[*] Shareholder, Hopping Green Sams & Smith, P.A., Tallahassee, Florida. B.J., University of Texas at Austin, 1974; M.S., Columbia University, 1975; J.D., Florida State University, 1986. In 1997 the author served as Chairman of the Public Schools Construction Study Commission, whose recommendations were the basis for the legislation which is the subject of this Article. The opinions and observations expressed by the author in this Article are drawn from that work. The author wishes to thank Keith Hetrick, Robert M. Rhodes, and Victoria L. Weber for reviewing and offering comments on a draft of this Article. All conclusions, and any errors or omissions, are the responsibility of the author. Return to text.

[1] See, e.g., Evan Perez, As Suburbs Spread Westward, County's School Crunch Grows, TALL. DEM., Apr. 11, 1997, at B9 (stating that Broward County school enrollment is growing by 10,000 each year). Return to text.

[2] See Act effective July 1, 1998, ch. 98-176, 4-9, 1998 Fla. Laws 1556, 1559-67 (amending scattered sections of FLA. STAT. ch. 163 and ch. 235 (1997)); Act effective May 22, 1998, ch. 98-176, 10-11, 1998 Fla. Laws 1556, 1567-68. Although most of the Act was effective on the date it became law, the sections dealing with school concurrency became effective on July 1, 1998. See Act effective July 1, 1998, ch. 98-176, 4-9, 1998 Fla. Laws 1556, 1559-67. The 1998 Legislature also refined the state laws on school facility planning. See id. 7-9, 1998 Fla. Laws at 1566-67 (amending FLA. STAT. 235.185, .19, .193 (1997)). For a discussion of how the 1998 legislation altered prior school concurrency procedures, see infra Part III. Return to text.

[3] See Florida Dep't of Comm'y Aff., The Evolution and Requirements of the CMS Rule, TECHNICAL MEMO, Aug. 1991, at 4; see also FLA. STAT. 163.3177(10)(h) (Supp. 1998); David L. Powell, Managing Florida's Growth: The Next Generation, 21 FLA. ST. U. L. REV. 223, 291 (1993). The concurrency requirement takes its name from a provision enacted in 1986 declaring that "[i]t 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." FLA. STAT. 163.3177(10)(h) (Supp. 1986) (emphasis added). Return to text.

[4] H. Glen Boggs, II & Robert C. Apgar, Concurrency and Growth Management: A Lawyer's Primer, 7 J. LAND USE & ENVTL. L. 1, 1 (1991). Return to text.

[5] See Douglas R. Porter, The APF Epidemic, URB. LAND, Nov. 1990, at 36, 36. Return to text.

[6] See Henry Fagin, Regulating the Timing of Urban Development, 20 LAW & CONTEMP. PROBS. 298, 298 (1955). Return to text.

[7] Id. at 298-99. Return to text.

[8] 285 N.E.2d 291, 305 (N.Y. 1972) (holding constitutionally valid the town's zoning amendment that imposed developmental growth restrictions until adequate municipal services were available). Return to text.

[9] See Act effective May 31, 1985, ch. 85-87, 1985 Fla. Laws 295 (current version at FLA. STAT. ch. 187 (1997)). The State Comprehensive Plan is required by statute to be reviewed biennially, although in practice it has not been. Return to text.

[10] See FLA. STAT. 187.201(16)(a) (1997) (directing development to areas having environmentally friendly infrastructure), (18)(a) (stating the goal of planning and financing new public facilities in a "timely, orderly, and efficient manner"). The State Comprehensive Plan is the Legislature's enactment of 26 specific goals for the state with supporting policies. The plan is not regulatory, see id. 187.101(2), and implementation of the policies requires separate legislative action unless otherwise provided by law, see id. 187.101(1). Return to text.

[11] Ch. 85-55, 1985 Fla. Laws 207 (current version at FLA. STAT. ch. 163, Part II (1997 & Supp. 1998)). Return to text.

[12] See FLA. STAT. 163.3177(3) (Supp. 1998). Return to text.

[13] See id. 163.3202(2)(g). Return to text.

[14] Robert M. Rhodes, Concurrency: Problems, Practicalities, and Prospects, 6 J. LAND USE & ENVTL. L. 241, 243 (1991). Return to text.

[15] The DCA is the reviewing agency for local government comprehensive plans to ensure compliance with the state law. See FLA. STAT. 163.3184 (Supp. 1998). Return to text.

[16] See Thomas G. Pelham, Adequate Public Facilities Requirements: Reflections on Florida's Concurrency System for Managing Growth, 19 FLA. ST. U. L. REV. 973, 1011 (1992). Return to text.

[17] See Boggs & Apgar, supra note 4, at 6. Return to text.

[18] See, e.g., Powell, supra note 3, at 294. Return to text.

[19] See FLA. STAT. ch. 163, Part II (1997 & Supp. 1998). Return to text.

[20] See FLA. STAT. 163.3177(6)(a) (Supp. 1998). Return to text.

[21] See id. 163.3194(1)(b) (1997) (legal status of comprehensive plan); see also id. 163.3202 (Supp. 1998) (land development regulations). Return to text.

[22] See id. 163.3194(1)(a) (1997). Return to text.

[23] See id. 163.3180 (Supp. 1998). Return to text.

[24] See id. 229.011. (1997). Return to text.

[25] See FLA. CONST. art. IX, 2 (organization and supervision authority of state board); see also FLA. STAT. 229.053 (1997) (general powers of state board). Return to text.

[26] See FLA. STAT. 229.512 (1997). Return to text.

[27] See id. 229.75. Return to text.

[28] See id. 235.014 (functions of the Department); see also id. 235.19 (site planning and selection). Return to text.

[29] See id. 228.041(2). In fact, school boards are considered state agencies for certain purposes. See, e.g., FLA. STAT. 120.52(1) (Supp. 1998) (including educational units among the Administrative Procedure Act agency definitions); Canney v. Board of Public Instruction, 278 So. 2d 260, 263-64 (Fla. 1973) (holding that school boards function as part of the legislative branch of state government). Return to text.

[30] See FLA. STAT. 230.01 (1997). Return to text.

[31] See FLA. CONST. art. IX, 4 (school board membership and duties); see also FLA. STAT. 230.03(2) (1997) (statutory grant of control authority). Return to text.

[32] FLA. STAT. 230.23(4) (1997). Return to text.

[33] See id. 235.185 (Supp. 1998). Return to text.

[34] See generally ENVIRONMENTAL LAND MGMT. STUDY COMM., FINAL REPORT: BUILDING SUCCESSFUL COMMUNITIES (1992) (on file with Dep't of Comm'y Aff., Tallahasse, Fla.) [hereinafter ELMS III REPORT]. Return to text.

[35] Compare Act effective July 1, 1993, ch. 93-206, 1993 Fla. Laws 1887 (codified in scattered sections of FLA. STAT. (1993)), with ELMS III REPORT, supra note 34. For an account of the concurrency provisions in the 1993 legislation, see Powell, supra note 3, at 293. Return to text.

[36] See Powell, supra note 3, at 293. Return to text.

[37] See ELMS III REPORT, supra note 34, at 66 (Recommendation 95). Return to text.

[38] See id. at 37 (Recommendation 40). Return to text.

[39] See id. at 67 (Recommendation 96). Return to text.

[40] See id. at 38-39 (Recommendation 45). Return to text.

[41] See Act effective July 1, 1993, ch. 93-206, 6, 1993 Fla. Laws 1887, 1893 (amending FLA. STAT. 163.3177(6) (Supp. 1992)). For additional history and explanation of interlocal agreements, see infra Part III.C.1-2. Return to text.

[42] Act effective July 1, 1993, ch. 93-206, 8, 1993 Fla. Laws 1887, 1898, repealed by Act effective July 1, 1998, ch. 98-176, 5, 1998 Fla. Laws 1556, 1561-66. Return to text.

[43] See Florida Dep't of Comm'y Aff., Ask DCA: Planning for Public Schools, COMMUNITY PLANNING, Dec. 1995, at 9-11. Return to text.

[44] Act effective June 16, 1995, ch. 95-341, 13, 1995 Fla. Laws 3010, 3022. Return to text.

[45] Compare FLA. STAT. 163.3177(6)(h)(2) (1993) with FLA. STAT. 235.193 (1995). Return to text.

[46] See Act effective June 16, 1995, ch. 95-341, 4, 1995 Fla. Laws 3010, 3016 (codified at FLA. STAT. 235.194(2) (1995)). Return to text.

[47] See id. 10, 1995 Fla. Laws at 3021 (amending FLA. STAT. 163.3177(6)(a) (1993)). Return to text.

[48] See id. 3, 1995 Fla. Laws at 3014 (amending FLA. STAT. 235.193(3) (1993)). Return to text.

[49] Id. 9, 1995 Fla. Laws at 3020 (amending FLA. STAT. 163.3174(1) (1993)). Return to text.

[50] See id. 12, 1995 Fla. Laws at 3022 (amending FLA. STAT. 163.3180(1)(b)(2) (1993)).

In 1996 the Legislature rectified an apparent omission by amending section 163.3180(1)(b)(2) expressly to provide that a local government also must satisfy the coordination requirements of section 163.3177(6)(h)(1) as a prerequisite to imposition of school concurrency. See Act effective June 6, 1996, ch. 96-416, 3, 1996 Fla. Laws 3186, 3191 (codified at FLA. STAT. 163.3180(1)(b)(2) (Supp. 1996)). Return to text.

[51] See Perez, supra note 1, at B9. Return to text.

[52] See City of Coconut Creek v. Broward County Bd. of County Comm'rs, 430 So. 2d (Fla. 4th DCA 1983) (holding that a county with a charter specifically vesting it with land use regulatory power had final land use authority in a conflict between county and municipalities); Kane Homes, Inc. v. City of N. Lauderdale, 418 So. 2d 451 (Fla. 4th DCA 1982) (upholding the city's decision to follow the direction of the county planning board to deny a developer's building permit). Return to text.

[53] See Economic Dev. Council of Broward County, Inc. v. Department of Comm'y Aff., DOAH Case Nos. 96-6138GM, 97-1875GM, at 2 (Admin. Comm'n Final Order entered Mar. 11, 1998) (on file with Clerk, Admin. Comm'n, Tallahassee, Fla.) [hereinafter Broward Final Order]. The Broward amendments were not the first attempt in Florida to make public schools subject to the concurrency requirement. An early effort in Monroe County failed. See Thomas G. Pelham, The Legal and Practical Implications and Difficulties of School Concurrency 6 (undated) (unpublished manuscript, on file with author).

In 1995 (prior to the enactment of the 1995 legislation), the City of Coral Springs attempted to implement school concurrency. The DCA found the Coral Springs plan not in compliance with state law because the city was unable to establish a cooperative interlocal agreement with the Broward County School Board and the plan did not include a financially feasible implementation method. See Florida Dep't of Comm'y Aff., supra note 43, at 10-11; see also text accompanying infra note 178. The city abandoned its unilateral efforts in 1997. See Ty Tagami, Springs Bows to District Plan, FT. LAUD. SUN SENT., July 29, 1997, at B1. Return to text.

[54] See Broward Final Order, supra note 53, at 2. Return to text.

[55] See id. Return to text.

[56] See id. at 3; Economic Dev. Council of Broward County, Inc. v. Department of Comm'y Aff., DOAH Case Nos. 96-6138GM, 97-1875GM (Recommended Order entered Oct. 8, 1997) [hereinafter Broward Recommended Order]; see also Bill Hirschman, Ruling Stuns School Officials, FT. LAUD. SUN SENT., Oct. 10, 1997, at B4. Return to text.

[57] See Broward Recommended Order, supra note 56, at 3; see also Economic Dev. Council of Broward, Inc. v. Department of Comm'y Aff., DOAH Case Nos. 96-6138GM, 97-1875GM, at 23 (Department of Comm'y Aff.'s Determination of Non-Compliance and Recommendation to Admin. Comm'n, Nov. 21, 1997) (copy on file with author). For an account of the Broward school concurrency case by two lawyers who participated on behalf of the challengers through issuance of the DCA's recommendation, see Ronald L. Weaver & Mark D. Solov, Current Developments in Public School Concurrency, FLA. B.J., Feb. 1998, at 47. Return to text.

[58] See Broward Final Order, supra note 53, passim. Return to text.

[59] See Economic Dev. Council of Broward County, Inc. v. Florida Admin. Comm'n, No. 98-989 (Fla. 1st DCA filed July 17, 1998). The author filed a brief on behalf of the Association of Florida Community Developers, Inc., as amicus curiae in support of the appellants' position. Return to text.

[60] See infra Part III.C. Return to text.

[61] See id. Return to text.

[62] Act effective May 28, 1997, ch. 97-152, 6, 1997 Fla. Laws 2508, 2825 (Specific Appropriation 1628). The Schools Commission was appointed by the Governor, the Senate President, and the Speaker of the House. See id. The members were David L. Brandon, Palm Harbor; J. Thomas Chandler, Orlando; Scott A. Glass, Ocoee; William G. Graham, Lake Clarke Shores; Calvin D. Harris, Clearwater; James Horne, Jacksonville; John Long, Land O'Lakes; Richard "Skeet" Jernigan, Fort Lauderdale; Patricia S. McKay, Tallahassee; Karen Marcus, West Palm Beach; Bob Moss, Fort Lauderdale; Myra Mueller, Boca Raton; Benton R. Murphey, Lutz; G. Steven Pfeiffer, Tallahassee; Linda S. Sparks, Jacksonville; and Robert T. Urban, Sanford. The Governor appointed the author to serve as chairman. Return to text.

[63] See Act effective May 30, 1997, ch. 97-265, 13, 1997 Fla. Laws 4935, 4951. The suspension of local government authority to impose school concurrency was highly controversial. See John Kennedy & Cory Lancaster, Halt Growth Till Schools Catch Up?, ORLANDO SENT., Nov. 23, 1997, at B1. Return to text.

[64] See PUBLIC SCH. CONSTR. STUDY COMM'N, FINAL REPORT 18 (1997) (on file with Dep't of Comm'y Aff., Tallahassee, Fla.) [hereinafter SCHOOLS COMM'N REPORT]. Return to text.

[65] See id. Return to text.

[66] See id. at 19. Return to text.

[67] Florida's comprehensive planning laws require provisions of a comprehensive plan to be found in compliance with state law in order to become legally effective. See FLA. STAT. 163.3189(2)(a) (1997). The term "in compliance" is defined in section 163.3184(1)(b), Florida Statutes. See id. 163.3184(1)(b) (Supp. 1998). Return to text.

[68] Repub., Port St. Lucie. Return to text.

[69] Repub., Brandon. Return to text.

[70] See Act effective May 22, 1998, ch. 98-176, 1998 Fla. Laws 1556. Return to text.

[71] Prior to 1985, local governments had purported authority to prohibit or limit residential development if adequate school facilities would not be available. Florida law provided that "[t]he local government is empowered to reject development plans when public school facilities made necessary by the proposed development are not available in the area which is proposed for development or are not planned to be constructed in such area concurrently with the development." FLA. STAT. 235.193(4) (1983) (emphasis added). Arguably, this authority was limited by the constitutional restrictions on moratoria. See David M. Layman, Concurrency and Moratoria, FLA. B.J., Jan. 1997, at 49, 51-52 (noting that even a temporary moratorium may be an unconstitutional regulatory taking).

This statutory authority was tested when Manatee County denied approval of a preliminary plat partly on grounds of lack of school capacity. The county was reversed. While other considerations were plainly evident in the decision, the trial court held that this provision did not authorize denial of a plat that otherwise conformed to the county's subdivision regulations. See Southern Coop. Dev. Fund v. Driggers, 527 F. Supp. 927, 929 (M.D. Fla. 1981), aff'd, 696 F.2d 1347 (11th Cir. 1983).

Section 235.193, Florida Statutes, was amended in 1985 in conjunction with enactment of the Local Government Comprehensive Planning and Land Development Regulation Act. See ch. 85-55, 25, 1985 Fla. Laws 207, 238-39. Subsection four was then repealed later in that session. See Educational Facilities Act, ch. 85-116, 10, 26, 27, 1985 Fla. Laws 683, 693, 717. The meager legislative history sheds no light on the specific purpose of the repeal. Presumably it was undertaken in light of the nascent concurrency requirement. Return to text.

[72] See SCHOOLS COMM'N REPORT, supra note 64, at 17. Return to text.

[73] See ch. 72-317, 1972 Fla. Laws 1162 (current version at FLA. STAT. 380.012-.10 (1997)). Return to text.

[74] See ch. 84-257, 1984 Fla. Laws 1166 (current version at FLA. STAT. ch. 187 (1997)). Return to text.

[75] See ch. 85-55, 1-20, 1985 Fla. Laws 207, 210-35 (current version at FLA. STAT. ch. 163, Part II (1997 & Supp. 1998)). Return to text.

[76] See SCHOOLS COMM'N REPORT, supra note 64, at 17. Return to text.

[77] See id. The Florida Association of Counties, the Florida League of Cities, and the Florida School Boards Association made it a high priority to ensure that the temporary suspension of local authority to impose school concurrency, enacted by the Legislature in 1997, would not be extended beyond July 1, 1998. See Kennedy & Lancaster, supra note 63, at B1. Return to text.

[78] See Act effective July 1, 1998, ch. 98-176, 5(12), 1998 Fla. Laws 1556, 1562 (codified at FLA. STAT. 163.3180(12) (Supp. 1998)). Return to text.

[79] See id. Return to text.

[80] See Act effective June 16, 1995, ch. 95-341, 3, 1995 Fla. Laws 3010, 3014, (amending FLA. STAT. 235.193 (1993)); id. 11, 1995 Fla. Laws at 3022. Return to text.

[81] FLA. STAT. 163.3177(6)(h)(2) (1995). Return to text.

[82] FLA. CONST. art. IX, 1. Return to text.

[83] Indeed, the Florida Supreme Court has sought to avoid giving a precise interpretation of the uniform public schools requirement, going so far as to sanction "'a broad degree of variation'" among the state's schools. Coalition for Adequacy and Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 406 (Fla. 1996) (quoting Florida Dep't of Educ. v. Glasser, 622 So. 2d 944, 950 (Fla. 1993) (Kogan, J., concurring)). In so doing, it has deferred to the legislative branch. See FLA. CONST. art. II, 3 (requiring separation of powers); Glasser, 622 So. 2d at 947. Return to text.

[84] School Bd. of Escambia County v. State, 353 So. 2d 834, 838 (Fla. 1977). Return to text.

[85] Id. Return to text.

[86] 583 So. 2d 635 (Fla. 1991). Return to text.

[87] See id. at 637. Return to text.

[88] Id. at 639. The dual rational nexus test requires the local government imposing the impact fees to demonstrate: (1) a reasonable connection between the need for new facilities and the demand created by the proposed development; and (2) an assurance that impact fees collected from the proposed development will be used to finance facilities that will benefit the specific area. See id. at 637 (citing Hollywood, Inc. v. Broward County, 431 So. 2d 606, 611-12 (Fla. 4th DCA 1983)). For the seminal Florida decision on the dual rational nexus test applicable to impact fees, see Contractors and Builders Ass'n v. City of Dunedin, 329 So. 2d 314 (Fla. 1976). Return to text.

[89] St. Johns County, 583 So. 2d at 639 n.3. Return to text.

[90] See FLA. STAT. 163.3177(12)(a) (Supp. 1998). Return to text.

[91] Municipalities in which residential development is expected to have a de minimis effect on the demand for public school facilities are exempted from this requirement. See infra Part III.C.3. Return to text.

[92] Again, the only exception is municipalities in which residential development is expected to have a de minimis effect on the demand for public school facilities. See infra Part III.C.3. Return to text.

[93] See infra Part III.C.4. Return to text.

[94] Act effective July 1, 1998, ch. 98-176, 5(12)(g), 1998 Fla. Laws 1556, 1565 (codified at FLA. STAT. 163.3180(12)(g) (Supp. 1998)). Return to text.

[95] See SCHOOLS COMM'N REPORT, supra note 64, at 28; see also infra Part III.C.2. Return to text.

[96] Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (noting that "it is not the court's duty or prerogative to modify or shade clearly expressed legislative intent in order to uphold a policy favored by the court"). Return to text.

[97] See ELMS III Report, supra note 34, at 6-7. Return to text.

[98] See supra Part II.B.1. Return to text.

[99] See ELMS III REPORT, supra note 34, at 38-39 (Recommendation 45). Return to text.

[100] Act effective July 1, 1993, ch. 93-206, 6(6)(h)(2), 1993 Fla. Laws 1887, 1893 (amending FLA. STAT. 163.3177 (Supp. 1992)). Return to text.

[101] Id. Return to text.

[102] See FLA. STAT. 163.3177(6)(h)(1) (Supp. 1998). Return to text.

[103] For the minimum criteria for concurrency management systems to be found in compliance with state law, see FLA. ADMIN. CODE ANN. r. 9J-5.0055 (1998). Return to text.

[104] See SCHOOLS COMM'N REPORT, supra note 64, at 28. Even before the recent interest in school concurrency, commentators have remarked upon the political difficulties of getting a county and all its municipalities to agree on a common course of action in the field of growth management. See, e.g., C. Allen Watts, Beyond User Fees? Impact Fees for Schools and . . ., FLA. B.J., Feb. 1992, at 56, 59-60. Return to text.

[105] See SCHOOLS COMM'N REPORT, supra note 64, at 28. Return to text.

[106] See id. Return to text.

[107] See id. (Recommendation 12). As part of the compromise, the Schools Commission did not take an official position on a key issue in the Broward County school concurrency litigation, namely, whether the interlocal agreement requirement of section 163.3180(1)(b)(2), Florida Statutes, applied to a charter county where the county charter purports to provide a legal basis for school concurrency without municipal consent through entry into the interlocal agreement. See supra Part II.C.1. Thus, the Schools Commission took no position on the merits of any individual school concurrency or siting dispute. See SCHOOLS COMM'N REPORT, supra note 64, at 5. Return to text.

[108] See SCHOOLS COMM'N REPORT, supra note 64, at 28 (Recommendation 12). This compromise was not well-received by some school concurrency proponents. See Larry Barszewski, Cities May Get Say in School Crowding, FT. LAUD. SUN SENT., Jan. 2, 1998, at B4 (quoting a Broward County school official as saying the compromise was "meaningless"). Return to text.

[109] See SCHOOLS COMM'N REPORT, supra note 64, at 28 (Recommendation 12). Return to text.

[110] Act effective July 1, 1998, ch. 98-176, 5(12), 1998 Fla. Laws 1556, 1564 (amending FLA. STAT. 163.3180(12) (1997) and codified at FLA. STAT. 163.3180(12)(f)(1) (Supp. 1998)). Return to text.

[111] See FLA. STAT. 163.3180(12)(f)(2) (Supp. 1998). Return to text.

[112] See id. Return to text.

[113] See Act effective July 1, 1998, ch. 98-176, 5(12)(g), 1998 Fla. Laws 1556, 1565 (amending FLA. STAT. 163.3180(12)(g) (1997)). Return to text.

[114] See id. The following are the eight issues: (1) the establishment of coordination methods; (2) population growth projections; (3) siting criteria; (4) level-of-service standards; (5) capital facilities financial feasibility; (6) geographic scope of service areas; (7) implementation, monitoring, and evaluation procedures; and (8) amendment and termination provisions. See id. Return to text.

[115] See id. The 1998 legislation, however, does not address whether the interlocal agreement must be found in compliance, as defined in section 163.3184(1)(b), Florida Statutes, to be legally effective, or whether such a compliance determination regarding the interlocal agreement is necessary only for school concurrency to take effect. Return to text.

[116] FLA. STAT. 163.3177(6)(h)(2) (Supp. 1998). Return to text.

[117] Act effective July 1, 1998, ch. 98-176, 5(12)(g)(8), 1998 Fla. Laws 1556, 1566 (amending FLA. STAT. 163.3180(12)(g)(8) (1997)). Return to text.

[118] See SCHOOLS COMM'N REPORT, supra note 64, at 27. Return to text.

[119] FLORIDA DEP'T OF COMM'Y AFF., PUBLIC SCHOOLS CONSTRUCTION WORKING GROUP, FINAL REPORT AND CONSENSUS TEXT (Mar. 9, 1998) (on file with DCA) [hereinafter PUBLIC SCHOOLS, FINAL REPORT]. Return to text.

[120] See FLA. STAT. 163.3177(7)(f) (1975). The Schools Commission was influenced by the contemporaneous review and adoption of a public school facilities element by Orange County that addressed a range of land-use and educational facility issues but did not resort to school concurrency as a regulatory response to school overcrowding. Its principal purpose was to coordinate the activities of Orange County and the Orange County School Board to ensure that schools were the focal point for neighborhood development. Return to text.

[121] Much of what little guidance existed in the DCA rules was repealed in 1996 as part of Governor Chiles' campaign to eliminate agency rules. See FLA. ADMIN. CODE R. 9J-5.018 (1996) (repealed). The only remaining minimum criterion for optional elements is a requirement that an optional element be consistent with the mandatory elements of the adopted comprehensive plan. See FLA. ADMIN. CODE ANN. r. 9J-5.005(5) (1998). Return to text.

[122] See SCHOOLS COMM'N REPORT, supra note 64, at 20-21. Return to text.

[123] See id. Return to text.

[124] See Act effective July 1, 1998, ch. 98-176, 5(12)(a), 1998 Fla. Laws 1556, 1562 (codified at FLA. STAT. 163.3180(12)(a) (Supp. 1998)). Return to text.

[125] See id. 5(12)(a)- (f), 1998 Fla. Laws at 1562-64 (amending FLA. STAT. 163.3180 (1997) and codified at FLA. STAT. 163.3180(12)(a)-(f) (Supp. 1998)). The minimum criteria include: public schools facilities element, level-of-service standards, service areas, financial feasibility, an availability standard of three years, and intergovernmental coordination. See id. Return to text.

[126] See id. 5(13), 1998 Fla. Laws at 1566 (codified at FLA. STAT. 163.3180(13) (Supp. 1998)). Return to text.

[127] Id. 5(12)(a), 1998 Fla. Laws at 1562 (codified at FLA. STAT. 163.3180(12)(a) (Supp. 1998)). Return to text.

[128] See id. 5(1), 1998 Fla. Laws at 1561 (repealing FLA. STAT. 163.3180(1)(b) (1997)). Return to text.

[129] See SCHOOLS COMM'N REPORT, supra note 64, at 20; see also FLA. ADMIN. CODE ANN. r. 9J-5.0055(2)(b) (1998). This deficiency was cogently discussed by the administrative law judge in the Broward County hearing, and the prior failure to elucidate clear requirements for the preliminary study resulted in this prerequisite to school concurrency being rendered nugatory. See Broward Recommended Order, supra note 56, at 85-86, 254 (stating that "nothing requires that the 'study' be reduced to writing or contained in a single document"). Return to text.

[130] FLA. ADMIN. CODE ANN. r. 9J-5.005(2)(a) (1998). Return to text.

[131] See SCHOOLS COMM'N REPORT, supra note 64, at 20. Return to text.

[132] See Act effective July 1, 1998, ch. 98-176, 5(1), 1998 Fla. Laws 1556, 1561 (repealing FLA. STAT. 163.3180(1)(b) (1997)). Return to text.

[133] FLA. ADMIN. CODE ANN. r. 9J-5.003(65) (1998). In light of this definition, the logical conclusion is that a level-of-service standard for public schools must be based upon the "capacity per unit of demand," which is the number of pupils to be served, rather than on the basis of the school's performance as determined by the level of pupil achievement or some other qualitative measurement. Return to text.

[134] See Act effective July 1, 1998, ch. 98-176, 5(12)(b)(1), 1998 Fla. Laws 1556, 1562 (codified at FLA. STAT. 163.3180(12)(b)(1) (Supp. 1998)). Return to text.

[135] See Act effective July 1, 1993, ch. 93-206, 1993 Fla. Laws 1887. This statutory requirement was recommended by ELMS III after its policy review determined that, for purposes of concurrency, some regional planning councils were attempting to impose their own preferred level-of-service standards on local governments through the consistency requirement in section 163.3184(1)(b), Florida Statutes. See ELMS III REPORT, supra note 34, at 70 (Recommendation 104). Return to text.

[136] See Act effective July 1, 1998, ch. 98-176, 5(12)(b)(1), 1998 Fla. Laws 1556, 1562 (codified at FLA. STAT. 163.3180(12)(b)(1) (Supp. 1998)). Return to text.

[137] See id. 5(12)(b)(2), 1998 Fla. Laws at 1562 (codified at FLA. STAT. 163.3180(12)(b)(2) (Supp. 1998)). This statutory directive is consistent with the existing rule that provides for level-of-service standards to be "set for each individual facility or facility type and not on a systemwide basis." FLA. ADMIN. CODE ANN. r. 9J-5.005(3) (1998) (emphasis added). Return to text.

[138] See FLA. CONST. art. IX, 1. For an earlier analysis reaching the same conclusion, see Watts, supra note 104, at 59-60. Return to text.

[139] See SCHOOLS COMM'N REPORT, supra note 64, at 23. Return to text.

[140] See Act effective July 1, 1998, ch. 98-176, 5(12)(b)(3), 1998 Fla. Laws 1556, 1562 (codified at FLA. STAT. 163.3180(12)(b)(3) (Supp. 1998)); see also FLA. ADMIN. CODE ANN. r. 9J-5.0055(2) (1998) (data and analyses requirements). Return to text.

[141] See SCHOOLS COMM'N REPORT, supra note 64, at 23. Return to text.

[142] See FLA. STAT. 163.3177(3)(a)(3) (1997). Return to text.

[143] See id. 163.3184(1)(b) (Supp. 1998). Return to text.

[144] Id. 163.3180(12)(b)(3). This standard is consistent with the requirement for school boards to establish "adequate educational facilities for all children without payment of tuition." FLA. STAT. 230.23(4)(c) (1997). Given the judiciary's willingness to defer to legislative determinations regarding the "adequacy" of schools, see Coalition for Adequacy and Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 405 (Fla. 1996), it also should be consistent with the constitutional mandate for the Legislature to make "adequate provision" for public schools. FLA. CONST. art. IX, 1. Return to text.

[145] See Act effective July 1, 1998, ch. 98-176, 5(12)(b)(1), 1998 Fla. Laws 1556, 1562 (codified at FLA. STAT. 163.3180(12)(b)(1) (Supp. 1998)). Return to text.

[146] See id. 5(12)(c), 1998 Fla. Laws at 1562 (codified at FLA. STAT. 163.3180(12)(c) (Supp. 1998)). Return to text.

[147] See SCHOOLS COMM'N REPORT, supra note 64, at 24. The principal model for less-than-countywide service areas was the attendance zones set by a school board to determine the enrollment at each school. While by no means the only type of less-than-countywide service area, school attendance zones were the chief candidate in this category because they seemed logically linked to the purpose of school concurrency, namely preventing overcrowded schools, and because they were the basis for the Broward school concurrency system. See Broward Recommended Order, supra note 56, at 51, 141. Return to text.

[148] See Act effective July 1, 1998, ch. 98-176, 5(12)(c), 1998 Fla. Laws 1556, 1562 (codified at FLA. STAT. 163.3180(12)(c) (Supp. 1998)). Return to text.

[149] Id. 5(12)(c)(1), 1998 Fla. Laws at 1562 (codified at FLA. STAT. 163.3180(12)(c)(1) (Supp. 1998)). Return to text.

[150] See FLA. CONST. art. IX, 4(a) (defining county school districts); FLA. STAT. 230.02 (1997) (scope of district system). Return to text.

[151] See FLA. STAT. 230.01 (1997). Return to text.

[152] Generally school board members are nominated and elected by a countywide vote, see id. 230.08, .10, even though each may be required to live in a specific residence area, see id. 230.04. School board members may be chosen on the basis of single-member districts provided such a system is established by countywide vote. See id. 230.105-.106. In any event, school board members are charged by law to "represent the entire district." Id. 230.11. Return to text.

[153] 583 So.2d 635 (Fla. 1991). Return to text.

[154] See id. at 639 (stating that the impact fee must apply to "substantially all" of the county population to be constitutional); see also supra Part III.B. Return to text.

[155] FLA. STAT. 230.23(4) (1997). Return to text.

[156] Id. 230.23(4)(c). Return to text.

[157] Id. 230.23(4)(a). Return to text.

[158] See id. 230.22(6). Return to text.

[159] The emphasis on maximum utilization also is reflected in general school law. See id. 235.436- .4391. Return to text.

[160] See SCHOOLS COMM'N REPORT, supra note 64, at 24. Return to text.

[161] See FLA. STAT. 163.3180(12)(c)(2) (Supp. 1998). Return to text.

[162] See SCHOOLS COMM'N REPORT, supra note 64, at 24. Return to text.

[163] See Act effective July 1, 1998, ch. 98-176, 5(12)(c), 1998 Fla. Laws 1556, 1562 (codified at FLA. STAT. 163.3180(12)(c) (Supp. 1998)). Return to text.

[164] See SCHOOLS COMM'N REPORT, supra note 64, at 24. Return to text.

[165] See Act effective July 1, 1998, ch. 98-176, 5(12)(c), 1998 Fla. Laws 1556, 1562 (codified at FLA. STAT. 163.3180(12)(c) (Supp. 1998)). Return to text.

[166] See id. 5(12)(c)(2), 1998 Fla. Laws at 1563 (codified at FLA. STAT. 163.3180(12)(c)(2) (Supp. 1998)). Return to text.

[167] See FLA. ADMIN. CODE ANN. r. 9J-5.005(5)(a) (1998). Return to text.

[168] See Act effective July 1, 1998, ch. 98-176, 5(12)(c)(2), 1998 Fla. Laws 1556, 1563 (codified at FLA. STAT. 163.3180(12)(c)(2) (Supp. 1998)). Return to text.

[169] See FLA. ADMIN. CODE ANN. r. 9J-5.005(8)(j) (1998). Return to text.

[170] See Act effective July 1, 1998, ch. 98-176, 5(12)(c)(2), 1998 Fla. Laws 1556, 1563 (codified at FLA. STAT. 163.3180(12)(c)(2) (Supp. 1998)). Return to text.

[171] Id. The phrase "court-approved desegregation plans" should be narrow enough to apply only in counties with a bona fide ongoing legal dispute about school desegregation that warrants court supervision. It should be broad enough to encompass desegregation plans developed and imposed by the court as well as those negotiated by interested parties without direct court supervision and established by judicial decree. Return to text.

[172] Act effective July 1, 1998, ch. 98-176, 5(12)(c)(3), 1998 Fla. Laws 1556, 1563 (codified at FLA. STAT. 163.3180(12)(c)(3) (Supp. 1998)). Return to text.

[173] See FLA. ADMIN. CODE ANN. r. 9J-5.0055(1)(b) (1998). Return to text.

[174] See Act effective July 1, 1998, ch. 98-176, 5(12)(d), 1998 Fla. Laws 1556, 1563 (codified at FLA. STAT. 163.3180(12)(d) (Supp. 1998)); SCHOOLS COMM'N REPORT, supra note 64, at 25. Return to text.

[175] Golden v. Planning Board of Ramapo, 285 N.E.2d 291, 294-95 (N.Y. 1972). Return to text.

[176] Id. at 295. Return to text.

[177] An early description of the emerging concurrency requirement explained the importance of a strong planning basis for an adequate public facilities ordinance:

The key to a successful approach to the concurrency requirement is having a sound plan for effectively eliminating existing deficits and providing infrastructure for new development within a reasonable period of time. A court which reviews a temporary deviation from the minimum level-of-service standard in the context of a very weak comprehensive plan which does not set forth an effective way of dealing with infrastructure is likely to find the concurrency requirement has not been satisfied. On the other hand, a court which considers a plan which, according to all the evidence, is a sound, well-thought-out comprehensive plan based on adequate data is likely to uphold any reasonable, good faith effort to achieve concurrency.
Letter from Thomas G. Pelham, Secretary, DCA, to Sen. Gwen Margolis 4 (Mar. 7, 1988) (on file with author). Return to text.

[178] Id. at 6. Return to text.

[179] See Broward Recommended Order, supra note 56, at 102, 312. Return to text.

[180] See, e.g., FLA. ADMIN. CODE ANN. r. 9J-5.016(1)(c); .016(2)(b), (c), (f); .016(3)(b)(3), (5); .016(3)(c)(1)(c), (f); .016(4)(a)(2) (1998). Return to text.

[181] See FLA. STAT. 163.3177(3) (1997) (listing capital improvements element requirements); FLA. ADMIN. CODE ANN. r. 9J-5.016(1)(c) (1998) (detailing costs, data, and analysis requirement for the capital improvements element). Return to text.

[182] Act effective June 16, 1995, ch. 95-341, 12, 1995 Fla. Laws 3010, 3022 (codified at FLA. STAT. 163.3180(1)(b)(1) (1995) (emphasis added)). Return to text.

[183] See Broward Final Order, supra note 53, at 27-29, 29-31; Broward Recommended Order, supra note 56, at 100-04, 306-18.

One reason for the difficulty in applying the financial feasibility standard in the Broward hearing was that the DCA failed to object to Broward's school concurrency system on financial feasibility grounds during the initial review. See Memorandum from Mike McDaniel, DCA, to Steve Pfeiffer, DCA, and Charles Pattison, DCA 1 (Aug. 21, 1996) (on file with author). Therefore, the DCA could not base an ultimate compliance determination on Broward County's failure to base its school concurrency system on a financially feasible public school capital facilities program as required by section 163.3180(1)(b)(1), Florida Statutes. See FLA. STAT. 163.3184(8)(a)(1) (Supp. 1998).

The lack of a financially feasible capital plan to provide adequate school capacity was a key reason for the noncompliance determination for the City of Cape Coral's school concurrency system. Even though Cape Coral's system was evaluated prior to the 1995 legislation, it was tested against the general financial feasibility requirement of rule 9J-5.0055(1)(b), Florida Administrative Code. See Memorandum from Mike McDaniel, DCA, to Jim Murley, DCA 4 (Dec. 1, 1995) (on file with author). Return to text.

[184] See Act effective July 1, 1998, ch. 98-176, 5(12)(d)(2), 1995 Fla. Laws. 1556, 1564 (codified at FLA. STAT. 163.3180(12)(d)(2) (Supp. 1998)). Return to text.

[185] See id. 5(12)(d)(3), 1995 Fla. Laws at 1564 (codified at FLA. STAT. 163.3180(12)(d)(3) (Supp. 1998)). Return to text.

[186] This requirement was added to expressly disapprove of the analysis offered by Broward County in the compliance proceeding over that county's school concurrency system. Broward sought to demonstrate the financial feasibility of its public school capital facilities program by reference to all school capacity accumulated on a districtwide basis even though the concurrency requirement would be enforced against developers on the basis of the capacity in individual school attendance zones. See Broward Recommended Order, supra note 56, at 103-04, 314-18. Thus, capacity that the local governments were allowed to count toward meeting the financial feasibility requirement of the capital facilities program in the initial compliance determination would not necessarily be counted when a developer actually sought development approval in a specific service area.

The administrative law judge disapproved of this approach. See id. at 103-04, 314-18. So did the Administration Commission. See Broward Final Order, supra note 53, at 28-29, 31. On fairness grounds, the Schools Commission recommended that such sleight of hand be prohibited by law. See SCHOOLS COMM'N REPORT, supra note 64, at 25. Return to text.

[187] SCHOOLS COMM'N REPORT, supra note 64, at 26. Defining "availability" is another crucial task in establishing a concurrency system. Florida law describes a public facility as being "available" if it is "in use or under actual construction," thus striking a balance between certainty that the facility will be built and flexibility on precisely when it will be in place. FLA. STAT. 163.3180(2) (Supp. 1998), Return to text.

[188] For example, potable water, sanitary sewer, drainage, and solid waste facilities are necessary for human habitation, and therefore it is consistent with the public health and safety to require that they be in place or under actual construction upon issuance of a certificate of occupancy. See FLA. STAT. 163.3180(2)(a) (Supp. 1998). Roads, parks, and recreation facilities, being matters of public convenience rather than health and safety, are subject to more relaxed availability standards, which allow reliance on projects listed in a financially feasible capital improvements element to demonstrate concurrency. See id. 163.3180(2)(b)-(c). Return to text.

[189] See SCHOOLS COMM'N REPORT, supra note 64, at 26. Return to text.

[190] See Act effective July 1, 1998, ch. 98-176, 5(12)(e), 1995 Fla. Laws. 1556, 1564 (codified at FLA. STAT. 163.3180(12)(e) (Supp. 1998)). Return to text.

[191] See SCHOOLS COMM'N REPORT, supra note 64, at 26. Return to text.

[192] See id. Return to text.

[193] See Act effective July 1, 1998, ch. 98-176, 5(13), 1995 Fla. Laws. 1556, 1566 (codified at FLA. STAT. 163.3180(13) (Supp. 1998)). Return to text.

[194] The proposed rule (9J-5.025) was noticed for adoption on Aug. 28, 1998, and became effective by operation of law on Oct. 20, 1998. See 24 Fla. Admin. W. 4627 (Aug. 28, 1998). New rules to implement additional procedural requirements for school concurrency (9J-11) were noticed for adoption by the DCA on Nov. 6, 1998. See 24 Fla. Admin. W. 5965 (Nov. 6, 1998). Return to text.

[195] See PUBLIC SCHOOLS, FINAL REPORT, supra note 119; see also SCHOOLS COMM'N REPORT, supra note 64, at 29. Return to text.

[196] Act effective May 22, 1998, ch. 98-176, 11, 1998 Fla. Laws 1556, 1568. Return to text.

[197] See Act effective May 30, 1997, ch. 97-265, 13, 1997 Fla. Laws 4935, 4951. Return to text.

[198] See FLA. STAT. 163.3191(2)(e) (1997), amended and reworded by Act effective Oct. 1, 1998, ch. 98-176, 14(2)(f), 1998 Fla. Laws 1556, 1572 (codified at FLA. STAT. 163.3191(2)(f) (Supp. 1998)). Return to text.

[199] See Act effective May 30, 1997, ch. 97-265, 13, 1997 Fla. Laws 4935, 4951. Return to text.

[200] See supra note 77. Return to text.