HomeMy WebLinkAboutVII (C) Discussion/ Action re: City of Ocoee Regulatory Authority Regarding the Siting and Construction of Public Schools Agenda 1-19-99
Item VII C
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MEMORANDUM
TO: The Honorable Mayor and City Commissioners of the City of Ocoee
FROM: Paul E. Rosenthal, Esq., City Attorney
DATE: January 13, 1999
RE: City of Ocoee Regulatory Authority Regarding the Siting and
Construction of Public Schools
In light of the planning for the new Ocoee Middle School and the designation of
multiple sites within the City for future schools, Mr. Shapiro has requested that I provide you
with a briefing regarding the regulatory authority of the City with respect to the siting and
construction of public schools. As a general statement, the authority of the City is limited.
The review and consideration of the siting and construction of new public schools would not
be subject to review and approval by the City in the same manner as would a private school or
a commercial structure. While the City may have certain opportunities to review and
comment, the School Board is not obligated to incorporate these comments.
Public schools are not required to obtain city building permits or pay city impact fees
(i.e., road, police, fire, sewer and water) and are generally exempt from all city building
codes and ordinances so long as the proposed school is consistent with the State Uniform
Building Code for Public Educational Facilities Construction. Additionally, the City review of
school plans would not be subject to the normal site plan and public hearing requirements of
the Land Development Code.
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Attached hereto is a copy of a memorandum which I provided to the City staff which
summarizes various provisions of the Educational Facilities Act which affect the municipal
regulatory authority.
I will present an overview of the statutory provisions at the City Commission meeting.
Following my overview, Russ Wagner will discuss with City Commission the procedures for
review of plans by the City.
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Attachments
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MEMORANDUM
TO: Ellis Shapiro, City Manager
Don Flippen, Building Official
Russ Wagner, Planning Director
Jim Shira, P.E., City Engineer
Janet Shira, Community Relations QQ
FROM: Paul E. Rosenthal, Esq., City AttorneyY
DATE: November 19, 1998
RE: Local Government Regulatory Authority regarding the Siting and
Construction of Educational Facilities
The siting and construction of educational facilities are governed by the provisions of
Chapter 235, Florida Statutes (the "Educational Facilities Act"). As a general statement, the
Act sets forth statewide uniform standards to be followed by School Boards in connection with
the siting and construction of educational facilities and limits the regulatory authority of the
local government in which the educational facility is being located. While increased
coordination is required based upon the Act, this has not materially increased the authority of a
local government to regulate the siting and construction undertaken by a School Board.
The Orange County School Board has previously forwarded to the City a proposed
Model School Siting Ordinance. Many of the provisions contained in the proposed Ordinance
are mandated by the Act and must be met with or without the local ordinance. It should be
noted that the Act provides discretion for a School Board and local government to enter into an
agreement which provides for alternative procedures for reviewing a proposed educational
facility and site plan and offsite impacts.
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The Act does impose certain obligations upon a School Board with respect to its
relationships with the local government in which they propose to locate an educational facility.
A summary of these obligations are set forth below:
(1) The School Board is responsible for ensuring that new construction, renovation
and remodeling conforms to the State Uniform Building Code for Public
Educational Facilities Construction (the "State Uniform Building Code"). The
State Uniform Building Code supercedes all local building codes. The building
plans would not be subject to local government review and approval. Further,
the local government does not have authority to inspect educational facilities for
compliance, though it appears that a School Board could voluntarily agree to
have a local government enforce the State Uniform Building Code if its
inspectors are certified to do so. (§235.017 and 235.26,(3), F.S.).
(2) The Board must "coordinate" with the local government's comprehensive plan
"to assure the compatibility of the comprehensive plan with the Board's site
planning." This provision does not require "compliance" with the local
comprehensive plan. (§235.19(1), ES.).
(3) The Board is required "to provide adequate notice" to the local government
"for requested traffic control and safety devices so they can be installed and
operating prior to the first day of classes". Alternatively, the Board must
satisfy itself that "every reasonable effort has been made in sufficient time to
secure the installation and operation of such necessary devices prior to the first
day of classes". This is a notice provision and does not mandate that a School
Board make improvements. (§235.19(4), F.S.).
(4) A Board may (but is not required to) request that the local government
"construct and maintain sidewalks and bicycle trails within a two (2) mile radius
of each educational facility within the jurisdiction of the local government".
The Board is also required to notify the local government within twenty-four
hours after discovering or becoming aware of an existing hazard on or near a
public sidewalk, street or highway within a two (2) mile radius of the school
site which hazard endangers life or threatens the health or safety of students. If
a local government receives such a notice, it is mandated to, within five (5)
days, investigate the hazardous condition and "either correct it or provide such
precautions as are practical to safeguard students until the hazard can be
permanently corrected". The local government may determine that it is
"impractical to correct the hazard" or may disagree with the conclusion of the
School Board. If such a determination is made, the Board must be notified in
writing of the reasons why the local government is not correcting the condition.
Under such circumstances, the Act provides for the local government to
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indemnify the Board with respect to any liability related to the hazardous
condition. The School Board is not required to take any corrective action.
(§235.19(5), F.S.).
(5) The Act requires that the School Board and the local government coordinate
planning "to ensure that plans for construction and opening of public
educational facilities are facilitated and coordinated in time and place with plans
for residential development, concurrently with other necessary services". This
planning is intended to include the "integration of the educational planned
survey" with the "local comprehensive plan and land development regulations"
of the local government. While planning standards are established, this
provision only requires "coordination of planning" and not compliance with
local regulations. (§235.193(1), F.S.)
(6) The School Board and the local government are mandated to "share and
coordinate information relating to existing and planned public school facilities...
and infrastructure required to support the public school facilities, concurrent
with proposed development". This relates to requirements in a School Boards
annual educational facilities report. (§235.193(2), F.S.).
(7) The most significant provision of the Act from the standpoint of local
government regulatory authority is found in §235.193(3), F.S., which provides
as follows:
"The location of public education facilities shall be consistent with the
comprehensive plan of the appropriate local governing body... and the plan's
implementing land development regulations, to the extent that the regulations
are not in conflict with or the subject regulated is not specifically addressed by
this chapter or the State Uniform Building Code, unless mutually agreed by the
local government and the board."
The foregoing provision deal solely with the issue of "consistency" with the
comprehensive plan and is focused on location rather than site specific
development issues.
(8) The Act provides a specific procedure for determining consistency and limits
the local government regulatory authority once such determination is made.
The School Board is required to provide a written notice to the local
government at least sixty (60) days prior to acquiring land that may be used for
a new public educational facility. Within forty-five (45) days of receipt of such
notice, the local government is required to notify the Board if the site proposed
for acquisition "is consistent with the land use categories and policies" of the
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comprehensive plan. It does not appear that a site plan is required with this
submittal. (§235.93(4), F.S.).
(9) Prior to commencing construction of a new public educational facility and as
early in the design phase as feasible, the School Board is required to request
that the local government make a determination as to whether the proposed
educational facility is "consistent with the local comprehensive plan and local
land development regulations, to the extent that the regulations are not in
conflict with or the subject regulated is not specifically addressed by this
Chapter or the State Uniform Building Code, unless mutually agreed." This
determination is different from the procedures set forth above and, while not
expressly stated, it appears that the School Board would need to submit a site
plan with the request. The content and review of the site plan would be
governed by the Act, not the local land development regulations, under the Act.
The local government must provide a written response within ninety (90) days
of receipt of this request or the request shall be considered approved. Again,
the local review and determination is limited to the issue of consistency. If the
proposed public educational facility meets the consistency requirement, then
"further local government approvals are not required" except as expressly
provided in Section 235.193, F.S. 0235.193(5), F.S.)
(10) The local government may not deny the site applicant based on the adequacy of
the site plan as it relates to the needs of the school. However, if the site is
consistent with the comprehensive plan, the local government "may impose
reasonable development standards and conditions in accordance with Section
235.34(1) and consider the site plan and its adequacy as it relates to
environmental concerns, health, safety and welfare and effects on adjacent
property". None of the standards and conditions imposed may conflict with the
State Uniform Building Code or Chapter 235, unless mutually agreed. This is
the broadest grant of local government authority in Chapter 235.
(11) Sections 235.26 and 235.34, Florida Statutes, limit the development standards
and conditions which may be imposed by a local government. Section
235.25(1)(a), Florida Statutes, requires that the educational facility be consistent
with the State Uniform Building Code and otherwise exempts the facility from
all municipal "building codes, interpretations, building permits and assessments
of fees for building permits, ordinances, road closures, and impact fees or
service availability fees". Subject to these exemptions, pursuant to §235.34,
F.S., the School Board and the local government are both authorized, but not
required, to spend funds for the placement and maintenance of roads and
sidewalks and for sanitary sewer, water, stormwater and utility improvements
and for the installation, operation and maintenance of traffic control and safety
devices; provided, however, that such improvements must be contiguous to or
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run through the property on which the educational facility is to be located. The
School Board is expressly exempted from paying for or installing "any
improvements that exceed those required to meet the onsite and off-site needs"
of the new facility or expanded site. Local government development exactions
may not exceed "the proportionate share of the cost of system improvements
necessitated by the educational facility" and may not address "existing facility
or service backlogs or deficits". It would appear that any valid requirements
must be imposed within the 90-day review period authorized by the Act. If a
School Board voluntarily agrees to construct improvements beyond its
proportionate share, then the local government is required to assure that the
School Board is reimbursed for such additional cost "to the extent that other
development occurs which demands use of such infrastructure". Any municipal
ordinance inconsistent with the foregoing is void. Any local government
requirement for road improvements and other off-site improvements would need
to be reviewed for compliance with these standards. (§235.34, F.S.).
(12) The local government has less regulatory authority with respect to existing
schools. The Act conclusively provides that existing schools are consistent with
local comprehensive plans. Further, local government review or approval is not
required in connection with temporary or portable classroom facilities or
proposed renovation or construction on existing school sites unless such
construction involves a stadium or results in a greater than five (5%) percent
increase in student capacity. When local government review is permitted, the
local government may impose "reasonable development standards and
conditions on the expansion only" and in a manner consistent with the
limitations discussed above as set forth in Section 235.34, F.S.
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