Exhibit A
AN ORDINANCE AMENDING THE __________ DEVELOPMENT
ORDINANCE TO REQUIRE THAT THE ADEQUACY OF PUBLIC
SCHOOL FACILITIES TO ACCOMMODATE NEW DEVELOPMENT
BE CONSIDERED IN THE APPROVAL PROCESS
WHEREAS, the portion of Orange County served by the [Chapel Hill/Carrboro] [Orange County] school system, 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 Board] [Orange County School Board], with funding provided by Orange County; and
WHEREAS, [Chapel Hill, Carrboro, Orange County and the Chapel Hill/Carrboro School District] [Orange County, Hillsborough, and the Orange County 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; and
WHEREAS, to implement the Memorandum of Understanding between [Orange County, Chapel Hill, Carrboro, and the Chapel Hill/Carrboro School Board] [Orange County, Hillsborough, and the Orange County School Board], the [governing body] 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;
NOW THEREFORE, ____________________________ ORDAINS:
Section 1. Section _____ of the ____________ Development Ordinance is amended by adding a new __________________ to read as follows:
ADEQUATE PUBLIC SCHOOL FACILITIES
1. Purpose.
The purpose of this ordinance is to ensure that, to the maximum extent practical, approval of new residential development will become effective only when it can reasonably be expected that adequate public school facilities will be available to accommodate such new development.
2. Certificate of Adequacy of Public School Facilities.
(a) Subject to the remaining provisions of this [article], no approval under this ordinance of a subdivision preliminary plat, minor subdivision final plat, site plan, or conditional or special use permit for a residential development shall become effective unless and until Certificate of Adequacy of Public School Facilities (CAPS) for the project has been issued by the School District.
(b) A CAPS shall not be required for a general use or conditional use rezoning or for a master land use plan. However, even if a rezoning or master plan is approved, a CAPS will nevertheless be required before any of the permits or approvals identified in subsection (a) of this section shall become effective, and the rezoning of the property or approval of a master plan provides no indication as to whether the CAPS will be issued. The application for rezoning or master plan approval shall contain a statement to this effect.
(c) A CAPS must be obtained from the School District. The School District will issue or deny a CAPS in accordance with the provisions of the Memorandum of Understanding between [Chapel Hill, Carrboro, Orange County, and the Chapel Hill Carrboro School District] [Orange County, Hillsborough, and the Orange County School District] dated __________.
(d) A CAPS attaches to the land in the same way that development permission attaches to the land. A CAPS may be transferred along with other interests in the property with respect to which such CAPS is issued, but may not be severed or transferred separately.
3. Service Levels.
(a) This section describes the service levels regarded as adequate by the parties to the Memorandum of Understanding described in subsection (b) with respect to public school facilities.
(b) As provided in the Memorandum of Understanding between [Orange County, Chapel Hill, Carrboro, and the Chapel Hill/Carrboro School District] [Orange County, Hillsborough, and the Orange County School District], adequate services 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, projected school membership for the elementary schools, the middle schools, and the high school(s) within the [Chapel Hill/Carrboro] [Orange County] 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 ordinance, the terms "building capacity" and "school membership" shall have the same meaning attributed in the Schools Adequate Public Facilities
Memorandum of Understanding among the Towns of ______________, ____________ and __________________, Orange County and the _______________ Board of Education.
4. Expiration of Certificates of Adequacy of Public School Facilities.
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.
5. Exemption From Certification Requirement for Development with Negligible Student Generation Rates
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 residential developments restricted by law and/or covenant for a period of at least thirty years to housing for the elderly and/or adult care living and/or adult special needs;
b. For residential developments restricted for a period of at least thirty years to dormitory housing for university students.
If the use of a development restricted as provided above changes, then before a permit authorizing such change of use becomes effective, a CAPS must be issued just as if the development were being constructed initially.
6. Applicability to Previously Approved Projects and Projects Pending Approval.
(a) Except as otherwise provided herein, the provisions of this ordinance shall only apply to applications for approval of subdivision preliminary plats, minor subdivision final plats, site plans and conditional or special use permits that are submitted for approval after the effective date of this ordinance
(b) The provisions of this ordinance shall not apply to amendments to subdivision preliminary plats, minor subdivision final plats, site plans, or special or conditional use permit approvals issued prior to the effective date of this ordinance so long as the approvals have not expired and the proposed amendments do not increase the number of dwelling units authorized within the development by more than five percent or five dwelling units, whichever is less.
(c) The [governing body] shall issue a special exception to the CAPS requirement to an applicant whose application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan or conditional or special use permit covers property within a planned unit development or master plan project that was approved prior to the effective date of this ordinance, if the [governing body] finds, after an evidentiary hearing, that the applicant has (1) applied to the School District for a CAPS 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 planned unit 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 [governing body] 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 planned unit 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 CAPS can be issued for the project, and the effect of such delay on the development and the developer.
(d) The decision of the [governing body] involving a special exception application under subsection (c) 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 governing body] is delivered to the applicant and every other party who has filed a written request for such copy with the Clerk to the [governing body] at the time of its hearing on the application for a special exception. The written copy of the decision of the [governing body] may be delivered either by personal service or by certified mail, return receipt requested.
(e) The [chair or the mayor] of the [governing body] or any member temporarily acting as [chair or mayor] may, in his or her official capacity, administer oaths to witnesses in any hearing before the [governing body] concerning a special exception.
7. Appeal of School District Denial of a CAPS.
The applicant for a CAPS which is denied by the School District may, within 30 days of the date of the denial, appeal the denial to the [governing body] of [local government from which development permit is sought]. Any such appeal shall be heard by the [governing body] at an evidentiary hearing before it. At this hearing the School District will present its reasons for the denial of the CAPS and the evidence it relied on in denying the CAPS. The applicant appealing the denial may present its reasons why the CAPS application should have, in its view, been approved and the evidentiary basis it contends supports approval. The [governing body] 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 [governing body] not brought before the School District, or (3) issue a CAPS. The [governing body] will only issue a CAPS if it finds that the CAPS should have been issued by the School District as prescribed in the Memorandum of Understanding among the School District, Orange County and the [governing body]. A decision of the [governing body] affirming the School District may be appealed by the applicant for a CAPS by proceedings in the nature of certiorari and as prescribed for an appeal under Section 6(d) of this ordinance.
8. Information Required From Applicants.
The applicant for a CAPS shall submit to the School District all information reasonably deemed necessary by the School District to determine whether a CAPS should be issued under the provision of the Memorandum of Understanding between the [governing body], Orange County, and the School District. An applicant for a CAPS special exception or an applicant appealing a CAPS denial by the School District shall submit to the [governing body] all information reasonably deemed necessary by the [governing body] to determine whether a special exception should be granted as provided in Section 6(d) of this ordinance or for the hearing of an appeal of a School District denial of a CAPS as provided in Section 7 of this ordinance. A copy of a request for a CAPS special exception or of an appeal of a School District denial of a CAPS 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. This ordinance shall become effective ____________.
The foregoing ordinance, having been submitted to a vote, received the following vote and was duly adopted this _____ day of _______________, 200__.
Ayes:
Noes:
Absent or Excused: