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September 25, 2006 (Regular Meeting) Page 121 ATTEST: /s/ Frankie F. Bonds Frankie F. Bonds, Clerk to the Board (G-2) Consent Agreement - Sapphire Hills Townhome Subdivision Jonathan Marshall, Commerce Director, presented a Consent Agreement for the Sapphire Hills Townhome Subdivision. He reported the subdivision was approved by the Concord Planning and Zoning Board on May 16, 2006, is a 60 unit townhome development with all units to be constructed in 2007. Upon review of school capacity, he reported there is one school above the 110 percent threshold and said the amount of mitigation is based on the townhome development which produces fewer children. Mr. Marshall responded to a variety of questions from the Board. Chairman Carruth recognized Thomas Milo, the developer's representative who responded to a variety of questions. Commissioner Privette made a motion to approve the consent agreement for the Sapphire Hills Townhome subdivision, provided that construction will not begin until the Cabarrus County School Board provides assurance that seats are available for all students. Commissioner Freeman seconded the motion. Commissioner Carpenter questioned the legality of Commissioner Privette's motion. Richard Koch, County Attorney, commented on the lack of criteria associated with Commissioner Privette's motion and reviewed the Board's options to approve the consent agreement or to delay the implementation of the developer's plan with specificity. Commissioner Privette asked the County Attorney if he could make a motion that the consent agreement be delayed until the County has assurance from the school board that seats are available for students from this project. Mr. Koch reported this motion is the same as the earlier motion. Mr. Marshall pointed out if school capacity was adequate, before or after this project, the project would automatically move forward and the Board would not have to approve a consent agreement. There was a lengthy discussion among Board members concerning school capacity, using adequacy funds to purchase land for schools, etc. Chairman Carruth restated Commissioner Privette's motion. Commissioner Carpenter moved to amend Commissioner Privette's motion to have the County Attorney review the legality of the motion and to report back at the next meeting. Mr. Koch reported the consent agreement is the standard document that has been used in the past, has passed legal mustard and the Board has already approved several consent agreements using this format. He said he would be glad to review the document again and reiterated it is the same document that has been used in the past. Again, Commissioner Carpenter questioned the legality of accepting the mitigation payment and waiting for the School Board to confirm adequacy. John Day, County Manager, reviewed the options available to the Board when considering consent agreements. He said these options have not changed. Chairman Carruth commented on how this issue comes up every month. He reviewed the Board's historical practice of accepting a per lot fee from developers for the advancement of adequacy beginning with the Highland Creek subdivision in 1999. He also commented on how much the adequacy advancement has increased over the years. There was a brief discussion on what would happen if the Board did not approve the consent agreement.