§ 151.220  SCHOOLS.
   This section addresses school contributions related to school land needs to accommodate additional student population generated by proposed residential development. Nonresidential developments are exempt from the requirements of this section.
   (A)   School contribution types.  Whenever a school district is entitled to a contribution pursuant to subsection (A)(2) below, the contributions shall be limited to the two following options.
      (1)   Ordinance-based school contributions.  The developer shall contribute the requisite amount of land, cash, or a combination of land and cash, in accordance with the procedures established under subsection (C) herein.
      (2)   Private agreement-based school contributions.
         (a)   A school district may waive all rights to any ordinance-based contribution.
         (b)   Notwithstanding any waiver, a school district may enter into a private agreement with the developer.
         (c)   The administration and enforcement of private agreements shall follow the procedure established under subsection (D) herein.
 
COMMENTARY:
To ensure timely and thorough consideration of all relevant issues, the developer and affected school district(s) are urged to discuss the available school contribution options as early as possible in the county’s development review process.

Upon receipt of the preliminary plat or, when a preliminary plat is not applicable, a preapplication conference submission, a copy of which submission is forwarded by the Planning, Building and Development Director to the Regional Superintendent of Schools and to the affected school district(s). This information is used, in part, to assist in the calculation of school contributions, as provided below.
 
   (B)   Applicability.  No school land dedication or cash contribution in lieu of land dedication shall be required unless the Lake County Regional Superintendent of Schools has determined that there is an existing or projected need for school lands to accommodate the additional student population within the district. The Regional Superintendent of Schools shall make the decision in accordance with the procedures of subsection (B)(1), below.
      (1)   School land needs determination.
         (a)   The school land needs determination shall be based upon the existing or future school land needs within the affected school district(s). The determination shall be based upon a review of available data studies and literature on the subject, including but not limited to information provided by the State Superintendent of Education and the unique characteristics of this county. Projected enrollments shall be based upon current tables of estimated ultimate population per dwelling unit type, as prepared by Associated Municipal Consultants, Inc. or comparable data recognized by the Plat Officer. The affected school district(s) may provide data to the Lake County Regional Superintendent of Schools to assist in this determination.
         (b)   Following receipt of the school district’s assessment, the Regional Superintendent of Schools shall submit a final determination to the Planning, Building and Development Director prior to preliminary plat approval whether the affected school district(s) in fact faces an existing or projected need for school lands to accommodate additional student population, and therefore would be eligible to receive school contributions pursuant to this subsection (B). The Regional Superintendent of School’s final determination shall also indicate whether a contribution of land, cash, or a combination of land and cash shall be required of the developer, in accordance with the following considerations:
            1.   Land contribution.  The contribution may consist of land that is suitable for intended school purposes, in accordance with subsection (C)(2)(a)2., below.
            2.   Cash contribution.  Where the residential development is small and the resulting site is too small to be practical or when the available land is inappropriate for a school site, the developer may be required to pay a cash contribution for the use in acquisition of land for school sites, or for the improvement to any existing school site, or for the construction of school buildings or additions thereto in accordance with Public Act 93-0330.
            3.   Combined land and cash contribution.  A combination of land dedication and a cash contribution in lieu of land may both be necessary when only a portion of the land to be developed is proposed as the location for a school site; or a major part of the local school site has already been acquired by the particular district and only a small portion of land is needed from the developer to complete the site. In these cases, the remaining portion shall be required as a cash contribution in lieu of land.
      (2)   Notice to parties.  Following receipt of the Regional Superintendent of Schools’ school land needs determination, the Planning, Building and Development Director shall notify the developer and the affected school district(s) of the decision in writing.
   (C)   Ordinance-based school contribution procedure. The following procedures govern ordinance-based school contributions.
      (1)   Calculation of required contribution.  The following procedure governs the calculation of required contributions.
         (a)   Calculation by contribution type.
            1.   Land contribution calculation.  The amount of land required to be contributed shall be determined by multiplying the “estimated ultimate school population per dwelling unit” (see “Estimated Ultimate School Population” Table in Appendix P) by the “site area” requirements for the school site (see “School Classification” Table in Appendix P), then dividing by the “maximum number of students” (see “School Classification” Table in Appendix P). If the development will be age-restricted (i.e., an exclusively active adult, independent living, or assisted/supported living facility) through restrictive covenants or other similar means, the amount of land calculated above shall be multiplied by a factor of 0.25 to account for the reduced likelihood of any student generation from the development.
            2.   Cash contribution calculation.  The cash contributions in lieu of land shall be based on the fair market value, as described in this section, of the gross site valued as improved land in the area that otherwise would have been dedicated in accordance with subsection (C)(2)(a). To determine the amount of cash contribution, multiply the “estimated ultimate school population per dwelling unit” (see “Estimated Ultimate School Population” Table in Appendix P) by the “site area” requirements for the school site (see “School Classification” Table in Appendix P), then divide by the “maximum number of students” (see “School Classification” Table in Appendix P). Multiply the resulting acreage by the fair market value of the land within the area to determine the per lot cash contribution. If the development will be age-restricted (i.e., an exclusively active adult, independent living, or assisted living facility) through restrictive covenants or other similar means, the cash contribution calculated above shall be multiplied by a factor of 0.25 to account for the reduced likelihood of any student generation from the development.
 
COMMENTARY:
For purposes of this subsection, active adult developments are generally synonymous with senior housing that is not accommodated by nursing or other medical care; independent living developments may or may not provide those services; and assisted/supported living facilities that are accommodated by that care. The age-restricted multiplier, above, applies to all such developments.

The restrictive covenants should incorporate provisions to ensure that an affected school district’s school land needs are sufficiently addressed in the event the age-restricted development ultimately generates students or otherwise no longer qualifies as an age-restricted development at any point following final plat approval (or initial contribution).   
 
               a.   Fair market value determination.  The cash contributions in lieu of land shall be based on the fair market value of land in the area that otherwise would have been dedicated as school sites. In calculating the fair market value on a per acre basis, the following assumptions about the land shall be made: that it is zoned in the Residential-1 (R-1) Single Family Residential Zoning District consistent with the county’s development standards; that it is developed with appropriate frontage on a dedicated street, stubbed with county sewer and water and has all appropriate utilities available; that it is improved as set forth in subsection (C)(2)(a)1. herein; and that it is property otherwise capable of being used for one-acre single family residential development. This fair market value shall be determined by one of the two following methods:
                  (i)   The affected school district(s) and the developer may execute an agreed-upon statement of fair market value; or
                  (ii)   The developer may provide copies of a fair market value appraisal of land in the area of the proposed subdivision to the Planning, Building and Development Director for distribution to each affected school district and the Regional Superintendent of Schools.
               b.   Consumer price index adjustment to fair market value.  The fair market value identified in this section shall be subject to a “CPI adjustment” which shall be calculated annually and which adjustment shall go into effect on February 1, 2009, and on the first day of February in each year thereafter or as soon thereafter as the data becomes available. The CPI shall be based on the annual percentage change as published by the United States Department of Labor’s Bureau of Labor Statistics Consumer Price Index for All Urban Consumers (“CPI-U”) for the Chicago-Gary-Kenosha, IL-IN-WI Area (Identification Number CUURA207SAO). The index base period of 1982-84=100 shall be used. If the CPI for this particular regional designation is changed, discontinued, or replaced, any other governmental cost of living index or computation that replaces the CPI shall be used in order to obtain substantially the same result as would be obtained if the CPI had not been discontinued or replaced.
            3.   Combined land and cash contribution calculation.  The calculation of combined land and cash contributions shall follow the calculation methodology in subsections (C)(1)(a)2.a. and b. of this section, above.
         (b)   Administration of contribution calculation.
            1.   Signed copies of any ordinance-based contribution agreements between any affected school district(s) and the developer relating to the use of land and/or money accepted pursuant to this section shall be provided by the developer to the Planning, Building and Development Director prior to final plat approval. The agreements shall be recorded together with the final plat. A note shall be placed on the plat referencing their existence. Any final agreement dated more than one year prior to the date of final plat approval shall be considered null and void and the school contribution process shall be re-initiated.
            2.   Concurrent with the developer’s submission of the executed agreement pursuant to subsection 1. above, the affected school district(s) shall execute an indemnification agreement pursuant to subsection (C)(3)(a) herein and shall provide an executed copy to the Planning, Building and Development Director. If a developer’s delayed payment agreement has also been executed, it should also be submitted to the Director at this time.
            3.   Following submission of the executed contribution agreement, the Regional Superintendent of Schools shall provide written certification prior to final plat approval that the terms of this subchapter have been satisfied. For purposes of this subsection (C)(1), the Regional Superintendent shall also obtain assurances that good, merchantable title to any relevant school sites will be conveyed, as verified through warranty or trustee’s deed and a valid plat of survey for the sites.
      (2)   Procedures for land dedication/ contribution payment.  All land dedication and cash contributions, or combinations thereof, imposed by this chapter shall be made to the affected school district(s) prior to final plat approval unless provided for otherwise as noted below.
         (a)   Land dedication procedures.
            1.   Reservation of land.  Whenever all or part of the land to be developed is shown on an officially adopted state, county, or municipal plan for a school site, the developer shall show all lands so designated as dedicated or reserved for that purpose in accordance with the provisions of § 151.190(A)(2) herein.
            2.   Dedicated land. 
               a.   The topography, soils, and natural features present on dedicated school sites and surrounding areas must be suitable for their intended use.
               b.   All sites shall be dedicated in a condition ready for full service of electricity, natural gas, telephone and cable television, water and sewer, streets (including enclosed drainage and curb and gutter, where applicable), and sidewalks and landscaping, all as applicable to the location of the site, and shall otherwise comply with the requirements of this Lake County Unified Development Ordinance. The site shall have direct access to a fully improved street. Where appropriate, new school sites should be accessible by a bicycle/pedestrian trail. Any vehicular access route leading to or on the site shall be of sufficient size and good geometry to properly accommodate vehicles that will access and traverse the site, including but not limited to good principles of traffic circulation, accommodation of one-way and/or two-way drives for school buses, separation of bus traffic from passenger automobile traffic, bus drop-off areas separate from publicly dedicated streets, guest and employee parking areas, and the like.
            3.   Designation on plat. Land to be dedicated for public school purposes shall be labeled on the final plat, “Hereby Dedicated to the (School District) for Public School Purposes”.
         (b)   Cash payment procedures.  Cash contributions shall be payable to the affected school district(s) which will serve the students from the development and shall be submitted to the school district(s). When payment is made to the affected school district(s), receipt for payment shall be provided by the school district(s).
            1.   Payment at time of platting.  In calculating the cash contributions to be paid at the time of platting, the county will assume that four-bedroom single family units and/or three-bedroom multifamily units will be constructed. The school district(s) will then hold sufficient funds pending issuance of the building permit to enable it to refund any overpayments resulting from the fact that units with fewer bedrooms are constructed. Refunds shall be made at time of issuance of the building permit upon application by the property owner to the affected school district(s).
            2.   Payment at time of building permit issuance.  With the written agreement of the affected school district(s), the county may agree that payment of the cash contributions may be made at the time of building permit issuance. In consideration for delayed payment, the developer shall execute a developer’s delayed payment agreement, largely similar in form and content to Appendix P of this Unified Development Ordinance, as provided under subsection (C)(3)(b), herein. Proof of payment to the affected school district(s) shall be provided to the county. The proof of payment must be signed by the affected school district(s) indicating the receipt of the cash contribution, the name of the development, the lot number, and the dwelling unit type. Any delayed payment of fees or cash contributions shall be calculated based upon the “CPI Adjustment” provided under subsection (C)(1)(a)2.b. herein, which shall be calculated based on the time at which the building permit is issued.
            3.   Expiration.  If any portion of a cash contribution is not expended for the purposes stated above within ten years from the date of final plat approval or payment pursuant to an agreement for deferred payment of cash contributions until the time of building permit issuance pursuant to subsection (C)(2)(b)2. herein, whichever is later, it shall be subject to refund. Refunds shall only be provided when the property owner at the time of expiration presents a written request addressed to the affected school district(s) or Regional Superintendent of Schools within the eleventh year following the payment. If the request is not made during the eleventh year, at the commencement of the twelfth year the school district(s), to the extent permitted by law, shall be authorized to declare the funds abandoned and use the money for any legitimate purpose.
      (3)   Limitations on county liability.
         (a)   School district indemnification agreement. Before the county will impose any payment or dedication requirements on a developer pursuant to this subchapter, the affected school district(s) shall execute an indemnification agreement largely similar in form and content to that set forth in Appendix P of this Unified Development Ordinance. This indemnification agreement shall be executed on or before June 1 of each year. Following execution of an indemnification agreement by the affected school district(s), the agreement shall be furnished to the county. In the event the affected school district(s) fails to furnish the executed indemnification agreement as required in this section, the county reserves the right to refuse to impose any land dedications and/or cash contributions on behalf of that affected school district(s) until the time that the executed indemnification agreement is furnished by the affected school district(s).
         (b)   Developer’s delayed payment agreement.  If the school district(s) and the developer agree to defer the payment of cash contributions to the time of building permit issuance, the developer shall execute a developer’s delayed payment agreement prior to final plat approval which shall provide that the developer agrees: that the cash contributions payable will be adjusted in accordance with the “CPI Adjustment” requirements herein; that the cash contributions may be expended for the purposes described in Appendix P; and to accept the validity of the Unified Development Ordinance and the cash contributions as calculated. The developer’s delayed payment agreement, or memorandum thereof, shall be recorded along with the plat of subdivision upon approval by the county.
      (4)   Objection procedures.
         (a)   Applicability.  The developer or affected school district(s) may file objections to the contribution calculations (subsection (C)(1)) as provided for in this section. Requests to modify any other provision of this section shall follow the major modification procedure of § 151.192(C) herein.
         (b)   Time of filing.  Prior to final plat approval, the developer or school district(s) shall, in writing, either concur with the application of the school contribution provisions of this subchapter or file an objection or request a waiver thereto, as applicable under subsection (C)(4)(a) above. Failure to file a concurrence, objections or waiver request with the Planning, Building and Development Director within the specified time period shall operate as a concurrence with the application of these provisions.
         (c)   Form of filing.  An objection shall be submitted in a format as provided in Appendix P. The form shall be accompanied by an alternate determination or set of contribution calculations and filing fee, as applicable.
         (d)   Scheduling of hearing.  Upon receipt of a valid objection, the Planning, Building and Development Director shall schedule a hearing before the Planning, Building and Zoning Committee to occur within 60 days of receipt of the written objection and shall inform the Planning, Building and Zoning Committee of the hearing.
         (e)   Notices.
            1.   The Planning, Building and Development Director shall notify the developer, the affected school districts and the Regional Superintendent of Schools by certified mail, return receipt requested, of the filing of the objection and of the date, time, and place of the public hearing regarding same.
            2.   The Planning, Building and Development Director shall provide public notice of the hearing date to consider the objection at least 15 days before the public hearing in a newspaper of general circulation in which the affected school district(s) are located. The notice shall:
               a.   Indicate the date, time, and place of the public hearing;
               b.   Identify the school district(s)s affected by the objection;
               c.   Describe the nature, scope, and purpose of the objection; and
               d.   Indicate where additional information on the matter can be obtained.
         (f)   Information and services to be used.  The Planning, Building and Development Director shall make available to the Planning, Building and Zoning Committee a copy of the written objection and any supporting documentation thereto, in addition to any other relevant available information relating to the objection. The Planning, Building and Zoning Committee may also retain the services of professionals (attorneys, appraisers, statisticians, and the like) to assist in its review of issues raised by any objection.
         (g)   Procedure for resolving an objection.  The Planning, Building and Zoning Committee shall conduct the public hearing to resolve a properly filed objection, in accordance with the following procedure.
            1.   A public hearing shall be held for the consideration of the objection. The developer, the affected school district(s) and the Regional Superintendent of Schools shall be allowed to participate in the hearing as a party thereto to present evidence, cross-examine witnesses, and make arguments to the Planning, Building and Zoning Committee regarding the issues raised in the objection. The public shall be allowed to provide comments relating to the objection.
            2.   At the request of the developer or affected school district(s), the Planning, Building and Zoning Committee may continue the hearing to a later date, but in no event shall the hearing be continued beyond 45 days of the original hearing date.
            3.   Following the conclusion of the hearing, the Planning, Building and Zoning Committee shall make a decision and shall make a written report within 30 days after the hearing.
            4.   The hearing shall be recorded by a certified shorthand reporter and a written transcript of the recording shall be provided to the Planning, Building and Development Director.
            5.   Within ten days following the Planning, Building and Zoning Committee decision, the Planning, Building and Development Director shall provide the developer, affected school district(s), and Regional Superintendent of Schools with written notice of the Planning, Building and Zoning Committee’s decision.
         (h)   Costs and fees.  The objector shall bear all costs of the hearing before the Planning, Building and Zoning Committee, including but not limited to publication costs, professional consultants, shorthand reporter services and transcript costs, and any other expenses of the county.
         (i)   Appeals of Planning, Building and Zoning Committee actions.  Appeals of actions or decisions of the Planning, Building and Zoning Committee under the school contribution provisions of this § 151.220 shall be filed within 15 days of the date on the notice of the action or decision. With the exception of this filing deadline, appeals shall be made in accordance with § 151.192(D)(2) of this chapter.
   (D)   Private agreements for school contributions.  This subsection (D) governs the administration and enforcement of private agreements for school contributions not subject to the requirements of subsection (C) above.
      (1)   Applicability.  This subsection (D) shall apply whenever an affected school district(s) and the developer reach a private agreement regarding school contributions in lieu of following the ordinance-based school contribution provisions contained in subsection (C) of this section.
      (2)   Administration.
         (a)   Signed copies of the private agreement(s) between any affected school district(s) and the developer, dated not more than one year prior to the date of final plat approval, shall be forwarded to the Planning, Building and Development Director prior to final plat approval. The agreement(s) shall be recorded together with the final plat. A note shall be placed on the plat referencing their existence. Any final agreement dated more than one year prior to the date of final plat approval shall be considered null and void for purposes of this chapter and the school contribution process shall be re-initiated.
         (b)   Prior to final plat approval, the Regional Superintendent of Schools shall provide written certification that the terms of this section governing private agreements has been satisfied for the subject development.
      (3)   Payment procedures. 
         (a)   Generally.  Any private agreement shall provide that the cash contributions shall be payable directly to the school district(s) which will serve the students from the subdivision and be submitted to the school district(s). When payment is made to the affected school district(s) pursuant to a private agreement, the school district(s) shall provide a receipt for the payment to the developer.
         (b)   Time of payment.
            1.   Payment upon final plat approval.  All land dedications and cash contributions imposed by private agreement shall be due and payable to the affected school district(s) upon final plat approval unless otherwise specified by the terms of the private agreement.
            2.   Payment at time of building permit issuance.  With the written agreement of the affected school district(s), payment of cash contributions pursuant to the private agreement may be made at the time of building permit issuance. In the event of this deferred payment pursuant to private agreement, proof of payment to the affected school district(s) shall be provided to the county prior to building permit issuance. The proof of payment must be signed by the affected school district(s) indicating the receipt of the cash contribution, the name of the development, the lot number, and the dwelling unit type.
      (4)   Limitations on county liability.  Although the county may require proof of payment for contributions on behalf of a school district pursuant to a private agreement between the school district and the developer, the county shall not be considered a party to the agreement, nor shall the private agreement place any responsibility or liability upon the county for the content of any of the provisions or terms contained therein for any reason, including but not limited to the extent that the provisions or terms are not authorized by the school contribution requirements of this subchapter. Consistent with this limitation on county liability, the following agreements shall be executed in conjunction with a private school contribution agreement:
         (a)   School district indemnification agreement.
            1.   If a private agreement is reached between the developer and the affected school district, the affected school district shall execute an indemnification agreement largely similar in form and content to that set forth in Appendix P of this Unified Development Ordinance. This agreement shall be executed on or before June 1 of each subsequent year. Following execution of this agreement by the affected school district, this indemnification agreement shall be furnished to the county and the Regional Superintendent of Schools. In the event the affected school district fails to furnish the executed agreement as required in this section, the county reserves the right to forego enforcement of the proof of payment procedure set forth in subsection (D)(3) above.
            2.   Any private agreement shall provide that the cash contributions shall be payable directly to the school district(s) which will serve the students from the subdivision and be submitted to the school district(s). When payment is made to the affected school district(s) pursuant to a private agreement, the school district(s) shall provide a receipt for the payment to the developer upon receipt of payment.
         (b)   Developer’s county liability waiver agreement. In consideration for the county’s agreement to permit a developer to enter into a private agreement with an affected school district(s), the developer shall execute a waiver agreement, largely similar in form and content to the county liability waiver agreement in Appendix P of this Unified Development Ordinance.
            1.   The waiver agreement shall provide that the developer agrees:
               a.   That the county is not a party to the private agreement and is not responsible or liable for the terms of the private agreement for any reason, including but not limited to the extent that the private agreement provides for contributions beyond what is authorized by the contribution requirements of § 151.220 of this County Unified Development Ordinance; and
               b.   That the developer and the developer’s successors and assigns waive any future right to object to any aspect of this chapter or institute any legal action against the county with respect to any aspect thereof as it applies to the development under review.
            2.   This developer’s county liability waiver agreement, or memorandum thereof, shall be recorded along with the plat of subdivision upon approval by the county.
(Ord., § 11.1, passed 10-13-2009)