Loudoun Planning Commission Waves Through Proffer Workaround

Planning Commissioners on Tuesday signed off on a set of zoning changes that will let the county work around a new state law that local leaders warned would cripple the county’s ability to negotiate with developers.

The new state law, written by the Homebuilders Association of Virginia and introduced by Harrisonburg Sen. Mark D. Obenshain (R-26) and Springfield Sen. Richard L. Saslaw (D-35), puts strict limits on what the county can suggest or accept from developers who want to build large residential or mixed-use developments.

The law defines a “reasonable proffer” and, if a developer brings a locality to court over the new law, the burden of proof is on the locality to show that it did not deny a rezoning application because a developer did not agree to provide an unreasonable proffer under the bill’s definition.

That definition excludes many of the types of proffers that Loudoun routinely accepts. Historically, the county has relied on cash and infrastructure contributions from developers to keep up with the county’s explosive growth and maintain services like fire stations and libraries for its residents.

In addition to limiting cash proffers, the county staff say the new law opens the county up to significant legal liability, making it easier for developers to file—and win—lawsuits if proffers are deemed unreasonable or a rezoning application is denied.

The bill faced strident and unanimous opposition from the Board of Supervisors, as well as resistance from the Virginia Association of Counties and the Virginia Municipal League. Supervisors warned they may have to stop approving rezoning requests covered by the new law until they have assessed its impact. County leaders and representatives in Richmond admitted early on that they had little chance of defeating the bill, and focused instead on writing in exemptions.

One of those exemptions—for small area plans, like miniature comprehensive plans, around current or future Metro stations—will now allow at least some of the county to carry on with business as usual. County planners propose to put much of the suburban east of the county into three small area plans, one encompassing each of Loudoun’s three future Silver Line metro stops. In the rest of Loudoun, the county will simply do away with its negotiation process, limiting communication with developers and weighing rezoning requests as they are presented.

[The governor signed the bill over the county’s veto request.]

“Where the new legislation applies, we will in fact not accept cash or offsite proffers, completely eliminating the discussion or the potential for risk of the county accepting the unreasonable or wrong types of proffers,” said Assistant Director of Planning and Zoning John Merrithew.

Ironically, the Homebuilders Association’s bill may have shut down much homebuilding in much of the county, especially in the areas around Leesburg and Purcellville and in the Transition Policy Area between the suburban east and rural west. Those areas still fall under the rule of the new proffer law.

“We will not be negotiating solutions for issues in those areas,” said Assistant Director of Planning and Zoning John Merrithew. “You will be evaluating cases on the merits on policy and the impact that is expected.”

The county’s proffer workaround will now go to the Board of Supervisors for a public hearing and vote.

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See related:
Loudoun Supervisors Battle Bill to Cut Proffers
State Senate Joins House In Passing Proffers Limitations
What Would Proffer Limitations Cost Loudoun? Supervisors Want to Know
General Assembly Passes Proffers Bill
Board Asks Governor to Veto Proffers Bill
Governor Signs Controversial Proffer Bill into Law
Loudoun Board Advances Strategy to Negate Proffer Limits

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