McKay discusses details of proposed development moratorium

Sep. 21—Frederick County Councilman Steve McKay said his proposed residential development moratorium would be based on the county’s adequate public facilities test, which determines whether existing infrastructure can support more growth in a particular area.

In an interview on Wednesday, McKay described the legislation he plans to propose while noting that details are still subject to change.

Under McKay’s proposed ordinance, if a public school exceeds 120% of its state-rated capacity, a moratorium on residential development within that school’s boundary area would automatically take effect.

Unlike the adequate public facilities ordinance, which is based on Frederick County Public Schools’ enrollment projections, the moratorium ordinance would be based on actual enrollment figures.

McKay said a moratorium on residential development would likely expire within 18 to 24 months of its start date.

He said the moratorium would not apply to projects for which plats have been recorded. Small developments, as well as large developments that are nearly complete, would also be unaffected.

McKay has not yet settled on how he will define a “small development,” but said it could be between 50 and 100 units.

Age-restricted developments that do not allow residents under age 18 would be exempt from a moratorium triggered by school capacity issues. There will also be an exemption for moderately priced dwelling units.

“We’re trying to put this together with some reasonable features, rather than an overall draconian kind of thing,” McKay said Wednesday.

He said a moratorium could be applied to projects subject to Development Rights and Responsibilities Agreements, which act as a kind of time-bound contract between the county and a developer.

Under the Frederick County Code of Ordinances, the county can suspend or terminate a DRRA if such an action is deemed “essential to ensure the public health, safety, or welfare.”

County code also states that a DRRA can be altered if the Planning Commission determines that an amendment is necessary to ensure compliance with new rules and regulations, which would include the moratorium ordinance if adopted.

If a development pause were imposed on a project with a DRRA, the term of the agreement would be extended by the length of the moratorium.

McKay said projects in the county’s incorporated cities and municipalities, which are empower to dictate their own growth strategies, would not be subject to a moratorium under his proposed ordinance, even if they have a DRRA with the county.

COUNTY COUNCIL DISCRETIONIn addition to outlining the circumstances under which a moratorium could restrict residential development in a particular area, McKay’s proposed ordinance would also specify the ways in which a moratorium could come to an end.

McKay’s proposed ordinance includes a mechanism through which the County Council can vote to end a moratorium early under certain conditions:

— The creation of additional public school capacity through redistricting or new school construction

— A natural decrease in public school enrollment figures

— The budgeting of funds for new school construction in the county’s near-term Capital Improvement Program

If a school experienced a drop in enrollment that the school system determined to be temporary, the proposed ordinance would let the County Council delay the expiration of a development moratorium within the school’s boundary area.

A vote by the County Council to end a moratorium prematurely or extend a moratorium that would have otherwise expired would be subject to review by the Planning Commission and would require a public hearing, McKay said.

On Wednesday, McKay said he was still looking into whether such an action could be subject to a veto by the county executive. He is also considering a ceiling on new building permits in his proposed ordinance.

Under the ordinance, any moratorium on development would prompt the county to conduct a study in the affected area to determine how population growth was allowed to outpace public infrastructure availability.

“It’s important that, if we declare a moratorium, we have to use that time to try to fix the problem,” McKay said.

While McKay’s proposed ordinance will focus on school capacity-related development moratoriums, a future County Council could still add language addressing moratoriums for water, sewer or road capacity issues.

On Wednesday, McKay said his draft ordinance was made available to both the county’s attorneys and County Executive Jessica Fitzwater.

In a statement emailed to the News-Post on Thursday, Fitzwater wrote:

“Council Member McKay shared a preliminary draft, which he acknowledged needs significant work before it is introduced. I appreciate his communication but will wait to see what is ultimately proposed to the Council before weighing in.”

McKay said he shared the draft with one other County Council member, but did not say who.

McKay anticipates that he is more than a month away from officially introducing his ordinance to the rest of the County Council.

“I think this is going to be a well-supported action, because we all know the challenges we’re facing,” McKay said on Wednesday. “But until we start having those discussions with final text on the table, I’m just crossing my fingers.”

SCHOOL CAPACITY CHALLENGES

McKay brought up the idea of a moratorium during a Sept. 11 meeting between the Frederick County Board of Education, the county’s state delegation, County Council members and Frederick city representatives.

Sue Johnson, the president of the Frederick County Board of Education, told the News-Post on Thursday that she was relieved to hear legislators talking about the issues of development and school capacity.

“We are hoping to have a wide variety of discussions about how we can meet our demand for school capacity and infrastructure,” Johnson said. “If there could be a slow-down in the growth, it would provide us the benefit of more time.”

Much of the population growth has been occurring on the east side of the county, where McKay’s council district is situated.

Johnson said the school capacity issue has been exacerbated by aging school buildings, funding challenges and state requirements seeking to expand the availability of pre-school and career training.

According to FCPS, 48 subdivisions are in the development pipeline for Frederick County, not including projects approved by the county’s incorporated cities and municipalities.

Of the 48 subdivisions approved by the county through July 2023, 10 are not age-restricted, have received approval for more than 50 units and have not yet recorded any plats.

Between them, those 10 subdivisions have more than 3,300 approved units and are projected to bring more than 1,800 additional students to FCPS. Three of the subdivisions — the Blentlinger Property PUD, the Casey PUD and the Daysville Glen PUD — are subject to DRRAs.

“If a moratorium allows us to delay the need to build another new school by just a couple years in the CIP, that can make all the difference in the world in terms of our ability to afford a replacement for Brunswick High or another school that we desperately need and can’t delay,” McKay said.