Town attorney Martin Crim came with some grim news Tuesday morning when he spoke before the Culpeper Town Council.
The local landscape for working with developers and talking proffers has changed with new legislation taking effect this Friday, July 1.
“This new legislation makes it a lot more dangerous for local governments,” says Crim. While the requirement that proffers be reasonable is nothing new, jurisdictions cannot suggest, demand or accept unreasonable proffers.
“It’s going to be very important that town council speak with one voice,” said Crim, “when talking with developers…need to protect the town…you probably don’t want to talk unless an attorney is present.”
To that point, Mayor Mike Olinger suggested that council members restrict comments and let the planning commission be that voice.
What is new about this legislation
-A new statutory definition of an “unreasonable proffer” – a proffer that does not address impacts specifically attributable to the new development. As an example, Crim used a turn lane as an item that might be requested for a new development. However, that turn lane, may or may not have been needed irrespective of the proposed development. That would be considered unreasonable.
-Limits offsite proffers to four specific public facilities – transportation, schools, safety and parks
-Offsite proffers are not permitted if there is existing public facility capacity at the time of rezoning.
-The development must receive a direct and material benefit from the offsite proffer.
To further complicate the consequences of this new legislation, a jurisdiction cannot accept an unreasonable proffer even if it is completely voluntary. Proffers have historically been asked and offered as a means to entice a locality to use this or that developer.
With backlash over the years from developers about, what many claim to be unreasonable and burdensome proffer requests from localities, lobby groups took their case to Richmond for some relief.
Sen. Mark Obenshain, one of the sponsors behind the new legislation, wants to curb the use of proffers for amenities that are not directly related to what is being built.
While the intent may be good, the consequences from the new law will have far reaching effects.
Councilman Pranas Rimeikis feels that this new legislation benefits large developers but the small developer will be severely challenged and hurt by it.
Crim didn’t disagree.
“You’re probably right,” he said, “as smaller developers are not going to have the resources to hire attorneys and have analysis studies done.”
Councilman Billy Yowell said, “we’re in a safe position as long as we don’t rezone.”
The new law specifically targets rezonings. As an example, land that is zoned agricultural and the request is to have it rezoned to commercial in order to put in a subdivision.
So, is proffering dead? Will it be buried under the weight of new legislation that will compromise a locality’s ability to strike a deal with a developer?
Crim noted that localities could prepare a detailed impact analysis. But, would that run the risk of being defined as a “suggestion”? To keep both sides held harmless, both sides would need to analyze the impacts and mitigation.
While Crim was not in favor of impact fees as a way to counter-attack the new legislation, he did offer tips and possible solutions. Some of which included:
-Involve attorneys early and often
-Adjust rezoning fees to reflect new reality
-Analyze levels of service – be granular
-Invite the developer to demonstrate impact and mitigation
-Make sure that Comprehensive Plan is up to date
-Put on the record all legitimate bases for denial even if staff supports approval
-State the reasons for a denial in terms related to impacts that are not sufficiently mitigated by reasonable proffers
-Avoid one-on-one communications with developers
-Communicate in writing
-Be careful with your language
-Promptly repudiate unauthorized statements
As the town feels its way through the impact of this new legislation, Crim hoped to spread the word to county and school officials as well.
“It’s going to cost more for development,” said Crim.
Crim also indicated that he wouldn’t be surprised to see amendments to the bill as a coming attraction.
Anita Sherman may be reached at firstname.lastname@example.org