MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

January 26, 2007

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in special session on January 26, 2007 at 2:00 p.m. in the Government Center Florida Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairperson Jackie Colon, Commissioners Truman Scarborough, Chuck Nelson, Mary Bolin, and Helen Voltz, County Manager Peggy Busacca, and County Attorney Scott Knox.

 

Also present were:  School Board Chairman Robert Jordan, School Board Members Dr. Barbara Murray, Amy Kneessy, Larry Hughes, and Janice Kershaw, School Board Attorney Harold Bistline, and Superintendent of Schools Dr. Richard DiPatri.

 

 

The Invocation was given by Rob Medina, Commissioner’s Aide to Commissioner Jackie Colon.

 

 

School Board Chairman Robert Jordan led the assembly in the Pledge of Allegiance.

 

 

Chairperson Colon advised the Board of County Commissioners has business it needs to take care of before beginning the joint meeting with the School Board.

 

Transportation Engineering Director John Denninghoff stated the Palm Bay Road Widening Interlocal Agreement with the Cities of Palm Bay, Melbourne, and West Melbourne have been finalized; the County Attorney’s Office has reviewed the Agreements; many people put a lot of work and time in getting this issue resolved; and the documents are ready to be executed.  He advised there are two Agreements with the Florida Department of Transportation (FDOT) that are required to be executed; and those are also attached to the agenda item.  He stated staff has done what it needed to get done to enable the Palm Bay Road Widening Project to move forward this calendar year; and if the bids come in at the expected level construction will begin this calendar year.

 

Chairperson Colon stated the Board is thankful that the municipalities worked together; people said it could not be done; and she advised many hours have gone into this project.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to adopt Resolutions and execute Supplemental Amendment Number 1 of the Locally Funded Agreement

 

 

 

 

with the State of Florida, Department of Transportation, Interlocal Agreement with the
Cities of Palm Bay, Melbourne, West Melbourne, and Brevard Metropolitan Planning Organization regarding funding issues for the Palm Bay Road Widening Project, and Off System Project Agreement with the State of Florida, Department of Transportation, to provide construction funding for the Project; and approve Budget Change Requests necessary to expedite the Agreements.  Motion carried and ordered unanimously. 

 

 

Chairperson Jackie Colon passed the gavel to School Board Chairman Robert Jordan; and stated he will be taking over the meeting at this time.  She requested that everyone at the table introduce themselves to the public.

 

Chairman Jordan inquired is there a concern that needs to be taken care of before going forward with the meeting.  He stated the School Board wants to talk with the Board of County Commissioners to come up with an amicable solution to the problem. He stated there are two governmental agencies, one being the Board of County Commissioners and the other is the School Board; and the law says if there is a dispute, the two entities should come together to come up with a solution before going ahead with legal remedies.  He advised most of the time the people who get the most out of legal remedies are the attorneys.  He stated the concern is that representatives from Odyssey Charter School are sitting at the table with the two Boards; it is nothing personal towards Odyssey; but this meeting is between two governmental agencies.  He stated the Board of County Commissioners and School Board should be able to sit at the table and discuss solutions without having Odyssey Charter School giving input.  He advised if the School Board has a dispute with one of its public schools, the school would not be sitting at the table, and there would be governmental representatives there to try to find a solution.  He noted it is the School Board’s position; it is what he is being told by the majority of his Board; and the issue must be resolved before going forward.

 

Commissioner Voltz stated no one would be present as a group if the School Board had an issue with another public school; it is a unique situation; many of the Board Members will have questions for Odyssey Charter School; and instead of them sitting in the audience it will be easier to have them at the table to answer those questions. 

 

Superintendent of Schools Dr. DiPatri stated it is not about Odyssey Charter School at all; it is about the Board of County Commissioners going outside an Interlocal Agreement; whether it was Odyssey or Palm Bay Academy it does not matter; and the
issue is between two governmental entities.  He advised it is a legal proceeding; the Charter School has no right to sit at the table; the School Board feels strongly about that; and if the two entities cannot have a meeting, it can go to mediation.  He stated the
Board of County Commissioners have had the last year and a half to ask them; the questions should have been asked before the process even began; the Interlocal Agreement and the County Ordinance forbids it; and Odyssey Charter School does not need to be at the table.

 

 

 

 

 

Chairman Jordan stated it does not hurt the representatives of Odyssey if there are questions; and he is requesting a compromise so this can go forward.  Commissioner Bolin inquired if the School Board has an objection if Odyssey Charter School representatives are in the audience; with Chairman Jordan responding no.  Chairman Jordan advised it is a public meeting, but it gives the presumption that Odyssey has the same legal standing as two governmental agencies.  Commissioner Bolin stated the meeting is to get the issue resolved. 

 

Commissioner Voltz stated Dr. DiPatri suggested that there was a violation of the Interlocal Agreement; and inquired if County Attorney Scott Knox will give an opinion on that issue.  School Board Member Larry Hughes stated there is an issue on the table and he will not participate in the discussion if Odyssey is going to be at the table. 

 

County Attorney Scott Knox stated with all due respect to Mr. Hughes, Dr. DiPatri did have something to say about the merits of the issue when the meeting began.  He advised it is the County’s position, that not withstanding the existence of an Interlocal Agreement, the law that was passed in 2004 supersedes that Agreement; that is the end of the story; and once the Legislature says the Board has the authority to make that decision, the Agreement to the contrary, not withstanding that is what the law says.

 

Chairman Jordan stated this is something that will be discussed afterwards.  Commissioner Colon stated it is a difficult issue; everyone feels passionate on both sides; the Board was ready to take action at the last County Commission meeting; and the Board wants to follow protocol.  She advised the reason the Board wants Odyssey at the table is that there were certain comments made by the School Board that contradicted what Odyssey felt had happened, so both sides of the story need to be heard.  She stated Odyssey must be at the table; Odyssey is willing to not be at the table if it will create a problem; and she suggested hearing from a representative from Odyssey to see what they have to say. 

 

School Board Member Murray stated from a procedural standpoint, she has to support the School Board’s view on this, merely because it is in a governmental meeting and it is the representatives of that government; it will establish a precedence in terms of members of the public sitting at the governmental tables in the future when there is a conflict that needs to be resolved; and she advised the County Commissioners or the School Board want to have that happen. 

 
School Board Member Kershaw stated the Board’s are invoking a legal process; this is the beginning to a legal process; and inquired if there are guidelines.  School Board Attorney Harold Bistline responded it is a statutory process; there has already been a meeting with staff, which is required by the Statutes; and this is the second step of the process, which is a joint meeting of the governmental conflicting entities.  He stated the School Board who initiated the process is the primary governmental conflicting entity; the Agenda should be based on the Resolution the School Board passed setting out the issues in the dispute it has with the County; and there are no disputes between the School Board and Odyssey Charter School, which is a private corporation not a

 

 

 

 

governmental entity.  He noted Odyssey does not have a place at the table; it will set a dangerous precedent; and the School Board could have brought fifteen principals from schools in the Palm Bay area and have them sitting at the table, but it did not do that.

 

Dan Taylor, representing Odyssey Charter School, stated he spent 21 years in the Army and he does what he is told; Odyssey representative’s want to see this resolved; they are present at the pleasure of the County and School Board; and Odyssey will do whatever the Board and School Board wishes.

 

Commissioner Voltz stated it is about Odyssey Charter School; the Board will decide if funds will be given to Odyssey today; and there will be discussion of whether or not to give them money.  She stated because the Board is potentially going to make a decision, Odyssey should be present to listen.

 

School Board Member Murray stated she is supportive of charter schools and the work that they do; she feels from a procedural standpoint that the appropriate thing to do is to have Odyssey representatives step away from the table and sit in the front row; and if questions are entertained that Odyssey representatives need to answer he or she can come forward and do so.  She advised that is the procedure at the regular meetings and that is the proper procedure to follow.

 

Chairman Jordan suggested Odyssey Charter School representatives make a decision of whether to stay at the table or leave.  Mr. Taylor advised he and the other representatives are willing to sit in the front row in the audience.      

 

Dr. DiPatri stated it is a legal proceeding, and that Mr. Bistline should explain the situation and purpose of the Agenda.  Chairman Jordan advised there are two Agendas; and it is the School Board’s meeting.  He stated the School Board put the Agenda together; there is another Agenda that came from the Board of County Commissioners; and the correct Agenda should be the School Board Agenda.

 

Commissioner Colon stated County Attorney Scott Knox advised her that the School Board Attorney did not have a problem with the Agenda that was submitted to him; and if the School Board Members are not communicating it is not the Board’s fault.  Mr. Knox stated he submitted a new Agenda to Mr. Bistline and the only objection he received was

having Odyssey sitting at the table; and he assumed that meant that the Agenda was fine.  Mr. Bistline advised that is not correct; the meat of the issues needs to be taken care of; it involves both governmental entities; each of the Attorneys will make a presentation on the legal issues; and then it will be turned over to the elected officials to discuss what, if anything, can be done to resolve this.  He stated the Agenda that the School Board prepared should be used and get into the meat of the meeting and worry about the public comment later.

 

Chairman Jordan advised there are three people who want to speak; he suggested the public comment be taken before discussion ensues regarding the Odyssey Charter School issue; and there will be three minutes for each speaker.

 

 

 

 

 

Bob Williams stated he is a parent of a fifth grader at Odyssey Charter School; his child has been going to that school since Kindergarten; everyone has worked hard to build a new facility; it is a fantastic building; and the money is desperately needed to finish the facility.  He stated the Board has already voted for Odyssey to receive the impact fees; and requested the School Board and Board of County Commissioners award those impact fees to Odyssey Charter School.

 

David Bailey stated he has been a resident of the County for 30 years; the only time he left Brevard County was when his father had a job transfer; and once he was old enough, he moved back.  He stated as a taxpayer he wants to state his concern; he and his wife have two children who attend Odyssey; he is a product of the public school system in Brevard County; and both his and his wife’s parents worked in the School Board system.  He stated Odyssey is a public school; the impact fees are for the public school students; and requested the impact fees be given to Odyssey.

 

Tammy Auk stated she made a choice for her daughter to attend a charter school; she does not understand why it is being called a corporation; and the children deserve the same thing that all the children in the public schools get.  She advised there is no cafeteria because there is lack of funding; athletic fields are needed; and the land was donated to the school.  She requested the Boards agree to go forward and give the money to Odyssey Charter School.

 

Jessica Nichols stated she first learned of Odyssey when she was a student going to school to become an educator; help is definitely needed to see this through; the dream does not deserve to stop; and the school needs the support.

 

School Board Attorney Harold Bistline stated it is the School Board’s position that Odyssey Charter School does not qualify for a diversion of educational impact fees under the Florida Statutes, the County Ordinance, or the Interlocal Agreement between the School Board and the Board of County Commissioners.  He stated it is not about a specific charter school; it is nothing personal; but it is about charter schools and the
relationship between Brevard County and the School Board and the proper disposition of educational impact fees, which are administered by a Joint Agreement between the School Board and the Board of County Commissioners.  He advised the School Board has provided the County with its Conflict Resolution setting forth the reasons why the County cannot divert those impact fees to Odyssey Charter School.  He noted the Interlocal Agreement adopted in August, 2004 between the County and the School Board is a binding agreement that will be violated by the County if it diverts those impact fees to Odyssey Charter School; and the reason he keeps saying Odyssey Charter School is because that is the only charter school that has been awarded impact fees by the County.  He stated the County argues that the Interlocal Agreement was amended by Ordinance No. 05-29, to permit the diversion of impact fees to charter schools, and that is incorrect for the following reasons:  (1) The School Board received no notice that the County was attempting to amend the Interlocal Agreement, which is a violation of the Interlocal Agreement itself; the Interlocal Agreement provides that in the event the County intends to amend the Agreement that it must notify the School Board of its intent,

 

 

 

 

and that never happened; and (2)  Ordinance No. 05-29 by its own terms entitled does not state that the Interlocal Agreement between the School Board and the Board of County Commissioners is being amended.  He advised he has a copy of the Ordinance; if a person looks at the title of the Ordinance there was no mention that it is amending the Interlocal Agreement; nothing in the text of the Ordinance provides that the Interlocal Agreement is being amended by the Ordinance; and Ordinance No. 05-29 does not amend the Agreement regardless of the fact that the Board did not give the School Board notice that it was its intention to do so.  He stated if Ordinance No. 05-29 did amend the Interlocal Agreement, Odyssey still would be ineligible for impact fees under Sections 3 and 4 of the Ordinance as it is written because Odyssey Charter School was not specifically created by the School Board to mitigate the educational impact of any new residential units, which is a requirement of both the Statute and Section 4 of the Brevard County Ordinance.  He advised on page 5 of the Ordinance in the definitional section, “Eligible educational facilities means those facilities or related capital improvements that are necessitated by new growth and development in the benefit district or county and that are (1) under the jurisdiction of the School Board, (2) owned or leased by the School Board, or (3) charter schools approved by the School Board pursuant to Florida Statutes, including those operated by a municipality that have been specifically created to mitigate the education impact created by the development of new residential units.”  He stated it is undisputed that if one looks at the Charter that the School Board granted to Odyssey Charter School in 1999 there is not one mention in that Charter document that that school was created for the purpose of mitigating any residential units and certainly not any specific residential units; therefore, under the terms of the definitional section of County Ordinance No. 05-29, Odyssey Charter School does not qualify.  He advised of Section 4 of the same Ordinance, and quoted a portion of it, as follows:  “All remaining educational facility impact fees shall be
disbursed to the School Board according to the terms of the Interlocal Agreement between the Board of County Commissioners and the School Board unless the Board of County Commissioners has specifically authorized the expenditure of a portion of the remaining fees on the construction of the facility to be utilized by a charter school specifically created to mitigate for the educational impact created by the development of new residential units.”  He advised it goes on to say in the third paragraph of Section A that “Education impact fees shall not be used for the maintenance or operation of educational facilities, for the construction of educational facilities that are required to eliminate existing overcrowding or level of service deficiencies, or for the construction of educational facilities that are not under the jurisdictional or ownership, whether by lease or purchase, of the School Board with the exception of charter schools, including those operated by a municipality created to mitigate the educational impact caused by the development of new residential dwelling units . . . .”  He noted the School Board is the only entity in the State of Florida that can create a charter school; the State, counties, and municipalities cannot create charter schools; the School Board has to create the charter school specifically to mitigate the educational impact caused by the development of new residential units; and that is not why Odyssey Charter School was created.  He stated there is no provision in the Charter School Law that allows for the retroactive application of a statutory amendment to existing charter schools or facilities; and that is exactly what the Board of County Commissioners is trying to do in this case.  He stated

 

 

the diversion of impact fees to Odyssey Charter School will not result in the addition of one more student station in Brevard County, which is the purpose of educational impact fees; and the diversion of impact fees to Odyssey will not result in mitigation of the impact of any new residential dwelling units.  He stated the diversion of impact fees to charter schools by the County will negatively impact the School Board’s ability to plan for residential growth in all of Brevard County; Senate Bill 360 requires the School Board to develop a financially feasible plan to accommodate new residential growth through interlocal agreements with the County and each municipality in the County; and if the student stations are not there then no residential development will be able to occur.  He advised part of the funding for new facilities provided by the School Board are by educational impact fees.  He stated Section 2.4, page 2, of the Interlocal Agreement provides that the impact fees collected by the County and disbursed to the School Board are authorized to be used for the payment of debt service for new construction or for building additions onto educational facilities of the School District; the Agreement contemplates and provides that the School District can utilize those impact fees to pay the debt service on bonds, certificates of participation, or other various financing mechanisms that are available to the School Board to construct new school facilities to handle growth; the School Board relies on that Interlocal Agreement and impact fees to fund the financially feasible seven-year capital plan, which is a part of the Interlocal Agreement process for school concurrency; and if the County is able to add its own option any time it wishes, divert any amount of impact fees to any charter school at any time it wishes for any reason without any coordination, planning, or participation of the
School, it would be difficult for the School Board to rely on impact fee funds to fund the capital improvement plan.  He noted the School Board is present in an effort to come to a resolution of those issues.  He advised Dr. DiPatri and other School Board staff met with County Manager Peggy Busacca and County Attorney Scott Knox in August, 2006 at which time County staff proposed a compromise; it is a proposal that the County loan Odyssey one million dollars and repay itself through the collection of educational impact fees in that district; that would take care of Odyssey Charter School; and the second part of the Agreement is that in the future any instances of charter schools requesting impact fees from the County would first have to have a charter application approved by the School Board as part of the authorization for the charter schools to provide for the mitigation of specific residential growth or units in the County.  He stated the School Board does not believe that the County can shoehorn the Odyssey Charter School situation into the statutory scheme; and if the Board tries to it will violate the Interlocal Agreement and will not be in compliance with its own Ordinance by its very terms.  He stated the School Board has already endorsed the Agreement to the proposed compromise that came out of the staff meeting in August 2006; and he advised it will be a resolution to the case.

 

County Attorney Scott Knox stated the County and School Board are present to negotiate a settlement if possible, but need to go through the legal issues first.  He advised there is an Interlocal Agreement that says all the impact fee money goes to the School Board, and it can spend it any way it wants to; the law in effect at the time the Agreement was entered into did not say anything about the County’s authority to spend money for charter schools, specifically impact fees; after the Agreement was entered

 

 

 

 

into by both parties the law changed; the law changed to say that counties now have absolute discretion to spend impact fees for charter schools; and that was not even incorporated or contemplated in the original Agreement between the two parties.  He advised the Agreement between the two parties has a provision in it that says if the law changes and the County is required to make adjustments in the way it is spending impact fees, it can unilaterally amend the Agreement by Ordinance, and the County did that.  He stated the problem is the County has the ability to follow the law incorporated in the Contract saying it can spend money for impact fees on charter schools; the School Board takes umbrage with that, but that is what the law is; and it will not win on that point at all.  He stated the second issue to be considered is if Odyssey Charter School qualifies for impact fees under the law or Agreement.  He advised there is a provision in the way that lawyers look at things that says that if it is not really clear there is a factual contest and you go to trial and get a judge to resolve the issue; there is enough in the amendment to the Charter that was given to the Odyssey by the School Board to show there is at least an issue of fact created about whether or not that school was created for the purposes of mitigating the impact of a specific development; the amendment refers to Bayside Lakes Development Corporation of donating nine acres of land to the charter
school for the purpose of building a school; it references a partnership with the Bayside Lakes Development Corporation; and the School Board may claim it is not in the Charter, but there is an issue there.  He stated it does not matter if this is being applied retroactively or prospectively; the charter school does not have a cafeteria or library facility; those are facilities that normally go with schools; and the way the law reads is that the County can spend money on charter schools for charter school facilities.  He stated since Odyssey Charter School does not have a library or cafeteria, it is a legitimate expenditure to spend the money for that purpose; the only issue is if Odyssey is eligible under the law; and that is why both the School Board and the Board of County Commissioners are here today so there will not have to be a trial.

 

Chairman Jordan advised the legal side of the issue has been presented by both attorneys; and it is now time to discuss the Odyssey Charter School impact fee request.

 

Commissioner Voltz stated Mr. Bistline said the School Board did not know the County changed the Interlocal Agreement, but in the meeting of August 9, 2006 it was discussed how to deal with municipal and regular charter schools having the opportunity to collect impact fees; and Mr. Bistline stated at that time that the State Statute changed allowing impact fees to be collected for charter schools built specifically to alleviate overcrowding and growth, and the County modified the Ordinance to mirror the Statute.  She stated the Statute says the application for educational impact fees shall include an improved charter school application; and Odyssey did have an approved charter. 

 

School Board Attorney Harold Bistline stated the way he reads that amendment to the Statute is that it was effective June 2005; it is clearly after Odyssey Charter School was created by the School District in 1999; the Statute supports the School Board’s position; and it should come before the School Board first.  He stated after that an applicant comes before the Board of County Commissioners with an approved application that declares it is created specifically to mitigate the impact of specific residential

 

 

 

 

development; the County will then take it to its planning staff to determine if it is something it wants to support; it is clearly the way it is supposed to be; and it is definitely not what happened in Odyssey’s case. 

 

Commissioner Voltz stated if that is the case, Johnson Middle School received $7,670 per student station, Imperial Estates Elementary received $6,300 per student station, Stevenson Elementary received $7,954 per student station, Odyssey Charter School the original award was $4,072 per station.  She inquired how do those other schools qualify and how does it work.  Mr. Bistline responded the School Board has a Capital Improvement Plan; staff recommends to the School Board what facilities need to be built, which ones need to be expanded, and how to pay for it; and as far as impact fees go, the Interlocal Agreement with the Board of County Commissioners provides that there is a committee set up with representation from the County, various municipalities, and the School Board to determine the best way to spend available impact fees in each
service area; a recommendation is then made to the School District on how to expend those fees; the School District approves it or modifies it; and then it is certified to the County and it turns over the impact fee money to the School District to apply in that manner. 

 

Commissioner Voltz inquired if something happens after the School Board has created its five-year plan, how can the County look at concurrency and growth when it cannot apply for impact fees for charter school’s because it is not within the School Board’s five-year plan; with Mr. Bistline responding the way the Statute is set up, if the School District authorizes a charter school to mitigate specific residential growth that is the planning, and then the agreement with the developer comes later.  Mr. Bistline stated the entity levying the impact fee, the charter school, and the County developed that agreement; but the School Board would have already authorized it.  Chairman Jordan stated what the School Board is trying to do with the Interlocal Agreement for concurrency, it has to be flexible and review that plan every year.  He stated the Statute specifically says when there was an application the charter school had to specifically say in its application that it is mitigating its growth.

 

Attorney for Odyssey Charter School Dan Taylor stated he is not sure it is appropriate for Odyssey to speak to how the County or School Board will operate in the future; Mr. Bistline is enunciating for the first time how the School Board interprets the process; and it sounds like it is the first time the County has heard any of this.  Chairman Jordan inquired what is Odyssey’s rationale for the development of the Charter in 1999, and was it to mitigate growth.  Mr. Taylor responded the Amendment was to do that.                    

  

Odyssey Director Constance Ortiz stated the law states, and Representative Thad Altman spoke to it at the first Board meeting, that it is to the extent that a charter school facility is created to mitigate population growth.  She advised she has been to the charter review panel, and has talked to everyone except the President of the United States about this issue.  She stated a charter school must have an approved application; it is clearly written in the law; the representatives that created the law have told her personally that it is the intent of the law; the Contract was amended in October 2003,

 

 

 

 

which the School Board approved; and it stated at the time that Odyssey was accepting a land grant from Bayside Lakes.  She advised she let everyone know that Odyssey was to mitigate population growth. 

 

County Attorney Scott Knox stated the School Board and Board of County Commissioners can go back and forth on legal issues all day; he does not agree with Mr. Bistline on this; he does not think it has to be in the charter application; and if everyone does not get along and quit arguing about it, nothing will get settled.

 

School Board Member Kneessy stated the reason everyone is present is because the two Boards do not agree on those issues; and inquired if everyone can move forward to
see if there is anything that can be agreed upon.  Chairman Jordan responded that sounds good to him; and he wants to be sure the new Board Members understand the situation and what is actually going on.

 

School Board Member Murray stated it is her understanding that the law pertaining to interlocal agreements, concurrency, and that whole piece was put into place so that governmental agencies would be required to work together and come to an agreement that was concerned with community growth and to build schools to keep up with that growth; prior to the law it was such that with the law in Florida that the growth was running away to the extent that school districts could not financially keep up with the growth placing hardship on taxpayers; and the State stepped in and created the Interlocal Agreement and concurrency to alleviate the problem.  She maintained the County and the School Board should be willing to step back when there was a sudden shift and who had control over the impact money; at one point the money was collected by the County and given to the School District to build schools or increase student stations; and then all of a sudden the County took that position and that control over that money.  She advised the issue that has been bashed around for the last hour is pertaining to who will control the money; it will never be agreed upon in meetings of this nature; and each Board Member should agree to disagree and come up with a financial recommendation from both sides that can be lived with.

 

School Board Member Kershaw stated when a charter school amends its contract and talks about building a new facility nothing can be assumed about its intention that it is to mitigate certain residential growth; charter schools exist without boundaries; the schools can take students from anywhere; and it was not clear to the School Board as it was not specifically spelled out in the application that Odyssey was going to a certain location to mitigate residential growth. 

 

Chairman Jordan stated the School Board and Board of County Commissioners came to the table and both agreed to a contract; even if the law changed it should be the spirit of the issue; if there are going to be changes it should be discussed with the other person who signed the contract; it is just out of respect for the other party; and that is what bothered him about the entire situation.  He stated the Board of County Commissioners may have the power to do that, but out of respect for the School Board, who is the other party in the Interlocal Agreement, it should be discussed before anything is done.

 

 

 

 

 

Commissioner Colon stated everyone needs to talk dollars; she has not heard anything different today than what she knew already; both attorneys are on opposite sides; and if everyone cannot agree on a dollar amount, it can go to court.  She advised the children of Brevard County are who everyone at the table cares about; and everyone is in it together.

 

Commissioner Scarborough stated the Board of County Commissioners finds itself in a particularly unique situation; there is one educational institution that approached the Board on a unique issue because the impact fees were passed; it received an Attorney General’s Opinion that stated it may advance funds; the funds are coming from another source to lend to the School to hopefully be paid back by impact fees; and there is consideration beyond the school issue.  He advised normally when the Board does things it is analyzed from a systems basis as opposed to an individual constituent’s basis; and he believes the County has tried to work through everything.  He stated he came today not to understand what he can do, but to understand why the School Board felt that a certain dollar amount was agreeable within a system analysis; it is inappropriate for an elected official to do everything he or she can do without understanding system effects; he or she should do what is right for the greater educational system; and inquired as to the technical reasons why a million dollars is appropriate to the School Board to see if he can support it today.

 

Dr. DiPatri stated the School Board was doing what the law requires; members of each Board’s staff met and talked about the problems; and they came to a compromise.  He stated staff agreed that the school will have to build to SREF standards, which it has not done; the impact fees cannot be spent on operations; and the County will cease and desist from awarding impact fees to charter schools and will follow the Agreement unless it is discussed by both parties.  He stated the School Board wants to compromise.

 

Chairman Jordan stated when talking impact fees it should be looked at on how to serve every child; this charter school is serving a specific number of children; he does not want to leave anyone out; and the School Board’s job is to serve every child in any district. 

 

School Board Member Hughes stated he is pleased that the Board of County Commissioners is present with an open mind and willing to listen to other positions; there are a number of areas that there is a disagreement regarding the law; and there is no agreement on who controls the impact fees.  He stated Odyssey is not built to the State requirements for educational facilities; not that it could not have been or could not be modified to enhance the SREF in the future; he has been heavily involved in the situation; and he is now very confused about the entire scenario.  He inquired if someone can explain what the Board of County Commissioners is asking for and how it came up with a certain amount necessary; Tres’ Holton, Commissioner Aide for Commissioner Helen Voltz, responded the total original amount was approved January 10, 2006.  Mr. Holton stated when Odyssey Charter School first approached the County to apply for fees, he knew that a question of retroactivity would come up in the future by the School Board; he asked if the construction of the facility was complete, and if not was there going to be phased constructions; Ms. Ortiz advised it was so; he asked Ms.

 

 

 

 

Ortiz for a list of those phases and what the cost would be for those constructions; the total amount came to $2.2 million; and it was later amended by the Board of County Commissioners to address the issue for inflation, and that is where the $2.5 million came
from.  He stated there have been a lot of numbers out there kicked around; and it is important that the Board looks at some guidance on where those numbers come from.  School Board Member Hughes stated the $2.5 million is based on some actual costs of projects that were ongoing.  Mr. Holton stated looking at the number of student stations created and multiply by the amount received by the entity levying the impact fee, which is the Board of County Commissioners, it will be approximately the same number.  He advised the statutory body of the Charter School Review Panel, and by State Statute it says the panel shall make recommendations to the Legislature, Department of Education, charter schools, and to school districts for improving charter school operations and oversight.  School Board Member Hughes advised his question was answered.  Chairman Jordan stated he wanted Mr. Holton to answer School Board Member Hughes’ question.  Mr. Hughes inquired how many student stations there are; with Commissioner Voltz responding 550.  School Board Member Hughes inquired how many students are currently enrolled at Odyssey Charter School; with Ms. Ortiz responding as of today 519.  School Board Member Hughes inquired how many are from the new residential units at Bayside Lakes; with Dr. DiPatri responding approximately 54 are from Bayside Lakes.  School Board Member Hughes stated the Board of County Commissioners request is for $2.5 million.

 

Commissioner Voltz stated the Florida Charter Review Panel said the charter school being created is entitled to the total amount of impact fees that are being collected for the number of student stations the school is creating.  She advised the School Board does not have a formula for determining the amount; if Odyssey builds its library and cafeteria it would meet SREF standards; and that cannot be done without the impact fee money.  Dr. DiPatri stated Commissioner Voltz is talking retroactive; and the spaces are there now.     

 

Commissioner Colon stated she is not used to attending meetings where people interrupt; when people speak a person should have the courtesy to let he or she finish; it is nothing personal; everyone wants to make his or her argument; and there needs to be a compromise between the Board of County Commissioners and the School Board. 

 

Chairman Jordan stated the School Board believes legally it is correct; it has to compromise; the next step is to go to court; and the School Board is willing to compromise.

 

School Board Member Kneessy stated charter schools do not count in the level of service; it is a choice school; student stations in charter schools are not included in the School Board’s level of service and database; and it is not personal because charter schools are different.  

 

 

 

 

Chairman Jordan stated the charter school student stations are not the same as public schools because of the law; when the School Board is trying to come up with student stations for the public schools, the charter school student stations cannot be counted by law; and it concerns everyone on the Board.

 

Commissioner Nelson stated the advantage of being the new guy is he has not had to deal with this situation for the past year and one half, and he hopes he can bring some objectivity to it.  He advised it is almost hindsight trying to create a formula that matches up against the dollars; the reality is that no one wants to go to court as it is the worse-case scenario for everyone; the County and School Board end up suing each other; and a solution needs to be found.  He advised he has trouble with the Board of County Commissioners being responsible for allocation of impact fees; it does not have the history and information necessary to make those kinds of decisions; it is similar to asking the School Board to decide road projects; and he can only imagine how difficult it is in terms of schools.  He stated he could support $1.2 million; it is incumbent upon both Boards to solve the problem; and he does not want to be in this position again for this particular purpose. 

 

Motion by Commissioner Nelson, seconded by Commissioner Scarborough, to approve the sum of $1,200,000 of educational impact fees for Odyssey Charter School.

 

 

Commissioner Voltz stated that Commissioner Scarborough advised there are monies the County will give Odyssey which will come from another source; the money does come from impact fees; and the Attorney General advised the County it will be able to get the money back or front the School the money. 

 

Commissioner Scarborough inquired how much impact did the County get from Bayside Lakes so far; with Planning Manager Steve Swanke responding it is up to nearly $500,000.  Commissioner Scarborough inquired how are impact fees coming in from Bayside Lakes at this time; with Mr. Swanke responding there has been a decrease in the dollar volume collected.  Commissioner Voltz advised there are additional units coming on line at Bayside Lakes.

 

School Board Member Kershaw stated she wants to amend the motion that the School Board and County agree as to the process for future charter school applications for educational impact fees.  Commissioner Voltz stated she does not think the School Board can make an amendment to the motion made by the Board of County Commissioners.  School Board Member Kershaw inquired if this is a joint meeting; with Commissioner Voltz responding it is the sole discretion of the County to get the funds.  School Board Member Kershaw inquired if the County votes on one motion and the School Board votes on another, how is that a resolution; with County Attorney Scott
Knox responding he recommends that School Board Member Kershaw’s idea be considered by the County and if one of them agrees with it an amendment to the motion
can be made.  School Board Member Kershaw inquired if it is protocol that the County has one vote and the School Board has a separate vote; with Mr. Knox responding each entity will have a separate vote.

 

 

 

 

Chairman Jordan inquired if that is okay with the County; with Commissioner Nelson responding it is fine with him.  Commissioner Scarborough stated as the second to the motion he is fine with the amendment.

 

Commissioner Bolin stated she wants to discuss a different amount; the County has suggested $2,500,000 and the School Board $1,000,000; and inquired if everyone will be happy to divide it down the middle to come up with $1,800,000.  Mr. Bistline responded when staff from the County and School Board sat together the figure it came up with was $1,000,000.  Commissioner Bolin advised that was staff who met, not the Board.  Commissioner Voltz stated if that is an amendment to the motion she will second it. 

 

School Board Member Kneessy stated she wrote down the three items that the School Board needs to compromise; Odyssey Charter School will need to build to SREF standards; the money cannot be spent on operations, only facilities; she wants the County to cease and desist from awarding impact fees to charter schools; and the Agreement will be followed unless both parties sit down and amend it.

 

Mr. Bistline stated the issue with Odyssey is important but more important is how it will go in the future; a letter was sent to County Manager Peggy Busacca that was dated September 29, 2006; it outlines what was agreed to at the meeting with County and School Board staff; and in paragraph two it speaks to the future.

 

Commissioner Colon stated the County runs the show, not staff; and staff is only sent out at first to try to compromise.  She stated the motions should be separate; the amount needs to be compromised; the most crucial part is how things will go in the future; the School Board is concerned because whatever decisions the County makes sets precedence; and the discussion today is regarding the Odyssey situation.  She advised everyone cares about the children; there has to be a compromise between the two numbers; and she advised she thinks the two Boards are almost there.

 

Chairman Jordan inquired if both the person who made the motion and the second are fine with the amendment made by School Board Member Kershaw; with Commissioner Nelson and Commissioner Scarborough responding yes.  Commissioner Bolin advised she made an amendment to the motion regarding the amount. 

 

Mr. Knox stated it will be a vote on the amendment by the County because if it cannot agree there is no point for anyone else to try to agree on it.

 

School Board Member Kershaw stated everyone is talking about past history and memorandums that were dated in September 2006; it was a different Board of County Commissioners and School Board; and it will be whatever an individual feels as there are different Board Members. 

 

Commissioner Colon inquired if $1,800,000 is too high of a number; stated the County should ask the School Board if it is a number it is comfortable with; an amount should be discussed that is fair; and the Board may need to come down from the $1,800,000. 

 

 

 

 

Commissioner Scarborough stated the School Board is the expert; the County should take its word for it; $1,200,000 is something it will discuss; but not a single School Board Member mentioned $1,800,000 today.  He stated it is frugal to prolong the discussion and will make it more difficult for everyone. 

 

Chairman Jordan stated this needs to be voted on and needs to go forward; the School Board is open for compromise; and $1,800,000 is probably too much.  He advised the School Board may be comfortable with $1,500,000; it is only his opinion; but he feels comfortable with that number. 

 

Commissioner Bolin withdrew her motion.  She advised she will amend her motion to $1,500,000.  Commissioner Nelson accepted the amendment. 

 

Chairman Jordan called for a vote on the motion as amended.  Motion carried and ordered unanimously.

 

 

Chairman Jordan advised the School Board will need to make a motion. 

 

Motion by School Board Member Kneessy, seconded by School Board Member Murray, to approve $1,500,000 of educational impact fees for Odyssey Charter School.

 

 

School Board Member Hughes inquired if someone can explain to him how the County came up with $1,500,000 and where do the components come from; with Chairman Jordan responding his assumption is to use part of what staff came up with as far as how the money will be given to Odyssey Charter School and how the County will get the money back.  Commissioner Voltz stated there is no formula; and that is why the two entities are meeting to compromise.  Commissioner Voltz advised there will be 1,200 additional units coming on line so there will be plenty of money.

 

School Board Member Hughes stated he is looking for quantitative rather than warm and fuzzy; and if the million and one half is going to be pulled from the existing money that is there then it may impact projects that are ongoing that are counting on those existing
impact fees.  Dr. DiPatri responded Mr. Swanke gave a figure of $500,000; and as new homes are built it will go towards paying back the balance of the money.  School Board Member Hughes inquired if there is still enough undeveloped property in Bayside Lakes to accommodate the balance; with Commissioner Voltz responding with 1,200 units at $445 per unit will make the money short to Odyssey if $1,500,000 is agreed upon.  School Board Member Hughes inquired why the number is $1,500,000 and not $1,400,000 or $1,600,000; with Chairman Jordan responding it is a compromise.

 

Commissioner Nelson stated the alternative is to go to court, and no one wants to do that.  School Board Member Hughes stated the County and School Board are contemplating paying $1,500,000 to avoid going to court but are still no closer in terms of

 

 

 

 

 

having a process to address the next guy; there still is no process to deal with this; the number is not based on any sort of a formula; it is not based on the number of students; and it will set a dangerous precedent in the future.

 

Mr. Bistline stated if the School Board is comfortable with the $1,500,000 it should approve it contingent on the Board of County Commissioners agreeing to the second part. 

 

School Board Member Kneessy amended her motion to add following the process that was outlined in the September 19, 2006 memorandum from the School Board.  Chairman Jordan stated basically the motion is to agree to the $1,500,000 million contingent on the Agreement, and to go by the process in the September 19, 2006 memorandum.

 

Commissioner Voltz inquired why Odyssey Charter School will be going with the 9/13 and none of the other schools go with that formula.  School Board Member Kneessy responded they are only dealing with the $1,500,000.  Commissioner Voltz stated the School Board was talking about the second part of the memorandum.  School Board Member Kneessy advised the second part is that Odyssey builds to SREF standards.  Chairman Jordan stated the discussion is about paragraph two of the memorandum. 

 

Commissioner Nelson stated it is the repayment the County is putting on itself so it does not take all of the impact fees; and the County is taking 9/13 of the impact fees that come in from that area to repay itself.  Commissioner Voltz stated it is putting a formula of 9/13 on Odyssey Charter School.  Commissioner Nelson stated it is only on the repayment of the loan.

 

Chairman Jordan called for a vote on the motion.  Motion carried and ordered; School Board Member Hughes voted nay.

 

 

Mr. Bistline inquired if the motion included paragraph two of the memorandum dated September 19, 2006; with Commissioner Voltz responding yes.

 

Motion by Commissioner Nelson, seconded by Commissioner Scarborough, to adopt paragraph two on the Board’s behalf in terms of the Agreement between the School Board and the County. 

 

 

Commissioner Voltz stated she is not sure how that will impact the County; it has the sole discretion of giving impact fees and should not give away that authority;
Commissioner Nelson mentioned the County should not have authority; it needs to have authority as it is responsible for advising a developer of how many student stations may be needed; and that is its responsibility.  Chairman Jordan stated it is not the County’s responsibility.  Mr. Knox advised paragraph two basically says that the County cannot

 

 

 

 

 

divert educational impact fees to charter schools unless the charter school has been approved specifically for mitigation for new residences; it will retain the authority to award impact fees; but it will give great weight to School Board recommendations.

 

Mr. Bistline stated the amount of the impact fee, once it is approved by the School Board, will go forward to the County with the School Board’s recommendation, which is consistent with the Statute. 

 

Commissioner Voltz stated the student stations given to other schools were much greater than those for Odyssey; and that is the part she does not understand.  Mr. Bistline advised the County has the ultimate decision based on paragraph two on how much, if any, impact fees it gives to a charter school that has come through the process.  Commissioner Voltz advised she is talking about public schools.  Chairman Jordan stated it is not the County’s purview.  Commissioner Voltz advised the County gives the School Board the money.  Chairman Jordan stated when the School Board gives a recommendation it will be up to the Board of County Commissioners to decide whether or not it wants to agree or not.  Commissioner Voltz advised the per student station dollar amount is much higher than what it is for a charter school; and she has a problem with that.  Dr. DiPatri stated the number comes out of a committee, which has representation by the County, School Board, and all municipalities in that benefit district; the School District is building new buildings and additions; it is all new stuff; and it is part of the School Board’s capital plan it is working towards.  Mr. Bistline advised Dr. DiPatri is confusing the impact fee with the cost of building.  He stated the School Board awards the impact fee; the committee divvies it up as to how to spend the money; the District goes out to bid; and one student station may be $7,000 at one school and $4,000 at another.

 

School Board Member Kneessy inquired if everyone is agreeing to follow the process; with Commissioner Voltz responding as long as the County knows what the process is.  School Board Member Kneessy inquired if there will be a surprise award to charter schools; with Commissioner Voltz responding not at this point.  School Board Member
Kneessy inquired if the County is going to trust the School Board to take care of schools; with Commissioner Voltz responding as long as it trusts the Board of County Commissioners to run the County.

 

Chairman Jordan called for a vote on the motion.  Motion carried and ordered unanimously.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Upon motion and vote, the meeting adjourned at 4:12 p.m.

 

 

 

 

ATTEST:                                                        

                                                                        ________________________________

JACKIE COLON, CHAIRPERSON

                                                                        BOARD OF COUNTY COMMISSIONERS

                                                                        BREVARD COUNTY, FLORIDA

___________________

SCOTT ELLIS, CLERK

 

 

     (S E A L)