CHAPEL HILL - Chapel Hill-Carrboro Board of Education members will urge the Orange County commissioners to keep an ordinance allowing school districts to limit residential development that exceeds the capacity of local schools.

Certificates of adequate public schools, issued by school systems as part of the approval process for development projects, were thrown into a legal gray area by an August N.C. Supreme Court decision against Cabarrus County.

Attorneys for Orange County and the towns are concerned that the court’s decision makes the current provisions of the Schools Adequate Public Facilities ordinance vulnerable to legal challenges.

The SAPF ordinance is an agreement among Orange County, the towns of Hillsborough, Carrboro and Chapel Hill, and the county’s two school systems, intended to make sure that residential development does not outstrip local school capacity.

The adequate public schools certificates, CAPS, allow school systems to halt development by denying a certificate when there is insufficient space. An amendment to Orange County’s SAPF ordinance, deleting the provision for CAPS, is scheduled for a public hearing on Feb. 25.

In late January, the Chapel Hill-Carrboro City Schools received correspondence from the Orange County Attorney John Roberts informing school officials of the Board of Commissioners’ intentions to delete the provision.

“That was a discussion that neither our attorney nor the Orange County school board attorney was involved in, and certainly not a discussion the elected officials were involved in,” board Chairwoman Michelle Brownstein said during a Feb. 7 meeting of the Chapel Hill-Carrboro Board of Education.

On Feb. 14, Brownstein and Vice Chairwoman Jamezetta Bedford will meet with Orange County Board of Education Chairwoman Donna Coffey and Vice Chairman Steve Halkiotis, and Commissioners Barry Jacobs and Earl McKee, to discuss the proposed elimination of adequate public schools certificates.

“I have no objection to entertaining their viewpoint. I think ultimately this is going to be a matter of legal opinion rather than political opinion,” said Jacobs, chairman of the Orange County Board of Commissioners.

“We already have a viewpoint from our attorney, and I wouldn’t deviate from that viewpoint without further consultation,” Jacobs said.

Brownstein and Bedford will request that commissioners push back a decision. If the commissioners do not delay the public hearing, Brownstein will present comments on Feb. 25 stating her support for the ordinance.

“I would argue that it’s been effective,” Bedford said. “There’s a friction, because the towns, through a very strenuous process, approve development. But the counties fund the schools.”

Board attorney Ken Soo told the board that the Supreme Court decision in August addressed impact fees levied on new development, “but not any outright statement about the ability to limit development.”

Chapel Hill-Carrboro City Schools have never denied a certificate of adequate public schools, Bedford said, but recent development in Chapel Hill and Carrboro has pushed schools to their capacity limits several times.

“Even though we never had to enforce any CAPS ever, we got very close with Carrboro High,” Bedford said.

There is little chance of Chapel Hill-Carrboro schools denying an adequate public schools certificate in the next few years, as overcrowding will be mitigated through redistricting and the new Northside Elementary, scheduled to open next school year.

Orange County Schools have never invoked the certificates to halt development, but Jacobs said he would rather not open the county up to legal challenges.

“We have a state legislature that seems inclined to strip away prerogatives from local governments and progressive politics,” Jacobs said.

Chapel Hill town attorney Ralph Karpinos said SAPFO could continue to be effective even without the teeth of the certificates. “I think it’s been an effective planning tool and a healthy means of communication between the planning jurisdictions and the school system,” Karpinos said.

Hartwell: 504-251-6670