Baltimore County passes fiercely debated school capacity bill

Developers who want to build in areas of Baltimore County with oversubscribed schools will need to receive approval by a County Council-approved committee or wait to build until capacity opens up in that district, according to a law passed Monday by the council.

The Adequate Public Facilities Ordinance, which the council passed 4-2, requires that developers be approved by a special school capacity committee before they can obtain a building permit in areas where nearby schools are 105% or more over their state-allotted capacity.

Schools were previously considered over capacity if they were at 115% or more. The committee will be staffed by council-appointed and county executive-appointed members, a county planning department member, and a member selected by the county school superintendent, all 11 of whom must be approved by the council.

Councilman Todd Crandell, a Dundalk Republican who initially opposed the ordinance, was absent and did not vote.

Baltimore County is the latest Maryland jurisdiction to adopt the growth-management regulation, which a council-appointed task force first suggested in 2020. The task force was charged with exploring potential solutions for easing school overcrowding, which has plagued county schools since the 1990s. That led the administration of then-County Executive Roger Hayden, a Republican, to implement a three-year building moratorium.

Howard County, Anne Arundel County and Prince George’s County have adopted similar ordinances. Montgomery County amended its version in November 2020 to remove building restrictions in certain areas to improve housing affordability and spur development.

Despite fierce opposition from developers, the Baltimore County ordinance received a majority of support on the council after members delayed a vote late last month to give themselves more time to consider amendments. Council Chair Izzy Patoka, a Pikesville Democrat, sponsored the ordinance with support from Republicans David Marks and Wade Kach, and Mike Ertel, a Democrat.

Marks and Kach have positioned themselves as advocates for limiting development in their districts, which include parts of suburban eastern and northern Baltimore County that abut or fall outside the urban-rural demarcation line, which limits dense development. Ertel and Patoka, a former urban planner rumored to be considering a run for county executive in 2026, have also run on platforms of wanting to ease overcrowding in schools.

Ertel compared overcrowding to putting “eight kids in a lifeboat and adding 12 more. We’re sentencing them to a lifetime of poverty.”

Councilmen Julian Jones of Woodstock and Pat Young of Catonsville, both Democrats, voted against the ordinance. Jones said last month that the bill would “accelerate the county’s decline” by de-incentivizing development, which would force a dwindling number of residents to shoulder more of the tax burden as Baltimore County loses population and school enrollment numbers decline.

“It seemed like the only thing we’re focused on is shutting down development, even though it can cause serious harm to our economy,” he said.

Young took issue with the school capacity committee’s structure, which he said was born out of “mistrust” between the council and administration, and a litany of “red flags” within the bill.

“We took out an entire section of code and we’ve taken it away from our professional folks, that have gone through an HR process, that have been hired at some point,” he said, referring to planning officials’ ability to issue permits. “We are ceding control to a politically appointed body and I can’t get behind that.”

The version the council passed Monday eliminates a rule, known as the “adjacency clause,” that previously allowed developers to build in overcrowded school districts if nearby schools in a neighboring district had room to absorb extra students. It also grants approval to a development if the project is not projected to push the district into being overcapacity during that school year or within the next three years.

Developers argued that it would stymie development and make obtaining building permits in Baltimore County more cumbersome. The county is facing a dwindling supply of developable land, low housing inventory, and a federal deadline to produce 1,000 affordable housing units by 2027.  Gov. Wes Moore made affordable housing one of his policy priorities during the legislative session that ended in April. The county Department of Permits, Approvals and Inspections issued 687 residential and commercial building permits last year, 666 of which were waived from paying impact fees, for a total of $61,800, according to data provided by the county planning board.

David Thaler, a civil engineer with Windsor Mills-based D.S. Thaler and Associates, called the ordinance “well intentioned” but criticized a previous provision that would have required developers to wait up to five years to build a project if they wanted to build in an overcrowded area, or sooner if school capacity increased during that time.

“No bank would give you funding [for a development] if you went to them for a loan and said you’ll be able to start earning a return and paying them back five years from now,” Thaler said in an interview late last month. The council lowered that waiting time requirement to four years in the version it passed Monday.

County Executive Johnny Olszewski Jr., a Democrat, refrained from weighing in on the law before the council vote. The council rejected his previous legislative attempts to incentivize development in a simmering struggle between the council and his administration over who has ultimate land use authority in the county.

In a statement, Olszewski said he shared the council’s concerns about school overcrowding but had some reservations with the final bill, “including its detrimental impacts on Baltimore County’s moral and legal obligations to address attainable housing.

“In light of those concerns and flurry of amendment activity, we will carefully review the final version of this legislation in the coming days to determine the appropriate next step,” he said.

The ordinance goes into effect July 18.