And now ... school concurrency.

• Author: Powell, David L.
• Position: Florida

In recent years, Florida's growing population has led to overcrowded schools in many communities. Although this problem is a brick-and-mortar fiscal issue, the legislature in 2005 decided to address the problem as a regulatory matter through a new mandate aimed at the development of new neighborhoods. In doing so, lawmakers accepted Gov. Bush's recommendation to reverse a 20-year policy of allowing local communities to adopt school concurrency on a local option basis.

Under the new law, unless they fall within an exemption, all communities must set up school concurrency programs by 2008 through amendments to their local comprehensive plans, based on written agreements between local governments and the district school board. (1) When these programs are in place, a residential development may be denied if there will not be adequate school capacity in the area to accommodate pupils who would be housed in the project within three years of final plat or site plan approval.

Concurrency is a land use regulation which controls the timing of new real estate development so adequate public facilities will be available to accommodate the impacts of that new development. It puts "teeth and bite into growth management." (2) This type of timing control on development has been adopted in many communities since the seminal 1972 court decision of Golden v. Planning Board of the Town of Ramapo, 30 N.Y. 2d 359, 285 N.E. 2d 291 (N.Y. 1972), appeal dismissed, 409 U.S. 1003 (1972).

In 1985, the Florida Legislature required all local comprehensive plans to include an adequate public facility requirement for water, sewer, drainage, solid waste, parks, and transportation. (3) Basic principles of concurrency were developed in agency rulemaking and case-by-case adjudication, (4) and generally were ratified by the legislature in 1993. (5)

Local governments have been empowered to impose school concurrency at local option for years. (6) Because of divided governmental authority, however, school concurrency presents such daunting challenges that only one urban area--Palm Beach County--has set up a school concurrency system that meets all state requirements.

Cities and counties plan for growth in their comprehensive plans and regulate it through zoning and development orders. (7) Each of the 67 school districts designs, constructs, and operates public schools. (8) Each district must adopt a five-year capital facilities program, to be updated annually, based on projected available revenues. (9) For these reasons, school concurrency is primarily a challenge in intergovernmental coordination.

The legislature has addressed these challenges over the years. In 1993, lawmakers decided that further study based on local-option experiments was necessary before school concurrency should be mandated statewide. (10) Lawmakers also imposed various substantive and procedural requirements for local option school concurrency.

In 1996, Broward County attempted to set up a countywide school concurrency system. Broward's comprehensive plan amendments ended up in litigation, resulting in a final order determining that the amendments were not "in compliance" with state law. (11)

In response, the legislature in 1997 created the Public Schools Construction Study Commission to conduct a policy review of school concurrency. (12) The commission recommended continuation of school concurrency at local option. (13) The legislature agreed and enacted the commission's recommended framework for local option school concurrency. (14) It was this 1998 framework which was made mandatory by the legislature in 2005, with a few noteworthy changes.

Under the 2005 law, all counties and the municipalities within them must establish a school concurrency system. The only exemption is for each county, and the municipalities within it, whose schools are operating at less than 100 percent of capacity and whose projected five-year pupil growth rate is under 10 percent. (15)

School concurrency must be established on a countywide basis. (16) There are important legal reasons for this requirement. The Florida Constitution calls for "a uniform system of free public schools." (17) The Florida Supreme Court has held that "there need not be uniformity of physical plant and curriculum from county to county because their requirements differ." (18)

In dicta in a 1991 school impact fee case, however, the court suggested that the uniform schools requirement may apply with more exacting precision in each county. (19) Although it presents practical challenges, countywide school concurrency is thus...