For the past month, Baltimore County Council members have heard two versions of the consequences of passing Bill 31-24. Either the measure will ease or prevent overcrowded school districts, or it will further hamstring the county’s efforts to build more affordable housing and expand its shrinking tax base.

The measure addresses something called the Adequate Public Facilities Ordinance, which the county first enacted about two decades ago. Most counties have such an ordinance to make sure they have enough public services to accommodate new development; many counties also charge developers impact fees per square foot of development to pay for new infrastructure, particularly new schools.

The council had planned to vote on the measure on Thursday, but didn’t. Instead, it went into closed session — a rarity — to confer with lawyers about how the measure would affect state funding from school construction. The current plan is for another work session on the measure and its amendments Tuesday, with a final vote on the bill on June 3. The amendments clarify who would be on the committee to evaluate proposals and whether they comply with the ordinance.

Discussion around the AFPO has been among the most contentious measures the council has considered this year. One hearing lasted nearly five hours, with more than 40 people testifying, many of them elected officials. Here, we explain the APFO and the concerns surrounding it.

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What is an Adequate Public Facilities Ordinance?

An Adequate Public Facilities Ordinance is a tool to make sure that a county has enough roads, sewer capacity, water and schools to accommodate new growth.

As the Maryland Department of Planning puts it: “In plain English, an APFO says that if the roads are too congested, if the school classrooms are too crowded, if the water system cannot provide enough water, if the sewer pipes or treatment plant are full, or if there are not enough playing fields for recreational use, then development cannot be approved until the problem is corrected.” The idea is that the county will address public facilities issues before approving new development. The APFO works in conjunction with zoning and master plans to make sure developments go in places with capacity in their sewers and schools.

How long have these ordinances been around?

The Maryland General Assembly passed a measure allowing municipalities and non-charter counties to adopt APFOs. In 1992, that authority was expanded to all counties. Most jurisdictions have some version of an APFO.

Does an APFO stop development?

Not necessarily. The council has structured this bill to only apply to overcrowded school districts. The Maryland Department of Planning recommends using the ordinance with four stages:

Master plan: A long-range plan outlining where a county expects new development and where it wants to restrict growth. Baltimore County updates its master plan at least every 10 years.

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Zoning and capital improvement programming: This part allows the county or city to designate what kind of use each parcel can have — residential, commercial, open space and industrial are the major categories. Then the county can invest in those areas.

Development approval: County planning boards approve or amend plans for houses, storage facilities and other developments. At this point, the APFO can become relevant if the county determines the sewage capacity or schools are not sufficient for the development. That doesn’t kill a project, but could amend it.

Building permit: The county issues permission to build at the location.

What’s going on in Baltimore County?

In 2020, the council created the Baltimore County Adequate Public Facilities Ordinance Task Force to study how to improve the APFO with regard to schools. The task force included members of the school board and the community. It had several meetings and prepared a report in 2020. Members looked at census data, population growth, school enrollment and how these ordinances work in other counties. Among the recommendations: to tighten the overcrowding standard to 100%, instead of the current 115%; to consider the APFO prior to approving developments (instead of later in the process); and to set up a wait time of more than five years for development approval due to overcrowding. It also recommended cleaning up exceptions, including one allowing development in adjacent districts that can flow to overcrowded districts.

That was a few years ago. What’s going on now?

A few years after the recommendations, the County Council introduced legislation that would amend the county’s APFO and establish a committee that will review developments to ensure proposed new housing does not overwhelm a school. The legislation requires that developers obtain a certificate showing there is active school capacity. The legislation, as currently drafted, sets up coordination among the committee, the school board, county officials and the public. It would eventually bring the capacity requirement from 115% to 100%, though the amended version does this slowly. The council members who sponsored the legislation include Mike Ertel and Izzy Patoka, both Democrats, and Republicans Wade Kach and David Marks. Those four votes would be enough to pass it, but council members have said they want more time so more colleagues have their concerns addressed.

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Baltimore County Councilman Julian Jones. (Kaitlin Newman/The Baltimore Banner)

What’s the overcrowded situation now?

Councilman Julian Jones said that only nine out of 176 public schools are overcrowded. The Baltimore Sun reported that nearly a third of the county’s schools are at or over capacity. A study from Sage Policy Group in 2018 predicted nearly every county high school would be overcrowded by 2027.

But we need new houses, don’t we?

Many developers testified at the work session that new houses do not overcrowd schools. Councilman Jones joined in, saying “it’s not a 100% fact that somehow development is causing overcrowded schools.” Fair housing advocates also had concerns that the legislation could halt or slow building in the county, which has committed to more affordable housing. Many testified that redistricting would be a better option than a bill that could restrict housing. The APFO ordinance has created an alliance between developers and affordable housing advocates.

What’s wrong with an overcrowded school?

Councilman Todd Crandell argued that his colleagues’ assertions that children aren’t getting the best shot at success in an overcrowded school was “a pretty grandiose statement.” The Dundalk Republican’s district is home to the overcrowded Sparrows Point High School, which consistently ranks well. “An overcrowded school is not necessarily a bad school,” Crandell said at the first APFO hearing. “We need to not lead with assumptions that simply aren’t true.” Jones, who initially planned to sponsor the ordinance but changed his mind, said that parents prefer overcrowded schools to redistricted schools. “An overcrowded school is not a bad thing. Have you been to Disneyland? There’s a reason it’s crowded. Everyone wants to be there,” Jones said at the second APFO hearing.

Teachers, parents, and students dispute that. Overcrowded schools can mean students are sometimes eating lunch closer to breakfast time, having their gym class in homeroom, or walking long distances to outside trailers. Sometimes, the school needs to hold an assembly two or three times so everyone can attend. Fights can happen in crowded hallways. Dismissal queues can take more than an hour. Educators have long agreed that overcrowded schools are not ideal learning environments. Students pay less attention to lessons, behavior issues erupt and facilities deteriorate.

What about impact fees? Shouldn’t those cover schools?

Impact fees are costs that developers pay to offset the consequences of construction. In other counties, they pay for schools. But not in Baltimore County. The third-largest jurisdiction in the state by population didn’t have impact fees until 2020, following legislation that was introduced to codify them. After many amendments that watered down requirements, the county collected zero impact fees in fiscal year 2023 and only about $14,000 in 2022, according to The Sun. The administration had initially projected they would bring in $10.3 million in the first year.

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In contrast, Anne Arundel County brings in millions in impact fees. A ballpark construction cost for a school in Maryland is about $36 million; counties typically also receive money from the state. Anne Arundel is currently redistricting; unlike Baltimore County, the threshold for overcrowding there is 100%, not 115%.

I didn’t know about any of this, and I have thoughts. What can I do now?

You still have a chance to weigh in on the APFO and the amendments. The council will discuss the measure at its work session at 4 p.m. Tuesday, May 28. Here are the rules about signing up to provide testimony. The council is scheduled to vote at its legislative session at 6 p.m.

“An overcrowded school is not a bad thing. Have you been to Disneyland? There’s a reason it’s crowded. Everyone wants to be there.”

Councilman Julian Jones