Note: this is the second of two articles on today’s ILA meeting. See the first part here.
Michael Chiumento III, the powerful land-use attorney who represents many developers and home builders, wanted local governments to say to the school board: “enough.” Instead, it was Flagler County School Board member Colleen Conklin saying she’d had enough of Chiumento.
The long-simmering tension between the school district and home builders surfaced today as Conklin addressed it directly, challenging the way developers, through Chiumento, have sought to influence public policy in the county and on the school board.
On July 31, Chiumento sent a lengthy email to a dozen and a half people that was sharply critical of the school board over the more than year-long struggle to set new parameters for school-construction financing, and builders’ responsibility in that.
“We all know that the District has entrenched itself on the notion of being right regardless of the truth, the law or the data,” Chiumento wrote in a tone that prevailed over most of the email–a statement the district obviously disputes–and that ended with an open threat of countersuits and depositions if the district litigated the issue.
Chiumento’s sharply critical statements aside (see the full email and the district’s response below the article), something else rankled Conklin. The email went to major developers like Jeff Douglas, David Haas and Ken Belshe, to Don Toby, a Realtor who runs the Realtor and development-friendly GoToby.com site (and is a business partner of Palm Coast Mayor David Alfin’s), to the executive director of the Flagler Home Builders Association, and to Palm Coast, county and Bunnell officials. But it did not go to a single school district official.
Chiumento told the government officials to draw a line in the sand and and outlined a plan of action to counter “all the other machinations of the District’s concepts that can never be reliable or believable.”
The email does not appear to have affected the officials, who met today and agreed to what could be a resolution of the issue through a compromise that splits the difference. The committee gathers elected representatives from all local governments and the school board, who have been involved in the discussions for over a year. But Conklin, who never mentioned Chiumento by name, did not want to let the behaind-the-scenes maneuvering go unnoticed.
“This is not the first time that this has happened,” Conklin told the oversight committee members at the end of today’s meeting. She distributed a packet of materials, including the Chiumento email. Chiumento had been in the room earlier in the meeting, but had left by the time Conklin distributed the material, and before the committee’s breakthrough.
“So I think it’s important for it to be brought to light,” Conklin said. “When emails are shared by legal representation of developers, with everyone on this committee, with the exception of the school board, it is inappropriate. And it is not just the first time it has happened. It has happened multiple times, and it is not appropriate. And what you have in front of you is a document where staff has had an opportunity to respond to some of the comments and statements that are being shared and stated again and again, and they’re simply wrong.”
School Board member Janet McDonald had raised similar concerns about the Home Builders Association and Chiumento having a de-facto place at a table that she says should only include members of the oversight committee. The issue McDonald and Conklin were raising is illustrative of the dynamics that have undergirded the lengthy conflict between the school board and the county over developers’ responsibilities, with developers and builders either using the county as proxies or doing their bidding directly, at public meetings.
Since 2021 the Flagler County School Board has been against ropes woven by county government, braided by Palm Coast and Bunnell, and pulled by builders in a dispute over when builders and developers should pay for the money they owe to defray the cost of new school construction.
The dispute was triggered by the County Commission’s decision to rip up the mutual agreement the county, the school board and three cities agreed to in 2008 and force the writing of a new one. The 2008 agreement had set out the method by which builders and developers paid. It had its flaws. The approach was fragmentary rather than comprehensive, leaving the district drafting individual agreements with different developers, and developers not knowing what sort of agreement they might get. The new approach standardizes the method. Until today, the school board, the county and Palm Coast differed over the timing of builders’ payments. That now appears to be on its way to a resolution. (See today’s earlier article, “Solution in Sight in Months-Long Conflict Over School Construction as Halt to Big Developments Looms.”)
Builders have disputed the district’s projections of growing student enrollment in coming years. The district has pushed back, with plans to build an expansion at Matanzas High School and a middle school and a high school toward the middle and later part of the decade. Existing residents are not affected by the issue, which focuses on school impact fees developers pay when they put up new homes, a cost passed on to buyers of those homes–presumably, future residents.
Neither existing nor future residents have attended any of these meetings for months: existing residents aren’t interested, future residents haven’t yet materialized. But the school district, the county, the builders and Chiumento have claimed to be speaking for residents, present or future, a contention Conklin and McDonald have refuted: builders speak for builders, they say, and should not have a privileged role in the local governments’ discussions or negotiations.
“Given the District’s rhetoric that they are transparent and desire public participation, I am surprised they are opposed to public participation if it questions their policies and actions,” Chiumento wrote in a statement after today’s meeting, in response to Conklin’s stance. “I am disappointed that Mrs. Conklin chastised taxpayers that may oppose the District’s demand for more money from the public in light of the numerous mistakes or misrepresentation by its staff. It’s a shame but we will continue to help our community’s education system improve from the most recent decline in its state grade.” (Chiumento was referring to the district’s return to a B rating after getting its first A rating in many years, just before Covid, when for two years districts were not rated.)
Conklin this morning was just as critical of a reference in the Chiumento email to the school district’s half-cent sales surtax, up for renewal on the November ballot.
In the email, Chiumento disputed the district’s authority to stop development if it doesn’t have in place the sort of agreement it is seeking, with mitigation measures spelled out. So the county should go ahead with an agreement of its own regardless. “And, if the District desires to file some action attempting to enjoin the local governments from doing so,” Chiumento wrote, “they will be faced with many unintended consequences such as adverse impacts to the ½ Cent Sales Tax, a counter suit against their impact fee study, a counter suit to return impact fees it has collected for decades without the necessary expenditures, depositions of their staff and their methodologies, and more.”
The half-penny sales surtax initiative has been in place for the past 20 years and generates millions of dollars for the district to supplement its technology, safety and other programs. On more than one occasion previously, district officials have bristled at suggestions, either by the county or by others, that the district should be more focused on successfully passing its half-penny referendum, and garnering positive headlines toward that end, than on risking failure by focusing on the impact fee and school construction issue. District officials refute the connection–or the implication of a connection between the two. Conklin refuted the connection again today.
“I want to make that very, very clear,” Conklin said. “It is nobody who is part of what I will say is this team. It is coming from outside, and it’s not appropriate. And the threat of doing anything in relation to the halfpenny as hanging anything over anyone’s head is just inconceivable.”
She said the Chiumento email was finally shared with the district only earlier this week. She acknowledged the professionalism of the staffers in the working group, naming Deputy County Attorney Sean Moylan in particular, but rejected the implication that the school board or the district were the outliers in the ongoing negotiations, as stated in the Chiumento email. (County Commissioner Andy Dance at today’s meeting seconded Conklin, saying it’s the school board that’s been making all the concessions).
“We have said repeatedly: we want to be a part of the solution. We’re not looking to be a problem child in the conversation,” Conklin said. “But the emails have got to stop. The counsel from outside that is not the counsel of each of our entities, has got to stop. It is not appropriate. It is not fair and it’s unprofessional. And so I would just kindly and respectfully ask, as this hopefully is now coming to a close, that we complete this process without outside influence.”
The full Chiumento email email appears below, with the response from the district’s Patty Bott. Chiumento’s words are in normal type. Bott’s responses are in italics. Chiumento’s part was written on July 31. Conklin circulated the version with Bott’s responses today in printed form, including the Saralee document Chiumento refers to, with Bott’s responses in the body of the document, in red. That document, with the red inserts, may be read here.
Over the past 20 months, we all have worked on this issue trying to get the School Board and its staff to understand the perspective of the public. To this date, I assert that the District has taken no interest in learning, understanding or finding a happy medium. In fact, I believe the District has done nothing but entrench itself in its opinion despite not being founded on data but rather “belief”.
The School District has included the Development Community as well as Realtors, the Chamber, Builders, and any other interested parties in multiple work sessions regarding the Impact Fees and the School Concurrency ILA and has made adjustments on both documents based upon input.
In that light, please find attached a Final Report from Saralee and myself for you review. At the executive summary level it shows (using District and DOE data) that:
- The District has not experienced real growth since 2017 despite the population growth and housing permits issued;
Flagler School Enrollment from October 2020 to October 2021 increased by 417 students that were enrolled on the FTE date. This is just the beginning of the new students that will be coming from the substantial new development.
- The District chose to ignore its prior expert’s opinion, the Davis Group, projecting a small increase in student enrollment over thru Note, the District in June 2020 adopted a 5 year capital work plan with out a single dollar spent on new students stations.
The Davis Demographic Study utilized data from October 2019. Since that date, and excluding the development data they used, there are an additional 15,887 residential units seeking capacity that equates to 2,793 additional student stations. This also does not include the average 150 permits being issued a month, for the last 18 months, for the infill, ITT, lots.
- The District grade levels are shrinking which is why there is about a 30% vacancy in the elementary schools. By this math, the District’s base enrollment population is decreasing with only a modicum of in‐migration In sum, the District will actually see less enrollment in the future given the students presently enrolled in each grade as they matriculate through highschool.
There is increased capacity at the elementary schools because the School Board decided to move 6th grade to the Middle Schools. This changed the elementary schools from a combination school to elementary which automatically provided 10% more capacity. We were previously over capacity at the elementary schools.
- The District manipulates the 5 year capital improvement plan keeping funded projects (the Matanzas Expansion) in the 4th year so that it can assert the need for mitigation. Remember, they already started the design and have told everyone they intend to pay cash for it using 100% impact In this light, it should be in the 2d year and not used to assert mitigation. This tactic is violation of law.
The Matanzas addition is more of an equity project to be sure that the two high schools are providing similar programs. It happens to provide additional capacity as well. However, the high schools will still be over capacity as the current deficit of high school student stations is 699. When planning we look at current enrollment plus the student stations reserved by new Development.
- The Districts assertion that it will need 3d Highschool in 2027 is unfounded and would require more than 1000 new highschool student between now and 2025/26. Presently, the District has more than 600 vacant highschool seats (if you include the Matanzas HS expansion). Moreover, they assert to charge mitigation despite not being in the 5 year capital improvement plan…a violation of law.
Again, we are planning based upon the new Development coming in. (see attached spreadsheets)
- The District staff informed its Board last Tuesday that it will have more than 3000 new enrolled students in the next 5 years.
Projections that the School Board uses are based upon the build out schedules provided by the Developers. We understand that these can change, and update this on an annual basis.
- ETC, ETC,
Unsure what ETC., ETC., ETC. references.
We all know that the District has entrenched itself on the notion of being right regardless of the truth, the law or the data. We have all seen how District staff will manipulate words, the law, and data over the past 20 months. We have all seen how they avoid the hard questions like… “how much more money do you need” (Sullivan, Nov 2021 BOCC mtg). In summary, the District is entrenched that it needs more money from our residents and business without single piece of evidence to support such other than “belief”. Each of you took office with the belief to hold government accountable and protecting the tax payer’s money.
Proportionate Share Mitigation is not more money. It is paying a Development’s proportionate share earlier so that new school capacity can be planned for the students coming from the new developments.
The County, the City and the business community have held many meetings and collectively have spend more than 1000 hrs on this issue all with the hope that the District may show an interest in our questions, opinions, data and proposals. That has not happened. And, I assert, it will not happen. Therefore, its time to put this matter to rest and move on to the more important issue…the ½ Cent Sales Tax Renewal.
The School Board is an active member of the Working Group along with the County and the Cities. All parties to the School Concurrency Interlocal Agreement have taken into consideration comments from all outside sources, and have been working together to come to a common ground on many issues.
On Monday, the County, Palm Coast and Bunnell must come together and simply say enough. You all must come together and draw a line in the sand and call the question. That conclusion must be adopting a new ILA that meets the requirements of the law for which the District shall enter into. This Base ILA should not have mitigation, concurrency, or all the other machinations of the District’s concepts that can never be reliable or believable. The District asserts that if that Base ILA is adopted, it will shut down growth and building permits.
Unfortunately, without a current ILA the statute does not allow new development, unless there is available capacity. In addition, without concurrency, there is no mechanism for a new development to pay and go. This is not something the School Board wants to occur. We would prefer that the Board of County Commissioners extends their deadline to cancel the current ILA, until all parties to the ILA can reach a final agreement.
We all know that is not the case. And, if the District desires to file some action attempting to enjoin the local governments from doing so, they will be faced with many unintended consequences such as adverse impacts to the ½ Cent Sales Tax, a counter suit against their impact fee study, a counter suit to return impact fees it has collected for decades without the necessary expenditures, depositions of their staff and their methodologies, and more.
We don’t believe that anyone in the County wants to go through litigation, but the School Board is confident that the data they have, and the studies that they have obtained are accurate and appropriate.
Please help us all by adopting the Base ILA on Monday. If the District desires to have more and elects to fight despite a 51% increase in its impact fee and more than $30M in cash, it will do so.
Any agreement to and School Concurrency ILA will need to be agreed upon by all five parties to the ILA: Flagler Beach, Flagler County, Bunnell, Palm Coast, and the School Board.
On behalf of my clients and the businesses that spent hundreds of hours on this over the past 20 months, we thank you. We look forward to an expedited conclusion to this matter.
The School Board, County and Municipalities have also spent hundreds of hours on this issue to assure that our County and our Schools are prepared for the future.