City seeks to close charter school loophole

According to the city’s Land Development Code, organizations planning to build open-enrollment charter schools are exempt from various development regulations, including some intended to mitigate flood and traffic impacts. This revelation has grabbed the attention of community members as well as city leaders, who have asked staff to draft up possible ways to revise the policy.

The discussion surfaced most recently at Tuesday’s meeting of the City Council Planning and Neighborhoods Committee. There, members voted unanimously in support of the Planning Commission’s Aug. 25 initiation of code amendments that would create standards for open-enrollment charter schools that are equivalent or comparable to those that apply to public school districts.

Mayor Pro Tem Kathie Tovo made the motion, adding that the city should seek “an end result that honors our existing agreements to (the Austin Independent School District) – whether those are expressed in code or interlocal (agreements) or a combination of the two – and that those code amendments also ensure that charter schools are built in a manner compatible with the neighborhoods in which they’re … located.”

The proposed code amendments, Tovo added, should “make their way to Council as soon as possible.” Since the Planning Commission originally requested the code amendments, it is likely that it will review them first, then potentially recommend them to Council.

Tovo raised concerns in particular about the fact that open-enrollment charter schools are currently held to different standards than schools that are part of public school districts. That is the case because, while the exemptions in question apply to all public schools, including open-enrollment charter schools, the city enforces unique development regulations on public school districts through separate interlocal agreements.

Council Member Greg Casar, who chairs the committee, pointed out another issue that he said the city must work to address. “In the event that a facility ceases to operate as a school, it’s unclear what rules might govern future uses,” he said.

The regulations became an issue in 2014 when open-enrollment charter Austin Achieve Public Schools began construction of a school near the Windsor Park neighborhood and nearby residents started complaining about the close proximity of the school to their homes and the traffic it ultimately generated.

A few stakeholders, such as Windsor Park resident Scooter Cheatham, showed up to comment on the issue. He said his neighborhood has been impacted by the “loophole” in the code.

Matthew Abbott, chief executive officer of open-enrollment charter Wayside Schools, asked that the city include charter school representatives in the stakeholder process that could lead to code amendments and consider the need for schools to open on time, along with the impact that land development regulations could have on those needs.

“Most public charter schools are located in urban infill sites which are severely constrained in size,” Abbott said. “Just like AISD, public charter schools need the city’s land development process to be economical and expeditious. … Unlike a commercial project, which can delay its opening, a school can’t delay its opening, otherwise literally students are put out.”

When asked by Tovo if he thinks the rules should be different for open-enrollment charter schools, Abbott responded in the negative. “I’m just suggesting that whatever we come up with makes sense for the purpose of opening up schools in timely manners and that benefits all public school students in Central Texas,” he said.

Tovo responded that she agreed with that statement.

Susan Moffat, a former researcher at the Texas Legislature, suggested one path forward. She said that Council should repeal the code section with the public school exemption and replace it with one that says public schools are subject to the code, “except where specifically modified or exempted by an approved interlocal agreement.”

In addition, Moffat said, the code amendment should say that open-enrollment charter schools “would be equally subject to all the same provisions as an approved interlocal land development agreement for whichever (independent school district) in whose boundaries that charter school intended to build.”

While the city could theoretically level the proverbial playing field by signing similar agreements with open-enrollment charter schools, thereby subjecting them to comparable development regulations, city legal staff said there are problems with that approach.

“We do not recommend attempting to do that,” said Assistant City Attorney Brent Lloyd.

“We generally, you know, we don’t do contract zoning, and we try to, if we’re going to enter into some sort of a development agreement, we look for statutory authority to do that,” Lloyd continued. “We have that in the (Texas) Local Government Code to enter into interlocal agreements with the school districts. We don’t have anything like that for charter schools.”

Lloyd suggested some alternatives. “I think there are ways we could incorporate, by reference, into the ordinance we present to you, certain provisions from the AISD interlocal so that we don’t have to set it all out in full, but we’ll have to work on that with staff, and we’re definitely available to do that,” he said.