State Legislators Say Proffer Fix in the Works

State lawmakers say they are working on a fix to legislation that crippled the county’s ability to negotiate proffer agreements with developers across much of Loudoun—an essential tool to keep up with the county’s explosive growth.

State delegates and senators met with county supervisors Monday night to discuss legislative priorities over dinner at the County Administration Building.

Historically, the county has negotiated proffer agreements from the rezoning requests that have led to large developments like One Loudoun or Kincora. Those agreements, often include cash or infrastructure work and have been necessary to keep up with the need for services like fire stations, roads and libraries for county residents.

But a state law passed in 2016, 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), put strict limits on what localities could suggest or accept from developers. Supervisors have said, because of legal liabilities established in the bill, they have simply stopped negotiating with developers in many areas of the county.

And the power of the building industry’s lobby was evident even in Monday’ session. Delegates and senators spoke of meetings with the building industry, and Sen. Barbara A. Favola (D-31) said she was appointed in the House Local Government Committee “to work with the homebuilders on coming up with revisions that would be acceptable to the homebuilders and local governments.”

Sen. Richard H. Black (R-13), who voted for the 2016 bill, conceded “we basically stopped communication”—as local government officials had warned at the time the bill would do.

“I would say we’re very likely to pass a proffer bill this year,” Black said. “It would be an amended bill, and the development community is as concerned as the local government community, and in many ways, their concerns are overlapping.”

Del. John J. Bell (D-87) said he has been working on language for a revision of the 2016 bill and met with homebuilders earlier in the day.

“My take, there is not support for repealing the bill,” Bell said. “I do believe there’s going to be significant revisions made. I think there’s going to be strong support for that, and I think you’re probably going to like it because it’s going to open communication up.”

The 2016 bill defines a “reasonable proffer,” and if a developer brings a locality to court over a proffer, puts the burden of proof 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 included many of the kinds of proffers Loudoun has relied on—such as for affordable housing contributions, or projects like the new Brambleton Library.

The county established a workaround based on an exemption granted for land covered in small area plans, like miniature comprehensive plans, around current or future Metro stations. The county established three such areas that cover much of the county’s suburban east, one encompassing each of Loudoun’s three future Silver Line metro stops.

Ironically, however, the Homebuilders Association’s bill may have shut down homebuilding in the rest of the county, especially in the areas around Leesburg and Purcellville and in the Transition Policy Area between the suburban east and rural west. Because of the legal liability, county leaders and the county attorney determined the county government could put itself at significant risk by meeting with developers. So supervisors say they’ve simply stopped meeting to discuss those proposals.

Of Loudoun’s current state representation, Senators Black, Barbara A. Favola (D-31), and Jill Holtzman Vogel (R-27) and Del. Dave A. LaRock (R-33) voted to approve the proffer legislation. Delegates Bell, Jennifer B. Boysko (D-86) and Kathleen Murphy (D-34) and Senator Jennifer T. Wexton (D-33) voted against the 2016 bill.

Loudoun Supervisor Tony R. Buffington (R-Blue Ridge) offered Monday evening’s only positive take on the 2016 bill:

“From a western Loudoun perspective, at least speaking for myself, I’ve noticed that there’s no way that a developer can come in and offer any sort of incentive in western Loudoun to build, so there’s nothing they can offer to us, and we don’t want them to build out there anyway,” Buffington said. “So, in my opinion, in western Loudoun, it’s been great.”

The General Assembly’s 2019 session begins Jan. 9.

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