In an effort to address persistent school overcrowding, the Baltimore County Council in Maryland has enacted new legislation requiring residential developers in the county to seek approval for their projects based on local school capacity.

The legislation, formally known as Bill 31-24, An Act Concerning Adequate Public Facilities – Overcrowded School Districts (the “Act”), amends Baltimore County’s Adequate Public Facilities Ordinance (APFO) regarding overcrowded school districts and will be effective August 14, 2024. Once effective, the changes will establish a Committee on Public School Capacity, which is tasked with fixing periodic projections of overcrowding in area schools over three-year spans. The bill defines a school as overcrowded if it reaches:

• 115% of its state-rated capacity at any time prior to September 30, 2025;
• 110% of its state-rated capacity at any time between September 30, 2025 and September 30, 2028; and
• 105% of its state-rated capacity at any time after October 1, 2028.

The amended ordinance will require developers in possession of already approved development plans to submit applications for “school capacity approval certificates” to the committee, which will assess the applications for their probable effects on overcrowding. Each assessment will be based on a school capacity adequacy test and will be issued if the following criteria are met:

• “The school district serving the development is not currently overcrowded and is not projected to be overcrowded at any point in the upcoming three years”; and
• Issuance of proposed building permits for the approved development would not result in overcrowding of the said school district at any point within the subsequent three years.

Where an approved development fails to meet either of the above criteria, it will be placed at the bottom of a waitlist for future reassessment under the same criteria. Any approved development that remains on the waitlist for four years will be issued a school capacity approval certificate at the end of such four-year period.

Developers wishing to avoid the school capacity adequacy test will be permitted to present potential mitigation opportunities to the committee, including the submission of plans and funding for the construction of additional capacity in the relevant school district; and plans for the redistricting of students in the approved development to adjacent school districts maintaining adequate capacity.

The new requirements of Bill 31-24 will not apply to certain development or construction projects that have been vested under the specific terms of the Act.

Moreover, Bill 31-24 will not apply to 55-plus housing facilities; “emergency or transitional housing facilities”; “sheltered housing for the handicapped or disabled”; community care facilities, group child-care centers, or nursery schools, as each are defined by the Baltimore County Zoning Regulations; minor subdivisions of three or fewer units; university-based retirement communities; veteran housing and treatment campuses; “redevelopment projects that do not increase the number of dwelling units”; or purpose-built student housing.

It is expected that the changes enacted by Bill 31-24 will constrain the supply of new housing in Baltimore County due to their suppression of residential development. As a result, additional development pressure may be placed on surrounding areas, including southern York County.

If you have questions about the amended ordinance or its ramifications on development projects, please reach out to attorneys Paul Minnich or Stacey MacNeal. The attorneys at Barley Snyder are well-equipped to handle the unique challenges facing developers and builders. Learn more about our firm’s Land Use and Real Estate Litigation practice teams.