(a) Exemptions.
(1) The following types of development projects are exempt from the requirements of this section 4-12:
(A) Any project that creates five (5) or fewer residential dwelling units as documented in an application for preliminary or final subdivision plat, site plan, or building permit;
(B) Any residential or mixed use project or portion of a residential or mixed use project that has received preliminary or final subdivision plat unconditional approval prior to April 15, 2007;
(C) Any residential or mixed use project or portion of a residential or mixed use project that has received final site plan unconditional approval prior to April 15, 2007;
(D) Any nonresidential project;
(E) Any development project for which a master plan is approved pursuant to the LMC before April 15, 2007; and
(F) Any project that qualifies as “housing for older persons” and meets the following criteria:
(i) The proposed project must comply with the minimum age restrictions, as stated in the Fair Housing Act requirements for older persons, and thereby maintain an exemption from the prohibition against family status discrimination, such that children will be excluded as residents.
(ii) The zoning certificate, site plan and preliminary or final subdivision plat approvals shall limit the usage of the property to ages specified by the Fair Housing Act in order to qualify as housing for older persons.
(iii) The construction and development of the project must reflect the special needs of, and include a full program of amenities and other activities for, older persons.
(iv) As part of the site plan approval process, the planning commission shall ensure that the proposed restrictive covenants applicable to the project are limited to housing for older persons and that appropriate enforcement mechanisms are in place to enforce the age restriction and also to ensure compliance with the requirements to qualify as housing for older persons under the Fair Housing Act.
(v) Prior to recordation of final subdivision plats and issuance of the zoning certificate for the project, restrictive covenants must be recorded which comply with the Fair Housing Act, address senior citizen housing and the exclusion of secondary school aged or younger children as residents, and contain appropriate enforcement mechanisms. Any subsequent revisions or modifications of the covenants pertaining to age limits on occupancy will require the re-approval of the site plan, zoning certificate, and preliminary or final subdivision plat(s), as necessary.
(vi) Before any revision or modification to the project at any time in the future, whether or not the project is built out and occupied, which has the effect of removing or substantially modifying the age restriction for residents, the project must first comply with the school adequacy requirements of this section.
(vii) “Appropriate enforcement mechanisms” as used in this subsection shall include that the restrictive covenants for the project require the homeowners association, through a property management agent, to enforce the age restrictions and ensure compliance with the requirements to qualify as housing for older person under the Fair Housing Act, such that children will be excluded as residents. If more than one homeowners association is established for the project, then the homeowners association governing the housing for older persons project shall have the primary responsibility for enforcing the age restrictions to qualify as housing for older persons under the Fair Housing Act such that children shall be excluded as residents.
(2) A residential project exempt pursuant to section 4-12(a)(1)(B) or (C) remains exempt for the time period corresponding to the number of units in the project, as follows:

(3) The planning commission shall, at the request of the developer, extend the time periods specified in this subsection for the period of time during which (A) a moratorium is in effect; or (B) the developer is unable to record a plat or obtain a building permit because of the application of the city’s water and sewer regulations.
(b) In general.
(1) An elementary, middle or high school is considered adequate if the projected enrollment is less than or equal to one hundred (100) percent of SRC.
(2) School testing will be conducted on a residential project once the planning department has formally acknowledged that a complete preliminary or final subdivision plat or site plan application has been submitted.
(3) For each residential project, each school (elementary, middle and high school) only needs to pass the test outlined in subsection 4-12(b) once for the residential development project to be eligible to proceed.
(4) If one or more of the schools being tested for the residential project fails, the test of subsection 4-12(b)(1) shall be repeated on the residential project each year on or after October 15th. A residential project that fails the October 15th schools test for three (3) years is permitted to obtain a CAPF-SCH.
(5) The director shall issue a CAPF-SCH if any one of the following conditions is met:
(A) The residential project has passed all three (3) schools (elementary, middle, and high school);
(B) An acceptable mitigation plan has been approved and associated agreements executed pursuant to section 4-16; or
(C) The project is permitted to obtain a CAPF-SCH pursuant to section 4-12(b)(4).
(6) The planning department, upon receiving the September 30th actual enrollment data and SRC for each school from Frederick County Public Schools (FCPS), will test each residential project application that has failed the school test every year on or after October 15th. The order that residential projects will be tested is based on the date of the formal acknowledgement of completed preliminary or final subdivision plat, or site plan application submission.
(7) If a residential project placed on hold due to failure to pass the school test is retested based on new FCPS information and meets the adequacy test for schools, the director shall issue a CAPF-SCH for the submitted preliminary or final subdivision plat, or site plan.
(8) If a residential development, or the residential portion of a mixed use development, meets the requirements of this chapter during preliminary subdivision plat approval, it will not be subject to adequate public facilities testing at the final subdivision plat or site plan approval stage.
(c) Determination of adequacy.
(1) FCPS will provide the city with the actual enrollment data and the SRC for each school for the last school day of September, December, March, and June. FCPS shall provide the director with an assessment of adequacy of every elementary, middle, and high school serving the proposed development as of the date of plan submission or the date upon which all necessary adequate public facilities documentation and materials were submitted, whichever is later. The director, after receiving an assessment from FCPS, shall determine adequacy. An assessment of adequacy from FCPS is valid for a period of six (6) months, after which time FCPS will be required to submit a new assessment to the city.
(2) For determining adequacy, enrollment means the FCPS official enrollment figures plus background enrollment plus pupils generated from the proposed development.
(3) Pupil generation rates shall be determined using the formulas adopted by FCPS, and shall reflect the characteristics of the school attendance area within which the proposed development is located. Pupil yield by housing types from the proposed development will be prorated over the number of years for which adequate public facilities approval is sought. The SRC and pupil generation rates approved for use by FCPS shall be used in all calculations.
(4) Background enrollment growth will be extrapolated over the number of years for which adequate public facilities approval is requested. Included in the calculations shall be any additional approved (but unrecorded) preliminary plats for major developments in the affected area which might impact the historical growth trend to make it inaccurate or obsolete by a factor of thirty-five (35) percent or more.
(5) To meet adequacy criteria, all public elementary, middle, and high schools serving the proposed residential project must be adequate or, alternatively, adequate capacity must be scheduled for construction within the first two (2) years of the county CIP. The CIP project and the proposed development must be located within the same school attendance boundaries, including areas where redistricting boundaries have been approved.
(6) If a school’s capacity is not adequate as defined in section 4-12(b)(1) and an adjoining school district at the same level is at least twenty (20) percent below SRC, then the applicant may request the Frederick County Board of Education (BOE) to determine the viability of redistricting to accommodate the new development. If the BOE determines that redistricting is a viable alternative, and the redistricting would result in all the schools serving the proposed development meeting the standards established in section 4-12(b)(1) then the school will be considered adequate.
(d) Denial of CAPF-SCH. If a school’s capacity is not adequate, and redistricting is not a viable alternative, the director shall deny the CAPF-SCH.
(e) Mitigation. If a CAPF-SCH is denied, a developer may pursue a mitigation agreement in accordance with section 4-16(a)(2). The developer shall submit to the director a mitigation plan describing the improvements necessary to meet the standards of this section. The developer shall first submit the mitigation plan to BOE and FCPS for review and comment. The director may not accept a mitigation plan unless the mitigation plan has been approved by BOE and FCPS. If the director finds that the implementation of the mitigation plan would result in adequate school capacity, the director shall recommend to the planning commission that the mitigation plan be accepted. If the director recommends acceptance of the mitigation plan, the planning commission shall consider the mitigation plan as submitted along with the application for master plan, preliminary or final subdivision plat, or site plan approval. If the planning commission approves the mitigation plan, the director shall issue a provisional CAPF-SCH. If the mayor and board of aldermen approve, in accordance with section 4-16, a mitigation agreement that includes the mitigation plan approved by the planning commission, BOE, and FCPS, the director shall issue a final CAPF-SCH. If the mayor and board of aldermen do not approve a mitigation agreement that includes the mitigation plan, then the provisional CAPF-SCH will be void. (Ord. No. G-07-6, § 1, 3-22-07; Ord. No. G-07-19, § 1, 9-6-07)