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HomeMy WebLinkAbout2002 NS MOUSchools Adequate Facilities Memorandum of UnderstandingLAW OFFICES COLEMAN, GLEDHILL & HARGRAVE A PROFESSfONAL CORPORATION 129 E. TRYON STREET P. O. DRAWER 1529 HILLSBOROUGH, NORTH CAROLINA 27278 919-732-2196 FAX 919-132•799~ WEBSiTE www.cgancih.u~m December 9, 2002 Margaret W. Brown, Chair Moses Carey, Jr. ~ Alice M. Gordon Stephen Halkiotis Barry Jacobs Orange County Board of Commissioners Post Office Box 8181 Hillsborough, North Carolina 27278 RE: Schools Adequate Public Facilities Dear Board Members: /..2- ~ o-Zo~ ~. 9~ fROM THE DESK OF GEOFFREY E. GLEDHILL &MAIL: geu(freqKlallullC~c,a~wlh.mm . ~,w Enclosed is a blacklined version of the Addendum to the Schools Adequate Public Facilities Memorandum of Understanding among the Town of Hillsborough, the Orange County Board of Education and Orange County which makes technical changes to Option I and Option II to provide consistent language with the MOU. The enclosed Orange County ordinance that will be required to implement the SAPFO and the County's planning jurisdiction has been revised per the blacklining for the same reason. The enclosed copy of a September 29, 2000 letter from me to the Board, in "Issue Number l," provides again my analysis of the relationship between operating a SAPFO program in Orange County and the County maintaining a Capital Investment Plan that Orange County Board of Commissioners Page 2 December 9, 2002 is financially feasible and synchronized with historical growth patterns. Very truly yours, • ' COLEMAN, GLEDHILL & HARGR.P,VE, P.C. edhill GEG/lsg Enclosures xc: Craig Benedict John M. Link, Jr. Rod Visser Michael B. Brough, Esquire Ralph D. Karpinos, Esquire John G. McCormick, Esquire D. Michael Parker, Esquire lsg:letters\bdofcomschoolsadec~ubfac#2.ltr ~ ..,~, ADDENDUlVI TO SCHOOLS ADEQUATE PUBLIC FACILITIES MEMORANDUltiI OF UNDERSTANDI~TG This Addendum to the Schools Adequate Public Facilities Memorandum of Understanding is entered into this day of , 20 , by and among the Town of ~ Hillsborough, the Orange County Board of Education and Orange County. WHEREAS, school membership within the middle school level in the Orange County School District for the 2002-2003 school year is 115% of building capacity; and WHEREAS, a third middle school for the Orange County School District is in the planning stage, on the Orange County 10-yeaz CIP and funding has been committed to this school by Orange County as a result of an approved bond issue; and WHEREAS, it is anticipated that the third middle school in the Orange County School District will be completed and middle school students will begin attending this school when the 2005-2006 school year begins; and WHEREAS, it is in the interest of the parties to this Memorandum of Understanding (MOLn and to the citizens of Orange County that the Schools Adequate Public Facilities Program be implemented for the Orange County School District in 2003 in tandem with the implementa.tion of the Program for the Chapel Hill-Carrboro School District; .. ;+.~, NOW, THEREFORE, the parties to this Addendum to the MOU and to the MOU hereby agree that Section 3.g. of the MOU is amended to read as follows: Section 3.g. If the School District determines that the projected capacity of each school level is sufficient to accommodate the proposed development without exceeding the building capacity levels set forth in Section 1 of this Memorandum, then the School District shall issue the CAPS. If the School District determines that the projected capacity of each school level is not sufficient to accommodate the proposed development without exceeding the building capacity levels set forth in Section 1, then the School District sha11 deny the CAPS. If a CAPS is denied, the applicant may seek approval from the appropriate planning jurisdiction of such modifications to the development as will allow for the issuance of a CAPS, and then reapply for a CAPS. OPTION I For the period of time beginning the effective date of the ordinances referred to in Section 2 of this MOU and terminating on the day on which the third middle school within the Orange County School District is first attended by middle school students, the determination by the Orange County School District that adequate service levels for public schools exist shall be made only if projected ' capacitv of each school level does not exceed the following: Elementary School 105% of Building Capacity Middle School 115% of Building Capacity High School 110% of Buildir~g Capacity On and after the day on which the third middle school within the Orange County School District is first attended by middle school students, determination by the Orange County School District that adequate service levels for public schools exist shall be made only if se~ie ~ projected capacity of each school level does not exceed the following: Elementary School 105% of Building Capacity Middle School 107% of Building Capacity High School 110% of Building Capacity OPTION II For the period of time beginning the effective date of the ordinances referred to in Section 2 of this MOU and terminating on the day on which the third middle school within the Orange County School District is first attended by middle school students, the determination by the Orange County School District that adequate service levels for public schools ex,ist shall be made without regard to whether or not ''' projected capacitv of the Middle School level exceeds 107% of Building Capacity. On and after the day on which the third middle school within the Orange County School District is first attended by middle school students, determination by the Orange County School District that adequate service levels for public schools exist shall be made only if ~ projected ca aci ~ of each school level does not exceed the following: Elementary School 105% of Building Capacity Middle School 107% of Building Capacity High School 110% of Building Capacity This the day of , 20_ SEAL Attest: Town Clerk TOWN OF HILLSBOROUGH By: Mayor 2 Attest: .ORANGE COUNTY BOARD OF EDUCATION SEAL By: . Chair Secretary ~ ORANGE COUNTY SEAL By: Chair, Board of Commissioners Attest: Clerk to the Boazd of Commissioners Isg:oiangccountyU~tou hbocv ac addendum cevised * h~ 3 Approved by Schools and Land Use Councils 11/14i01; Draft completed by staff?/8/02 11-27-02 revisions 12-9-02 revisions Eshibit A AN ORDINANCE ANIEND~G ORANGE COUNTY DEVELOPIVIENT ORDINANCES TO REQUIRE THAT THE ADEQUACY OF PUBLIC SCHOOL FACILITIES TO ACCOMNTODATE NEW DEVELOPNIENT BE CONSIDERED IN TIiE APPROVAL PROCESS ~ WHEREAS, the portion of Orange County served by the Chapel Hill/Carrboro school system and the Orange County school system, have for the past decade been experiencing rapid growth in population; and WHEREAS, 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 WHEREAS, the responsibility for planning for and constructing new school facilities lies primarily with the Chapel Hill/Carrboro School Board and Orange County School Board, with funding provided by Orange County; and ~ WHEREAS, Chapel Hill, Cazrboro, Orange County and the Chapel HilUCarrboro School District on the one hand and Orange County, Hillsborough, and the Orange County School District on the other hand have recognized the need to work together to ensure that new growth within the School Districts occur at a pace that allows Orange~=~~" County and the School Districts to provide adequate school facilities to serve the children withi.n such new developments; and WHEREAS, to implement the Memoranda of Understanding among Orange County, Chapel Hill, Carrboro, and the Chapel HilUCarrboro .School Board and among Orange County, Hillsborough, and the Orange County School Board, the Boazd of Commissioners of Orange County 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, wiuch will accornmodate 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 Approved by Schools and Land Use Councils 11/14/O1; Draft completed by staff 2/8/02 11-27-02 revisions 12-9-02 revisions expected that adequate public school facilities will be available to accommodate such new development. The Chapel Hill-Carrboro School District and the Orange County School District are each declared an overlay district in order to implement Schools Adequate Public Facilities as prescribed in this [article): Within the Chapel Hill-Carrboro School District Overlay District and within the Orange County School District Overlay District, provisions of the Orange County Zoning Ordinance and Orange County Subdivision Regulations which implement the Schools Adequate Public Facilities Ordinance are applicable. 2. Certificate of Adeqn~cy of Public Schools Facilities. (a) Subject to the remaining provisions of this [azticleJ, 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 a Certificate of Adequacy of Public Schools 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 sha11 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 staternent to thi.s.'-=~` 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 among Chapel Hi11, Carrboro, Orange County, and the Chapel Hill Carrboro School District or among Orange County, Hillsborough, and the Orange County School District dated . (d) A CAPS attaches to the land in the same way that development pemussion attaches to the land. A GAPS 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 Memoranda of Understanding among Orange County, Chapel Hill, Carrboro, and the Chapel HilUCarrboro Board of Education and arnong Orange County, Hillsborough, and the Orange County Board of Education (MOU or MOUs), adequate service levels for public schools shall be deemed to exist with respect to a 2 Approved by Schools and Land Use Councils 11/14i01; Draft completed by staff ~3/02 11-27-02 revisions 12-9-02 revisions proposed new residenrial development if, given the number of school age children projected to reside in that development, and considering all the factors listed in the MOU, projected school membership for the elementary schools, the middle schools, and the high school(s) within the Chapel HilUCarrboro School District and within the Orange County School District will not exceed the following percentages of the building capacities of each of the following three school levels: Elementary School Middle School High School 105% of Building Capacity 107% of Building Capacity 110% of Building Capacity NEW OPTION I For the period of time beginning the effective date of the ordinances referred to in Section 2 of the MOU among Orange County, Hillsborough and the Orange County Board of Educarion and terminating on the day on which the third middle school within the Orange County School District is first attended by middle school students, the determination by the Orange County School District that adequate service levels for public schools exist shall be made only if projected ' ca aci of each school level ~ does not exceed the following: Elementary School 105% of Building Capacity ,, Middle School 115% of B,uilding Capacity . High School 110% of Building Capacity . ~{~ On and after the day on which the third middle school within the Orange County School District is first attended by middle school students, determination by the Orange County School District that adequate service levels for public schools exist shall be made only if ' projected capacity of each school level does not exceed the following: Elementary School 105% of Building Capacity Middle School 107% of Building Capacity High School 110% of Building Capacity NEW OPTION II For the period of time beginning the effective date of the ordinances referred to in Section 2 of the MOU among Orange County, Hillsborough and the Orange County Board of Education and terminating on the day on which the third middle school within the Orange County School District is first attended by middle school students, the determination by the Orange County School District that adequate service levels for public schools exist shall be made as prescribed above but without regard to whether or not projected ' capacity of the Middle School level e:cceeds 107% of Building Capacity. On and after the day on which the third middle school within the Orange County School District is first attended by middle school students, determination by the Orange County School District that adequate service levels for Approved by Schools and Land Use Councils 11/1~i01; Draft completed by staff2i8i02 11-27-02 revisions 12-9-02 revisions public schools exist shall be made only if projected ' caPacitv of each school level ~ does not exceed the following: Elementary School 105% of Building Capacity Middle School 107% of Building Capacity High School 110% of Building Capacity For purposes of this ordinance, the terrns "building capacity" and "school membership" sha11 have the same meaning attributed in the MOU among Chapel Hill, Carrboro, Orange County and the Chapel Hill-Carrboro Board of Education and in the MOU among Orange County, Hillsborough and the Orange County Board of Education. 4. Expiration of Certificates of Adequacy of Public Schools Facilities. A CAPS issued in conriection 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 Negli~ible 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 Approved by Schools and Land Use Councils 11/14/O 1; . Draft completed by staff 2/8/02 11-27-02 revisions 12-9-02 revisions dwelling units authorized within the development by more than five percent or five dwelling units, whichever is less. (c) The Board of Commissioners shall issue a, 5pecial 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 proj ect that was approved prior to the effecrive date of this ordinance, if the Board of Commissioners 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 Board of Commissioners 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 expe~ded 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 Boaxd of Commissioners 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 Board of Commissioners is delivered to the applicant and every other party who has filed a written request for such copy with the Clerk to the Board of Commissioners at the time of its hearing on the application for a special exception. The 5 - . Approved by Schools and Land Use Councils 11/14/O 1; Draft completed by staff 2/8/02 11-27-02 revisions 12-9-02 revisions written copy of the decision of the Board of Commissioners may be delivered either by personal service or by certified mail, return receipt requested. (e) The chair of the Board of Commissioners or any member temporarily acting as chair may, in his or her official capacity, administer oaths to witnesses in any hearing before the Board of Commissioners concerning a special exception. 7. Appeal of School District Deniai 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 Board of Commissioners. Any such appeal shall be heard by the Board of Commissioners 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 Board of Commissioners 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 Board of Commissioners not brought before the School District, or (3) issue a CAPS. The Board of Commissioners 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 Board of Commissioners. A decision of the Board of Commissioners 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 deternune whether a CAPS should be issued under the provision of the MOU among Chapel Hill, Carrboro, Orange County and the Chapel Hi11-Carrboro Board of Education or the MOU among Orange County, Hillsborough and the Orange County Board of Education. An applicant for a CAPS special exception or an applicant appealing a CAPS denial by the School District shall submit to the Board of Commissioners all information reasonably deemed necessary by the Board of Commissioners 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_. Approved by Schools and Land Use Councils 11/14/O1; ~ Draft completed by staff 2/8/02 ~ ~ 11-27-02 revisions 12-9-02 revisions Ayes: Noes: Absent or Excused: lsg:ocangxountylsapfo ord rev 12-9-02 k. ~~ 7 LAW OFETCES COLEMAN, GLEDHILL & HARGRAVE A PROFESSIONAL CORPORATION 129 E TRYON SfREET P. O. DRAWER 1529 Hfi T CBOROUGH, NORTH CAROLINA 27278 ~~ 919•732-2196 FAX 919•732-799? weasrrE www.ccnr~Dx.coM S ep t e mbe r 2 9, 2 0 0 0 Moses Carey, Jr., Chair Margaret W. Brown Alice M. Gordon Stephen Halkiotis Barry Jacobs Orange County Board of Commissioners Post Office Box 8181 Hillsborough, North Carolina 27278 FROM THE DESK OF GEOFFREY E GLEDHILL RE: Issues related to the proposed Orange County Adequate Public School Facilities Program ` Dear Board Members : '~,,, This letter is intended to frame several issues arising_ from the excellent work completed by the School and Land Use Councils. The issues arise from my review of the minutes of the meetings of the Councils and from my attendance at some of the meetings of the Councils. The adequate public schools facilities proposed memorandum of understanding and related ordinances create a system whereby the schools issue certificates of adequacy of public schools facilities based on school service levels. The proposed ordinance provides that, after reviewing certain criteria, the schools make a determination that there is adequate capacity at the elementary school level, middle school level and high school level. If the project of the applicant for the certificate would cause any of the three school levels to exceed the service levels in the ordinance, the certificates would not be issued. Orange County Board of Commissioners Page 2 September 29, 2000 The memorandum of understanding also incorporates the service levels and requires the schools to consider a number of factors, including: number of students presently enrolled; projected or ongoing construction of schools or permanent expansion of existing schools; projected increases in enrollment due to residential grow~h as determined by approved building lots and other developments in progress and "any other factors deemed relevant by the school district in determining whether each school level of service [will be exceeded if the] project is constructed." To what degree can the County's financial ability to respond to school needs and projected school needs be one of the "other factors" considered by the schools in making certificate decisions? Put another way, can the Adequate Public School Facilities Program be used to limit the amount of residential development by budget decisions to allocate or not~~money for school construction?- . ~ .~~ It is not contemplated by an adequate public facilities y program that the tools, the ordinances and the MOU, are growth- limiting devices. Rather, the chief objective of these tools is to provide a reasonable amount of time for the County as the fiscal agent and the schools aG the education agent to respond to the impact of residential growth on.the schools. That is, they allow both the County and the schools to reasonably respond to the pace of development. Therefore, the degree to which the County is willing to spend money on school construction is not an "other" factor to be considered by the schools in issuing certificates. On the other hand, the County does not have to bankrupt itself and its citizens to keep school construction current with population increases. That is to say, the County can establish, in some broad sense debt service goals which if exceeded would have the impact of severely weakening Orange County's financial condition. Frankly, before the County reaches that level of fiscal despair, there must be a loud hue and cry for residential development land use limitation changes. If land use regulations Orange County Board of Commissioners Page 3 September 29, 2000 permit residential growth, the County must fund sufficient facilities and the schools must educate the children resulting from that residential growth. The only sound approach to balancing school facilities and residential growth student generation would be to regularly chart the school children "generated" by growth projections to see what school construction will be required. This can be compared with a fiscal limiting chart. If the two charted lines "cross," work needs to be done. More money must be found for school construction or County-wide growth limiting land use regulations must be implemented. To what degree is school capacity affected by student- teacher ratio decisions? In the context of an adequate public school facilities program, any student-teacher ratio change that changes school capacity must be approved by the schools and the Coun~,y. That ±~~'~ is, if the certificates can be impacted by student-teacher ratio decisions of the school boards, the County must be on board. . That is not to say that the schools cannot create their own teacher-pupil ratios. However, those unilateral school board decisions cannot affect.the adequate public school facilities program until and unless the County is on board with the changes. And, whether the County is on board on school board approved student-teacher ratios beyond the adequate public school facilities program is, in my opinion, in Orange County, a political one. On the other hand, the County cannot arbitrarily say no to school capacity changes that are the result of teacher-student ratio changes that are mandated at State and federal levels. This "issue" does not prompt a question. Rather it prompts a comment. There are several places in the draft ordinance that need some "wordsmithing." Particularly the section dealing with exemptions, the section dealing with appeals of denials of a CAPS, particularly the part about the governing board making a "recommendation," and the section of the MOU related to Orange County Board of Commissioners Page 4 September 29, 2000 affordable housing. This latter area, as written in the documents, needs the most work. A commitment by the County to provide additional school facility funding to ac~ommodate one or more affordable housing projects cannot "translate" in the ordinance to a de facto certificate exemption for affordable housing projects. ~ Very truly yours, GEG/lsg xc: Craig Benedict Donna Dean John M. Link, Jr. Rod Visser COLEM~,N, & HARGRAVE, P.C. 1 .. ~x~ lag:letters\bdofcomadeqpubfac.ltr