AGENDA #13
MEMORANDUM
TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
SUBJECT: Schools Adequate Public Facility Ordinance – Memorandum of Understanding
DATE: March 25, 2002
The attached resolution would approve a Memorandum of Understanding for establishment of a Schools Adequate Public Facilities Ordinance. The Memorandum of Understanding would not become effective until it is approved by four parties:
INTRODUCTION
The Town Council held a Public Hearing on February 18, 2002, to consider a proposal to create an Adequate Public Facilities Ordinance for the Chapel Hill-Carrboro City Schools District. We note that work on this issue is one of the Council’s adopted goals, and is also a recommendation of the adopted Comprehensive Plan.
There are two parts to this proposal. A draft Memorandum of Understanding has been prepared which, if approved and executed by each of the elected Boards listed above, would establish a framework for an Adequate Public Facilities Ordinance for schools.
The second part of the proposal is a model ordinance which could be adapted to fit into the zoning regulations of Chapel Hill, Carrboro, and Orange County. The Schools Adequate Public Facilities Ordinance would not become operational until all four Boards listed above sign the Memorandum of Understanding, and all three jurisdictions with zoning authority in the Chapel Hill-Carrboro City Schools district amend their zoning regulations to include language similar to that proposed in the model ordinance.
Action is possible tonight for the Chapel Hill Town Council to approve the Memorandum of Understanding.
BACKGROUND
Approximately four years ago, at the suggestion of the Orange County Board of Commissioners, a “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, the Orange County Board of Commissioners, and representatives from the two school systems operating in Orange County.
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 a draft Ordinance.
We attach here several background pieces that were previously on Town Council agendas. The documents offer a comprehensive discussion of the history of this project. We particularly call attention to a list of questions and answers that was presented on April 23, 2001, and a status report that was presented to the Council on September 24, 2001. We also include a discussion paper that addresses issues raised at and subsequent to the Council’s February 18, 2002 Public Hearing.
Orange County has taken the lead on this proposal. The County held a Public Hearing for consideration of a set of proposed regulations on November 27, 2000, and transmitted the Memorandum of Understanding and Draft Ordinance to the other boards for review.
On December 11, 2000, the Chapel Hill Town Council called a Public Hearing for consideration of the proposed regulations. The hearing was held on February 19, 2001. A key feature of the proposal was a proposed new requirement that developers of residential projects would need to obtain a Certificate of Capacity from the appropriate school district prior to making application to a town or the county for development approval.
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. The Memorandum provides the framework for this initiative, and would commit all parties to support 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 affecting the timing of development such that the growth matches the availability of school facilities as noted in the school district’s Capital Improvement Plans.
KEY FEATURES OF THE MEMORANDUM OF UNDERSTANDING
The proposed Memorandum of Understanding would:
· Direct all parties to work cooperatively to develop a realistic Capital Improvements Plan for the construction of new school facilities.
· Establish the levels of crowding that would define “over capacity.”
· Establish the process for determining projections of student enrollment, key to determination of whether capacity will be available in future years.
· Establish the sequence and process for a developer obtaining a certificate of capacity.
· Direct parties with zoning jurisdiction to incorporate implementing language in their respective zoning regulations.
The proposed Adequate Public School Facilities text amendment would:
· Include provisions in our Development Ordinance that require that, following Town Council approval of a new residential subdivision, a Special Use Permit, or a Site Plan Review that contains a residential component, a developer would need to obtain a Certificate of Adequacy of Public School Facilities from the Chapel Hill Carrboro City Schools prior to issuance of a Zoning Compliance Permit authorizing construction.
· Require that a Certificate of Adequate 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 Adequate Public School Facilities to run with the land (it could not be transferred to another parcel).
· 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 have previously recommended to the Council that, if a Schools Adequate Public Facilities Ordinance is adopted, the effective date of the new ordinance be:
· Upon adoption by Carrboro, Orange County and the Chapel Hill/Carrboro School Board of the Memorandum of Understanding; and
· Upon adoption by Carrboro and Orange County of similar regulations; and
· Upon adoption of a resolution by the Chapel Hill/Carrboro School Board certifying adequate school capacity.
DISCUSSION
A Discussion Paper is attached, addressing issues that were raised at and subsequent to the February 18, 2002 Public Hearing. We note especially recommendations offered by the Chapel Hill Planning Board, which was not able to review this proposal prior to the Public Hearing. The Planning Board discussed the proposal on March 5. We also note in the Paper a new idea that has emerged, to raise Level of Service Thresholds.
Key points that are discussed in the paper include:
We offer discussion of these items in the attached paper.
RECOMMENDATION
We recommend that the Town Council adopt the attached Resolution A, approving the proposed Memorandum of Understanding as proposed on February 18.
We believe that the Memorandum of Understanding as proposed is workable. However, we also acknowledge that there are many ways in which an Adequate Public Facilities Ordinance could be constructed. Many of these variations are included in the attached Discussion Paper. We believe that it would be useful for the Council to adopt the Memorandum of Understanding as proposed tonight. We note that additional discussions are underway in Carrboro and Orange County, and at some point all of these ideas will need to be brought together. We recommend that the Council adopt the Memorandum of Understanding, and also agree to forward the attached Discussion Paper to other parties for consideration of the full range of ideas. We expect that, at some point in the future, different versions of the Memorandum of Understanding will need to be consolidated into one final version. Resolution B would invite other parties to the proposed Memorandum of Understanding to consider ideas raised in the Discussion Paper. Resolution B would also specifically request the Chapel Hill-Carrboro School Board to consider the idea of raising Level of Service thresholds, as discussed in the Paper, and to comment on the feasibility and reasonableness of this proposal.
Attachments
1. Discussion Paper (p. 9).
2. Council Memorandum from February 18, 2002 (p. 16)
3. Materials transmitted by Chair of Schools and Land Use Council, including:(p. 23).
· Letter of transmittal from Commissioner Alice Gordon (dated 2/8/02)
· Draft Memorandum of Understanding (dated 2/8/02)
· Draft Model Ordinance (dated 2/8/02)
· Memorandum from Work Group to transmit documents (dated October 11, 2001)
· Letter from County Commissioners Chairman Moses Carey, transmitting documents (dated 11/22/00)
4. September 24, 2001 Council memorandum on Status (p. 45).
5. May 8, 2001 Letter from Town Attorney (p. 48).
6. April 23, 2001, Council memorandum reporting on Status (p. 51).
7. April 23, 2001 list of questions and answers from February, 2001 meeting (p. 55).
8. Letter from Chamber of Commerce (p. 66).
9. Summary of Planning Board Action (p. 69).
10. Materials Considered by Carrboro Board of Aldermen, 3/26/02 (p. 70).
RESOLUTION A
MANAGER’S RECOMMENDATION
A RESOLUTION APPROVING A MEMORANDUM OF UNDERSTANDING TO ESTABLISH AN ADEQUATE PUBLIC FACILITIES ORDINANCE (2002-04-08/R-11a)
WHEREAS, the Chapel Hill Town Council has been working with the Carrboro Board of Aldermen, the Orange County Board of Commissioners, and the Chapel Hill-Carrboro Board of Education to develop a Schools Adequate Public Facilities Ordinance; and
WHEREAS, a committee has been established, called the Schools and Land Use Council, with representatives from each of these elected boards; and
WHEREAS, the Schools and Land Use Council has developed a draft Memorandum of Understanding, dated February 8, 2002, that would establish roles and responsibilities in implementing an Adequate Public Facilities Ordinance; and
WHEREAS, the Town Council has considered this proposal at a Public Hearing on February 18, 2002;
NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council approves the Memorandum of Understanding as proposed.
This the 8th day of April, 2002.
RESOLUTION B
A RESOLUTION TRANSMITTING A DISCUSSION PAPER ON A PROPOSED ADEQUATE PUBLIC FACILITIES ORDINANCE TO THE CARRBORO BOARD OF ALDERMEN, THE ORANGE COUNTY BOARD OF COMMISSIONERS, AND THE CHAPEL HILL-CARRBORO BOARD OF EDUCATION (2002-04-08/R-11b)
WHEREAS, a proposed Schools Adequate Public Facilities Ordinance has been prepared for consideration by the Chapel Hill Town Council; and
WHEREAS, the Town Council has received a Discussion Paper, dated April 8, 2002, highlighting key issues related to implementation of such an ordinance;
NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council transmits this Discussion Paper to the Carrboro Board of Aldermen, Orange County Board of Commissioners, and the Chapel Hill-Carrboro School Board, and invites consideration of the ideas contained in the Paper.
BE IT FURTHER RESOLVED that the Council specifically requests the Chapel Hill-Carrboro School Board to consider the idea of raising Level of Service thresholds, as discussed in the Paper, and to comment on the feasibility and reasonableness of this proposal.
This the 8th day of April, 2002.
ATTACHMENT 1
DISCUSSION PAPER:
~ Proposed Schools Adequate Public Facilities Ordinance ~
Issues Raised At and Subsequent to 2/18/02 Public Hearing
April 8, 2002
The Town of Chapel Hill is engaged with other governmental units in a process to establish an Adequate Public Facilities Ordinance, linking school capacity and development approvals. The approach to this objective is to develop a 4-party Memorandum of Understanding among the Town of Chapel Hill, the Carrboro Board of Aldermen, the Orange County Board of Commissioners, and the Chapel Hill-Carrboro School Board.
The Chapel Hill Town Council conducted a Public Hearing on the second draft of this proposed Memorandum of Understanding on February 18, 2002. This paper addresses issues and questions that were raised at and subsequent to that Public Hearing. This paper is intended to be an attachment to a follow-up report prepared by the Chapel Hill Town Manager, presented to the Chapel Hill Town Council on April 8, 2002. Key issues discussed in this paper are:
Funding Sequencing
Exemptions Effective Date
Numbers Status of Discussions
Thresholds Specific Questions
DISCUSSION
Funding: A Council member suggested at the February 18 Public Hearing that the key new concept introduced with this proposal would be a proposed commitment of the Orange County Board of Commissioners to a 10-year program for construction of school facilities in the Chapel Hill-Carrboro School District. We stated in our February 18 memorandum, and continue to believe, that Orange County’s commitment to a realistic Capital Improvements Program, with identified sources of funding, is a cornerstone to this entire idea. We continue to believe that it is neither reasonable nor legal to delay development approvals for lack of school capacity absent a timely, certain mechanism to expand that capacity.
There has been considerable discussion about whether or not the proposed Memorandum of Understanding can/should be executed prior to County adoption of the Capital Improvements Program called for in the agreement. The Planning Board has recommended that the Council approve the Memorandum of Understanding, but that final ratification await County adoption of a CIP.
We believe that it would be reasonable to proceed in good faith with Chapel Hill’s proposed partners, as called for in the draft Memorandum of Understanding, and that it would be reasonable for the Council to approve execution of the Memorandum with the expectation that the County will follow in a timely manner with approval of an acceptable Capital Improvements Program.
Exemptions:
A key policy choice in this proposal is the decision about which kinds of development applications should be covered by the provisions of this proposed ordinance. This proposal suggests that all new residential development needs a Certificate of Adequate School Capacity before construction can begin, except for certain types of development which are exempted for reasons relating to the objectives of this ordinance. We believe that the key link here is relating the exemption to certain types of new housing that are unlikely to generate additional demand for school capacity. We believe that, for reasons of fairness and legal defensibility, this list of exemptions needs to be limited to those which are consistent with attaining the objectives of the ordinance.
Accordingly, developments that are not likely to be inhabited by school-age children are exempt from the requirement. These include developments specifically for elderly residents and college dormitories. (For purposes of comparison we note that family-housing built on campus would be subject to the requirement, unless such development were included as part of a Development Plan approved prior to the effective date of the ordinance.)
We believe that another type of development that needs to be exempted is the set of already approved projects for which a vested right may exist. The Memorandum of Understanding proposes to exempt developments for which a Special Use Permit, Preliminary Plat, Site Plan Approval, or Master Plan approval has been granted prior to the effective date of a new Schools Adequate Public Facilities Ordinance.
The final category of exemptions deals with small projects. The Memorandum of Understanding suggests that, if a development application would be creating 5 or fewer new dwelling units, a certificate of school capacity would not be required. This proposed exemption grows out of logistical considerations and precedent. The logistical consideration is that a development with so few units is likely to be accompanied by very few school-age children. Given that the nature of this proposed Adequate Public Facilities ordinance is such that exact levels of precision are impossible to achieve, and that the objective is to generally tie the overall pace of new development with long-range school construction, we believe that it is reasonable to not devote public and private resources to imposition of this requirement on very small developments. The precedent comes from that fact that State Statutes and the Town’s current Development Ordinance both apply this same principle in other topic areas. An example is the fact that, under certain conditions, creation of fewer than 5 new lots may be accomplished as a Minor Subdivision, requiring only administrative review and approval. A suggestion has been made that this “5 or fewer” exemption be eliminated from the Adequate Public Facilities Ordinance. For reasons of logistical practicality and precedent, and because the number of dwelling units to be added through such small projects will necessarily be a small number, we do not recommend eliminating this exemption.
Suggestions have also been made that the proposed Memorandum of Understanding be changed such that the following types of projects be added to the list of exemptions:
· Affordable Housing
· Any Housing on the UNC Campus
· Downtown Housing
We believe that all of these housing types are accompanied by desirable benefits for the community. However, none of these categories is distinguishable from other housing forms with regard to the number of school age children likely to inhabit these types of units. Accordingly, we do not recommend adding any of these categories as exemptions. We believe that adding any of these would impair the defensibility of this ordinance
Numbers:
The draft Memorandum of Understanding does not contain any numbers describing current levels of student membership nor any capacity numbers. However, the Memorandum of Understanding does prescribe the process by which such numbers are to be generated. Methodologies are to be developed by collaborative staff work, and approved annually by the Board of County Commissioners. Approval of this Memorandum of Understanding would not approve any one set of projections.
The actual numbers have nonetheless been the topic of extended discussion to date. Discussion has focused on the fact that the School System is currently over-capacity at the elementary level, a situation that will be remedied with the opening of a 9th elementary school at Meadowmont in August, 2003. The next problem area is at the high school level, where our two high schools are almost at capacity now, with no identified funding source in place to add additional capacity.
We continue to believe that this Adequate Public Facilities Ordinance should not go into effect at a time when capacities are exceeded beyond stated acceptable levels, resulting in an instant moratorium upon the effective date of the ordinance. A moratorium on development is a major community event, often accompanied by undesirable side effects. For example, a moratorium on residential construction because of a Schools Adequate Public Facilities Ordinance would halt all residential development, including some types that promote Town objectives (e.g., affordable housing, downtown housing, employer-employee housing). We believe that the intent of this Schools Adequate Public Facilities proposal is to facilitate long-range planning for construction of school facilities. A halt on development may be necessary at some point; however we believe it would be disruptive and difficult to start out the operation of the system with a moratorium, without allowing time for the capital planning that the ordinance is intended to promote.
The Town Council has asked for a review of the current numbers and projections, and the Orange County Planning Department will present these at the April 8 Council meeting. Copies of most recently-prepared projections are attached.
A question has been raised regarding how already-approved developments are considered in calculations of future student membership. This is accommodated by calculations of “background growth.” That is, there has been a steady growth in the number of school age children in this community, irrespective of approval of any new development. This background growth is due in large part to the number of approved but as yet unbuilt phases of developments. Background growth is estimated by relying on historical data and trends, and will be systematically added to each projection year to come up with the best possible projection of school age children likely to be in the School System in any given year.
A related question asked how Charter Schools are included in the calculations of capacity. The methodologies currently being proposed do not account for charter schools, in part because there is no assurance of permanent capacity being added by charter schools. Likewise, private schools are not considered. We believe that it is reasonable not to count charter or private schools as capacity, as long as this same approach is used on the “demand” side to project membership. We note that the methodologies being used to project future student membership are based on “generation rates” - - the number of students in the Chapel Hill-Carrboro City Schools, divided by the number of dwelling units of different types, accompanied by more specific calculations for some neighborhoods. This results in formulas to estimate how many students in the Chapel Hill-Carrboro City Schools, at what levels, are likely to result from development of new housing. Because this formula for projecting membership does not consider students in charter or private schools, it is a good complement to capacity projections that do not consider school capacity in charter or private schools.
We note again that that this proposed Memorandum of Understanding/Ordinance is not intended to be a precise instrument - - the intent is to generally link capacity and development approvals.
Thresholds:
A key issue related to the membership and capacity numbers is a proposed policy of how much growth in student membership beyond stated capacities is reasonably tolerated before Certificates of Capacity cease to be issued. This a major policy question. Early in the discussions of an Adequate Public Facilities Ordinance, there were arguments that capacities should not be allowed to be exceeded at all. Zero tolerance: Once any school level reached its stated building capacity, issuance of certificates would be cut off.
We do not find the “zero tolerance” argument reasonable nor practical. Some flexibility at the margin is desirable. Schools have typically added temporary mobile classrooms in particularly tight situations, and occasionally have been able to remove those once a new school opens. Redistricting also can address overcrowding issues. We believe that a few dozen students over capacity for a particular school, or even a few hundred students over capacity for a level (e.g., elementary level) may not a compelling argument for construction of a new school nor for the disruption that would be caused by a moratorium. However, at some level, having facilities well over capacity becomes such a serious problem that it would outweigh the difficulties, uncertainties, and financial hardships that can accompany a deferral in the construction of approved developments while new facilities are constructed.
The balance that has been struck in the proposed Memorandum of Understanding is to specify the following as acceptable levels of tolerance for allowing student membership to exceed school capacity:
Elementary: 105% of capacity
Middle: 107% of capacity
High School: 110% of capacity
Example: If the total number of elementary students enrolled in Chapel Hill-Carrboro City Schools were to reach 105% of permanent building capacity for all elementary schools combined, then issuance of Certificates of Capacity would cease until plans and financing were to be put in place to add elementary school capacity. This concept is called “Level of Service” in the proposed Memorandum of Understanding. We believe it is reasonable to have a sliding scale. For example: At the elementary level, it is both most detrimental for schools to be crowded, and easiest to build a new school.
We believe, however, that it may be reasonable to revisit the Levels of Service that have been proposed. As we have noted above, we are approaching the threshold Level of Service at the elementary level, and soon to reach it at the high school level. It may be that the Levels of Service proposed are too tight to be workable for this School District at this time, particularly in the constrained fiscal environment in which we are operating.
We note that a recommendation has emerged to raise the acceptable Levels of Service so that they would be established as follows:
Elementary: 110% of capacity
Middle: 114% of capacity
High School: 120% of capacity
Please see the attached letter from the Chapel Hill-Carrboro Chamber of Commerce with arguments supporting this suggestion. We believe that this proposal merits consideration. Establishing higher Levels of Service may provide additional time to allow immediate implementation of the system while also allowing time for logistics to be established and a Capital Improvements Program to be established without the moratorium that may be triggered at the outset of implementation with lower Levels of Service. These higher levels would still be substantially lower than some overcrowding situations experienced by this school district in the past (e.g., the 145% of capacity experienced at the high school level in the mid-1980’s). This idea would need to be discussed by all four parties to the proposed Memorandum of Understanding, especially the Chapel Hill-Carrboro School Board to consider whether or not these higher levels of service are acceptable. We have included a resolution that would invite Chapel Hill’s partners in this proposed system to consider the idea.
Sequencing:
This is the second round of considerations for this proposal. In the first round, the proposed system was structured such that an applicant would need to receive a Certificate of Adequate Public Schools (CAPS) prior to application to the Town for development approval. In response to concerns that this could result in a situation where certificates were tied up prematurely and possibly hoarded, preventing development proposals from even being submitted for evaluation, the Town Council asked that the sequencing be changed so that applications could be submitted and evaluated, and could gain Council approval of a proposal, conditioned on subsequent gaining of a certificate of capacity.
Both approaches have advantages and potential points of awkwardness. We believe that both are workable.
Effective Date:
As discussed above under the “Numbers” heading, we continue to believe that this proposed system, that generally links development approvals with school capacity, should not be implemented during a period when schools are over-capacity. We note that the Planning Board has made a similar suggestion.
A potential problem is that we are about to become over-capacity in the context of the currently proposed Levels of Service, with the possibility of remaining so for as many as 3-5 years. Membership at the elementary level is projected to be exceed 105% of capacity next fall, with relief coming in August, 2003. However, projections indicate that in the fall of 2003, membership at the high school level will likely be at or over 110% of capacity. There are no firm plans at present to expand high school capacity, and we believe that the earliest possible date that additional high school capacity could be made available would be fall, 2005. We discuss above that, tying these concepts together, it may be reasonable to raise the acceptable Level of Service thresholds, and that raising the thresholds may be necessary to allow this system to be implemented.
We also note that the Planning Board has recommended that the effective date of an executed Memorandum of Understanding follow the County’s adoption of a 10-year Capital Improvements Program that includes funding for a new school at each level in the Chapel Hill-Carrboro School District.
Status of Intergovernmental Discussions:
If the Chapel Hill Town Council votes on April 8 to approve this Memorandum of Understanding, it would be the first party to do so. The Chapel Hill-Carrboro Board of Education approved the first draft of this agreement, but has not yet taken up this second draft. The Carrboro Board of Aldermen have discussed this draft, but have not yet held a public hearing. The County is awaiting consideration and action by Chapel Hill and Carrboro.
The Carrboro discussion took place on March 26, in the context of a work session. We attach here a copy of a staff memorandum that was prepared for that meeting. We understand that, at the work session, the Carrboro Board of Aldermen asked to be presented with 10-year student membership and capacity projections before considering action to approve a Memorandum of Understanding. The next step in Carrboro is that another work session will be held, to allow the Board of Aldermen to consider the projections it requested. A Public Hearing would follow at a later time.
We note that a Joint Public Hearing on another topic is scheduled for April 17, involving the Chapel Hill Town Council, the Carrboro Board of Aldermen, and the Orange County Board of Commissioners. An update on the status of the Schools Adequate Public Facilities Ordinance is on the agenda that evening for discussion (no action). If the Chapel Hill Town Council approves this draft on April 8, that approval and any accompanying recommendations could be reported on April 17.
Specific Questions:
It was noted at the February 18 Public Hearing that the draft Memorandum of Understanding refers to a “Capital Investment Program.” We believe that this is a typographical error, and should read “Capital Improvements Program.”
Another citizen noted that the “5 or fewer units” exemption appears in one document but not the other (referring to the draft Memorandum of Understanding and the accompanying Model Ordinance). We note that this is correct, and that it is more appropriate for some issues to spell out details about particular aspects of this proposed system in one of the documents instead of the other. Anything involving 4-party agreements needs to be in the Memorandum of Understanding. The Model Ordinance proposes what language might go into the Chapel Hill Development Ordinance to help implement the Memorandum of Understanding.
SUMMARY
We suggest proceeding with Town Council approval of this draft Memorandum of Understanding as proposed at the February 18, 2002 Public Hearing.
We believe that the proposal to raise the Level of Service thresholds has merit, and offer a resolution that would invite consideration of this idea by other parties to the proposed Memorandum of Understanding.