The Flagler County government administration issued a legal memo to the County Commission that in the administration’s view corrects several inaccuracies, misconceptions and conclusions by both the Flagler County school district and the Flagler Home Builders Association concerning the district’s proposal to double its school impact fees.
The eight-page, tightly argued and at times caustic memo, seeks to draw a clear line between facts and polemics, between legal and speculative arguments. While it corrects the district in no uncertain terms on several points of law–or math–, it also comes close to ridiculing the HBA’s arguments as simplistic and tautological: “Without more explanation, it appears the Flagler HBA is asserting that there is no justification” for the district’s new fee structure “because they do not agree with the justification.” (See: “School District’s Request to Double Impact Fees Turns Into Hostile Inquisition by County Commission and Builders.”)
The memo, written by Assistant County Attorney Sean Moylan and Adam Mengel, the county’s planning director, reflects the odd position the county commission is in, since it has to be the final arbiter of the district’s impact fees–and the decision-maker on whether to approve them or not. The fees must be translated into a county ordinance to take effect. Given the controversies and two public meetings so far that have left all sides as if at an impasse, the Moylan-Mengel memo may be forging a path for the commission that clarifies the legalities and frames a politically palatable vote that perhaps none of the sides will like, but that may break the logjam. The memo also strongly suggests that the commission may end up raising school impact fees, but by setting them at a different level than the district is asking for. In essence, the commission will itself legislate the matter–a role the district has so far contended is not in the county’s purview. The memo says otherwise.
School impact fees are a one-time levy on new residential construction. The revenue is intended to defray the cost or “impact” of new school construction–and therefore new students–on the district. The Flagler school board voted to increase its fee on single-family homes for the first time in 15 years, from $3,600 to $7,175, with plans to build a high school and a middle school in the next several years. (See: “Impact Fees: What They Are, Who Pays Them.”)
The Home Builders Association objects, calling the increase too steep and divorced from demographic trends. Despite a school district study justifying the rationale behind the numbers, the association argues that while Flagler’s population will increase significantly, the increase will be disproportionately made up of elderly residents without children in schools. The association has not offered a study of its own documenting what student population trends it sees ahead.
The school board votes on increasing its impact fees. But it does not impose them. That can only be done by ordinance of the County Commission. That gives the commission the deciding role. It also places the commission in an intricate role. The commission today approved its own schedule of new impact fees, also doubling its bottom line. Those fees apply to several services such as fire, parks, roads and so on, though the sum total remains half what the school district wants. By law, the district has had to submit its plan to the commission, which has had to hold hearings before voting on the district’s proposal. So far it hasn’t gone well for the district, with a majority of commissioners leery of imposing the full amount the district is asking for, despite the study and the district’s arguments.
Another hearing is scheduled in January to decide the issue. The commission at the last hearing agreed to delay a decision for 60 days, giving all sides more time to talk. Not much appears to have happened since. As far as the district’s position is concerned, “nothing has changed,” Jason Wheeler, the district’s chief spokesman, said today. (See: “County Commission Again Delays Decision on School Impact Fees As Disputed Numbers Strain Trust on Both Sides.”)
At the meeting today Mark Langello, a builder and a member of the Home Builders Association, asked the county administration to “facilitate” a meeting between the association and Superintendent Cathy Mittelstadt. Langello said “we have been trying repeatedly” to get a meeting, whether through the association’s staff to district staff or through the two organizations’ attorneys. “We have been unable to get any meeting at all.”
Jason Wheeler, the district’s chief spokesman, today disputed that account. “HBA asked once,” Wheeler said. Mittelstadt “was at a conference last week so she couldn’t meet, plus they’ve informed us they’re going to sue.” That places the district in a difficult position. The superintendent, he said, now “has to go to her board to discuss what they want to do because of an impending lawsuit.” The lawsuit–as was the case in the St. Johns County impact fee ordinance–would likely have to name the county, however.
The school board so far has shown no desire to back down from its proposal. It has repeatedly argued through Mittelstadt and other administrators that the request is soundly based on a rigorous study that looked at recent trends–trends confirmed by an ongoing surge in development and the first increase in student enrollment in well over a decade. (See the full study here.)
The Mengel-Moylan memo even-handedly took on and either refuted or clarified almost the same number of assertions from the school district as from the home builders. It first refuted the claim that the commission “is bound to either approve the entire amount of impact fee increase the School Board has requested or reject it altogether.” That is not law, the memo states. The school board can’t enact its own ordinances. The commission can. As such, it can draft them as it sees fit, within legal bounds. Within those bounds, “none of those restrictions require the County to wholly accept or reject the School Board’s requested impact fee increase,” the memo states. “Rather, in adopting an impact fee by ordinance, the County Commission is acting in a legislative capacity with discretion to determine the impact fee amount, subject to the requirements of” the law. That’s as clear a statement as commissioners will read, giving them cover to write in their own impact fee amounts. (The district is also doubling or more than doubling fees for apartment units and mobile homes.)
The memo relies heavily on a 1991 Florida Supreme Court decision that rejected a St. Johns County homebuilders’ association’s contention that school impact fees were unconstitutional. That decision laid out a standard by which impact fees may be imposed.
The memo corrects the district’s contention that impact fees may not be raised but once every four years: if there is a finding of extraordinary circumstances sooner than that, then impact fees may be raised again, the memo states. That, too, is an opening for commissioners to set fees lower than what the district is asking for, on the contention that the district could return in two or three years to seek a higher fee. The memo also devotes a large segment to correcting a district interpretation about the intricate difference between “mitigation payments” and impact fee payments–the short of it being that the district’s threat of a moratorium on signing off on new developments can be circumvented by the county, even if there is no “concurrency”–meaning enough projected room for students to attend school.
“Concurrency is the goal,” the memo states. But it isn’t the end-all. “The point is that under Florida law residential development does not necessarily halt when concurrency cannot be achieved or when we fall below the level of service required by the Comprehensive Plan. Rather there are mechanisms by which a developer can pay and go. The de facto moratorium of
concurrency negotiations potentially exposes the School Board to legal attack and will likely involve joining the local governments who collect the fees on behalf of the School Board as
necessary parties to the dispute.”
In a final correction of the school board’s calculations, the memo finds fault with the district’s claim that its increased fee would amount to just $15 a month added to a mortgage payment. That figure would be correct if the impact fee were $5,397, not $7,175, the memo states.
If the school district had it rough in the hands of Mengel and Moylan, the home builders have it rougher. The memo immediately ridicules the homebuilders’ contention that “there is nothing unusual, unexpected or avoidable” about rising costs of construction or inflation, which are part of the rationale behind the district’s urgency for steeply higher fees: adjusted for inflation, even the district’s current fees–set before the last few months’ sharp increase in inflation–would have to be well above $5,000 to have kept up.
“Everyday news headlines mention that the inflation we are all experiencing is the worst in decades and some say in nearly half a century,” the memo states. “In addition, to claim that there is nothing unavoidable about inflation is puzzling. We invite the HBA to explain how the School District can avoid the increased costs of labor and materials that the rest of the community is experiencing.” The memo uses similarly sharp language to reject the HBA’s claim that the district has not made the case for “extraordinary circumstances” in its request.
Looking at the broader picture, the memo issues a caution much in the terms Mittelstadt herself had used to warn against leaving the district at risk being overrun with students: “It is also appropriate to consider other policy goals, such as a desire to avoid the mistakes of the heyday of the early 2000’s that led to a proliferation of portable, rented trailer classrooms on Flagler campuses.” Finally, the memo returns to the Supreme Court’s 1991 decision to reject the HBA’s claim that there is no “nexus” between the costs imposed by the district’s impact fees and the services returned to those paying the fee–the claim, in other words, that a household must have children in public school to justifiably pay a school impact fee. The court rejected that argument in 1991. Mengel and Moylan rejected it in their Nov. 19 memo: “The Flagler HBA’s assertion oversimplifies the process by assuming that a fee payer is paying for a particular student station in a particular school.”
Joe Mullins, the new chairman of the commission and one of the commissioners who, so far anyway, has resisted the district’s request most strongly, was speaking a different tune today, echoing that part of the memo: “As far as certain fees that people may use, or may not use the impact fees,” he said, “I mean, I’ve had people come up to me and say, I don’t have kids in this district, why am I paying school impact fees? I don’t have a need for senior mills on a youth, why am I paying for that? It’s just the way the government runs, is the way we structured it. So I don’t think you can sit there and pick and choose and argue, win an argument saying, well, we’re not going to use this service. It’s it’s all tied in together. I’m very concerned that I’m in a community living that doesn’t have impact fees. I’ve never been in one.”
The full memo is below.