AGENDA #1
MEMORANDUM
TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
SUBJECT: Public Hearing: Development Ordinance Text Amendment - Adequate Public School Facilities
DATE: February 19, 2001
INTRODUCTION
This Public Hearing has been scheduled for the Town Council to consider a Development Ordinance text amendment. The proposal would create an Adequate Public Facilities Ordinance for schools in the Chapel Hill/Carrboro City Schools District.
The latest series of Council discussions of Adequate Public Facilities Ordinances began in November of 1998. At that time, the Council asked for a report and possible ordinance language that could be considered at a future public hearing on the topic of Adequate Public Facilities Ordinances.
February 1999 The Town Council considered a staff report on the topic. The report offered background documents and presented three sample ordinances. The Council called a Public Hearing for May 17, 1999, to consider a set of draft ordinances.
May 17, 1999 The Council considered a set of draft ordinances.
October 18, 1999 The Council held a Public Hearing for additional discussion of alternative draft ordinances that were considered in May 1999.
Meanwhile, on an unrelated but parallel track, approximately three years ago, the Schools and Land Use Council was formed. The purpose of the group was to discuss issues related to school location, school capacity, land use issues and new development proposals. A primary function was that of information sharing. The Schools and Land Use Council is made up of elected representatives from the Chapel Hill Town Council, the Carrboro Board of Aldermen, and the Orange County Board of Commissioners.
From this group, a concern arose that capacity of schools historically has not kept pace with development in our two school districts. The group formed a technical committee to develop a draft, county-wide Schools Adequate Public Facilities Ordinance. The technical committee was made up of attorneys from each jurisdiction as well as the two school systems, the Planning Directors of the three jurisdictions, and the Facility Planners from the two school districts. The technical committee met over the course of a year. The product of the committee included two pieces: A proposed Memorandum of Understanding and the draft Ordinance.
Orange County has taken the lead on the proposal. The County held a Public Hearing for consideration of the proposed regulations on November 27, 2000, and has transmitted the Memorandum of Understanding and Draft Ordinance to the other boards (copies attached).
On December 11, 2000, the Town Council called the Chapel Hill Public Hearing for consideration of the proposed regulations for tonight.
THE PROPOSAL
The attached Memorandum of Understanding is a proposed agreement between the County, the Chapel Hill/Carrboro City Schools, and the municipalities of Chapel Hill and Carrboro supporting this cooperative approach which includes the adoption of the proposed Adequate Public Facilities Ordinance for Schools.
The attached draft Adequate Public Facilities Ordinance for Schools is a development regulation tool which proposes to synchronize new residential development with the availability of school facilities. The draft Ordinance proposes to pace growth by impacting the timing of development such that the growth matches the availability of school facilities as noted in the school district’s Capital Improvement Plans.
The proposed Adequate Public School Facilities text amendment would:
· Include provisions in our Development Ordinance that require that applications for new residential development provide a Certificate of Adequacy of Public School Facilities with the submittal. Applications requiring submittal of a Certificate of Adequacy of Public School Facilities would include Major Subdivisions, Minor Subdivisions, Site Plan Approvals and Special Use Permits which propose residential development.
· Require that a Certificate of Adequacy of Public School Facilities is to be requested from the Chapel Hill/Carrboro School Board. The Memorandum of Understanding addresses the allowable capacity for the district.
· Allow a Certificate of Adequacy of Public School Facilities to run with the land (it could not be transferred to another parcel).
· Require that a Certificate of Adequacy of Public School Facilities, once issued, shall expire unless the developer submits, and the Town accepts as complete, an application within 90 days and the developer receives the requested approval within two years of the date of the Certificate.
· Provide the Town Council with the authority to grant special exceptions.
· Provide the Town Council with the authority to review the denial of a Certificate request by the School District.
We recommend that the effective date of a new Adequate Public Facilities Ordinance for Schools be:
RECOMMENDATIONS
Planning Board Recommendation: The Planning Board considered these items at a meeting on February 6, 2001. The Board voted 6-2 to recommend that the Council not adopt the attached Memorandum of Understanding or the attached Ordinance. Please refer to the attached Summary of Planning Board Action.
Manager’s Preliminary Recommendation: We recommend that the Town Council adopt the attached Memorandum of Understanding and the attached Ordinance regarding adequate public school facilities.
Attachments
SCHOOLS ADEQUATE PUBLIC FACILITIES
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding is entered into this _____ day of _________, 2001, by and between the Town of Carrboro, the Town of Chapel Hill, Orange County, and Chapel Hill-Carrboro City Schools.
WHEREAS, the portion of Orange County, served by the Chapel Hill-Carrboro School District has for the past decade been experiencing rapid growth in population; and
WHEREAS, the responsibility for planning for and constructing new school facilities lies primarily with the Chapel Hill/Carrboro School District, with funding provided by Orange County; and
WHEREAS, Chapel Hill, Carrboro, Orange County and the School District have recognized the need to work together to ensure that new growth within the School District occurs at a pace that allows Orange County and the School District to provide adequate school facilities to serve the children within such new developments;
WHEREAS, parties have worked cooperatively and developed a system wherein school facilities are currently adequate to meet the needs of the citizens of the county and will continue to maintain a Capital Investment Plan (CIP) that is financially feasible and synchronized with historical growth patterns;
NOW, THEREFORE, the parties to this memorandum hereby agree as follows:
Section 1. The parties will work cooperatively to develop a realistic capital facilities program for the construction of schools such that, from the effective date of this Memorandum;
a. No school level (i.e. elementary, middle or high) is more than
1. Elementary School 105% of Building Capacity
2. Middle School 107% of Building Capacity
3. High School 110% of Building Capacity
(if number of schools within a level is very low the district may initiate a higher percentage limit and step down in percentage to the number above as new schools open)
b. The term “the school districts building capacity” will be determined by reference to State guidelines and the school district guidelines (consistent with CIP School Construction Guidelines/policies developed by the school districts and the Board of County Commissioners) and will be determined by joint action of the School Board and the Orange County Board of Commissioners. As used herein the term “school districts building capacity” refers to permanent buildings. Mobile classrooms and other temporary student accommodating classroom spaces are not permanent buildings and may not be counted in determining the school districts building capacity.
c. The capital facilities program shall utilize a projected growth rate for student enrollment agreed upon by the parties, which growth rate may differ from one school level to another. (i.e., number of students per level per year.)
Section 2. The towns and the county will adopt amendments to their respective ordinances, in substantially the form attached hereto as Exhibit A, to coordinate the approval of residential developments within the School District with the adequacy of existing and proposed school facilities.
Section 3. The School District will establish an administrative process to receive and take action upon applications for Certificates of Adequacy of Public Schools Facilities (“CAPS”) submitted by developers who are required by an implementing ordinance conceptually similar to that attached as Exhibit A to have such certificates before obtaining development permission from the town or the county. The School District will issue a CAPS for a proposed development if it concludes that, given the number of school age children projected to reside in that development, and considering all of the factors listed immediately below, the number of students projected to attend the applicable school district elementary, middle, and high school levels will not exceed the capacities noted in Section 1 of this memorandum. Factors to be considered by the School District in making this determination include the following:
a. The number of students attending elementary schools, middle schools, and high schools and the building capacity at each school level.
b. Projected or ongoing construction of new schools or permanent expansion of existing schools as planned in the adopted CIP. If the completion of such school construction is necessary for a CAPS to be issued for a particular development project, then there must be a reasonable expectation that such construction will be completed in time to be of benefit to such project. A “reasonable expectation” of a proposed completion date requires, at the very least, that construction of a proposed new school has received all necessary governmental approvals and that funding is in place, or that such approvals and funding appear "reasonably certain."
c. Projected increases in enrollment due to residential growth. The following will be taken into consideration in determining projected enrollment increases:
(i) Single-family residential building lots that have received final plat approval, or have been created by a plat exempt from subdivision regulation approval, but that do not contain a completed dwelling;
(ii) Single-family or multi-family residential building lots for which: (1) preliminary subdivision plat approval, (2) minor subdivision final plat, (3) zoning compliance permit approval or special or conditional use permit approval have been granted so long as such approvals have not expired;
(iii) Developments for which subdivision preliminary plat, minor subdivision final plat or site plan approval applications have been submitted but not yet granted, so long as CAPS for such projects have been issued and remain unexpired or special exceptions that have been granted;
(iv) Any phasing and time schedule for project development consistent with preliminary plat and/or master plan application and, if applicable, approval.
a. Any other factors deemed relevant by the School District in determining whether each school level will meet the level of service described herein if the proposed project is constructed.
Section 4. A CAPS that has been obtained before an application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan, or conditional or special use permit has been submitted shall expire unless the developer submits and the [Town/County] accepts as complete an application for its approval within 90 days of the date of the CAPS and receives the requested approval within two years of the date of the CAPS. A CAPS issued in connection with approval of a subdivision preliminary plat, minor subdivision final plat, site plan, or conditional or special use permit shall expire automatically upon the expiration of such plat, plan, or permit approval.
Section 5. The towns and the county will provide to the School District all information reasonably requested by the School District to assist the District in making its determination as to whether the CAPS should be issued, including without limitation all information the other parties to this agreement have regarding the matters specified in Section 3.c.(i) through (iv) above.
Section 6. The School district will use its best efforts to construct schools and/or permanent expansion/additions in accordance with the CIP referenced in Section 1 above.
Section 7. Orange County will use its best efforts to provide the funding to carry out the capital facilities program referenced in Section 1 above.
Section 8. In recognition of the fact that some new development will have a negligible impact on school capacity, a CAPS shall not be required under the following circumstances: (a) for a residential development permanently restricted by law and/or covenant to housing for the elderly and/or adult care living and/or adult special needs, (b) for residential development permanently restricted to dormitory housing for university students.
Section 9. The parties acknowledge that this Memorandum of Understanding is not intended to and does not create legally binding obligations on any of the parties to act in accordance with its provisions. Rather, it constitutes a good faith statement of the intent of the parties to cooperate in a manner designed to meet the mutual objective of all the parties that the children who reside within the School District are able to attend school levels that satisfy the level of service standards set forth herein.
ORDINANCE
(Manager’s Preliminary Recommendation)
AN ORDINANCE AMENDING THE CHAPEL HILL DEVELOPMENT ORDINANCE REGARDING THE ADEQUACY OF PUBLIC SCHOOL FACILITIES
WHEREAS, the Council of the Town of Chapel Hill has considered the proposed amendment to the Chapel Hill Development Ordinance regarding adequacy of schools and finds that the amendment is appropriate due to changed or changing conditions in the jurisdiction generally and achieves the purposes of the Comprehensive Plan;
BE IT ORDAINED by the Council of the Town of Chapel Hill as follows:
Section 1. A new Article 16 of the Chapel Hill Development Ordinance is hereby adopted to read as follows:
16.1 Intent and Scope
The purpose of this article is to ensure that, to the maximum extent practical, new residential development occurring in the Orange County portion of Chapel Hill’s zoning/subdivision regulation jurisdiction will be approved only when it can reasonably be expected that adequate public school facilities will be available to accommodate such new development. This article shall apply in those portions of the Town of Chapel Hill and its zoning jurisdiction in Orange County.
16.2 Findings and Purposes
The Town Council does hereby find that:
a) The portion of Orange County served by the Chapel Hill/Carrboro school system, has been experiencing rapid growth in population; and
b) This rapid growth, and that which is anticipated, creates a demand for additional school facilities to accommodate the children who reside within new developments; and
c) The responsibility for planning for and constructing new school facilities lies primarily with the Chapel Hill/Carrboro School Board, with funding provided by Orange County; and
d) Chapel Hill, Carrboro, Orange County and the Chapel Hill/Carrboro School Board have recognized the need to work together to ensure, to the maximum extent possible, that new growth within the School District occurs at a pace that allows Orange County and the School District to provide adequate school facilities to serve children within such new developments; and
e) To implement the Memorandum of Understanding between Orange County, Chapel Hill, Carrboro, and the Chapel Hill/Carrboro School Board, the Chapel Hill Town Council desires to provide a mechanism to assure that, to the extent possible, new development will take place only when there are adequate public school facilities available, or planned, which will accommodate such new development.
16.3 Certificate of Adequacy of Public School Facilities
(a) No application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit, or special use permit modification for a project containing a residential use may be accepted as complete unless on the date of such acceptance there exists a valid and current Certificate of Adequacy of Public School Facilities applicable to the project for which such approval is sought.
(b) A Certificate of Adequacy of Public School Facilities shall not be required for a general use or conditional use rezoning or for approval of a master land use plan. However, if a rezoning or master plan is approved, a Certificate of Adequacy of Public School Facilities will be required before any residential development of the property is authorized pursuant to any of the approvals specified in subsection (a) of the section, and the rezoning of the property or approval of a master plan provides no indication as to whether the Certificate of Adequacy of Public School Facilities will be issued. The application for rezoning or master plan approval shall contain a statement to this effect.
(c) A Certificate of Adequacy of Public School Facilities must be obtained from the School District. The School District will issue or deny a Certificate of Adequacy of Public School Facilities in accordance with the provisions of a Memorandum of Understanding between Chapel Hill, Carrboro, Orange County, and the Chapel Hill/Carrboro School District.
(d) An applicant shall seek from the School District a Certificate of Adequacy of Public School Facilities for a proposed residential development before an application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification submitted to the town. The Certificate of Adequacy of Public School Facilities, if issued, shall expire as provided in Section16.5.
(e) A Certificate of Adequacy of Public School Facilities attaches to the land in the same way that development permission attaches to the land. A Certificate of Adequacy of Public School Facilities may be transferred along with other interests in the property with respect to which such Certificate of Adequacy of Public School Facilities is issued, but may not be severed or transferred separately.
16.4 Service Levels
As provided in the Memorandum of Understanding between Orange County, Chapel Hill, Carrboro, and the Chapel Hill/Carrboro School District, adequate service levels for public schools shall be deemed to exist with respect to a proposed new residential development if, given the number of school age children projected to reside in that development, and considering all the factors listed in the Memorandum of Understanding, the number of students projected to attend the elementary schools, the middle schools, and the high school[s] within the Chapel Hill/Carrboro School District will not exceed the following percentages of the building capacities of each of the following three school levels:
elementary school level 105%
middle school level 107%
high school level 110%
For purposes of this article, the term “building capacity” means the capacity of permanent buildings, not mobile units or trailers, and shall be determined as provided in the Adequate Public School Facilities Memorandum of Understanding among the Towns of Chapel Hill and Carrboro, and Orange County and the Chapel Hill/Carrboro Board of Education.
These percentages are currently in the Memorandum of Understanding. These percentages may be adjusted by mutual agreement of parties to the Memorandum of Understanding by an amendment thereto.
16.5 Expirations of Certificates of Adequacy of Public School Facilities
(a) A Certificate of Adequacy of Public School Facilities that has been obtained pursuant to Subsection 16.3(d) before an application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification has been submitted shall expire unless the developer submits and the Town accepts as complete an application for approval of that subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification within 90 days of the date of the Certificate of Adequacy of Public School Facilities and receives the requested approval within two years of the date of the Certificate of Adequacy of Public School Facilities.
(b) A Certificate of Adequacy of Public School Facilities issued in connection with approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification shall expire automatically upon the expiration or such plat, plan, or permit approval.
16.6 Exemption From Certification Requirement for Development with Negligible Student Generation Rates
A Certificate of Adequacy of Public School Facilities shall not be required under the following circumstances:
(a) For residential development permanently restricted to dormitory-style housing for university students.
(b) For a residential development permanently restricted by law and/or covenant to housing for the elderly and/or adult care living and/or adult special needs.
16.7 Applicability to Previously Approved Projects and Projects Pending Approval
(a) Except as otherwise provided herein, the provisions of this article shall apply to applications for approval of subdivision preliminary plat, site plans, special use permit, and special use permit modification that are submitted for approval after the effective date of this article.
(b) The provisions of this article shall apply to subdivision preliminary plats, site plans, special use permits and special use permit modifications that have expired.
(c) The provisions of this article shall not apply to minor changes to subdivision preliminary plat, site plan, special use permit, or special use permit modification approvals issued prior to the effective date of this article so long as the approvals have not expired and the proposed minor changes do not increase the number of dwelling units authorized within the development by more than five percent or five dwelling units, whichever is less.
(d) The Town Council shall issue a special exception to the Certificate of Adequacy of Public School Facilities requirement to an applicant whose application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification covering property within a planned development or master plan project that was approved prior to the effective date of this article, if the Town Council finds, after an evidentiary hearing, that the applicant has (1) applied to the School District for a Certificate of Adequacy of Public School Facilities and the application has been denied, (2) in good faith made substantial expenditures or incurred substantial binding obligations in reasonable reliance on the previously obtained preliminary plat approval, planned development or master plan approval, and (3) would be unreasonably prejudiced if development in accordance with the previously approved development or plan is delayed due to the provisions of this ordinance. In deciding whether these findings can be made, the Town Council shall consider the following, among other relevant factors:
(1) Whether the developer has installed streets, utilities, or other facilities or expended substantial sums in the planning and preparation for installation of such facilities which were designed to serve or to be paid for in part by the development of portions of the preliminary plat, planned development or master planned project that have not yet been approved for construction;
(2) Whether the developer has installed streets, utilities, or other facilities or expended substantial sums in the planning and preparation for installation of such facilities that directly benefit other properties outside the development in question or the general public;
(3) Whether the developer has donated land to the School District for the construction of school facilities or otherwise dedicated land or made improvements deemed to benefit the School District and its public school system;
(4) Whether the developer has had development approval for a substantial amount of time and has in good faith worked to timely implement the plan in reasonable reliance on the previously obtained approval;
(5) The duration of the delay that will occur until public school facilities are improved or exist to such an extent that a Certificate of Adequacy of Public School Facilities can be issued for the project, and the effect of such delay on the development and the developer.
The decision of the Town Council is subject to review by the Orange County Superior Court by proceedings in the nature of certiorari. Any petition for review by the Superior Court shall be filed with the Clerk of Superior Court within 30 days after a written copy of the decision of the Town Council is delivered to every aggrieved party who has filed a written request for such copy with the Clerk to the Town Council at the time of its hearing on the application for a special exception. The written copy of the decision of the Town Council may be delivered to the aggrieved party either by personal service or by certified mail, return receipt requested.
The Mayor of the Town or any member temporarily acting as Mayor may, in his or her official capacity, administer oaths to witnesses in any hearing before the Town Council concerning a special exception.
16.8 Appeal of School District Denial of a Certificate of Adequacy of Public School Facilities
The applicant for a Certificate of Adequacy of Public School Facilities which is denied by the School District may, within 30 days of the date of the denial, appeal the denial to the Town Council of Chapel Hill. Any such appeal shall be heard by the Town Council at an evidentiary hearing before it. At this hearing the School District will present its reasons for the denial of the Certificate of Adequacy of Public School Facilities and the evidence it relied on in denying the Certificate of Adequacy of Public School Facilities. The applicant appealing the denial may present its reasons why the Certificate of Adequacy of Public School Facilities application should have, in its view, been approved and the evidentiary basis it contends supports approval. The Town Council may (1) affirm the decision of the School District, (2) remand to the School District for further proceedings in the event evidence is presented at the hearing before the Town Council not brought before the School District, or (3) issue a Certificate of Adequacy of Public School Facilities. The Town Council will only issue a Certificate of Adequacy of Public School Facilities if it finds that the Certificate of Adequacy of Public School Facilities Certificate of Adequacy of Public School Facilities should have been issued by the School District as prescribed in the Memorandum of Understanding among the School District, Orange County and Chapel Hill. A decision of the Town Council affirming the School District may be appealed by the applicant for a Certificate of Adequacy of Public School Facilities by proceedings in the nature of certiorari and as prescribed for an appeal under Section 16.7(d) of this article.
16.9 Information Required From Applicants
The applicant for a Certificate of Adequacy of Public School Facilities shall submit to the School District all information reasonably deemed necessary by the School District to determine whether a Certificate of Adequacy of Public School Facilities should be issued under the provisions of the Memorandum of Understanding between Chapel Hill, Orange County, and the School District. An applicant for a Certificate of Adequacy of Public School Facilities special exception or an applicant appealing a Certificate of Adequacy of Public School Facilities denial by the School District shall submit to the Town Council all information reasonably deemed necessary by the Town Manager to determine whether a special exception should be granted as provided in Section 16.7(d) of this article or for the hearing of an appeal of a School District denial of a Certificate of Adequacy of Public School Facilities as provided in Section 16.8 of this article. A copy of a request for a Certificate of Adequacy of Public School Facilities special exception or of an appeal of a School District denial of a Certificate of Adequacy of Public School Facilities shall be served on the superintendent of the School District. Service may be made by personal delivery or certified mail, return receipt requested.”
Section 2. That all ordinances and portions of ordinances in conflict herewith are hereby repealed.
Section 3. That this ordinance shall become effective upon adoption of similar regulations by Carrboro and Orange County, upon adoption of a Memorandum of Understanding by Carrboro, Orange County and the School District, and upon certification by the School District of adequate school capacity.
This the ___ day of ____, 2001.