Adequate Public School Facilities

Schools Adequate Public Facilities Ordinance

The Cary Town Council adopted the Schools Adequate Public Facilities Ordinance (APF) in July 1999 in response to community concerns about school overcrowding from rapid growth in the Cary area.

The purpose was to try to ensure that new residential developments would be approved only if Wake County Public Schools could accommodate the additional students.

September 2004 Update – Ordinance Repealed

The Town Council amended the Land Development Ordinance to eliminate Schools APF regulations. The Town intends to continue planning coordination and assistance with land acquisition and infrastructure improvements for schools.

Why the Ordinance was Repealed

• The regulations have failed to stop any new development.
• The regulations have failed to create any new school seats in Wake County or provide any additional money for increasing school capacity.
• Cary developer agreements promising funds for schools are independent of the APF. Since the state has not given Cary authority to collect money for schools, however, homebuilders probably could win a court challenge if Cary tried to collect.
• There is no proof that the Schools APF led to the recent slowing of Cary’s population growth rates. The ordinance would not have affected growth beyond Cary regardless. For a Schools APF to work in Wake County, it must be county-wide.
• Improved information sharing with the school system will continue even without the APF. Partnerships on land deals and infrastructure for schools will also continue.

What the Ordinance Said

3.18.1 Purpose

The purpose of this Section is to ensure that, to the maximum extent practical, the Town will approve new residential developments only when it can reasonably be expected that adequate public school facilities will be available to accommodate such new developments. No portion of this section shall be interpreted or deemed to affect any rights that have vested prior to the enactment of this Ordinance.

3.18.2 Certificate of Adequate Educational Facilities (CAEF)

(A) Except as provided by Section 3.18.6 below, no subdivision plan or site plan may be approved unless on the date of such approval there exists a valid and current Certificate of Adequate Educational Facilities (CAEF) applicable to the project for which such approval is sought.

(B) A CAEF must be obtained from the Wake County Public School System in accordance with Section 3.18.4 below. The School System will issue or deny a CAEF in accordance with the provisions of the Memorandum of Understanding between the Town, and the Wake County Public School System, dated July 22, 1999.

(C) An applicant may seek from the School System a CAEF for a proposed development before
an application for approval of a subdivision plan or site plan is submitted to the Town. The CAEF, if issued, shall expire as provided in Section 3.18.5 below.

(D) CAEFs attach to the land in the same way that development permission attaches to the land. CAEFs may be transferred along with other interests in the property with respect to which they are issued, but may not be severed or transferred separately.

3.18.3 Information Required From Applicants

The applicant for a CAEF shall submit to the School System all information reasonably deemed necessary by the School System to determine whether a CAEF should be issued under the provisions of the Memorandum of Understanding between the Town and the Wake County Public School System.

3.18.4 Service Levels

Adequate service levels for public schools shall be deemed to exist with respect to a proposed 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, within the school attendance zones serving the Town and its planning jurisdiction (including areas likely to be annexed by the Town), school enrollment at each individual elementary school, middle school, and high school that serves the development site shall not exceed the following enrollment-to-capacity levels based on permanent seats:

(A) Elementary schools – 130 percent

(B) Middle schools - 130 percent

(C) High schools - 130 percent

3.18.5 Expiration of Certificates of Adequate Educational Facilities

(A) A CAEF that has been obtained pursuant to subsection 3.18.2(C) before an application for approval of a subdivision plan or site plan has been submitted shall expire unless the developer submits an application for approval of a subdivision plan or site plan within six months of the date of the CAEF and receives the requested approval within 12 months of the date of the CAEF. If approval of a subdivision plan or site plan occurs under the circumstances described herein, then the CAEF for such development shall be automatically renewed from the date of such approval and thereafter shall expire as provided in the remaining provisions of this section.

(B) A CAEF issued in connection with approval of subdivision plans or site plans shall expire automatically upon the expiration of such subdivision plans or site plans.

3.18.6 Exemption From Certification Requirement for Small, Low Density, and Affordable
Housing Development Projects

(A) A CAEF shall not be required if the gross density of the proposed residential subdivision development does not exceed (i) one dwelling unit per two acres of the development tract, or (ii) the project is exempt from subdivision plan or site plan approval as allowed under the provisions of this Ordinance.

(B) In addition, the Town Council may waive the requirements of this Ordinance in the case of affordable housing projects that: (1) use a public subsidy program(s) with an income screening/monitoring component (CDBG, HOME, tax credits, etc.) or the developer is/will partner with a non-profit group that will assure units will be occupied by low- and moderate-income residents (total household income is 80 per cent or lower than the area median income as determined by the U.S. Department of Housing and Urban Development), or other creative arrangements with the public or private sector that guarantee low- and moderate-income occupancy; and (2) where the service level for any group of schools in the case of Section 3.18.4(A) or individual school in the case of Section 3.18.4(B) is no more than five percent above the applicable standard of Section 3.18.4.

(C) The Town Council may also exempt proposed developments from the requirements of this Section on a case-by-case basis if the proposed development provided funds per unit to support new school development.

3.18.7 Applicability to Previously Approved Projects, Projects Pending Approval, and
Projects within Planned Developments

(A) Except as otherwise provided herein, the provisions of this section shall apply to new applications for approval of subdivision plans or site plans that were submitted for approval by the Town after the effective date of this Ordinance.

(B) The provisions of this section shall apply to previously approved subdivision plans and site plans that have expired because no construction was undertaken prior to expiration of the original approval.

(C) The provisions of this section shall not apply to amendments to subdivision plans or site plans approved prior to the effective date of this section so long as the approvals have not expired and the proposed amendment does not increase the number of dwelling units authorized within the development by more than five percent.

(D) Subject to subsection (E), the provisions of this section shall apply to applications submitted after the effective date of this Part for approval of subdivision plans and site plans within previously-approved planned developments.

(E) The Town Council shall issue a special exception, for a period of time not to exceed three years, to exempt from the provisions of this section applications for approval of subdivision plans and site plans covering property within a planned unit development that was approved prior to the effective date of this section, if the council finds that the applicant has in good faith made substantial expenditures or incurred substantial binding obligations in reasonable reliance on the previously obtained planned unit development approval, and would be unreasonably prejudiced if development in accordance with the planned unit development master plan is delayed due to the provisions of this section. In deciding whether these findings can be made, the 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 planned unit development 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 at the request of the Town that directly benefit other properties outside the planned unit development in question or the general public;

(3) Whether the developer has donated land to the School System for the construction of school facilities or otherwise dedicated land or made improvements deemed to benefit the Wake County Public School System;

(4) Whether the developer has had the planned development master plan approval for a substantial amount of time and has in good faith worked toward development of the planned development in reasonable reliance on the previously obtained planned development district approval for a substantial amount of time;

(5) The duration of the delay that will occur until public facilities are improved to such an extent that a CAEF can be issued for the project, and the effect of such delay on the planned development and the developer.

(F) The Town Council may exempt applications for approval of subdivision plans and site plans covering property within a residential development, or new/amended planned development where schools, school sites, or other funds are to be provided by the developer in support of school seat capacity. Such schools may be public, private, or religious in nature. Depending upon the circumstances, Council may decide to place no time limit on the period of any exemption under this subsection. The terms of school construction and/or school site dedication and any exemption under this subsection, including the timing of school construction or site dedication in relation to the number of units constructed, shall be approved by Town Council as part of the master plan conditions for the planned development or in a separate agreement.

In making an exemption decision, the Council shall consider the following, among other relevant factors:

(1) The nature of school facilities and/or sites to be provided by the developer in relation to the number and type of residential units to be developed in the planned unit development; and

(2) The availability of future school facilities under construction or planned by the Wake County Board of Education or by private or religious institutions to meet school needs within the general vicinity of the new or amended planned unit development during the period of exemption.

Where the developer of the new or amended planned development fails to deliver a school or school site in accordance with any such conditions or agreements, then this exemption right shall terminate.