AGENDA #4
MEMORANDUM
TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
SUBJECT: Public Hearing: Schools Adequate Public Facility Ordinance – Addendum to Memorandum of Understanding and Model Ordinance
DATE: January 22, 2003
INTRODUCTION
The Town Council scheduled this Public Hearing to consider materials related to a proposal to create a Schools 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. First, a Memorandum of Understanding has been prepared which, if approved and executed by each of the following elected Boards, would establish a framework for an Adequate Public Facilities Ordinance for schools. The following Boards have endorsed the Memorandum of Understanding: the Chapel Hill Town Council, the Carrboro Board of Aldermen, the Orange County Board of Commissioners, and the Chapel Hill-Carrboro City Schools Board of Education. In December, at the request of the Carrboro Board of Aldermen, the Orange County Board of Commissioners endorsed an adjustment to the previously-approved Memorandum of Understanding. The addendum includes language that:
The Council is being asked to consider this addendum to the Memorandum of Understanding (Attachment 4).
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. This Public Hearing has been called for consideration of a text amendment for the Schools Adequate Public Facilities Ordinance, to be included as a section in Chapel Hill’s Development Ordinance (Attachment 1).
THE PROPOSAL
The 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. A copy of the Memorandum of Understanding (approved last year by the Chapel Hill Town Council) is attached (Attachment 3).
The 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 so that the growth matches the availability of school facilities as noted in the school district’s Capital Improvement Plans. A copy of the proposed Ordinance is attached (Attachment 1).
The system would operate as follows: After the effective date, for applications for development which propose a residential component (Special Use Permit, Subdivision or Site Plan Review), a Certificate of Adequate Public Schools must be provided to the Town prior to issuance of a Zoning Compliance Permit. The Certificate would be issued by Chapel Hill-Carrboro City Schools, upon application by a developer, if numbers indicate that adequate school capacity would exist at all levels (elementary, middle, and high school) at the time that the approved dwelling units are projected to be occupied.
For additional information, please refer to the attachment which identifies Key Features of the Memorandum of Understanding, Key Features of the Draft Ordinance Amendment, and Key Changes since February, 2001 (Attachment 2).
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. Council members Jim Ward and Edith Wiggins are Chapel Hill’s current representatives.
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.
The following is intended to provide a brief overview of key dates:
Once all three ordinances are enacted, an effective date could follow and implementation could begin. Following the January 22 Public Hearing, consideration of enactment of the Ordinance by the Town Council could be as early as February 10. The effective date of the new ordinance is anticipated to be March 1, 2003.
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.
RECOMMENDATIONS
Planning Board Recommendation: On March 5, 2002, the Planning Board voted 6-3 to recommend that the Town Council endorse the Memorandum of Understanding and enact the Schools Adequate Public Facilities Ordinance. A copy of the 2002 Summary of Planning Board Action is attached.
On January 7, 2003, the Planning Board considered the amendment to the Memorandum of Understanding and voted 8-1 to recommend that the Town Council endorse the addendum with the condition that inclusion of language similar to the Carrboro amendment be added for Chapel Hill. The amendment includes language that indicates that Carrboro will remain committed to the Memorandum of Understanding as long as Orange County continues to execute the Capital Improvement Program as agreed in the Memorandum. The Planning Board recommended that parallel language be included for Chapel Hill. A copy of the January 7, 2003 Summary of Planning Board Action is attached.
Comment: We agree with the Planning Board recommendation and the Manager’s Preliminary Recommendation calls for inclusion of language similar to the Carrboro amendment that is broader and for all parties, not just Carrboro.
In addition, in an effort to help better understand where the addendum language fits in the Memorandum, the Planning Board recommended that the addendum language be inserted into the Memorandum.
Comment: Although we believe that incorporation of the addendum language into a revised Memorandum of Understanding would be helpful, we understand why that may not be possible at this date, given the history of review and endorsement.
Manager’s Preliminary Recommendation: We recommend that the Town Council approve the attached Memorandum of Understanding Addendum (Attachment 4) with a condition. This recommended condition is discussed below. We also recommend that the Council adopt the attached Ordinance establishing a requirement regarding adequate public school facilities (Attachment 1).
The Town Council has already endorsed the Memorandum of Understanding. An addendum to the Memorandum of Understanding has been proposed by Carrboro (Attachment 4). The addendum proposes to add language to the Memorandum of Understanding as requested by Carrboro. We recommend Town Council endorsement of the Memorandum of Understanding Addendum and the attached Ordinance with the condition that parallel language be added to the addendum (Section 9, Paragraph 2) indicating that all parties (Chapel Hill, Carrboro, and the School District) intend to remain committed to the agreement as long as Orange County continues to execute the Capital Improvement Program as agreed in the Memorandum of Understanding. We believe inclusion of this broader language is appropriate.
We note that the attached Ordinance is written to amend Chapel Hill’s current Development Ordinance. If a new Land Use Management Ordinance is enacted and becomes effective prior to final consideration of the proposed Adequate Public School Facilities Ordinance, numbering of sections would need to be adjusted. These proposed Adequate Public School Facilities Ordinance provisions would become a new Article 16 in the current Development Ordinance, or be inserted as new section at the end of Article 5 of the proposed Land Use Management Ordinance.
Attachments
1. Draft Ordinance (p. 6).
2. Key Features/Changes (p. 12).
3. Memorandum of Understanding previously approved by the Town Council (p. 14).
4. Proposed Addendum to Memorandum of Understanding (p. 20).
5. 2002 Summary of Planning Board Action (p. 23).
6. January, 2003 Summary of Planning Board Action (p. 24).
ORDINANCE
(Manager’s Preliminary Recommendation)
AN ORDINANCE AMENDING THE CHAPEL HILL DEVELOPMENT ORDINANCE REGARDING THE ADEQUACY OF PUBLIC SCHOOL FACILITIES
WHEREAS, the Council of the Town of Chapel Hill has considered the proposed amendment to the Chapel Hill Development Ordinance/Land Use Management Ordinance regarding adequacy of schools and finds that the amendment is appropriate due to changed or changing conditions in a particular area or 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 for the past decade 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 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 Zoning Compliance Permit, Minor Subdivision Final Plat, Zoning Compliance Permit for Site Plan Review, Zoning Compliance Permit for Special Use Permit, or Zoning Compliance Permit for Special Use Permit Modification for a project containing a residential use may be approved unless on the date of such approval 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 Zoning Compliance Permit for a subdivision Preliminary Plat application, Minor Subdivision Final Plat, Zoning Compliance Permit for a Site Plan Review application, Zoning Compliance Permit for a Special Use Permit or Zoning Compliance Permit for a Special Use Permit Modification is submitted to the Town. The Certificate of Adequacy of Public School Facilities, if issued, shall expire as provided in Section 16.5.
(e) A Certificate of Adequacy of Public School Facilities attaches to the land in the same way that development permission attaches to the land. A Certificate of Adequacy of Public School Facilities may be transferred along with other interests in the property with respect to which such Certificate of Adequacy of Public School Facilities is issued, but may not be severed or transferred separately.
16.4 Service Levels
As provided in the Memorandum of Understanding between Orange County, Chapel Hill, Carrboro, and the Chapel Hill/Carrboro School District, adequate service levels for public schools shall be deemed to exist with respect to a proposed new residential development if, given the number of school age children projected to reside in that development, and considering all the factors listed in the Memorandum of Understanding, the number of students projected to attend the elementary schools, the middle schools, and the high school[s] within the Chapel Hill/Carrboro School District will not exceed the following percentages of the building capacities of each of the following three school levels:
elementary school level 105%
middle school level 107%
high school level 110%
For purposes of this article, the term “building capacity” means the capacity of permanent buildings, not mobile units or trailers, and shall be determined as provided in the Adequate Public School Facilities Memorandum of Understanding among the Towns of Chapel Hill and Carrboro, and Orange County and the Chapel Hill/Carrboro Board of Education.
These percentages are currently in the Memorandum of Understanding. These percentages may be adjusted by mutual agreement of parties to the Memorandum of Understanding by an amendment thereto.
16.5 Expirations of Certificates of Adequacy of Public School Facilities
(a) A Certificate of Adequacy of Public School Facilities that has been obtained pursuant to Subsection 16.3(d) before an application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification has been submitted shall expire unless the developer submits and the Town accepts as complete an application for approval of that subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification within 90 days of the date of the Certificate of Adequacy of Public School Facilities and receives the requested approval within two years of the date of the Certificate of Adequacy of Public School Facilities.
(b) A Certificate of Adequacy of Public School Facilities issued in connection with approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification shall expire automatically upon the expiration or such plat, plan, or permit approval.
16.6 Exemption From Certification Requirement for Development with Negligible Student Generation Rates
A Certificate of Adequacy of Public School Facilities shall not be required under the following circumstances:
(a) For residential development permanently restricted to dormitory-style housing for university students.
(b) For a residential development permanently restricted by law and/or covenant to housing for the elderly and/or adult care living and/or adult special needs.
16.7 Applicability to Previously Approved Projects and Projects Pending Approval
(a) Except as otherwise provided herein, the provisions of this article shall apply to applications for approval of subdivision preliminary plat, site plans, special use permit, and special use permit modification that are submitted for approval after the effective date of this article.
(b) The provisions of this article shall apply to subdivision preliminary plats, site plans, special use permits and special use permit modifications that have expired.
(c) The provisions of this article shall not apply to minor changes to subdivision preliminary plat, site plan, special use permit, or special use permit modification approvals issued prior to the effective date of this article so long as the approvals have not expired and the proposed minor changes do not increase the number of dwelling units authorized within the development by more than five percent or five dwelling units, whichever is less.
(d) The Town Council shall issue a special exception to the Certificate of Adequacy of Public School Facilities requirement to an applicant whose application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification covering property within a planned development or master plan project that was approved prior to the effective date of this article, if the Town Council finds, after an evidentiary hearing, that the applicant has (1) applied to the School District for a Certificate of Adequacy of Public School Facilities and the application has been denied, (2) in good faith made substantial expenditures or incurred substantial binding obligations in reasonable reliance on the previously obtained preliminary plat approval, planned development or master plan approval, and (3) would be unreasonably prejudiced if development in accordance with the previously approved development or plan is delayed due to the provisions of this ordinance. In deciding whether these findings can be made, the Town Council shall consider the following, among other relevant factors:
(1) Whether the developer has installed streets, utilities, or other facilities or expended substantial sums in the planning and preparation for installation of such facilities which were designed to serve or to be paid for in part by the development of portions of the preliminary plat, planned development or master planned project that have not yet been approved for construction;
(2) Whether the developer has installed streets, utilities, or other facilities or expended substantial sums in the planning and preparation for installation of such facilities that directly benefit other properties outside the development in question or the general public;
(3) Whether the developer has donated land to the School District for the construction of school facilities or otherwise dedicated land or made improvements deemed to benefit the School District and its public school system;
(4) Whether the developer has had development approval for a substantial amount of time and has in good faith worked to timely implement the plan in reasonable reliance on the previously obtained approval;
(5) The duration of the delay that will occur until public school facilities are improved or exist to such an extent that a Certificate of Adequacy of Public School Facilities can be issued for the project, and the effect of such delay on the development and the developer.
The decision of the Town Council is subject to review by the Orange County Superior Court by proceedings in the nature of certiorari. Any petition for review by the Superior Court shall be filed with the Clerk of Superior Court within 30 days after a written copy of the decision of the Town Council is delivered to every aggrieved party who has filed a written request for such copy with the Clerk to the Town Council at the time of its hearing on the application for a special exception. The written copy of the decision of the Town Council may be delivered to the aggrieved party either by personal service or by certified mail, return receipt requested.
The Mayor of the Town or any member temporarily acting as Mayor may, in his or her official capacity, administer oaths to witnesses in any hearing before the Town Council concerning a special exception.
16.8 Appeal of School District Denial of a Certificate of Adequacy of Public School Facilities
The applicant for a Certificate of Adequacy of Public School Facilities which is denied by the School District may, within 30 days of the date of the denial, appeal the denial to the Town Council of Chapel Hill. Any such appeal shall be heard by the Town Council at an evidentiary hearing before it. At this hearing the School District will present its reasons for the denial of the Certificate of Adequacy of Public School Facilities and the evidence it relied on in denying the Certificate of Adequacy of Public School Facilities. The applicant appealing the denial may present its reasons why the Certificate of Adequacy of Public School Facilities application should have, in its view, been approved and the evidentiary basis it contends supports approval. The Town Council may (1) affirm the decision of the School District, (2) remand to the School District for further proceedings in the event evidence is presented at the hearing before the Town Council not brought before the School District, or (3) issue a Certificate of Adequacy of Public School Facilities. The Town Council will only issue a Certificate of Adequacy of Public School Facilities if it finds that the Certificate of Adequacy of Public School Facilities Certificate of Adequacy of Public School Facilities should have been issued by the School District as prescribed in the Memorandum of Understanding among the School District, Orange County and Chapel Hill. A decision of the Town Council affirming the School District may be appealed by the applicant for a Certificate of Adequacy of Public School Facilities by proceedings in the nature of certiorari and as prescribed for an appeal under Section 16.7(d) of this article.
16.9 Information Required From Applicants
The applicant for a Certificate of Adequacy of Public School Facilities shall submit to the School District all information reasonably deemed necessary by the School District to determine whether a Certificate of Adequacy of Public School Facilities should be issued under the provisions of the Memorandum of Understanding between Chapel Hill, Orange County, and the School District. An applicant for a Certificate of Adequacy of Public School Facilities special exception or an applicant appealing a Certificate of Adequacy of Public School Facilities denial by the School District shall submit to the Town Council all information reasonably deemed necessary by the Town Manager to determine whether a special exception should be granted as provided in Section 16.7(d) of this article or for the hearing of an appeal of a School District denial of a Certificate of Adequacy of Public School Facilities as provided in Section 16.8 of this article. A copy of a request for a Certificate of Adequacy of Public School Facilities special exception or of an appeal of a School District denial of a Certificate of Adequacy of Public School Facilities shall be served on the superintendent of the School District. Service may be made by personal delivery or certified mail, return receipt requested.”
Section 2. That all ordinances and portions of ordinances in conflict herewith are hereby repealed.
Section 3. That this ordinance shall become effective upon adoption of similar regulations by Carrboro and Orange County, upon adoption of a Memorandum of Understanding by Carrboro, Orange County and the School District, and upon certification by the School District of adequate school capacity.
This the ___ day of ____, 2003.
KEY FEATURES/CHANGES
SCHOOLS ADEQUATE PUBLIC FACILITIES PROPOSAL
Public Hearing: January 22, 2003
KEY FEATURES OF THE MEMORANDUM OF UNDERSTANDING
The proposed Memorandum of Understanding would:
· Direct all parties to work cooperatively to develop a realistic Capital Improvement 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.
We understand that an adjustment is needed to the form of the Memorandum of Understanding approved by the Town Council in April, 2002 (see attached letter from Orange Council Attorney Geoffrey Gledhill).
The proposed Adequate Public School Facilities text amendment would:
· Include provisions in our Development Ordinance that require that a developer obtain a Certificate of Adequacy of Public School Facilities from the Chapel Hill Carrboro City Schools for approval of a new residential subdivision, a Special Use Permit, or a Site Plan Review that contains a residential component.
· Require that a Certificate of Adequate Public School Facilities is to be requested from the Chapel Hill/Carrboro City Schools. 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.
KEY CHANGES SINCE FEBRUARY, 2001
The following points highlight the key areas of change between the February, 2001 documents and the February, 2002 documents:
· Certificate of Capacity (to be obtained from the school system) now is proposed to be required after Town approval of a development, but before a Zoning Compliance Permit is issued that would authorize construction.
· Each year, on November 15, the School District would certify enrollment and capacity at each level of school: elementary, middle, and high school, and determine expected enrollment and capacity for each of the subsequent 10 years (using a methodology agreed to by all parties to the Memorandum of Agreement). By comparing enrollment and capacity, a projected available capacity would be calculated for each year in the ten year period.
· Each year after the first year of implementation, it would be the responsibility of the Orange County Board of Commissioners to review and, if necessary, update projections.
· If capacity is determined by the School District to be available, Certificates of Adequate Public Schools would be issued on a first come-first served basis to approved developments during the ensuing 12 months, or until available capacity is gone.
· If capacity is not available and a request for a certificate is denied, the developer may seek approval from the appropriate planning jurisdiction of modifications to the development that would allow for the issuance of a certificate, and then re-apply.