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HomeMy WebLinkAboutMINUTES - 08142001 - C.116 lite . ................. Contra TO: BOARD OF SUPERVISORS _ FROM: JOHN SWEETEN, County Administrator Costa DATE: AUGUST 14, 2001 Co County SUBJECT: RESPONSE TO GRAND JURY REPORT NO. 0105 ENTITLED "THE DOUGHERTY VALLEY SCHOOL SITUATION" SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION: ADOPT report as the Board of Supervisors' response to Grand Jury Report No. 0105 entitled, "The Dougherty Valley School Situation". BACKGROUND: The 2000-2001 Grand Jury filed the above-referenced report on June 7, 2001, which was reviewed by the Board of Supervisors on June 26 and subsequently referred to the County Administrator and Community Development Director, who prepared the attached response that clearly specifies: A. Whether the finding or recommendation is accepted or will be implemented; B. If a recommendation is accepted, a statement as to who will be responsible for implementation and a definite target date; C. A delineation of the constraints if a recommendation is accepted but cannot be implemented within a six-month period; and D. The reason for not accepting or adopting a finding or recommendation. In addition to responses to findings, conclusions and recommendations, the Community Development Department has provided a background discussion, which provides the context in which the County's responses are made. CONTINUED ON ATTACHMENT: YES SIGNATURE: ✓RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE __GAPPROVE OTHER SIGNATURE(S): r --------------- ACTION OF BOA N APPROVE AS RECOMMENDED X _ OTHER % VOTE OF SUPERVISORS 1 HEREBY CERTIFY THAT THIS IS A TRUE / AND CORRECT COPY OF AN ACTION TAKEN 11 UNANIMOUS(ABSENT � ) AND ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE AYES: NOES: SHOWN. ABSENT: ABSTAIN: ATTESTED CONTACT: JULIE ENEA(925)335-1077 JOHN SW EN,CLERK F HE BOARD OF SUPERVISORS COUNTY ADMINISTRATOR CC: PRESIDING JUDGE OF THE SUPERIOR COURT COUNTY ADMINISTRATOR COMMUNITY DEVELOPMENT DIRECTOR SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT BY DEPUTY The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 1 RESPONSE TO GRAND JURY REPORT NO. 0105 THE DOUGHERTY VALLEY SCHOOL SITUATION : r ...:..:........... IlY DEVEL PMENT'DEPARTMENT> :' ',BACKGROUND-: PROVIDED`BY'CoMMUN . o . - The Community Development Department's actions concerning schools in Dougherty Valley are bounded by requirements in four documents — the Dougherty Valley Specific Plan, adopted in 1992 and amended in 1996; the Dougherty Valley Settlement Agreement, adopted in 1994; the three Development Agreements (two for Gale Ranch, one for Windemere Ranch), and the approved Final Development Plans and their Conditions of Approval. 1. The Dougherty Valley Specific Plan (1992. 1996): This document provides the framework for the development of Dougherty Valley. It designates seven school sites — four elementary schools, two middle schools, and one high school — and briefly describes the characteristics of these schools. The Specific Plan provides the basis for all future Final Development Plans in Dougherty Valley. All development permits must comply with the Specific Plan. 2. The Dougherty Valley Settlement Agreement (1994): The Settlement Agreement adopted the school facilities plan presented in the Dougherty Valley Specific Plan and added additional details about the timing of school construction, facility standards, and a process for annually reviewing school generation rates and facility adequacy. • The definition of"Performance Standard" includes only columns 2 and 3 of Exhibit B of the Settlement Agreement. Compliance with Performance Standards is the basis for the Annual Compliance Report, to be prepared by Community Development Department staff presented annually to the Dougherty Valley Oversight Committee (DVOC). • In Exhibit B, Column 2, Infrastructure Standard #1 requires the developers to build schools to adequately house students generated by the Dougherty Valley Development. Infrastructure Standard #4 incorporates the 1992 Mitigation Monitoring Plan adopted by the San Ramon Valley Unified School District (SRVUSD). This Plan mandates the annual review of generation rates and school facilities at a meeting with the SRVUSD, Community Development Department, and each of the developers. • Exhibit G, Schedule 1, Section X11. Schools, establishes a schedule for developing each community facility listed in the Settlement Agreement, including each of the seven schools. This schedule identifies three to four "Intermediate Steps" covering a two- to three-year period leading up to the "Performance Standard", delivering the facility at a specific deadline. The last column in this schedule for schools indicates a delivery date determined by the number of units built, or at a time required by the SRVUSD. 3. The Development Agreements (1994, 1996): There are three Development Agreements affecting Dougherty Valley. Shapell has one Development Agreement for Gale Ranch Phase 1 (1994), and a second such agreement for the remainder of the Gale Ranch phases (1996). Windemere has one Development Agreement for all of the Windemere Ranch Properties (1996). The two 1996 Development Agreements were in place prior to County approval of Gale Ranch Phase 2 and the Windemere Ranch Phase 1 Final Development Plans. These Development Agreements do not specifically address schools, but they do indicate that the developers have a reasonable claim to construct a specified number of dwelling units, and that when there is conflict between the Settlement Agreement and a Development Agreement, the Settlement Agreement prevails. The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 2 4. The Final Development Plans (1994, 1996): To date the County has approved three Final Development Plans in Dougherty Valley — Gale Ranch Phase 1, Gale Ranch Phase 2, and Windemere Ranch Phase 1. a. The Gale Phase 1 Final Development Plan (DP923010, approved 1994) includes a condition of approval that repeats the conferral process established with the Settlement Agreement for school generation rates. b. The Gale Phase 2 Final Development (DP953086, approved 1996) and the Windemere Phase 1 Final Development Plan (DP953064, approved 1996) have Conditions of Approval that are almost identical. Neither includes a Condition that specifically references this conferral process on school generation rates, but they do include the following Conditions of Approval that address schools. Each developer must demonstrate compliance, to the Department's satisfaction, with each of these conditions prior to approval of the first Final Map, and to subsequent Final Maps where these Conditions apply: • Comply with the Settlement Agreement (Windemere COA 1.A; Gale 2 COA 1.A). • Obtain a will-serve letter or signed agreement from the SRVUSD (Windemere COA 16; Gale 2 COA 15). • The developers' school site obligation for dedicating land is met by designating the elementary and secondary schools sites as shown on the approved Final Development Plan (Windemere COA 59; Gale 2 COA 60). • The developer shall provide temporary space at alternative sites if the School District in not able to house students generated prior to opening of the Dougherty Valley schools. (Windemere COAs 60 & 62; Gale 2 COAs 61 & 63). The following hypothetical, summarizing the step-by-step analytic process followed, demonstrates how the Community Development Department uses these various legally binding documents to define its jurisdiction as it relates to school facilities: 1. The Development Agreement provides no specific requirements related to schools, and directs the Department otherwise to the Settlement Agreement. Nevertheless, it does bind the County to make its best efforts to assure that each developer can build its share of the Dougherty Valley dwelling units. 2. The Settlement Agreement, Exhibit G, Schedule 1 establishes the timing for constructing schools, but also suggests consideration of timing indicated by the SRVUSD. Thus the Department relies on the Settlement Agreement timing requirements unless the School District requests alternative timing. 3. The Settlement Agreement, Exhibit G, provides an infrastructure standard for schools that simply states that the developers must meet the school needs generated by their respective developments. In addition, Exhibit G requires an annual review of the student generation rates and school facility adequacy. The Department considers these provisions critical elements in the County's authority concerning Dougherty Valley schools. 4. Each of the Final Development Plans, Windemere 1 and Gale 2 requires compliance with the Settlement Agreement, but specifies that dedicating land for the seven Specific Plan schools is sufficient to meet the school land dedication requirements. Depending on the results of the analysis of generation rates, the outcomes from these two Conditions may conflict. The Specific Plan currently requires two elementary schools and one middle school of each developer, but further analysis of the student generation rate analysis may indicate that more schools are needed. In this case, the Department would carefully evaluate the conflicting requirements and the County's obligations to the developers and determine, in its best judgment, what The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 3 configuration of school facilities the County would require through the Final Development Plans and the Settlement Agreement. Should the School District disagree with the Department's conclusion, it could appeal the decision to the Board of Supervisors. The School District also has the authority through State law to construct additional schools in residential locations, although not necessarily at the expense of the developer. In general, the Department concludes that the Settlement Agreement Performance Measures, as implemented through the each project's Conditions of Approval and enforceable through the Development Agreements, require the Dougherty Valley developers to mitigate the impacts on schools generated by their respective developments. 5. If at some point the Department and/or the Zoning Administrator should conclude that a developer has not provided sufficient schools per the Settlement Agreement and per the Conditions of Approval, and if this noncompliance should continue, then the Department has several remedies: a. Under the Settlement Agreement it could withhold building permits for those areas affected; b. Under the Final Development Plan, it could decline finding a proposed Final Map in substantial compliance; c. Under the Development Agreement, the County could initiate Default procedures to terminate the Development Agreement. The particular circumstances of the non-compliance would determine the most appropriate remedy. In summary, these factors indicate why continuously monitoring the student generation rates and projection methodologies over time has become a very important task to the School District, the County, and the developers. ... ........... . ... .. .. ...... ....:. ... ...:..... . . . : :..: . ...: . . .. .... ....... FINDING -,. . S .. ., .. .. .. .... . . . 1. A December 1988 Agreement between the SRVUSD and Shapell Industries (one of the developers of Dougherty Valley) obligates Shapell to provide land for and to construct, at their expense, two elementary schools and a middle school. The Agreement also requires Shapell to contribute its fair share of the cost of additional high school space needed to serve students generated by the project with the SRVUSD paying the balance. Response: Partially disagree, in that the finding applies only to the San Ramon Valley Unified School District (SRVUSD) and not to the Community Development Department (CDD). 2. In January 1989, a Memorandum of Agreement between the SRVUSD and Shapell Industries covered provision for land and pro-rata share of financing for the high school, estimated to cost Shapell approximately $40 Million in 1988 dollars. Response: Partially disagree, in that the finding applies only to the San Ramon Valley Unified School District (SRVUSD) and not to the Community Development Department (CDD). 3. In 1992, the Contra Costa County Board of Supervisors approved the Dougherty Valley Specific Plan, establishing the framework for the 11,000 home development and associated facilities. The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 4 Response: Agree, with the following clarification: The 1992 Dougherty Valley Specific Plan allows up to 11,000 housing units, including single-family homes, town houses, rental apartments, and affordable housing units, as well as both public and private improvements necessary to support a community of approximately 30,000 people. 4a. In May 1994, the City of San Ramon and Town of Danville successfully litigated to have a voice in the Dougherty Valley development because of the infrastructure impacts upon their communities, resulting in the Dougherty Valley Settlement Agreement. This Agreement also established a Compliance Monitoring Program to allow tracking of compliance with agreed upon performance standards. Response: Agree. 4b. This Monitoring Program enabled formation of a Dougherty Valley Oversight Committee composed of representatives from the County Board of Supervisors, the City Council of San Ramon and the Town Council of Danville (all as voting members) and the developers of Dougherty Valley (as non-voting members). Response: Partially disagree. The Settlement Agreement created the Dougherty Valley Oversight Committee (DVOC) as a conferral process for the three governmental bodies and two development groups. It also created the Monitoring Program to track compliance with the Settlement Agreement requirements. Neither the DVOC nor the Monitoring Program "enabled" creation of the other. Rather they must interact, for example, the DVOC must review and comment on the Annual Compliance Reports prior to CDD staff sending the reports to the Zoning Administrator for action. The Monitoring Program and the DVOC have separate but mutually supportive responsibilities. 5. In November 1994, as a condition of approval for the Country Club development at the Gale Ranch Project, SRVUSD and Shapell Industries agreed to amend their earlier agreements. This amendment provided for the dedication of a site and construction of the initial elementary school and the phasing of subsequent schools based upon completion of specified numbers of housing units. Response: Disagree. The Country Club at Gale Ranch Project, DP923010 (also called The Bridges and Gale Phase 1), contains numerous Conditions of Approval. Conditions #45, 46, 47, 48, and 49 address the provision of school facilities. No Condition in this approved permit requires Shapell and the School District to amend their school agreement. However, Condition 46 does require actions similar to those required in the School Agreement, as follows: "Additionally, the project proponent and school district should cooperate in identifying other sites in the area that might serve as suitable locations for an elementary school, in furtherance of SRVUSD/Shapell Industries agreement for the provision of additional school facilities." 6. In March 1999, an Addendum to the Amendment enlarged the capacity of the first elementary school to reflect State-ordered class size reductions. The Addendum also obligated Shapell to provide two portable classrooms at Iron Horse Middle School pending completion of a new middle school required of Shapell for their portion of the Dougherty Valley development and three portable classrooms at California High School. Response: Partially disagree, in that the finding applies only to the San Ramon Valley Unified School District (SRVUSD) and not to the Community Development Department (CDD). 7. The SRVUSD is currently seeking a legal opinion as to the legality of the 1988 Agreement and the 1989 Memorandum of Agreement. The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 5 Response: Partially disagree, in that the finding applies only to the San Ramon Valley Unified School District (SRVUSD) and not to the Community Development Department (CDD). 8. Student Yield Factors are used by the SRVUSD to determine the number of students generated per dwelling. These factors are applied to the number of dwellings in a particular area to develop the anticipated enrollment; therefore, the size of any new schools required and when they are needed. Response: Partially disagree. The Student Yield Factors only determine the expected school age population in an area. They are ratios that assume the number of school-age children expected within each of three age categories for each type of housing. They are applied to the existing and expected number of dwelling units to determine the anticipated future enrollment in an area, by type of school facility (i.e., elementary, middle, or high schools). The SRVUSD policies and legally binding agreements, not the Student Yield Factors, determine the size and character of each school in the School District— e.g., how many children will be housed in each type of school, the number of acres required, the facilities and services to be provided, etc. To determine the total number of schools needed in an area, one must use (1) the Student Yield Factors, (2) School District policies & agreements, (3) amount of occupied housing by type, and (4) projected additional housing by type (in this case, within the next twenty years). To determine when these schools will be needed, one must incorporate the build-out rate — often referred to as the absorption rate — into the analysis, to determine the rate at which children in the three age categories are projected to move into the area and require schools. Generating the number, type, and timing of schools in a rapidly growing area requires application of various assumptions, not just the Student Yield Factors and the number of dwelling units. 9. In April 2000, SRVUSD conducted a Developer Fee Justification Study. This study reflected an increase in Student Yield Factors from 1992 estimates used in the Dougherty Valley Specific Plan, resulting in an increase in needed elementary schools from four to seven. In addition, an SRVUSD staff memorandum (October 2000) addresses that the timing of school needs is accelerated by one year for the second elementary school, by three years for the middle school and by eight years for Phase 1 of the high school. This information has not been formally transmitted to the County Community Development Department or the Dougherty Valley Oversight Committee. Response: Partially disagree, in that this study has not been formally transmitted to the Community Development Department and, therefore, the Department cannot agree or disagree with this finding until it has had an opportunity to fully evaluate the study. 10a. Several developments at the Gale Ranch Project (West Branch and Country Club) are completed and contain occupied homes similar in size and price as those currently being constructed in an adjacent development (The Bridges). Response: Partially disagree. The projects referred to as "Country Club'; "The Bridges" Gale Phase 1, and Gale 1 are all the same project, DP923010. West Branch is a project owned by Shapell that is outside the Dougherty Valley Specific Plan area but within the City of San Ramon. 10b. Actual Student Yield Factors for these comparable areas have not been developed by SRVUSD. Response: Partially disagree, in that the Community Development Department has no knowledge about whether these generation rates have been calculated or not. 11. SRVUSD has been in direct one-on-one negotiations with Shapell over the requirements and timing for schools starting in the year 2000 and continuing to date. SRVUSD plans to set up meetings with three other Dougherty Valley developers (Brookfield Homes, Centrex and Lennar Communities). The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 6 Response: Partially disagree. The Community Development Department is aware that the SRVUSD has held meetings with the Dougherty Valley developers over the past year, but has no knowledge of the attendees or focus of these meetings. 12a. The County Community Development Department issued an annual Compliance Monitoring Report in December 2000. Response: Agree. 12b. These annual reports are required by the Settlement Agreement prior to County approval of Final Development Maps for the Dougherty Valley phased developments. Response: Partially disagree. Annual Reports represent an annual snapshot of activities for the previous project year (October to October) and expected activities for the coming three years. Thus, before any final map approval, there would be an Annual Report. But there is not a specific prerequisite that the County review and approve a Settlement Agreement Annual Compliance Report prior to any Final Map. 12c. The report data is summarized below and is compared to the most recent SRVUSD estimates which were developed in October 2000. Schools County Compliance Report District Estimates Difference (December 2000) (October 2000) Elementary: 2 additional required 3 additional required 1 elem. school - 1 in July 2008 -1 in July 2004 4 yrs. earlier - 1 in July 2012 -1 in July 2007 5 yrs. earlier -1 (uncertain date) Middle: 2 required 2 required - 1 in July 2008 - 1 in 2004 4 yrs. earlier - 1 in July 2014 - 1 in 2008 6 yrs. earlier High: 1 required - July 2009 1 req'd - Phase 1 4 yrs. earlier in 2005 Response: Partially disagree. Reading down the column labeled County Compliance Report", the phrase "2 additional required"Elementary schools is confusing and potentially misleading. The Project Year 2000 Annual Report indicates that the Dougherty Valley Settlement Agreement requires at least four elementary schools — one has been built, the second is due by July 2003; the third and fourth are due by July 2008 and July 2012. The Settlement Agreement has always required at least four elementary schools; these last two schools are not in addition to the original four. Reading down the column labeled "District Estimates" we disagree with the "3 additional required"since we cannot determine whether these three are in addition to the four required by the Settlement Agreement 12d. There are significant differences in both the number and timing of schools. Response: Partially disagree. Without additional information, the significance of these differences is not conclusive. The numbers of middle schools and high schools are the same, only the timing varies, and only for the much later facilities. 12e. The Compliance Monitoring Report under "Compliance Status" indicates, "No action required yet." Response: Partially disagree. The Annual Compliance Report evaluates the status of each of the seven schools designated by the Settlement Agreement. Page 5 of the report entitled, Project Year 2000, Annual Compliance Reports (Dougherty Valley Settlement The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 7 Agreement), indicates that Elementary School #1 was built and operating two years ahead of scheduce, as requested by the School District. For Elementary School#2, page 6 of the report indicates that no action is required of Shapell Industries (because Windemere is building this school), and that Windemere is on schedule to build the school by August 2003, as indicated by SRVUSD; again, this school will be available two years ahead of the schedule indicated in the Settlement Agreement. Page 10 of the report indicates uno action required yet" for the third and fourth elementary schools, since their near-term "Intermediate Steps" as defined by the Settlement Agreement schedules, are not due until 2005 at the earliest. A separate memo to the DVOC from CDD, attached to the Annual Compliance Report, entitled Dougherty Valley Community Facilities Projects, explains how the Department developed the compliance schedules for each type of facility. The cover memo explains that these schedules do not reflect the projections being developed by the school district, and that "Our next step is to work with the School District to incorporate their assumptions in the model, so that the school, parks, and child care facility projections more accurately reflect their required timing." Nonetheless, the school projections do incorporate an alternative formula for projecting elementary school age children. This formula was communicated verbally by School District staff to County staff about a year ago. Thus, the Community Development Department asserts that Finding 12e does not reflect the broader compliance status indicated in this report. It overlooks the Department's commitment to involve the School District in future projections and its past record in adjusting school construction schedules to meet the preferences of the School District. 12f. Therefore, by implication, Final Development Maps may be approved by the Community Development Department when submitted and the number of school sites reflected on those maps would become final. Response: Partially disagree. For clarification, the County presumes that the reference to "Final Development Maps" refers to Final Maps as defined by the Subdivision Map Act, and not to the Final Development Plan. [Note: The legislative body approves Final Maps after County staff complete a compliance review and confirm compliance with project requirements.] The County concurs that Final Maps may be cleared by the Community Development Department when submitted, but only if they comply with all applicable Conditions of Approval, which include by reference compliance with the Performance Measures in the Settlement Agreement. In addition, the Final Maps are not necessarily final actions" as relate to actions by the School District. Final Maps are not controlling on school districts, as the districts"may build schools in residential areas, as they deem necessary. In this regard, Final Maps are not, in fact, final actions. 13. One or more middle schools will be utilized in providing interim facilities prior to the construction of a middle school in Dougherty Valley. Design limits of existing middle schools are stated as follows in the SRVUSD staff memorandum of October 2000 and indicate the potential for interim utilization. Projected Middle School Design Capacity 2003-2004 Enrollment Charlotte Wood 1130 1014 Diablo Vista 650-700 687 Iron Horse 960-1000 986 Los Cerros 1100 644 Pine Valley 960-1000 932 Stone Valley 700 689 The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 8 Response: Partially disagree, in that the finding applies only to the San Ramon Valley Unified School District (SRVUSD) and not to the Community Development Department (CDD). 14a. There are an estimated 739 middle school students who will require interim arrangements prior to the provision of schools in Dougherty Valley. The County Community Development Department Compliance Monitoring Report - Year 2000 states the ultimate relief will be required in 2008. The SRVUSD study estimates the ultimate relief will be required in 2004. Response: Partially disagree. The Compliance Report indicates that there would by 779 middle school students by the fall of 2009, thus it conservatively specified that the school should be opened by July of 2008. The sensitivity analysis indicates that a 25% fluctuation in housing unit absorption rate could shift the deadline by plus or minus a year, that is, as early as 2007 or as late as 2009. The Conditions of Approval require that the developers provide interim space for excess students prior to the completion of new school facilities if the SRVUSD is unable to accommodate additional students. Thus, the County concurs that whatever number of Dougherty Valley middle school students have been generated prior to construction of a Dougherty Valley middle school will require interim accommodation somewhere in the SRVUSD. 14b. There was agreement in March 1999 between the SRVUSD and Shapell Industries that the Iron Horse Middle School will be utilized by the addition of portable classrooms prior to the completion of construction of the first middle school in Dougherty Valley. Classroom space exists at other school facilities. The SRVUSD has not made public its interim plans for Dougherty Valley middle school students. Response: Partially disagree, in that the finding applies only to the San Ramon Valley Unified School District (SRVUSD) and not to the Community Development Department (CDD). Item 8 of this agreement states that Shapell will provide two relocatable classrooms to mitigate impacts of the Wendt Ranch children; it does not indicate where the classrooms would be installed. Item 11 states that the Wendt Ranch children would attend Iron Horse middle school or another more proximate school before the Dougherty Valley middle school is open. After the first Dougherty Valley middle school opens, the Wendt Ranch children would then attend that school. The Conditions of Approval for Dougherty Valley projects require developers to provide interim school facilities for students generated by their residential construction that precedes school construction, if the SRVUSD cannot accommodate them. The County agrees with the statement that the SRVUSD has not made public its interim plans for Dougherty Valley middle school students, but is aware of no requirement for them to do so. 15. High school enrollments are limited to the number of portable classrooms that can be placed on the available school sites. San Ramon High School has no available land for the placement of portables. Both the California and Monte Vista High School campuses can accommodate portable classrooms. Response: Partially disagree. High school enrollments are limited to the total number of classrooms that can be made available at local school sites, whether those classrooms are permanent or portable, and whether they are at existing high school sites or other locations in SRVUSD. School District policy determines the nature of the high school program, which also affects the high school enrollment and the space available. The Community Development Department has no direct knowledge of the availability of space at various high schools for additional classrooms. 16. The SRVUSD has not yet identified the high school(s) that will be used as interim facilities for Dougherty Valley high school students pending completion of the new Dougherty Valley High School. Up to 1466 high school students will require interim The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 9 arrangements prior to the year 2009 (County Community Development Department Compliance Monitoring Report - Year 2000) or prior to the year 2005 (SRVUSD staff estimate). Response: Agree. 17. The Dougherty Valley Oversight Committee, established as a result of the Dougherty Valley Settlement Agreement, can request that the County Community Development Department withhold building permits if, based upon their review, compliance conditions set forth in the Agreement are not met. Response: Agree. 18a. The school requirements to support the Dougherty Valley Project had not been addressed before the Dougherty Valley Oversight Committee until the March 14, 2001 meeting. Response: Disagree. The Annual Compliance Report for the Project Year 2000 was presented to the Dougherty Valley Oversight Committee on December 13, 2000. The DVOC has reviewed an Annual Compliance Report each year since November 1995, and these reports have been presented at a public Zoning Administrators meeting for each of those years. 18b. At that meeting, an SRVUSD official reported that the possible need for additional school sites was based on an indication that a higher-than-expected number of students were moving into the first phase of the Dougherty Valley Project. No numbers were cited. Response: Agree. 19. The County Community Development Department is under the impression that, pursuant to Government Code 65995, subparagraph E, a development could not be denied building permits based solely on inadequacy of school facilities. Response: Partially disagree. The Community Development Department bases its position on Government Code Section 65995, subparagraphs E through 1, inclusive. Subparagraph E expresses the legislative intent to fully occupy the field for school facility mitigation. Therefore the County, apart from what may be expressly allowed by the Development Agreement, cannot require more mitigation than State law requires. Subparagraph I of Section 65995 specifies that a State or local agency may not deny or refuse to approve a legislative or adjudicative act that relates to the development of real property on the basis of someone's refusal to provide school facility mitigation that exceeds the amount authorized by Section 65995, 65995.5 or 65995.7. Thus, the County's mitigation requirements are limited to the mitigation amounts authorized by the State, and the remedies cannot include denial of building permits or final maps if the requested mitigation exceeds the State authorized amount. The Department must carefully evaluate the magnitude of school facility mitigation being required before it could consider denial of building permits or final maps. In addition, the Community Development Department could not consider denying building permits in this case unless it first determined, after due process, that the alleged inadequacy of school facilities violated a Condition of Approval for this project and that the non-compliance continued unabated after due notice. 20. Discussion at the March 14, 2001 Dougherty Valley Oversight Committee meeting raised questions as to the propriety of and procedures for adding school sites to the Dougherty Valley Project plans and the need for additional consideration of the matter at a subsequent meeting. The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 10 Response: Agree. CONCLUS 0 5. . . .....:...:... .. ...::..:.::....:::. 1. There is potential for the taxpayers of the SRVUSD to be responsible for a School Bond of a substantial amount in order to build the Dougherty Valley High School if the 1988 Agreement and the 1989 Memorandum of Agreement between the SRVUSD and Shapell Industries covering the provision of schools in Dougherty Valley are found legally binding. The present planned use by the SRVUSD of the Dougherty Valley High School for students solely from Dougherty Valley was not contemplated in the 1988-89 Agreements between the SRVUSD and Shapell Industries. Response: Partially disagree, in that the County is not a party to these agreements and, therefore, cannot verify the statements in this conclusion. 2a. The SRVUSD has, since 1988, negotiated directly with the developers concerning the provision of land and construction of the required schools. Under California law it has every right to do so. Response: Agree. 2b. However, this presents a potential risk in a development project of the size of Dougherty Valley requiring the number of school sites to be dedicated and schools to be constructed. The Dougherty Valley Project is the largest ever undertaken in the District (or the County) and is complex with many interrelated community issues. Response: Agree. 2c. The SRVUSD has not effectively communicated its needs for additional school facilities for Dougherty Valley to either the Dougherty Valley Oversight Committee or the County Community Development Department. Response: Partially disagree. In the past year the SRVUSD staff has increasingly called on Community Development Department staff for advice about Dougherty Valley school- related issues such as child care facilities, school parks, and school sites. In addition, at the SRVUSD initiation, they and the County have already begun working together to develop compatible databases to facilitate the collection of meaningful data for purposes of projecting school needs. At these meetings, SRVUSD staff have communicated verbally their current understanding of school needs and agreed to work with County staff to develop consensus, if at all possible, on generation rates. This information has been discussed at DVOC meetings, although it has not been formally presented either to the Community Development Department or to DVOC. 2d. The conflicting information between the Compliance Monitoring Report - Year 2000, public statements by school officials and the SRVUSD staff studies has the potential for putting at risk the provision of adequate school facilities should the Final Development Maps approved by the County Community Development Department be based upon the wrong school site requirements. Response: Disagree. The conflicting information represents only the first step in an ongoing process to evaluate school needs. Even if the Final Maps are approved with the existing sites, changes can be made in the future. The Settlement Agreement requires an annual review of school projections and adequacy of school facilities, involving the Department, SRVUSD, and the Developers. Although discussions have occurred between SRVUSD and Community Development Department staff during the past two years concerning student generation rates, these meetings have not been formalized. SRVUSD and County staff made a commitment to DVOC to formalize these meetings and conduct them on a regular basis, consistent with the requirements of the Settlement Agreement. The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 11 The initial steps in this direction have already been completed. Also, please note that Final Maps are approved on a phased basis. The County has approved Final Maps, thus far, only for the Gale Phase 1 project. The Community Development Department is currently reviewing six Final Maps for Windemere Phase 1, and has not yet received any Final Maps for Gale Phase 2. As long as the Compliance Monitoring Program is managed diligently, there is no reason to believe that this conflicting information might result in long-term deficiency of school sites. 3a. The SRVUSD has relied upon the results of district-wide Student Yield Factor studies for school needs in the Dougherty Valley. As the balance of the district is in a well- developed older area with only scattered small pockets of new development, these factors may not be applicable to the Dougherty Valley developments. Response: Agree. 3b. No attempt has been made to develop Student Yield Factors of adjacent and completed developments similar in home size and price for the student population which may be more indicative of that which can be expected in Dougherty Valley. Response: Partially disagree. The Community Development Department is not privy to information about all of the efforts by SRVUSD staff and, thus, cannot completely agree or disagree with the conclusion that no attempt has been made to develop alternative types of Student Yield Factors. However, County and SRVUSD staff have together developed baseline information that could be used in such projections, discussed the dilemmas of making such projections, and scheduled additional meetings to continue this effort. 4a. The SRVUSD has not announced the selection of the middle and high school(s) to be used to provide interim schooling for Dougherty Valley students prior to the construction and opening of these schools in the Dougherty Valley. Response: Agree. 4b. This makes it difficult for community leaders and the Dougherty Valley Oversight Committee to assess the impact upon the community of up to 750 middle and 1500 high school students being served out of the Dougherty Valley area and the possible need to transport them to and from existing schools over local roads many of which are already at capacity during the before and after school. Response: Partially disagree. The County concurs that lack of this information makes it difficult to assess future impacts on the communities and roadways. However, at the current development rate, it is not likely to create an adverse impact so quickly that appropriate transportation planning could not be undertaken. 5a. The County Development Department believes it has no jurisdiction concerning school requirements and appears to be willing to sign-off on the developers' Final Development Plan(s) without either the concurrence of the SRVUSD or the Dougherty Valley Oversight Committee in regard to the adequacy and availability of schools. Response: Disagree. For already-approved Final Development Plans (in this case Gale 1, Gale 2, and Windemere 1) the Department has jurisdiction concerning school requirements as defined by the approved Conditions of Approval. Both the Windemere Phase 1 and the Gale Phase 2 projects have approved Final Development Plans that include the following Conditions of Approval. These conditions must be met prior to County approval of the first final map: • Provide will-serve letters from the school district or signed school agreements. • Comply with the Dougherty Valley Settlement Agreement. • Provide interim school facilities prior to school construction. • Build school sites designated in the Specific Plan. The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 12 Should compliance between two conditions conflict, then the Department is responsible for determining the best resolution, in light of all of the legally applicable authorities. In this case, the Department would consult the Conditions of Approval, the CEQA Mitigation & Monitoring Plan, the applicable Development Agreement, the Settlement Agreement, and the County Code. The Department's jurisdiction is most clearly defined by the Condition of Approval that requires the developer to comply with the Dougherty Valley Settlement Agreement, and a Performance Measure in the Settlement Agreement that requires developers to meet the school needs generated by their respective Dougherty Valley developments. For approved projects, the SRVUSD and the DVOC have an opportunity to question a developer's compliance with the Settlement Agreement not only at the time of the Annual Compliance Report, but at any time they have information that causes them to question compliance. When evaluating proposed Final Development Plans (such as Gale 3), the Department follows the guidance provided by the County Code, State Law, the Rezoning Approval, the Dougherty Valley Specific Plan, the Dougherty Valley Community Design Guidelines, the Dougherty Valley Affordable Housing Program, and the Dougherty Valley Settlement Agreement. The County must submit any proposed Final Development Plan to the DVOC for review and comment prior to its approval. As with any such application, the School District would be provided an opportunity to comment on the proposed project, and the Department would consider these comments, as well as those by the DVOC, when making recommendations to the County for action. These applications do not require concurrence from the School District or the DVOC, but their comments and recommendations must be reflected in the Staff's recommendations concerning the application. 5b. The County's approval of Final Development Plan(s) should rest upon the determination of adequacy of all infrastructure services including the provision of adequate schooling. Response: Agree. State law and County Ordinance define the County's process for reviewing and approving Final Development Plans. This review process always considers impacts on public services and public facilities, and includes evaluating the adequacy of public schools. R - MDATIONS., - -- EC M N. ..... ..;.:: :.,.. _.:..:. .......... CDD1. Evaluate, to the degree permitted by state law, the adequacy of school provisioning in the Dougherty Valley and in all future County "mega-developments" in the same manner as it examines other infrastructure requirements and impacts, i.e., roads; traffic density; water; electricity; sewer; police and fire; etc. It should rely upon the local school districts to provide judgmental input concerning schools and, in the case of Dougherty Valley, also seek the Dougherty Valley Oversight Committee's recommendations. Response: The recommendation has been implemented, and will continue to be implemented in the future. The original designation in the Dougherty Valley Specific Plan of seven school sites in Dougherty Valley was done in the same manner as other infrastructure requirements and included judgmental input from the local school district. The Dougherty Valley Oversight Committee did not exist at that time. The Settlement Agreement requires an annual review process focused on the adequacy of school facilities, student generation rates, and other factors outlined above. This review process has already been initiated, and both the School District and the County are committed to its continuance, as evidenced in the December 2000 Annual Compliance Report. The SRVUSD's recent report on student generation rates and its questioning of the number of The Dougherty Valley School Situation August 14, 2001 County Response to Grand Jury Report No. 0105 Page 13 schools being allocated in Dougherty Valley has put all parties on notice that the issue needs further analysis. There is insufficient evidence at this date to conclude that additional schools are needed, but there is sufficient evidence to indicate that one or more additional sites may be needed. Thus, the Community Development Department considers the SRVUSD report as the first step in an in-depth evaluation process, not a final conclusion to be formally adopted. Any results or recommendations from this evaluation will be taken to the DVOC. The Settlement Agreement requires the Department to carefully consider the School District input concerning the timing of school site developments, and requires that developers meet the school needs generated by their construction projects. CDD2. Issue a correction to the County Community Development Department's Annual Compliance Report for the Dougherty Valley - Year 2000 if the SRVUSD's current estimate of school requirements and timing differs from that shown. Response: The recommendation will not be implemented because it is not warranted or reasonable. The Project Year 2000 Annual Compliance Report is a snapshot in time, based on the best information available through October 2000. The Department could not retroactively find the developers out of compliance with the Settlement Agreement for the past year based on newly available information. Moreover, sufficient information is not available even at this time, eight months after the close of the Project Compliance Year, to conclude that either developer has demonstrated a pattern of continued non-compliance in violating a Performance Measure as defined by the Settlement Agreement. The Community Development Department and the DVOC did conclude that the newly available information from the SRVUSD warrants serious consideration and analysis, and that County and SRVUSD staff would work together to better understand the expected number of school children, the rates of their arrival, and the amount of additional school space that would be needed. As staff explained at the March 13, 2001 DVOC meeting, drawing a conclusion that the seven designated school sites are not sufficient to serve the expected Dougherty Valley population is a very serious matter and warrants careful, in- depth analysis before either DVOC or the County can take action on it. CDD3. Under the terms of the Settlement Agreement Compliance Monitoring Program, suspend approval of the Developer's Final Maps for the Dougherty Valley Developments until the adequacy of school sites and the timing of the school construction has been agreed upon and formally confirmed in writing by the SRVUSD and the developers. Response: The recommendation will not be implemented because it is not lawful. The Department has no legal authority to suspend approval of final maps based on preliminary evidence that the total number of school sites may be insufficient. The Department may deny approval of a particular final map if a developer fails to comply with the Conditions of Approval that apply to that Final Map. The Department agrees that the School District generation rates provide serious issues that need to be evaluated in depth as soon as reasonably feasible. The Windemere School Agreement provides for additional school sites should they be needed in the future; therefore, the County has no basis to suspend approval of Windemere's Final Maps, since a mechanism is in place for developing additional sites. The Shapell School Agreement(s) are not so clear on this issue. Prior to approving Gale 2 Final Maps or the Gale 3 Final Development Plan, the Community Development Department would require sufficient evidence from the Shapell that it is in compliance with the school requirements specified in the Settlement Agreement. The ongoing discussions between the SRVUSD and Department staff will support the evaluation of this evidence.