Coordinating the Pace of Development with the Provision of Adequate Public Facilities

Statement of the Issue

In many Virginia localities, the rate of growth is so rapid that it is outstripping local governments' abilities to provide adequate capacity in schools and other public facilities for the new residents. Many localities have overcrowded classrooms and must redraw their school district boundaries frequently, even though they are making large investments in new schools. Much of this problem is due to the fact that growth rates have been much more rapid than local boards of supervisors and school districts anticipated at the time of approving rezonings in the 1970s, ‘80s and early ‘90s.

Localities have some control over new rezonings, including the ability to negotiate voluntary proffers with developers, to offset some of the costs of growth, including cash, school sites or road improvements. Currently, however, localities have no authority to manage the pace and timing of development already approved, even if it is outstripping the locality’s ability to provide and pay for new public facilities. Localities have neither the authority to require contributions to offset the real and quantifiable civic capital costs caused by new development; nor are they able to time the approval of building permits according to when civic facilities are planned to come on line

This means that in high growth localities either schools and other facilities fall increasingly behind, or the real estate tax burden on homeowners skyrockets, making housing less affordable. Most likely, it means both.

Background

Thoughts about providing relief to this problem range from providing more funds for the construction of schools and other facilities to a concept known as adequate public facilities programs (APF). Providing increased funding is a significant undertaking especially given the serious fiscal constraints of the past few years and the likelihood that it will be a long while before assistance can be provided through the State. The situation is especially acute in high growth communities that have fallen significantly behind in providing adequate levels of public facilities, despite high levels of local funding.

Given this situation, local governments have petitioned the state for the authority to enact adequate public facilities ordinances that are administered at the local level. Localities must go to the state because Virginia is a "Dillon Rule" state, meaning local governments have only the power specifically granted by the General Assembly. Therefore, localities cannot meet the challenge of providing adequate public facilities through good growth management techniques such as regulating the timing of development without permission from the General Assembly. Unfortunately, the General Assembly has consistently refused to grant such authority. Enabling legislation has been introduced in recent legislative sessions, but could not get out of committee despite support from local governments and citizens.

At the end of the 2003 Session, this issue was referred to the Commission on Growth and Economic Development. The Commission created a subcommittee to explore if a suitable approach for allowing localities to pace development so that they could provide adequate public facilities could be agreed upon. The subcommittee, which includes local government, developer, and conservation representatives, made significant progress and at its last meeting on November 13, 2003 reported that it had a draft APF Act but that several issues still need to be worked out. Accordingly, it is asked the full Commission to request that the work on the draft APF Act be continued under the auspices of the Commission. The request was granted and the work has continued in preparation for the 2005 Session. Concurrently, the Senate Committee on Local Government retained a bill (SB393) that specifically addresses school facilities. The Committee considered that at an October 2004 meeting at which time it was amended to apply only to the City of Suffolk. The bill failed to report from committee. At this time it is not know if any of the other deferred APF legislation will actually continue into the 2005 Session or if new APF bills will be introduced.

Understanding just how an APF program works, the obligations of local government in carrying it out, just how it affects the timing and location of growth, and how it affects landowner rights is a complex task. However, as demonstrated by the work of the APF subcommittee during the summer and fall of 2003 as well as by programs in other states, APF programs are feasible and can be workable in Virginia. The last page of this paper provides a summary and highlights of an APF program.

This concept has broad support, including that of the Virginia Association of Counties, the Virginia Municipal League, the Virginia Farm Bureau, the Virginia Education Association, the Coalition of High Growth Communities, the Virginia Chapter of the American Planning Association, and several conservation organizations including: Sierra Club – Virginia Chapter, Virginia Forest Watch, and the Coalition for Jobs and the Environment to name a few

Recommendations

Continue to support actions that gives local governments the authority to adopt Adequate Public Facilities Ordinances (APFO).

Such authority should:

• Apply to all localities. As it is enabling authority, each locality can determine if an APFO is appropriate for its circumstances;
• Apply to all public facilities, including schools, transportation, public safety (police, fire, emergency services), and sewer and water;
• Apply to both site plan review and subdivision plat review;
• Require localities to have in force a capital improvements plan to remedy the infrastructure inadequacy that has been the basis for the development deferral.

Contacts: Lisa Guthrie, Virginia League of Conservation Voters, 804-225-1902, email: virlcv@aol.com

Stewart Schwartz, Coalition for Smarter Growth, 202-244-4408, email: stewart@smartergrowth.net

Jolly de Give, Piedmont Environmental Council, 540-347-2334, ext. 15, email : jdegive@pecva.org

Rev/October 2004

What is an adequate public facilities ordinance?

An Adequate Public Facilities Ordinance (APFO) is a law adopted by the local government that allows it to defer the approval of developments based upon a finding by the governing body that public facilities would not be not adequate to support the proposed development at build out.

What are the components of an effective APF ordinance?

• Identifies the types of public facilities to be considered.
• Limits the period of time during which the deferral on development imposed by an APFO can be in force.
• Requires the locality to have in place a capital facilities plan to remedy the infrastructure inadequacy that has been the basis for the development deferral.

What does granting APFO authority do?

• Allows localities to time development to coincide with the taxpayers’ ability to pay for the schools, roads, public safety and other necessities upon which development is dependent.
• Helps to ensure that development doesn’t proceed at the expense of decent schools, public safety, and good neighborhoods.
• Helps to ensure that the huge backlog of approved development in many high growth localities does not bankrupt localities, or taxpayers.
• Ensures that localities that wish to manage growth must adopt capital budgets that will support growth.

What APFO legislation does not do:

• It does not stop growth.
• It does not violate constitutionally guaranteed property rights.
• It does not excuse localities from their obligation to provide infrastructure.
• It does not impose unfair costs on developers.
• It does not downzone property.

Enabling legislation should:

• Apply to all localities. As it is enabling authority, each locality can determine if an APFO is appropriate for its circumstances;
• Apply to all public facilities, including schools, transportation, public safety (police, fire, emergency services), and sewer and water;
• Apply to both site plan review and subdivision plat review;
• Require localities to have in force a capital improvements plan to remedy the infrastructure inadequacy that has been the basis for the development deferral.