So we are all familiar with taxes. Has anyone ever met a voluntary tax? Anyone? Ever? I sure haven’t, and yet, this is the reasoning that the Office of Law is giving to the Administration to keep The Adequate Public Facilities Ordinance (APFO), BIG, GIANT DEAL, out of local legislation for possibly an entire year.
APFO places regulations on development in an effort to phase growth to keep up with infrastructure and County services availability to an ever-increasing population. This ordinance had not been reviewed in over 10 years, so County Executive Allan Kittleman appointed a task force to review it and make recommendations for an update.
I was honored to have sat on that task force which met for a very long time, over 20 lengthy and difficult meetings. We came up with some compromises between slow growth advocates, developers, and other community interests. These were hard-won, and the most important of which, I believe, was lowering the percentage by which a school is considered "closed" to new development occurring, from the present 115%, to a new limit of 110%. This halt continues until school capacity is lowered down below the cap, or 4 years goes by, whichever comes first. Yes, I wish it were longer.
The most important aspect of the trade-off in getting that 110% capacity decreased number, was to allow developers to voluntarily pay a higher school surcharge, in doubled and tripled amounts from the current figures, to move forward a bit faster. I think it was a good deal, and the best the slow growth advocates could have possibly achieved.
Some believe the legislating of the surcharge increase is under the jurisdiction of the State of MD, and thus has to be authorized by the General Assembly. I wildly disagree with this notion. Even so, the need was expressed to the Howard County Delegation during THIS session and the Administration was told it was too late, even though other bills were introduced and hearings held after that time. The Office of Law has opined that this part of the APFO "grand trade-off" must be done by the State, because it is a tax. This is way too conservative a viewpoint, and should NOT hold up local legislation from enabling the deal. Does anyone really believe a developer will sue because he or she "has" to pay a voluntary fee?
The County has, over the years, made deals with developers to require an amenity or provision/payment in order to get a needed plan item approved. The fact that this surcharge is VOLUNTARY, and the only relevance to a TAX is that the amount of the voluntary surcharge overage is based on a factor of the tax, does not MAKE it a tax. I cannot believe the Office of Law cannot come up with the right semantics to MAKE THIS WORK. I simply don't believe it isn't possible to keep this deal, the 110% reduction and surcharge revamp, in our local jurisdiction and get it done, NOW.
If you want to weigh in on this then email the Council and County Executive and let them know you have never met a voluntary tax, and don't see why APFO legislation, including the 110% deal, should not be enacted immediately. I am very hopeful that the County Executive and the Council will agree with this analysis and get the Office of Law working on a proper fix to implement. We’ve waited long enough.