In the face of a federal mandate to construct new affordable housing and a state law that would remove regulatory burdens to allow it, the Baltimore County Council is building barricades.
Last month, Gov. Wes Moore signed into law one of the most ambitious housing bills in Maryland history. It removed regulatory and zoning hurdles for desperately needed affordable housing across the state. Around the same time, the Baltimore County Council filed legislation to stop the construction of new units under the auspices of expanding the Adequate Public Facilities Ordinance, otherwise known as “APFO.”
Under Baltimore County’s existing APFO, no new housing is allowed in attendance areas for schools that are over 115% capacity. If a school district is over capacity, existing law allows developers to build housing if there is an adjacent school district that is under capacity, with an eye toward future redistricting.
Legislation sponsored by Baltimore County Council Chairman Izzy Patoka modifies the definition of a “closed” school district from 115% to 100% of State Rated Capacity. This legislation also eliminates the “adjacent district” exception.
There’s no arguing with the political salience of APFO. School overcrowding is a real problem, especially in jurisdictions with high-performing, well-funded public schools. It is easier to identify new housing and “greedy developers” as the cause of increased class sizes and portable classrooms than to acknowledge the ugly consequences of a public school system built around socio-economic segregation in housing. No one has ever decided not to buy a home because the schools are overcrowded. Rather, it is precisely the fact that these schools are so desirable that generates the pressure on capacity that so many counties are facing.
But it is particularly odd that Baltimore County is pursuing this law after a provision to exempt affordable housing from APFO was stripped from Governor Moore’s housing bill. Average State Rated Capacity in Baltimore County’s elementary and middle schools is well under 100%, average high school capacity is just over 100%, and these school districts are projected to see little growth through 2033. Student enrollment is down 800 students in the current school year, and down by nearly 5,000 students since the 2019-2020 school year.
Hanging over Baltimore County’s pending decision on APFO is the February 2016 Settlement with the U.S. Department of Housing and Community Development, which requires the creation or preservation of 1,000 units of affordable housing by 2027. By its very nature, housing moratoria create stasis. Attendance areas full of wealthy, single-family, detached-house homeowners will continue to be inaccessible to multi-family renters. Baltimore County’s Department of Housing will be forced to locate all new affordable housing units in school districts that are under capacity, which may be foreclosed to development as being outside of the Urban Rural Demarcation Line. This underlines the sloppiness of APFO as a planning tool and its means of undermining all other housing policies in support of a singular focus — the crowdedness of schools.
Should the council adopt this legislation, members will soon discover three inevitable results. One, school overcrowding will persist even in the absence of new housing. Two, revenue to construct or expand new schools will dry up. And three, it will be politically impossible to reverse the bad decision made in response to false promises.
Montgomery County was one of the first in the state to adopt an APFO housing moratorium. At the time, the law was intended to signal the need for expanded infrastructure and not a means of stopping new home construction. But anti-housing activists soon realized that APFO could be their greatest tool. Beginning in the 1990s and increasing into the 2000s, Montgomery County’s housing growth slowed, but its schools remained overcrowded. There were fewer places to build housing to accommodate demand, which caused home values to skyrocket. Even worse, the growth Montgomery County was experiencing was not accompanied by the surcharges and fees on new development that fund most school capital projects. In sum, the county was stuck.
In November 2020, the Montgomery County Council unanimously voted to end the APFO moratorium and instead require developers to pay additional fees to build homes in school districts that were over-capacity. Since that time, Montgomery County has not had a higher prevalence of over-crowded schools than districts that maintain housing moratoria. Montgomery County Public Schools continue to be some of the highest-performing and best-ranked schools in the state. Best of all, new infrastructure funding from continued development has allowed the county to better accommodate the growth of a desirable suburb.
Efforts to stop new housing always come to a simple intent — exclusion. In the face of a federal mandate to construct new affordable housing and a state law that would remove regulatory burdens to allow it, the Baltimore County Council is building barricades. The ultimate losers will be taxpayers, students and those aspiring to call Baltimore County home.
Tom Coale (tom@pwrjmaryland.com) is an attorney with Perry, White, Ross & Jacobson. He represents the Maryland Affordable Housing Coalition, which has an interest in this legislation.
