Proffer bills improved but still troublesome for counties

February 4, 2016

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HB 770 Gilbert and SB 549 Obenshain as introduced would have severely curtailed localities ability to deal with the added community infrastructure needs created by rezonings through the proffer system. Under the original language of the bill, proffer discussions and agreements would have come to a screeching halt. VACo and other local government advocates met several times with representatives of the Home Builders, the Patrons of the bills and other legislators and made significant improvements to the bill. While parts of the legislation remain problematic, many improvements have been achieved and are detailed below:

-The bill no longer requires the impact for which the proffer is accepted to be “uniquely” attributable to the new residential development.

-The bill now includes parks in the categories of public facilities for which off-site proffers can apply.

-The bill originally included a 60 day period for review and reconsideration by the local governing body upon remand, by a court and the bill now provides 90 days.

-The bill now includes a waiver of the public notice requirements for the reconsideration proceeding.

-The bill allows more categories to be excluded from the prohibition on requirements for building materials, finishes, methods of construction or design features found in 15.2-2303.5.  The bill now includes exclusions related to noise attenuation, redevelopment and rehabilitation districts created under 58.1-3219.4, economic revitalization zones created under 15.2-1129.2, and flood mitigation.

-The bill now includes language to clearly state that these provisions only apply prospectively.

-The bill now includes a provision that exempts entirely certain sub comp plan areas around metro stations.

–The bill now makes the mandatory award of attorney’s fees and court costs for the prevailing aggrieved applicant discretionary instead of mandatory.

-The bill was revised to remove compensatory damages as an award in litigation.

A few key issues remain problematic, including stormwater facilities as an off-site proffer category and the existing limitations on proffers for building materials and design elements. VACo will continue to work on the bill to address these issues.

VACo Contact: Phyllis Errico, CAE

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