Housing for older people in Frederick County may either face a school capacity study or be restricted entirely to those 62 and older, according to proposed ordinances before the Frederick County Commissioners.
The commissioners will have a public hearing on the two ordinances, which are mutually exclusive, next week. The ordinances are aimed at reducing the possibility that older-adult communities could add to the school population.
There may be legal roadblocks to passing the ordinance requiring all residents of age-restricted developments be 62 and older.
"There is very little case law," Kathy Mitchell, assistant county attorney, said at a public workshop session Thursday.
She told the commissioners that such an ordinance could bring about legal challenges.
Most age-restricted housing developments in the U.S., including those already in existence in Frederick County, require that 80 percent of households have at least one resident 55 or older. Courts have determined that these developments for older residents are not discriminatory.
Those types of developments may still attract residents who have school-age children.
The proposed ordinance would apply to all residents in a 62-and-older community, not just one person per household.
Frederick County Commissioner Charles Jenkins said there's a reason the county doesn't have 62-and-older developments.
"I have a feeling the market's not there to recoup the investment," he said.
Senior developments in Frederick County are exempt from the county's adequate public facilities ordinance, as far as schools are concerned.
If the commissioners were to repeal the school exemption, senior developments could continue attracting younger residents. But the proposed ordinance would force these developments to undergo expensive studies to determine whether a school or school addition would be needed.
That's something senior developments haven't had to do here.
APFO laws ensure that infrastructure, such as schools and roads, can accommodate new growth. The laws in Frederick County generally require that developers pay for the new cost of schools and roads any new growth would generate.
"If we use a legally-approved definition of vested rights, it's hard to apply when you're talking about APFO approval," Mitchell said.
Frederick County Commissioner John L. Thompson Jr. proposed the ordinance repealing the school exemption for 55-and-older developments.
"They could have one, but it wouldn't be exempt from the APFO test," he said.
The Frederick County Division of Planning estimates 32 percent of the county's proposed housing developments have the 55-and-older age restriction. By 2030, the county expects the number of residents age 65 and older will double. That segment of the population is expected to grow faster than the population of school-age children.
The planning office estimates 3,000 to 6,000 age restricted housing units will be needed for the growing senior population.