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AN ORDINANCE TO AMEND
OF THE CODE OF EMMITSBURG
ADEQUATE PUBLIC FACILITIES
ENACTED AND ORDAINED by
the Board of Commissioners of the Town of Emmitsburg,
Maryland that Chapter 14.04 of the Emmitsburg Municipal
Code be, and it hereby is, amended as follows:
amended section of this regulation reads as follows with
language designated by being in BOLD CAPITAL LETTERS,
and language being deleted designated by being
14.04 Adequate Public Facilities
This chapter shall be known and cited as the “Adequate
Public Facilities Ordinance of the Town of Emmitsburg,
This chapter is established in accordance with the
provisions of Md. Code Ann., Art. 66B
The provisions of this chapter shall apply to all lands
within the territorial limits of the town.
is adopted with the intent that new residential,
commercial, industrial and other development take place
in accordance with the Town of Emmitsburg Comprehensive
Plan and the Capital Improvements Program and to ensure
that adequate public facilities and services are
available concurrent with new development so that
orderly development and growth can occur. Provision of
adequate facilities will take place in cooperation with
Frederick County and the State of Maryland when these
facilities are beyond the jurisdiction of the town
government. For purposes of this chapter, public
facilities shall include road, water, sewerage,
emergency services, and school facilities.
chapter, the following terms are used as defined unless
otherwise apparent from the content.
ADEQUATE PUBLIC FACILITIES (AFP). Those public
facilities included in the context of this chapter which
meet established minimum standards as further specified
CAPITAL IMPROVEMENT PROGRAM (CIP). An annual document
adopted by the Board of Commissioners, indicating
capital projects having funding approval for the current
fiscal year and those capital projects which are
currently planned for the following 5 year period,
including the proposed means of financing the same.
COMPREHENSIVE PLAN. The plan adopted by the Board of
Commissioners to guide the development of the town,
including maps and text, and any changes or additions
thereto made under the provisions of MD Code Ann., Art.
DEVELOPER. An individual, partnership, corporation (or
agent thereof), or other entity that undertakes the
responsibility for any or all of the activities covered
by this chapter, particularly the designing of a
subdivision plat or site development plan showing the
layout of the land and the public improvements involved
therein. The term DEVELOPER is intended to include the
term SUBDIVIDER, even though the personnel involved in
successive stages of the project may differ.
LEVEL OF SERVICE (LOS). A standardized index of
relative service as defined in the “Highway Capacity
Manual” published by the Transportation Research Board.
MINOR SUBDIVISION. Any original parcel which has been,
or is proposed to be, subdivided to create 5 or fewer
SENIOR HOUSING. Any project that meets the
qualifications as defined in §17.04.020 of the Town
Code, and restricts occupancy to persons 62 years
of age and older, in keeping with the federal Fair
Housing Act requirements for exemptions from the
prohibition against familial status discrimination, such
that children will be excluded as residents.
SUBDIVISION. The division of a lot, tract or parcel of
land into 2 or more lots, parcels, sites, or other
divisions of land for the purpose, whether immediate or
future, or transfer of ownership, or for building
development. It includes resubdivision and, when
appropriate to the context, relates to the process of
resubdividing or to the land or territory subdivided.
In planning and developing any subdivision or any
development, the developer shall comply with the general
principles set forth in this chapter for the provision
of adequate facilities; and in every case the developer
shall observe the procedure outlined in this chapter
A developer shall not avoid the intent of this chapter
by submitting piecemeal applications for preliminary
plats or site plans. However, a developer may seek
approval of only a portion of the subdivision or
development, provided that the impact from all
previously approved preliminaries or site plans from
that development shall be considered during the APF
review of each subsequent portion of the development.
Except as provided in §14.04.070 Exemptions, all parcels
must receive APFO approval prior to preliminary or final
subdivision or site plan approval.
residential subdivisions and public safety facilities
are not subject to the requirements of this chapter.
Except as specifically provided in this section, all
other applications for development, whether for State,
County or Town facilities, or private sector projects,
are required to obtain APFO approval.
existing preliminary subdivision plat approved prior to
January 1, 2011 shall be exempt from the requirements of
this chapter for the following time periods as long as
the preliminary approval remains valid:
Residential development with valid preliminary approval
3 years from January 1, 2011
Nonresidential development with valid preliminary
approval 3 years from January 1, 2011
Senior housing exemption
from schools requirement. Any project which qualifies
as “senior housing” as defined in §17.04.020 of the Town
Code, and restricts occupancy to persons 62 years
of age and older, in keeping with the Fair Housing Act
requirements for exemptions from the prohibition against
familial status discrimination, such that children will
be excluded as residents, is exempt from the APFO
schools requirement. The project must meet all other
APFO requirements and,
certificate, site plan and subdivision approvals shall
limit occupancy of the property to persons age 62 and
older as specified in the Fair Housing Act, as described
in Section (C), above.
revision or modification to the project at any time in
the future, whether the project is built out and
occupied or not, which has the effect of removing or
substantially modifying the age restriction for
residents, the project must first comply with the
schools adequacy requirements under this chapter.
project approved under this section shall meet the
requirements of the sections of this chapter requiring
that roads, public water and sewerage facilities be
of Subdivisions, Site Plans
subdivisions, site plans, and revised subdivisions or
site plans resulting in an increase in density or
intensity of use, received for approval, re-approval or
extension by the Planning Commission shall meet the
requirements set forth herein prior to preliminary plat
or site plan approval, except as provided for in
Subdivision plats or site plans that do not meet the
requirements for adequate public facilities set forth
herein shall not be granted preliminary subdivision or
site plan approval by the Planning Commission. A
conditional approval as allowed for in §14.04.090 may be
granted, provided no final approval shall be granted or
lots recorded until the conditions set forth in the
conditional approval have been satisfied.
the signing of any preliminary plat, or site plan, an
adequate public facilities letter of understanding shall
be forwarded to the Planning Commission and to the
developer by the Town Manager.
of adequate public facilities as set forth in this
chapter shall be valid from the date of the meeting at
which approval of the preliminary subdivision or site
plan approval is first granted by the Planning
Commission for the following time period as long as the
preliminary plan or site plan approval remains valid.
Residential subdivisions – 3 years
Nonresidential subdivisions – 3 years
preliminary subdivision or site plan approval is renewed
by the Planning Commission upon its expiration, the
associated APFO approval is also extended.
preliminary plan or site plan approval expires or is
voided prior to the recording of all lots, the
unrecorded lots or in the case of site plans,
unconstructed portion of the development, shall meet the
requirements of this chapter prior to again obtaining
preliminary subdivision or site plan approval.
Conditional site plan, or preliminary plat, approval
maybe granted to a development that does not have
adequate public facilities at the time of Planning
Commission consideration, provided that the developer
agrees to provide the necessary improvements to make the
facility adequate as allowed for in §14.04.100. If the
developer improvements will not result in adequate
capacity, conditional approval shall not be granted, and
preliminary plat and site plan approval shall be denied.
Conditional approval will be granted for a 3-year time
period for all necessary improvements to be provided,
with the exception that a 5-year time period will be
granted for improvements related to the building or
expansion of school facilities.
conditions of a preliminary plat approval have not been
met, then approval shall not be granted to a final
conditional site plan approval has been granted, a
building permit shall not be issued until the conditions
have been satisfied, or the facilities have been
determined to be adequate.
The developer shall have
the option to provide the public facility improvements
necessary to support the proposed development and to
ensure adequacy of public facilities as set forth in
this chapter or wait for public facilities to become
adequate by improvements made pursuant to the CIP or
other sources. A county, state or municipal agency may
participate in the improvements.
The Adequate Public
Facilities Ordinance shall be administered by the Town
Planning Office. All applications, maps, and documents
relative to subdivision or site plan approval and
subject to the provisions of this chapter shall be
submitted to the Planning Office, which will review all
information and present the relevant information and its
recommendations to the Planning Commission. Final
determination of adequacy shall be the responsibility of
the Planning Commission.
to other agencies/Public Comment.
Planning Office may refer the subdivision, site and
development plans, to any County, State, or other agency
it deems appropriate for review, comments and/or
recommendations pertaining to the adequacy of public
facilities, and these recommendations shall be
considered by the Planning Commission in making its
Planning Commission shall accept public comments and
consider these comments as part of the record in its
decision making process.
provided in Article 66B, §4.07, any person aggrieved by
any action of the Planning Commission pursuant to this
chapter may appeal to the town Board of Appeals. A
decision of the Board of Appeals may be appealed to the
Circuit Court of the county, as provided in Title 7,
Chapter 200 of the Maryland rules. A decision of the
Circuit Court of the county may be appealed to the Court
of Special Appeals, or, upon certiorari, to the Court of
Appeals of Maryland in accordance with Maryland Rules.
of Commissioners may file a responsive pleading and be a
party to or take an appeal to the Circuit Court of the
county, to the Court of Special Appeals of Maryland, or
upon certiorari, to the Court of Appeals of Maryland of
any decision made under this chapter.
The Town of Emmitsburg
Board of Commissioners shall have the authority to
establish fees for APFO-related services by resolution.
This may include, but shall not be limited to, a base
review fee, plus any additional costs incurred for
professional review services.
Determination of Adequacy.
This article does not
apply to developments which are expected to generate 25
or fewer total vehicle trips during the highest daily
peak hour of the adjacent street traffic and 50 or
fewer trips during the peak hour of the site’s generated
traffic, as defined by the most recent edition of the
Institute of Transportation Engineers (ITE) “Trip
Generation Manual”. Site generated
trips are the sum of
all peak hour traffic trips in and out of the proposed
traffic impact analysis (TIA) shall be prepared for
developments that will exceed the thresholds specified
in (A)(1) , with the study area and/or scope of study to
be determined by Town staff.
The TIA shall be prepared for the design hours,
which are defined as the peak hours which will be most
affected by the proposed development; i.e. peak hours of
the adjacent street, or peak hour of generation by the
TIA will include Level of Service (LOS) capacity
analysis of all required roadway corridors,
intersections and links for existing conditions and
specified intermediate and future conditions with and
without the proposed development as delineated in the
existing road facilities are determined to be inadequate
to accommodate the traffic flow projected by the TIA,
the preliminary plan or site plan approval shall be
denied, except as provided in §14.04.090.
improvements necessary to mitigate inadequacies shall
be determined by the Town staff, and/or their agents
and consultants, after reviewing the entire record,
including the TIA, road rating system, traffic
management plan (if required), safety considerations
and the Maryland SHA comments; and improvements may be
provided by the developer as prescribed in
staff determination will be presented to the Planning
Commission for use in their deliberations regarding
the development application.
Water Supply. For development applications that will
require additional water supply beyond what is existing
on the site, the proposed capacity usage will be
evaluated relative to the existing available units of
capacity (taps) and any anticipated expansion of
capacity pursuant to the Capital Improvement Plan and
water management plan.
The water capacity
shall be considered adequate if, given existing
connections, future connections from buildings under
construction, recorded lots for which allocations have
been made and multi-year tap agreements:
source facilities, storage tanks and local pumping
stations have sufficient available capacity to provide
maximum day demand and fire flow to the proposed
distribution system is capable of providing normal
required pressure as well as minimal residual pressure
to the proposed development. It should be noted that
water taps are not guaranteed for the project until such
taps are purchased, or a multi-year tap agreement has
been executed between the town and developer.
supply capacity (taps) will be allocated according to a
plan developed by town staff that will assign the number
of taps and a time frame in which to use them.
supply capacity is found to be inadequate, preliminary
subdivision and/or site plan application shall be denied
except as provided for in §14.04.090.
Improvements necessary to achieving the required
capacity shall be determined by the town staff and may
be provided by the developer as allowed in §14.04.090.
completion of construction of APFO water system
improvements for a development the APFO water capacity
approval shall be vested for the capacity created by the
improvements and shall not be subject to further APFO
water capacity testing unless the density or intensity
of the development increases.
Sewer Capacity. For development applications that will
require sewer capacity in addition to that which is
existing on the site, the proposed capacity usage will
be evaluated relative to the existing available units of
treatment capacity at the Wastewater Treatment Facility
on Creamery Road. It should be noted that sewer taps
are not guaranteed for the project until such taps are
purchased or a multi-year tap agreement has been
executed between the town and the developer.
treatment taps will be allocated according to a plan
developed by town staff that will assign the number of
taps and a time frame in which to use them.
sewage treatment capacity is found to be inadequate,
preliminary subdivision and/or site plan applications
will be denied.
completion of construction of APFO sewage treatment
system improvements for a development, the APFO sewer
capacity approval shall be vested for the capacity
created by the improvements and shall not be subject to
further APFO sewage treatment capacity testing unless
the density or intensity of the development increases.
Adequacy tests apply only to residential development.
APFO test data include:
of every public school serving the proposed development
shall be determined using the most recent quarterly
enrollment data published by the Frederick County Public
shall be considered adequate if the enrollment for each
school serving the development is less than 100% of
state-rated capacity during the entire period for which
APFO approval is granted by the Planning Commission.
Procedure. Town staff shall send a written request to
the Board of Education or its designee, requesting a
school adequacy test, and specifying: (1) the number of
years for which the development should be tested; (2)
the number and types of residential units to be tested;
and (3) data concerning the approved developments in the
school attendance areas that should be factored into the
test. The BOE or its designee shall forward its school
adequacy test results to town staff for presentation to
the Planning Commission. After consideration of the
school adequacy test results at a public meeting, the
Planning Commission shall determine whether the proposed
development meets the school adequacy requirements in
redistrict. If a school is not adequate based on the
BOE school adequacy test, and an adjoining school
district at the same level is at least 20% below state
rated capacity, 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 BOE approves a specific
redistricting plan that would result in all the schools
serving the proposed development meeting the standards
utilized to provide the BOE school adequacy test results
described in §40.04.140(3), then the schools shall be
If a school is not adequate and the BOE has not approved
a specific redistricting plan that would result in the
school meeting the BOE school adequacy standards, then
the preliminary subdivision or site plan shall be
denied, except as allowed for in §14.04.090.
Mitigation. Improvements necessary to meet the
standards herein shall be determined by the Planning
Commission with the assistance of the Frederick County
Board of Education.
mitigation must be funded by the developer.
services. Adequacy of emergency services will be
evaluated with the assistance of Frederick County
Emergency Services and/or other Frederick County
BE IT FURTHER RESOLVED, ENACTED AND ORDAINED that
this Ordinance shall take effect on the date on which
the Mayor approves the Ordinance after passing by the
Board of Commissioners or on the date on which the Board
of Commissioners pass the Ordinance over the veto of the
PASSED this _____ day of _____________, 2011, by a vote
of _____ for, _____against, _____ absent, and _____
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