Town Leaders Prep for ‘Scary’ Proffer Law Change

It is a worrisome time for Leesburg town staff and Town Council members, as they grapple with changes coming to a statute in the Virginia State Code that governs proffers.

“This is a game changer,” Town Attorney Barbara Notar told council members during Monday night’s work session.

The concern among the staff is the potentially negative implications, and the likelihood of future legal woes, related to a new proffer statute set to take effect July 1. Although Notar emphasized to the council that the staff is learning more about the changes on a daily basis, just understanding the new law already has caused “significant work plan impact” among the town’s planning and zoning staff.

In short, the new law will allow applicants for rezoning applications in localities to challenge the reasonableness of a proffer even if it was voluntarily submitted. Any proffers submitted by rezoning applicants now have to be “specifically attributable” to resolve the impacts generated by a new development on surrounding facilities, such as schools, parks, and public safety.

“Rezonings will be very data-driven legislative actions,” Notar said. She said for rezoning applications, staff members will need to be prepared with their own impact studies to prove that a requested proffer is reasonable. And, if the numbers are off, it could set the town up for lawsuits.

Applicants could only file suit against a locality after a denial of a rezoning; however, a locality is not able to file suit against an applicant if it determines its proffers to be unreasonable. The only power a governing body would have would be to deny the rezoning application, Notar said.

As the staff works to “fast track” review of the Comprehensive Plan and Zoning Ordinance to incorporate the changes, Notar strongly advised the council to be cautious in its discussions with developers concerning rezoning applications submitted after July 1.

“Either don’t [talk to the applicant] or talk to me first,” Notar told the council members.

She also said that the Virginia attorney general’s office has ruled that no moratoriums may be placed on accepting rezoning applications in localities.

“This is actually pretty scary,” Vice Mayor Kelly Burk said of the upcoming changes. “This is going to elongate the whole [plan review] process.”

Councilwoman Katie Hammler emphasized the need to adopt police intensity factors to allow the town to collect proffer dollars for the Leesburg Police Department, something the council and town staff has previously spoken about.

“It sounds like the only way we may have the ability to deny what would be a very detrimental application would be to say it doesn’t conform to the Town Plan,” she said.

Mayor David Butler said another wrinkle of the new law that the town staff needs to figure out is what factors determine if a development will place a school over capacity—a policy decision by the School Board or the fire marshal’s regulations on building capacity.

“We have to figure this all out and it’s very confusing,” Brian Boucher, deputy director of the Planning and Zoning Department, said.

Notar said she plans to report back to the council next month on what else the staff has learned prior to the new statute taking effect.


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