AGENDA #8
MEMORANDUM
TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
SUBJECT: Development Ordinance Text Amendment - Adequate Public School Facilities
DATE: April 23, 2001
INTRODUCTION
This item comes back to the Council following a Public Hearing on February 19, 2001. Execution of the attached Memorandum of Understanding and adoption of the attached ordinance amending Chapel Hill’s Development Ordinance would, if accompanied by similar actions by the Carrboro Board of Aldermen and the Orange County Board of Commissioners, 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.
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 a proposed Memorandum of Understanding and Draft Ordinance to the other boards.
On December 11, 2000, the Town Council called the Chapel Hill Public Hearing for consideration of the proposed regulations. The Public Hearing was held on February 19, 2001. Attachment 4 provides additional background information. In addition, a copy of a 1999 Public Hearing item on Adequate Public Facilities Ordinances is attached.
THE PROPOSAL
There are two components to this 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.
This proposed regulation is different from other requirements in the Development Ordinance in that it is dependent upon actions taken by others. Accordingly, we recommend that the effective date of a new Adequate Public Facilities Ordinance for Schools be:
A number of issues were raised at the February 19 Public Hearing. These included:
· Timing (e.g., - When would the ordinance become effective? What happens to a Certificate if the underlying development approval expires?)
· Application of new ordinance to University development.
· How much of the growth in school population is attributable to new development?
· Are schools overcrowded now? How does that affect operation of this ordinance?
· How would this affect proposals for mixed-use development?
· How would a possible delay in residential construction affect revenues available for construction of new facilities?
· What is the current status of use of mobile classrooms? How is that treated in the proposed ordinance?
· How would “Certificates of Adequate School Capacity” be issued?
We have provided a list of individual questions/issues raised during the Hearing, followed by responses from Town staff, as an attachment to this memorandum (Attachment 3).
The Chapel Hill-Carrboro School Board has approved the Memorandum of Understanding. Neither Carrboro nor Orange County has yet approved the Memorandum of Understanding or adopted the draft Ordinance. November 27, 2000, the Orange County Commissioners held a Public Hearing on the proposed regulations. The County Commissioners have not scheduled a date for these items to return. Carrboro has not scheduled a Public Hearing. Please refer Attachment 6 for a chart which provides the status of each item for the various jurisdictions.
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 Recommendation: We recommend that the Town Council adopt the attached Resolution approving and authorizing execution of the Memorandum of Understanding; and that the Town Council adopt the attached Ordinance, amending Chapel Hill’s Development Ordinance to require demonstration of adequate public school facilities prior to application for new residential development approvals.
Attachments
ATTACHMENT 1
(Manager’s Recommendation)
RESOLUTION APPROVING A MEMORANDUM OF UNDERSTANDING REGARDING ADEQUATE PUBLIC FACILITIES FOR SCHOOLS (2001-04-23/R- 15)
WHEREAS the Chapel Hill Town Council has been working with the Orange County Board of Commissioners, the Carrboro Board of Aldermen, and the Chapel Hill-Carrboro City Schools to develop a system to promote adequate public school facilities; and
WHEREAS the attached “Schools Adequate Public Facilities Memorandum of Understanding” has been prepared outlining how such a system might be implemented; and
WHEREAS the Orange County Board of Commissioners has recommended consideration of this Memorandum of Understanding by the Chapel Hill Town Council;
NOW THEREFORE BE IT RESOLVED that the Town Council finds the proposal outlined in the attached Memorandum of Understanding to be reasonable and desirable, and hereby approves Town execution of this agreement.
This the 23rd day of April, 2001.
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.
d. 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.
ATTACHMENT 2
ORDINANCE
(Manager’s Revised Recommendation)
Note: changes made since the February 19, 2001Public Hearing are identified with strike-through/bold
AN ORDINANCE AMENDING THE CHAPEL HILL DEVELOPMENT ORDINANCE REGARDING THE ADEQUACY OF PUBLIC SCHOOL FACILITIES (2001-04-23-O- 3)
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 level105%
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 Residence
Hall(s) 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:
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 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;
3) 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;
4) 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;
5) 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;
6) 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 23rd day of April, 2001.
1. At the February 19 Public Hearing, a citizen asked about the impact of a Preliminary Plat approval expiration, if the proposed Ordinance was in place.
Manager’s Comment: Once a “Certificate of Adequate Public Schools” has been issued by the school district, the developer must submit an application to Chapel Hill, Carrboro, or Orange County within 90 days. That would “lock-in” the Certificate. If a developer gains approval of a project, a right to the project becomes vested. The Certificate at that point would not expire unless the approval expires. If the developer seeks extensions of time limits, those can be granted in the way that they are now. As long as the development approval remains valid, the Certificate is valid.
Currently, Major Subdivision approval is valid for one year. The Town Manager has the authority to administratively grant one-year extensions of the approval.
2. At the February 19 Public Hearing, a University official provided a Position Statement from the University (copy attached) and asked if the University gave land at Horace Williams for future school use, if that could be taken into consideration.
Manager’s Comment: The first point in the Position Statement is that non-residential growth will occur in Chapel Hill-Carrboro area, both because of University facilities and other reasons; and if a Schools Adequate Public Facilities Ordinance results in delaying the construction of housing, the result could be increasing housing prices. We acknowledge that, if housing construction is delayed, there could be accompanying increased pressure on the cost of existing housing. A key public policy choice that is presented with this proposal is the weighing of competing objectives (in this case, avoiding the overcrowding of schools versus increasing the supply of housing).
The second point in the letter is a suggestion that this proposed system would increase the length of the development review/approval process, further increasing housing costs. We acknowledge that this proposed system would add an additional step to the process of seeking approval of new housing developments. We do not agree that the length of time added would be significant enough to be reflected in the cost of housing that is built.
The third point is to ask that all University-constructed housing be exempted from this ordinance if it is adopted. We note that the proposed ordinance in its current form exempts Residence Halls and also residential development permanently restricted to housing for the elderly or adult special-needs populations. The reason for these exemptions is that these types of housing do not generate increases in the number of school-age children. We do not believe that it would be possible to exempt any type of family housing based on who it is that is constructing it. We note that this position is consistent with not exempting new affordable housing initiatives from the proposed ordinance.
The final point in the letter raises questions about timing: “We are concerned about the situation where a developer would receive a certificate for a development project, reserving school capacity, and then not develop the project for a number of years.” We note that the proposed ordinance specifies that an approved Certificate of Adequate Public Schools will expire unless a development application is submitted within 90 days and approved within two years. A Certificate would also automatically expire upon the expiration of a plat, plan, or permit approval.
An additional question has been raised that could affect possible University development: What affect would donating a school site have on the Adequate Public Schools requirement? We note that the proposed ordinance does not offer relief from the requirements in exchange for donated sites when a request is made for a Certificate of Adequate Public Schools from the School District for a newdevelopment. However, if a site is donated and plans are approved/funded for construction of a school, that school could be added to the district-wide capacity calculations.
We note that in Section 16.7 (d) of the proposed Ordinance does provide that the Town Council may take into consideration the dedication of land for a school site when considering a special exception to the Certificate of Adequacy of Public School Facilities requirement for previously obtained development approvals. Specifically 16.7 (d)(3) provides donation of land as a consideration when reviewing previously approved development approvals. This special exception consideration would not apply to new developments.
(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.”
3. Following the February 19 Public Hearing, the Carrboro Attorney provided a letter to the Town Attorney (copy attached). The letter asked for clarification about our proposal to make the ordinance effective “upon certification by the school district of adequate school capacity.” In addition, the letter indicated that, as Carrboro and Hillsborough Attorney, he will be advising the respective boards to adopt the memorandum of understanding first and then the ordinance shortly thereafter, following some exchange of information and agreement by the various parties as to the capital facilities plan and the assumed rate of growth upon which the capital facilities plan is based.
Manager’s Comment: We have recommended that the effective date of a new Schools Adequate
Public Facilities Ordinance for Chapel Hill be:
The adequacy of school capacity is defined in the proposed Memorandum of Understanding, Section 1. We believe that the adequacy of school capacity is defined by these percentages. We note that, according to the proposed Memorandum of Understanding, 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. We would anticipate a letter from the School District certifying capacity to satisfy this last effective date requirement.
Regarding the Carrboro Attorney’s recommendation to Carrboro that the Memorandum of Understanding be executed first, and then the ordinance shortly thereafter, following some exchange of information and agreement by the various parties as to the capital facilities plan, we believe that the Town Council may adopt the proposed Ordinance immediately following adoption of the Memorandum of Understanding because of the proposed language of the Memorandum of Understanding. Section 1 of the proposed Memorandum of Understanding states that “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).” Because the proposed Memorandum of Understanding provided that the capital facilities program utilize a projected growth rate agreed upon by all parties, we believe that it is not necessary to delay adoption until the numbers are agreed upon. We believe we have sufficient assurance that these discussions will occur. However, the approach recommended by the Carrboro Attorney would be an option available to the Council as well.
We note that Attachment 6 provides a chart identifying the schedule for adoption of the Memorandum of Understanding and the Ordinance by the various parties.
4. Following the February 19 Public Hearing, the County Attorney provided a letter to the Town Attorney (copy attached). The letter provided three specific suggestions: First, the letter expressed concern about two sentences we included in the Public Hearing version of the draft Ordinance which allow the specific service level percentages to be adjusted by agreement of the parties to the Memorandum of Understanding. Second, the County Attorney suggested that we adjust the term “dormitory-style housing” in the exemption section provided in Section 16.7 of the draft Ordinance. Third, the County Attorney expressed concern about an opening sentence provided in the draft ordinance transmitted by the County which has been modified in the Manager’s recommended Ordinance. A fourth point made by the County Attorney indicated agreement with the Carrboro Attorney’s statement that school service levels should be within the service level limits established in the Memorandum of Understanding and in the Ordinance such that we are not effectively creating a moratorium upon adoption thus allowing the ordinance to work as intended.
Manager’s Comment: Regarding the County Attorney’s first concern, about two sentences we included in the Public Hearing version of the draft Ordinance, Section 16.5 (previously Section 16.4), which allow the specific service level percentages to be adjusted by agreement of the parties to the Memorandum of Understanding. We understand the concern and objectives identified by the County Attorney and the revised Ordinance does not include the two sentences. The two sentences are now identified with “strike-through” in the attached Ordinance.
The County Attorney’s second point was a suggestion that we adjust the term “dormitory-style housing” in the exemption section, Section 16.7, of the draft Ordinance. Because the Chapel Hill Development Ordinance does not define the term “dormitory housing,” the Public Hearing version of the draft Ordinance included the term “dormitory-style housing.” We have revised the Ordinance language to instead reference “Residence Halls” which are defined in the Development Ordinance. This revised language is identified with “strike-through” and bold in the attached Ordinance.
The County Attorney’s third item expressed concern about an opening sentence provided in the draft ordinance transmitted by the County which has been modified in the Manager’s recommended Ordinance. The paragraph recommended by the County stated:
“(a) This ordinance and the Memorandum of Understanding between the [governing body], Orange County and the School District are general in nature and applicable to all property subject to land use regulation by the [governing body]. Except as otherwise provided herein, the provisions of this ordinance shall apply to applications for approval of subdivision preliminary plats, site plans and conditional or special use permits that are submitted for approval after [___________________________].
effective date of this ordinance”
The language provided in the Manager’s recommended ordinance instead states:
(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.
The Town Attorney has indicated that the adjustments to the sentence regarding general applicability are acceptable and do not impose a threat to the Town’s ability to defend the Ordinance if a legal challenge occurs.
5. Following the February 19 Public Hearing, several Council members received an e-mail from Ms. Jill Blackburn asking if the language of the proposed Ordinance could be adjusted to prohibit further development until the City Schools are in balance.
Manager’s Comment: We have recommended that the effective date of a new Schools Adequate Public Facilities Ordinance be:
We believe that certifying the adequacy of school capacity prior to the ordinance becoming effective is an important component of the proposal. Otherwise, the proposal would effectively be a moratorium on development. A temporary moratorium is generally considered reasonable when the agency imposing it has a reasonable plan to cure the reason the moratoria was created. The Town is not legally responsible for providing public schools. Therefore, we do not believe it would be reasonable for the ordinance to establish a moratorium.
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In addition to these comments, a Council member presented a list of written questions during the February 19 Public Hearing and asked that the Manager prepare information about the questions. All were referred to the Manager to prepare a response to each. We offer our responses below.
1. In both the Memorandum of Understanding and the Ordinance it states that this is needed due to the “demand created by new development.” Is this really true? Please supply documentation when this is brought back to the Council. Could this be the issue creating the problem which the school board is dealing with presently in projecting that this past year there would be an increase of 400 students and in reality it was 600 students? How much of the growth in the school population is attributable to “new” development and how much to existing?
Manager’s Comment: We believe that growth in student enrollment in the Chapel Hill-Carrboro City Schools is due to several factors. This school district has a national reputation for high levels of achievement and services, and this draws families with school-age children to our community. Many of those families move into new housing, many move into existing housing. It is clear that most of the growth in enrollment is directly attributable to new development; but it is also likely that some of the growth results from shifting demographics, where families with school-age children move into an existing dwelling unit that was previously occupied by a household without school-age children. There is no measure available district-wide about how much growth comes from which type of situation.
We note that Orange County has commissioned a study on student generation rates (ratios comparing number of housing units with number of school-age children living in those units). Community-wide for the Chapel Hill-Carrboro district, the student generation rate for single-family houses is .57. That is, for every 100 houses in the community, there are likely to be 57 school-age children. However, a recent Chapel Hill-Carrboro City Schools study showed that for new development, the ratio is considerably higher. The student generation rate for new single family homes in a development currently being built is .98. That is, for every 100 new homes built in this new development, there are 98 new school-age children.
2. The memorandum states that Orange County has experienced “rapid growth.” Should this phrase be used? Define “rapid growth.” Or is it necessary to state this in order to legally establish a nexus between new housing units and school growth? Historically, our growth is slower now than in the 60’s and 70’s. More information and documentation is needed.
Manager’s Comment: There is not a definition of the term “rapid growth” in the proposed Memorandum of Agreement. We believe that the phrase is intended to be generally descriptive. We note that one rule-of-thumb in planning theory suggests that an annual growth rate of 2-3% is generally sustainable and relatively easily managed. In this area, growth rates vary by location and over time. During the past decade Chapel Hill’s rate of growth has been about 2% annually. However, growth rates in Carrboro and the County are higher. Chapel Hill’s highest years of growth, numerically, were in 1983 and 1984, when the housing stock grew by 10% and 12% in successive years. The growth in student enrollment for each of the last several years has hovered around 5-6% annually.
3. Do all schools in the district need to meet the “adequate level of service”? When is this projected to be true in the Chapel Hill/Carrboro school system? In the County?
Manager’s Comment: This proposed Adequate Public Facilities Ordinance is structured to measure school capacity by level: elementary, middle school, high school. Capacities and levels of service are determined by level. This means that there can be variation from school to school. For example, it would be possible for Ephesus Road Elementary School to be over-capacity at a given point in time; but if at that same point there is excess capacity at Glenwood and Frank Porter Graham, it could be that there is overall excess capacity at the elementary level. The proposed ordinance would establish that there must be capacity at all three levels in order for a “Certificate of Adequate Public Schools” to be issued to a developer. Regarding the current levels of service for Chapel Hill-Carrboro City Schools: There currently is available capacity at the high school level, and at the middle school level. (Note that while our existing middle schools are overcrowded, the new Smith school will come on-line in August, 2001; Smith is counted as capacity, because any un-built school for which plans have been made and funding established can be counted as capacity.) The school system is over-capacity at the elementary level at present, which means that if the ordinance were in place today, no “Certificates of Adequate Public Schools” could be issued. If additional elementary capacity is part of a bond package placed before the voters this fall, and if the bond referendum passes, that new elementary capacity would be added to calculations immediately and then there would be capacity at all three levels for the Chapel Hill-Carrboro City Schools. It is for this reason that we have recommended an effective date for this proposed ordinance that would be after a November bond referendum. It is our understanding that there is current excess capacity at all levels for the Orange County school district.
4. Does transfer of Certificates of Adequacy have development time restrictions? Development can be delayed by many factors – weather, economy, job transfers, employment, etc. Will the Manager no longer be able to issue time extensions or the Council? Will this result in requests for longer construction periods?
Manager’s Comment: Once a “Certificate of Adequate Public Schools” has been issued by the school district, the developer must submit an application to Chapel Hill, Carrboro, or Orange County within 90 days. That would “lock-in” the Certificate. If a developer gains approval of a project a right to the project becomes vested. The Certificate at that point would not expire unless the approval expires. If the developer seeks extensions of time limits, those can be granted in the way that they are now. As long as the development approval remains valid, the Certificate is valid.
5. Our new Comprehensive Plan calls for better integration of uses and encourages mixed-use development. If the mixed-use includes residential, retail, and office, and if receiving CAPS were delayed or impossible, wouldn’t this ordinance encourage and result in more individual use projects?
Manager’s Comment: If school capacity were found to be inadequate at any given time with respect to a particular proposed development, a Certificate of Adequate Public Schools could not be issued. If the development being proposed is a mixed-use project that involves a residential component, the Town could not accept the application without a Certificate. So, in this situation, the mixed use proposal would have to be delayed or altered to eliminate the residential component.
6. During the time when schools were determined not to have adequate facilities and therefore permits not issued, what would be the effect on the community? Increased traffic because demand would push more residential development outside of school district, sprawl, increase in property values, increase in rental rates, increasing loss of affordable housing, etc.
Manager’s Comment: If the proposed ordinance were to be adopted, the effect of inadequate school facilities would be delay of new residential projects until the County identifies additional resources for school construction. All of the possible related effects listed above would be possibilities, depending on the extent of delay.
7. During a potential residential development halt, how would the income derived from impact fees be replaced? Taxes? Amount was stated to be 2.7 million.
Manager’s Comment: There is not a plan for replacing revenues from impact fees during a period when no new residential construction would be permitted, if that situation occurred. We note that, during the 1999-00 fiscal year, the Chapel Hill-Carrboro school district received $2,733,000 in revenue from the school impact fee.
1. How many schools have mobile classrooms, have classes held in offices, auditoriums, or cafeterias? It is my understanding that these situations will all have to be removed before the school can meet the criteria.
Manager’s Comment: According to school officials, non-conventional classrooms are not counted in determinations of capacity.
For example: At the elementary level, current permanent capacity in the Chapel Hill-Carrboro School District is 4,302 seats. Current elementary enrollment (as of 4/6/01) is 4,510. The proposed Memorandum of Understanding would establish that school enrollment should not exceed 105% of permanent school capacity. Therefore, under the current situation, 105% of current permanent capacity would be 4,517, only 7 students above the current enrollment. This means that as of today, there is effectively no capacity left at the elementary level, and a Certificate of Adequate Public Schools could not be issued unless, at the elementary level, there is additional planned-and-funded classroom capacity.
We note that, according to this approach, mobiles are not counted as permanent capacity but are useful in dealing with the over-capacity situations. Once new facilities are constructed and capacity returns to an acceptable level, some mobile classrooms that exist at some schools may be removed. At other schools the mobiles may stay, to be available in case enrollment exceeds capacity again at some point in the future. A current list of mobile units at each school is attached.
2. How many mobile classrooms are there in the system? Will they all have to be removed?
Manager’s Comment: See above.
3. How many residential units have already received approval? In Chapel Hill/Carrboro school district and County.
Manager’s Comment: There are residential developments in all jurisdictions that have been approved but are not yet constructed. We do not currently keep or compile information that tells us how many. These units would not be affected by the Adequate Public Facilities Ordinance, since they are already approved. We note that these un-built units will generate students once they are constructed, which will increase enrollment. The proposed ordinance would treat this component of enrollment growth in the same way as enrollment growth that may occur within existing housing.
For example, we note that the following residential developments have been approved in Chapel Hill but are not yet built/occupied, or only partially occupied: Northwoods Phase 5, Parkside Phase 2, 100 Oaks Phase 2, Pickard Oaks, Southern Village, Meadowmont, Chapel Ridge, Providence Glen.
4. How would all of these issues (adequate facilities, residential units) be affected by redistricting? By merger of County and Town school system? Are the districts the same for Elementary, Middle, and High Schools? Would a proposed development meet CAPS for one type of school and not another and therefore be denied? What if there are adequate facilities in one district, but the development is being proposed in another district?
Manager’s Comment: Redistricting would not affect any of these issues. For example: Because capacity is determined by level (e.g., elementary) and not by school (e.g., Glenwood), changing attendance zones for individual elementary schools would not change the overall capacity at the elementary level.
Merger of the County and Town school system would mean that this proposed ordinance, if adopted, would have to be revisited and amended because it is specific to the Chapel Hill-Carrboro School district with specific references to that district.
Attendance zones are not the same for elementary, middle, and high schools. They are established distinctly at each level.
If, for a proposed development, capacity exists at one type of school (e.g., middle school) but capacity did not exist for another type of school (e.g., elementary), the Certificate of Adequate Public Schools would not be issued; capacity must exist at all three levels for a certificate to be issued.
If capacity exists for an individual school (e.g., Glenwood), and development is proposed in that school’s attendance zone, but capacity is inadequate district-wide at that or any other level, a certificate would not be issued (i.e., it is possible that capacity might temporarily exist at one elementary school while district-wide the system is over-capacity at the elementary level).
5. Who would issue CAPS? It should not be done by a political body.
6. In the past 40 years, how many years would the Chapel Hill/Carrboro school system have met the standards for “level of standards set forth herein”?
Manager’s Comment: We attach information that has been provided by the school district listing available historical data about school capacity and enrollment. “Level of Service” capacity calculations of the type called for and defined in this ordinance have not been made historically. We know that Chapel Hill Carrboro Schools are over capacity now at the elementary level. Last year, capacity existed at all three levels. Prior to the decision to fund Smith Middle School, there was inadequate capacity at the Middle School level. Prior to the decision to fund Scroggs Elementary School, there was inadequate capacity at the elementary level. An important component of this proposed ordinance is the Memorandum of Agreement in which the County agrees to a regular process of planning for and funding new needed facilities.
7. Has the issue of development or expansion of private schools been addressed? What about boarding schools?
Manager’s Comment: There are several private schools in and around Chapel Hill: St. Thomas More, Friend’s School, and several charter schools. Enrollment at those schools has no relationship to this proposed ordinance. This ordinance focuses on the capacities of public schools in the Chapel Hill-Carrboro School District, and the number of students enrolled in these public schools. It is possible that growth or closing of private schools could affect enrollment in the public schools. We do not know of any boarding schools in Chapel Hill (other than the University and group-care facilities).
8. Is the approval time realistic?
Manager’s Comment: The reference in the ordinance to approval time is that, once a Certificate of Adequate Public Facilities has been issued, it expires unless a development application is submitted within 90 days. We believe that time frame is realistic.
9. What permits are needed for mobile homes? I have been told that mobile homes bring more children to the school system than the traditional stick built house. Information needed.
Manager’s Comment: Chapel Hill’s Development Ordinance generally treats mobile homes in the same manner as homes built by other means of construction. Building Permits are needed for location of a mobile home, and Certificates of Occupancy are needed prior to occupancy. If a mobile home is placed on an existing lot, this Adequate Public Facilities Ordinance would not apply, since it does not apply to the simple issuance of a Building Permit. If, however, a new subdivision were proposed with the intent of locating mobile homes, the subdivision application would be covered by this proposed new ordinance in the same way that a conventional subdivision would be covered. In other words, for the purposes of this proposed Adequate Public Facilities Ordinance, it does not matter if a house is stick-built or manufactured off-site.
10. How to pay for “funding”?
Manager’s Comment: Funding for public school facilities in North Carolina is a County responsibility. The draft Memorandum of Agreement sets forth the responsibility of Orange County, under this Adequate Public Facilities Ordinance system, to make funding available for school construction on a timely basis.
ATTACHMENT 4
Summary of Adequate Public Facilities Ordinance Discussions
in Chapel Hill through 2000
February 27, 1989 The Council received a memorandum that reviewed the body of community discussions about “timing and pace controls.”
Between 89-94 Chapel Hill tried unsuccessfully to obtain enabling legislation regarding an Adequate Public Facilities Ordinance.
June 13, 1994 The Council receive a report including information on past discussions of Adequate Public Facilities Ordinance.
November, 1998 The Council asked for a report on Adequate Public Facilities Ordinances.
February 22, 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 Staff report provided to the Council offering a discussion of an Adequate Public Facilities Ordinance for Chapel Hill. The Council considered a set of draft ordinances.
October 18, 1999 The Council held a Public Hearing for additional discussion of alternative draft ordinances.