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Governor Signs Bill Into Law Limiting Developer Proffers

by Karen Goff — March 10, 2016 at 2:45 pm 29 Comments

Crane over RestonVirginia Gov. Terry McAuliffe (D) signed a bill into law on Wednesday that will limit proffers, which local governments rely on to get builders to contribute to park, roads and other improvements in exchange for development.

As the bill went through the House and Senate, many local governments, including Fairfax County’s Board of Supervisors and Reston Association, asked the governor to amend or not sign the legislation.

The law requires that proffers be limited to offsetting impacts that are directly attributable to new residential developments, such as traffic. The restrictions do not apply to high-density areas, commercial developments or neighborhoods near Metro stations.

The law is effective July 1, 2016.

This is important time in Reston, which is undergoing a period of multifamily housing growth as it turns towards being a transit-oriented community. However, most of that growth will occur near Metro stations, so the impact here remains to be seen.

Reston Association President Ellen Graves, who wrote a letter to the governor last month voicing the association’s opposition to the bills, said the final version looks to pretty much leave Reston alone due to parameters of Reston’s Master Plan.

“It’s good for us,” Graves said Thursday. “The final version excludes all pending zoning applications and all residential or residential/mixed use [applications] located in an area near existing or future Metro. ”

“We hope that the Board of Supervisors will agree with us that the entirety of the planned community of Reston is exempt from this legislation because the Reston Master Plan comprises such a small area comprehensive plan,” said Graves.

Graves had asked in her letter that the legislation be amended so it wouldn’t apply to mixed use development “or a plan that allows additional residential density, within one mile (rather than one-quarter mile) of an existing or planned Metrorail Station.”

Del. Ken Plum told Reston Now earlier in the General Assembly session that the intent of the bill was primarily aimed at fast-growing counties near Richmond and in Prince William County, where localities have been demanding cash proffers, which is driving up the cost of housing.

For instance, in Prince William County, it costs $45,000 per home in residential developer contributions. In Fairfax, cash proffers are not allowed.

Board of Supervisors Chair Sharon Bulova said last month if the law is enacted it may cause the county to have to “rewrite entire sections of our Comprehensive Plan and Zoning Ordinance.”

“Virtually all development in the county is infill development,” said Bulova. “In these types of cases, proffers are critical in meeting infrastructure and compatibility needs of surrounding areas.”

Bulova says the proffer system provides an opportunity for developers to work with the county to address community concerns related to the increased density of such development.

The proffer system in Virginia has been around for more than three decades. In Fairfax County, rapid growth in the 1970s prompted local government to demand that builders narrow the uses that the rezoning would authorize.

Other Northern Virginia officials told the Washington Post that changing the legislation would hamper their ability to negotiate for extra amenities from developers. They also argue that amending the land-use tool would open them up to lawsuits if builders whose projects were rejected argued that they were denied because of their refusal to agree to “unreasonable” proffer requests.

 

  • Greg

    “…Richmond and in Prince William County, where developers have been demanding cash proffers, which is driving up the cost of housing.”

    Might that be governments making the demands, not developers?

    • Lake Anne Fan

      This is another follow-the-money law out of the Virginia General Assembly. Developers are grand $$ contributors to legislators, including our own, and exec branch leaders. This would be an interesting case study to ID developer cash flow to Republicans and Democrats voting in favor of the bill or signing it. Just sayin’

  • Mike M

    I think the law makes sense and the exceptions do not.

    • GB

      So this is State enforced freedom? – rolls eyes

      • Mike M

        I have no idea what you mean.

        • GB

          I thought local governments were best positioned to server the citizens. Why does Richmond think they have a right to tell Fairfax County what they can and cannot charge developers? Surely Fairfax citizens can tell FFX County. The decision of how much to charge for the development of common land belongs to the people who own the land.

          • Greg
          • GB

            I didn’t mean to say that the law was illegal, but thank you for supplying the legal background for it. I was sarcastically surprised to see Mike simultaneously poo-poos “S0cialist dreams” while supporting the state government over local government. (sarcastically because clearly he supports the end, and maybe didn’t consider the means and how it jives w/ the rest of his political beliefs)

          • Mike M

            GB, you have representation at the state level too, albeit weak. This is the State protecting private developers and the rest of us from our impractical utopianists at the local level. Apparently this was a state-wide issue. All my views square. For example, I would not mind, if at any level, a government prohibited further encroachment at the local level on the Second Amendment. As I have stated in here before, one of the reasons FFX is a cluttered, traffic-choked, zoning mess is because the County BOS doesn’t link proffers to impact. They prefer to hit up developers for unrelated, social engineering nonsense, while the zoning punks are owned by the development community. No one is managing impact.

          • GB

            “All my views square”

            So as long as the end result is something you support.

            I thought that in general you took a “a government that governs least governs best” view of things. But here you’re supporting state intervention on local issues.

          • Mike M

            OK, Bill Maher. I think government is best only when needed. Yes, there is a role for government. But it should be limited. If I believe that markets can’t provide best, as in national security, roads, and other things (see “tragedy of the commons”), I am cool with it. But that doesn’t mean I should be OK with S0cialism, Mr. Colbert. Just because I think something might look better with a tinge of red, doesn’t mean I should be OK with solid red. OK, John Oliver. It’s different when someone can asnwer back. Isn’t it? In this case the state reigned in the COunty – to a small degree. Bring more of that!

          • GB

            “In this case the state reigned in the county” In the same way Bloomberg reigned in the people of NYC from excessive soda consumption. I’m about as grateful to Richmond as I would be to Bloomberg.

            Pretty sure you missed the mark on name calling Mr. Reagan.

          • Mike M

            You are a difficult student.

            FFX County is government. The developers are private citizens.
            The state intervened to make the local government to get rational with the private citizens.
            I say good.

            The mayor is government. The people of NY are private citizens.
            If the state intervened to make the local government get rational with the private citizens, I would also say good.

            Oila! Consistency.

          • GB

            “The state intervened to make the local government to ‘get rational'”

            Yes, like I said-
            “”All my views square”

            So long as the end result is something you support.”

          • Mike M

            Government should keep government in check. I am consistent with that. You called me inconsistent, yet you have no evidence. It’s in the Constitution.

          • GB

            OK.

          • RoadApples

            Curious question do we live in the Commonwealth of Virginia or the Commonwealth of Fairfax County?

          • GB

            I have no idea what you mean.

          • Mike M

            Um, I think we are talking about land owned by the developer. This bill enables the County to request proffers for necessary adjustment to accommodate development. But it does not let them make request that are really unrelated. Note there are BIG exceptions.

          • GB

            Ok, sorry, I didn’t word that well. Yes the land is owed by the developers the rights associated with the land are being sold by the county. (e.g. FAR increase from .5 to 2).

            These are the county’s rights. Why does Richmond need to be involved. If the county citizens, or Utopianists (nice negative branding of your opposition), want parks instead of or in addition to roads, so be it.

          • Mike M

            Utopia, negative?

          • GB

            did you mean it in a positive way?

          • Mike M

            I meant it in a light-headed, giddy sort of way.

          • Mike M

            See Greg’s post below to see what Fairfax County’s own website says about what Richmond can tell Fairfax and about what. Allow me to get analogical on yo a. Let’s say that the very real Virginia towns of Bumpass, Cuckoo, Nuttsville, Moon, Short Pump, and Simplicity all decided to levy a special tax on people in their jurisdiction whose first names begin with a letter drawn randomly each year. Let’s say they want to use that revenue to build a monument and museum to the man on the moon. I would not have a problem with Richmond outlawing that bad practice. Capisce? Can you hear me now?

            Sadly, it’s Bumpass, Nuttsville, et al keeping us straight instead of the other way around.

    • Terry Maynard

      Mike–The exceptions are essential and, in general, the law is onerous for local governments and, yes, taxpayers like you. I believe–as does Reston 20/20–that developers should pay for ALL their impacts on a community. Otherwise, we will through taxes. This includes roads (FCDOT puts the road improvement cost in our station areas at $2.6 BILLION), open space (especially parks & rec facilities), schools (!), environmental impacts (stormwater, air pollution, etc.), and so on.
      Otherwise, to sustain a certain quality of life in a community–any community–requires taxpayers to subsidize the for-profit endeavors of developers by building and maintaining the associated infrastructures. For a person who doesn’t like taxes, you seem to have picked the wrong horse to ride here. Or do you want over-crowding, inadequate public services, and a generally deteriorating community, here or anywhere else.
      The final law is much more acceptable than the one that originally passed the General Assembly (with the “Yea” votes of both Ken Plum and Janet Howell, I might add; what were they thinking???). Still, future efforts to renovate our village centers appear to relieve them of anything but onsite proffers.

      • Mike M

        Gee, I’m not sure you read what I wrote. The law says you can only use proffers to offset impact. I think that’s good. As for the exceptions, which are huge, FFX County is free to continue to extort proffers for things UNRELATED to directly offset the impact. I think that’s bad. Perhaps we disagree on that. I think it’s bad because when FFX goes for unrelated stuff they do it at the expense of the real adjustments required. We get stuck with additional taxes and/or no adjustments – clutter, traffic chokepoints, overcrowded schools etc. The Board gets get “feel good” stuff and ignores the mundane infrastructure adjustments that they ought to do. Are we really in disagreement? I’m not so sure.

  • Pursuit of happiness

    “…the general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. ”

    “No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”

  • Tephra

    Perhaps this will put a damper on rezoning, since any ‘extras’ which act as incentives for the locality will be removed?

  • HedleyBull

    Land Use and Zoning is a power that is typically left to the local governments, and courts are very deferential to their decisions. This has led to a great deal of abuse by those local governments, and while the Supreme Court of the United States has consistently ruled (see the Nollan, Dolan, and Koontz decisions) that local government power in this area is NOT unrestricted. Many large localities, such as Prince William County and Chesterfield to name a few, have developed cash proffer policies that are so burdensome and disconnected from the actual impact of new development that it is tantamount to extortion. The real tragedy is that the new home buyers in these communities pay for it all…through the increased cost of their home, and they rarely receive any benefit from this added cost. The only winners in that system were the local government, the banks, and the loudest local interest groups. When the cash proffers for education are extracted from a particular development and used to build a new swimming facility across town, that is wrong. This new law codifies the SCOTUS decisions above, and requires the local government to earmark cash proffers in order to mitigate only those SPECIFIC impacts caused by the new development. This is a good thing.

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