Alternative micro-school fails to meet zoning laws

Tia Howard wanted to start her own micro-school. So, she contracted with a curriculum provider, found a piece of rural residential land, signed a contract and made a $5,000 deposit.

But Howard soon found Pinal County’s zoning code does not account for micro-schools. And per an interpretation from the county, a micro-school would be barred from rural residential land as it does not fall under the county’s definition of a “school.”

Micro-schools emerged as an alternate educational option, with many operators utilizing the universal Empowerment Scholarship Account (ESA) expansion to start schools at home or in other residential or commercial spaces.

But the micro-school model, which can take shape as a charter, a private school, an ESA vendor, or a combination of all three, often fails to fit squarely into one category in zoning ordinances. And the lack of clarity in the law puts micro-schools in limbo as operators breach various zoning codes, often without realizing it.

“My guess is there’s probably a lot of people who are violating a lot of zoning laws right now,” Paul Avelar, attorney for the Institute for Justice, said. “Simply because no one even noticed what they’re doing. Because what they’re doing is perfectly harmless. And yet, it’s still somehow illegal.”

Avelar, on behalf of Howard, asked Pinal County for a formal interpretation of the code in a letter to the Pinal County Board of Adjustments and Appeals. He argues micro-schools should fit into the broader “school” definition set by Pinal County.

“But if that’s not an interpretation that they share, then we’re going to have to work through the various ways in which these zoning codes essentially make it impossible for people like Tia to run a micro-school,” Avelar said.

Howard has been involved in micro-schools for more than a decade. Before moving to Arizona in 2020, her children were involved in myriad alternate education models in Alaska, including home school, co-ops and a home school charter partnership through the Anchorage School District.

She sought similar options for her youngest two children in Arizona and found Prenda, a curriculum service for micro-school providers. Howard received training through Prenda and taught a micro-school of about a dozen students at a performing arts academy in Gilbert.

But she wanted something suited to her youngest son, particularly to cater to his love of basketball.

So, she looked into starting a micro-school of her own.

Howard did not want the school to be at her home, so she sought a single-family home free of a homeowner’s association through which to operate the school.

And she found one, a house close by, located on unincorporated general rural land just outside of Mesa.

She entered a contract and made a $5,000 deposit, assuming a micro-school would fly under Pinal County’s code.
Pinal County’s code for general rural land allows “public and quasi-public uses” and includes “school” as an allowable use, along with churches, museums, libraries and parks, among other uses.

But in a meeting with senior county planners, they clarified “school” only applied to public schools. Howard planned to operate as a private school, with a particular reliance on ESA dollars to do so.

To operate as a private school, Howard would have to have at least five acres of land, among other requirements. Avelar pointed out a state law passed in 2018 would preempt the acreage requirements, but the problem of the school classification still remained.

The county offered two alternative options, to either operate as a charter school or operate the school out of her own home. But her HOA did not allow home-based businesses.

And if she were to run the school out of the home she purchased on general rural land, under Pinal County code, she would have to live in the school site full time and would only be allowed to take on a maximum of two students at one time and five in total.

Howard and Avelar have yet to see a response to their request for interpretation from the county.
Valerie Lujan, a planner with Pinal County Development Services, said in an email, “as it is currently written, the Pinal County Development Services Code does not acknowledge Microschools.”

Pinal County is not an anomaly.

Terrill Tillman, a planner with Pima County Development Services, said in an email the board had not seen any inquiries on how zoning laws apply to micro-schools, nor deal with micro-schools in any capacity.

But she guessed micro-schools would likely fit into a public, private or charter school category given they meet the given requirements.

But if a Pima County micro-school is based in someone’s home, it would be held to the same restrictions as a home occupation. Like Pinal, a micro-school operator would only be allowed to serve no more than five “clients” or students in a day, with no more than two at a time.

Maricopa County makes the distinction between “clients” and “students” but again holds the “number of students on the premises shall not exceed five at any time,” in home-based schools in single residential zoning districts.

In rural areas, though, micro-school operators would be in the clear as Maricopa County incorporates private, public and charter schools into their general definition of “school” and allows their operation on rural land.

Fields Moseley, communications director for the county, said the county had also not dealt with micro-schools. He confirmed restrictions on home-based businesses, but added that “an owner could operate a school beyond those limits in a residential zone, but the building would have to meet commercial construction requirements.”

Avelar hopes Pinal County interprets the code in line with Maricopa County and argues barring a school based on differentiation in funding poses some constitutional concerns. He points out churches do not receive public funding yet are considered a “public and quasi-public” use, making the distinction in Howard’s case “arbitrary” in his view.

In the letter to the county, Avelar said he and Howard are prepared to challenge a splintering interpretation in court.
Avelar said Howard’s situation opens a wider question on the future of micro-school regulation, especially as the conversation enters the minutiae in city, town and local zoning ordinances.

He noted potential for statewide and local reform in making way for micro-schools in zoning and land use codes, but he acknowledged challenges ahead. Namely, the roving definition of a micro-school given the many forms it can and will take.

“Part of the beauty of the ed choice movement with ESA here in Arizona is it has facilitated that sort of fine-tuning, mixing and matching so that different programs work for different kids,” Avelar said. “The micro-school movement, if there is such a thing, has been against hard and fast definitions. Because once you define something you kind of force a structure on to these things and forcing structure on these things may in fact, be totally counterproductive.”

In the short term, Howard hopes her search for clarity from Pinal County allows her to go forward with her micro-school.

“We’re really hopeful,” Howard said. “We’re really hopeful that these kind of questions and concerns will inspire counties to revamp their codes, to rewrite them to reflect what’s actually happening in education in Arizona.”