West Flagler Street Miami, Florida 33130
John W. Little, III, Esquire Jonathan Sjostrom, Esquire Jacob D. Varn, Esquire
Steel, Hector, and Davis, LLP
215 South Monroe Street, Suite 601 Tallahassee, Florida 32301
David L. Jordan, Deputy General Counsel Kathleen R. Fowler, Assistant General Counsel Stephanie G. Kruer, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
John J. Copelan, Jr., County Attorney
Sharon Cruz, Esquire, Assistant County Attorney Lisa Zima Bosch, Assistant County Attorney Broward County
115 South Andrews Avenue, Suite 423 Ft. Lauderdale, Florida 33301
Nancy Stroud, Esquire Susan Trevarthen, Esquire Burke, Weaver, and Prell
1900 Glades Road, Suite 350 Boca Raton, Florida 33431
James F. Murley, Secretary Department of Community Affairs Suite 1000
2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 10 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case. Section 163.3184(9)(b), Florida Statutes (Supp. 1996).
| Issue Date | Proceedings |
|---|---|
| Mar. 02, 2001 | Final Order filed. |
| Mar. 19, 1998 | Notice of Agency Appeal filed. (DCA Case No. 1-98-989) |
| Jan. 13, 1998 | Blue File and 1 Box of documents are at Barbara Leighty`s office. |
| Dec. 16, 1997 | CC: Letter to Robert Bradley from James Murley (RE: Department`s recommendation as to remedial actions required for comprehensive plan amendments) filed. |
| Dec. 05, 1997 | Department of Community Affairs` Notice of Correction filed. |
| Nov. 24, 1997 | Appendix to Determination of Non-Compliance Recommended Rulings on Exceptions filed. |
| Nov. 24, 1997 | Department of Community Affairs` Determination of Non-Compliance and Recommendation to Administration Commission filed. |
| Oct. 08, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held June 4 through 6 and 9 through 12, 1997. |
| Oct. 07, 1997 | (Petitioner) Notice of Absence from Jurisdiction (filed via facsimile). |
| Sep. 26, 1997 | School Board, Broward County and Department of Community Affairs` Response to Economic Development Council`s Proffer filed. |
| Sep. 08, 1997 | (From J. Sjostrom) (Proposed) Recommended Order ; Recommended Order (Table of Contents) ; Petitioners` Notice of Filing Corrected Pages to Joint Proposed Recommended Order; Disk filed. |
| Sep. 04, 1997 | (From J. Sjostrom) Table of Contents to Petitioners` Recommended Order filed. |
| Sep. 03, 1997 | Economic Development Council`s Notice of Filing Proffer (filed via facsimile). |
| Sep. 03, 1997 | Petitioners` Notice of Filing Joint Proposed Recommended Order; Recommended Order filed. |
| Sep. 03, 1997 | Department of Community Affairs Motion to Modify Standard Notice of Right to Submit Exceptions and Notice of Time Period to File Exceptions filed. |
| Sep. 03, 1997 | Respondents` and Intervenor`s Proposed Recommended Order; Disk filed. |
| Aug. 25, 1997 | (From J. Sjostrom) Order on Objections to Replacement Testimony and Notice of Completion of Record filed. |
| Aug. 19, 1997 | Notice of Telephonic Hearing on Respondents` and Intervenor`s Objections to Petitioners` Replacement of Lost Testimony of Robert Pennock filed. |
| Aug. 19, 1997 | School Board`s Notice of Filing Additional Page to Attachment of Petitioners` and Intervenor`s Objections to Petitioners` Replacement of Lost Testimony of Robert Pennock filed. |
| Aug. 18, 1997 | (From J. Sjostrom) Response to Objections to Proposed Replacement Testimony filed. |
| Aug. 14, 1997 | Respondents` and Intervenor`s Objections to Petitioners` Replacement of Lost Testimony of Robert Pennock filed. |
| Aug. 11, 1997 | Petitioner`s Notice of Filing Deposition Transcript; Telephonic Deposition of Robert Pennock filed. |
| Aug. 08, 1997 | (Petitioner) Notice of Service of Replacement Testimony; Replacement of Lost Testimony of Robert Pennock filed. |
| Aug. 04, 1997 | Order sent out. (re: proposed reconstructed testimony) |
| Jul. 31, 1997 | Petitioners` Notice of Filing Transcript of Hearing on Motion to Replace Lost Testimony; cc Transcript filed. |
| Jul. 31, 1997 | (Petitioner) Notice of Telephonic Hearing on Motion for Additional Time to Replace Lost Testimony filed. |
| Jul. 30, 1997 | Petitioners` Motion for Additional Time to Replace Lost Testimony (filed via facsimile). |
| Jul. 29, 1997 | Notice of Providing Notes of Testimony of Robert Pennock sent out. |
| Jul. 25, 1997 | (Volumes VIII-XIV) Transcript filed. |
| Jul. 24, 1997 | Order Granting Motion to Replace Lost Testimony sent out. |
| Jul. 18, 1997 | (Fl Home Builders) Notice of Telephonic Hearing on Motion to Replace Lost Testimony; Petitioners` Notice of Incomplete Transcript and Motion to Replace Lost Testimony filed. |
| Jul. 18, 1997 | (Volumes I-VII) Transcript filed. |
| Jun. 16, 1997 | (2 Boxes) Exhibits filed. |
| Jun. 03, 1997 | CASE STATUS: Hearing Held. |
| Jun. 03, 1997 | Petitioners` Joint Prehearing Stipulation; Prehearing Statement of Broward County, School Board of Broward County and Department of Community Affairs filed. |
| Jun. 02, 1997 | (School Board) Notice of Taking Continuation of Deposition (filed via facsimile). |
| May 30, 1997 | (Petitioner) Notice of Taking Continuation of Depositions (filed via facsimile). |
| May 30, 1997 | (Petitioner) Third Amended Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| May 30, 1997 | Intervenor, School Board`s, Motion to Compel Production of Documents of Expert Witness (filed via facsimile). |
| May 30, 1997 | Intervenor, School Board`s, Motion to Compel Production of Documents of Expert Witness; School Board List of Witnesses and Exhibits (filed via facsimile). |
| May 30, 1997 | Intervenor`s Motion to Exclude Testimony of George Platt filed. |
| May 30, 1997 | Department of Community Affairs` Witness List and Exhibit List filed. |
| May 30, 1997 | (From J. Sjostrom) Notice of Telephone Hearing on Motion to Exclude Platt Testimony Petitioners` Joint Motion in Limine to Exclude Untimely Disclosed Expert Friday, May 30 at 9:30 am filed. |
| May 30, 1997 | Supplemental Joint Exhibit List for Florida Home Builders Association, Building Industry Association of South Florida, and Florida Association of Realtors filed. |
| May 30, 1997 | Broward County`s Witness List; (Petitioner) Second Amended Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| May 29, 1997 | Joint Witness List for Florida Home Builders Association, Building Industry Association of South Florida, and Florida Association of Realtors filed. |
| May 29, 1997 | Joint Exhibit List for Florida Home Builders Association, Building Industry Association of South Florida, and Florida Association of Realtors ("FHBA") filed. |
| May 29, 1997 | Petitioners` Joint Motion in Limine to Exclude Untimely Disclosed Expert filed. |
| May 28, 1997 | (Petitioner) Amended Notice of Taking Deposition Duces Tucem (filed via facsimile). |
| May 28, 1997 | (Petitioner) Notice of Taking Deposition (filed via facsimile). |
| May 28, 1997 | (Respondent) Amended Notice of Taking Depositions Duces Tecum filed. |
| May 28, 1997 | Petitioners` Memorandum of Law in Support of the Motion to Compel Witnesses to Answer Questions and Request for Oral Argument on the Motion filed. |
| May 27, 1997 | (From N. Stroud) Notice of Taking Depositions filed. |
| May 27, 1997 | (From J. Little) Notice of Taking Deposition Duces Tecum filed. |
| May 23, 1997 | School Board`s Response to Motion for Protective Order filed. |
| May 23, 1997 | School Board of Broward County`s Response to Second Request for Production of Documents (Numbered 8); School Board of Broward County`s Answers to Petitioners` Second Interrogatories (Numbered 12-14) and Notice of Service of the Answers filed. |
| May 22, 1997 | Order Concerning Discovery Motions sent out. |
| May 22, 1997 | Petitioners` Motion to Compel Witnesses to Answer Questions filed. |
| May 22, 1997 | Florida Home Builders Association, Building Industry Association of South Florida, and Florida Association of Realtors` Notice of Serving Second Request for Production of Documents to Department of Community Affairs filed. |
| May 20, 1997 | Order Granting, In Part, and Denying, In Part, School Board, Broward County, and Department of Community Affair`s Motion in Limine and Denying Request for Oral Argument sent out. |
| May 20, 1997 | Petitioners` Proposed Deposition Schedule filed. |
| May 20, 1997 | Broward County`s Supplemental Answers to Interrogatories (Filed by Fax) filed. |
| May 20, 1997 | (Petitioner) Notice of Taking Deposition (filed via facsimile). |
| May 20, 1997 | (Economic Development) Amended Notice of Taking Deposition (filed via facsimile). |
| May 20, 1997 | (County) Request for Administrative Judge to Set Final Date for Compliance With Request to Produce/Answers to Interrogatories (filed via facsimile). |
| May 19, 1997 | Florida Home Builders Association, Building Industry Association of South Florida, and Florida Association of Realtors` Notice of Serving Second Request for Production of Documents and Second Interrogatories (Numbered 12-14) to School Board filed. |
| May 19, 1997 | (From D. Blanton) Notice of Taking Depositions; Response to Emergency Joint Motion to Compel filed. |
| May 19, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Response in Opposition to Emergency Joint Motion to Compel or for Suspension of Discovery (filed via facsimile). |
| May 19, 1997 | Notice of Serving School Board`s Answsers to Petitioner`s First Interrogatories (Numbered 1 through 11) filed. |
| May 19, 1997 | School Board`s Response to Motion for Protective Order (filed via facsimile). |
| May 16, 1997 | (From M. Solov) Notice of Taking Deposition (filed via facsimile). |
| May 16, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Amended Answer to Interrogatory to Broward County and the School Board (Filed by Fax) filed. |
| May 16, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Notice of Service of Amended Answer to Interrogatory to Broward County and the School Board (Filed by Fax) filed. |
| May 16, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Notice of Service of Amended Responses to the Joint First Set of Interrogatories Propounded by Broward County and the School Board (Filed by Fax) filed. |
| May 16, 1997 | (Petitioner) Notice of Taking Depositions; (filed via facsimile). |
| May 16, 1997 | (Petitioners) Motion for Protective Order filed. |
| May 15, 1997 | (Petitioner) Request for Production of Documents to Department of Community Affairs (filed via facsimile). |
| May 15, 1997 | (Petitioner) Notice of Taking Deposition (filed via facsimile). |
| May 14, 1997 | Broward County`s Notice of Serving Answers to Petitioners Florida Home Builders Association, Building Industry Association of South Florida Association of Realtors (filed via facsimile). |
| May 14, 1997 | Petitioners` First Interrogatories (Numbered 1-11) to Broward County (filed via facsimile). |
| May 13, 1997 | Economic Development Council`s Response to Joint Request for Production of Documents (filed via facsimile). |
| May 13, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Memorandum in Opposition to the School Board, Broward County Board of County Commissioners` and Department of Community Affairs` Motion in Limine (filed via facsimile). |
| May 13, 1997 | Petitioner`s Response to School Board`s Broward County`s, and Department of Community Affairs` Motion in Limine and Request for Oral Argument filed. |
| May 12, 1997 | Notice of Hearing sent out. (hearing set for June 2-6 & 9-13, 1997; 9:00am; Ft. Lauderdale) |
| May 08, 1997 | Notice of Substitution of Counsel for Department of Community Affairs filed. |
| May 07, 1997 | Joint Request for Production of Documents filed. |
| May 07, 1997 | Department of Community Affairs` Objections to EDC`s First Set of Interrogatories to DCA; Department of Community Affairs` Response to EDC`s First Request for Production of Documents to DCA filed. |
| May 07, 1997 | (Respondent) Response to Request for Production of Documents to Broward County; Respondent Broward County`s Answers to Petitioner`s First Set of Interrogatories; (School Board) Notice of Service of Interrogatories (filed via facsimile). |
| May 07, 1997 | (Broward County) Motion to Compel (filed via facsimile). |
| May 06, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Notice of Service of Responses to Interrogatories (filed via facsimile). |
| May 06, 1997 | School Board, Broward County, and Department of Commuity Affairs` Motion in Limine (filed via facsimile). |
| May 06, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Notice of Service of Responses to Interrogatories (filed via facsimile). |
| May 05, 1997 | (From N. Stroud) Response to Request for Production of Documents to School Board filed. |
| May 05, 1997 | Petitioners Florida Home Builders Association, Building Industry Associaiton of South Florida, and Florida Association of Realtors` Notice of Service of Interrogatories filed. |
| May 05, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s First Set of Interrogatories to the School Board of Broward County, Inc. filed. |
| May 05, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Notice of Service of Interrogatories filed. |
| May 05, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Notice of Responses to Tercentennial Economic Council of Broward County, Inc.`s Notice of Service of Interrogatories filed. |
| May 05, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s First Request for Production of Documents to Respondent Department of Community Affairs filed. |
| May 05, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s First Request for Production of Documents to Intervenor the School Board of Broward County, Inc. filed. |
| May 05, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s First Request for Production of Documents to Respondent Broward County Board of County Commissioners filed. |
| May 05, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Notice of Service of Interrogatories; Petitioner Economic Development Council of Broward County, Inc.`s First Set of Interrogatories to Broward County Board of County Commissioners re |
| May 05, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s First Set of Interrogatories to Department of Community Affairs filed. |
| May 02, 1997 | School Board`s Motion for Intervention w/cover letter filed. |
| May 01, 1997 | (Joint) Notice of Service of Interrogatories; the School Board of Broward County`s Second Set of Joint Interrogatories to Petitioner, Economic Development Council of Broward County, Inc. (filed via facsimile). |
| Apr. 30, 1997 | Prehearing Order sent out. |
| Apr. 28, 1997 | Notice of Hearing sent out. (hearing set for May 12-16, 1997; 9:00am; Ft. Lauderdale) |
| Apr. 28, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Memorandum In Opposition to Respondent Broward County Board of County Commissioners` Demand for Expedited Hearing (filed via facsimile). |
| Apr. 28, 1997 | Petitioner Economic Development Council of Broward County, Inc.`s Motion for Continuance (filed via facsimile). |
| Apr. 28, 1997 | (Respondent) Notice of Hearing (filed via facsimile). |
| Apr. 21, 1997 | Joint First Set of Interrogatories to Petitioner, Economic Development Council of Broward County, Inc.; Joint Request for Production of Documents; Joint Motion for Expedited Discovery (filed via facsimile). |
| Apr. 21, 1997 | (Joint) Notice of Service of Interrogatories (filed via facsimile). |
| Apr. 17, 1997 | (DCA) Notice of Related Case and Motion to Consolidate filed. (Cases requested to be consolidated: 96-6138GM & 97-1875GM) |
| Apr. 17, 1997 | (Respondent) Demand for Expedited Hearing (filed via facsimile). |
| Mar. 28, 1997 | Notice of Hearing sent out. (hearing set for June 9-13, 1997; 9:00am; Ft Lauderdale) |
| Mar. 20, 1997 | Order Denying Motion to Convert or Alternatively Quash or Dismiss Proceedings, Petition to Interevene and Request for Oral Argument sent out. |
| Mar. 17, 1997 | (From S. Cruz & L. Bosch) Notice of Appearance filed. |
| Mar. 13, 1997 | Petitioner Economic Development Counsel of Broward County Inc.`s Notice of Filing (filed via facsimile). |
| Mar. 06, 1997 | Broward County Board of County Commisioners` Response to Order of Assignment and Order; School Board`s Amended Response to Order of February 21, 1997 (filed via facsimile). |
| Mar. 03, 1997 | Joint Response to Order of February 21, 1997; Petitioner`s Response to Order if Assignment and Order; (Mark Solvo) Notice of Hearing Special Setting: 45 Minutes Reserved (filed via facsimile). |
| Feb. 24, 1997 | the School Board of Broward County`s Response to Motion to Convert, Quash or Dismiss Proceedings filed. |
| Feb. 24, 1997 | Petition of Intervenor, the School Board of Broward County, Florida, Inc. filed. |
| Feb. 24, 1997 | (Susan Trevarthen) Notice of Appearance filed. |
| Feb. 21, 1997 | Order of Assignment and Order sent out. |
| Feb. 05, 1997 | Order Granting Motion for Intervention sent out. (by: Broward County School Board) |
| Jan. 21, 1997 | Broward County's Response to Motion to Convert, Quash or Dismiss Proceedings filed. |
| Jan. 15, 1997 | Petitioner, Economic Development Council of Broward County, Inc. Request for Oral Argument (filed via facsimile). |
| Jan. 10, 1997 | School Board's Motion for Intervention filed. |
| Jan. 07, 1997 | Notification card sent out. |
| Dec. 31, 1996 | Petition of Economic Development Council of Broward County, Inc. for Administrative Hearing and Motion to Convert or Alternatively Quash or Dismiss Proceedings (original & fax cc filed with DCA on 12/13/96) filed. |
| Dec. 31, 1996 | Agency referral letter; Department of Community Affairs' Response to Motion to Convert, Quash or Dismiss Proceedings; Letter to D. Jordan from M. Solov (re: filing of petition); Cover Letter to DCA Clerk from M. Solov (re: petition) Petition of Economic D |
| Dec. 13, 1996 | Petition of Economic Development Council of Broward County, Inc. for Administrative Hearing and Motion to Convert or Alternatively Quash or Dismiss Proceedings (filed via facsimile). |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 11, 1998 | Agency Final Order | |
| Oct. 08, 1997 | Recommended Order | Petitioners proved plan amendment to require public schools concurrency was not in compliance. |
DADE COUNTY SCHOOL BOARD vs. MARCOS SAMUEL BANOS, 96-006138GM (1996)
DUVAL COUNTY SCHOOL BOARD vs. DEPARTMENT OF EDUCATION, 96-006138GM (1996)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs EDWARD THOMAS, 96-006138GM (1996)
CITY OF PEMBROKE PINES vs BROWARD COUNTY SCHOOL BOARD, 96-006138GM (1996)
ZAYO GROUP, LLC vs SCHOOL BOARD OF POLK COUNTY, FLORIDA, 96-006138GM (1996)
