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Orange County School Board Declares It Will No Longer Enter into CEAs; Developers Must Rely on Joint Approval Process

June 30, 2020

By: Rebecca Wilson, Jonathan P. Huels & McGregor Love

On June 23, 2020, the Orange County School Board voted to approve its “Declaration Relating to the HB 7103 Impact on School Overcrowding Mitigation,” which declared that the School Board will no longer enter into Capacity Enhancement Agreements (CEAs) with developers. Instead, developers must utilize a “joint approval” process from 2004 that has never been used.

The Declaration is the School Board’s latest attempt to reconcile the County’s Charter with HB 7103, which was passed by the Florida Legislature and signed into law in 2019. In Orange County, Capacity Enhancement Agreements were devised as a means of satisfying a Charter provision prohibiting the approval of a developer-initiated comprehensive plan or rezoning for development where school capacity is not available.

Impact fees, also paid by developers, often do not cover the full amount of needed new school capacity. Under CEAs, developers pay the additional amount of needed capacity not covered by impact fees and the School Board certifies that capacity exists for the development.

In effect, HB 7103 eliminated CEAs as a method of meeting capacity created by new development. Under HB 7103, local governments must give dollar-for-dollar impact fee credits for “any contribution” related to public education facilities. As a result, any capacity added under a CEA would be entirely offset by impact fee credits to the developer. In response, the School Board has not entered into any CEAs since HB 7103 became law.

In the Declaration, the School Board declared that it could no longer enter into CEAs to certify capacity because “HB 7103 makes it impossible to mitigate the impacts of school overcrowding from new development that would cause or exacerbate school overcrowding.” Instead, the School Board declared that developers must rely on “the process prescribed by the voters for joint approval of all FLUM and rezoning applications that cause or exacerbate school overcrowding.”

The joint approval process requires developers to receive the approval of all “significantly affected local governments,” which is defined in the County’s Charter as any local government with more than 10% of the student population of an impacted school. The joint approval process has been available since 2004, but has never been utilized.

For more information about the impact of the School Board’s Declaration, contact Lowndes’ Land Use, Zoning & Environmental Group.


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Rebecca

Becky  Wilson is chair of the firm's Land Use, Zoning and Environmental Group. She represents property owners, developers, lenders and other development participants with issues related to zoning, comprehensive plans, concurrency, administrative law, Developments of Regional Impact (DRI’s), procurement issues, due diligence and property rights.


As early as sixth grade, Becky advocated for the causes she believed in. Her concern about nuclear waste and water contamination in her hometown of Dothan, Alabama – and her thorough research – promoted her to press a state legislator with questions in the school auditorium. Having grown up in the South, Becky got in trouble for questioning authority – yet that life experience served her well.

After clerking for a federal judge in Washington, D.C., Becky landed in Orlando, quickly building a reputation at Lowndes for being thorough, outspoken, and a tireless advocate for clients. She ultimately found her niche in land use, collaborating with architects, transportation engineers and local governments to move her clients’ projects – and Central Florida – forward. Becky became one of the youngest female shareholders at the firm. Today, she is Chair of the Land Use, Zoning and Environmental Group.

Her clients include property owners, developers, lenders and other participants in the development of high-rise, hotels, planned communities, large “power-centers,” mixed-use projects, office buildings and big box commercial projects, projects within historic districts, multi-family developments, senior living, and affordable housing. Becky works closely with the local government entities to address the needs of her clients related to zoning, comprehensive plans, concurrency, administrative lawDevelopments of Regional Impact (DRI’s), procurement issues, due diligence, and property rights.

Undoubtedly, Becky’s diligence, activism and Southern charm were responsible in part for her appointment as chair of the Urban Land Institute (ULI) of Central Florida District Council, a global multidisciplinary real estate organization with more than 40,000 members dedicated to the responsible use of land, and creating and sustaining thriving communities.

Jonathan

Jonathan Huels has a broad background in environmental law, land use and zoning. He works with local governments and other federal and state regulatory authorities to address the needs of his clients related to environmental permitting and compliance, brownfields, petroleum and hazardous waste assessment and remediation, zoning, comprehensive plans, concurrency, Developments of Regional Impact (DRI's), golf course and other types of property redevelopment, due diligence, and property rights. 

A member and past chairman of the City of Orlando's Municipal Planning Board, Jonathan is also a past member and chairman of the Orange County Environmental Protection Commission. In addition, Jonathan previously served on the Executive Council of the Environmental and Land Use Section of The Florida Bar from 2014-2020. He is an active member of the Coastal Conservation Association.

Huels holds a bachelor's degree and a master's degree in environmental science from the University of Florida and the University of Idaho. He received his law degree from the University of Florida Levin College of Law.

Prior to attending law school, Jonathan worked as a research scientist with the South Florida Water Management District.

McGregor

McGregor Love assists clients with entitling projects for commercial, residential, industrial, office, and mixed use.


McGregor works with local governments and other regulatory authorities to address the needs of clients related to environmental permitting and compliance, zoning, comprehensive plans, concurrency, site plan approval, variance and waiver requests, due diligence, and property rights. As a member of the firm’s Renewable Energy Group, McGregor assists clients with permitting and development in the growing renewable energy industry. 

With a background in land use and business litigation, McGregor previously worked for other law firms where he focused on the representation of Florida businesses and business investors.

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