New state rule affects local power over building

Area planning officials continue to consider how changes to state law affect local government oversight of development.

Legislation passed by the Virginia General Assembly that took effect July 1 likely could limit how planning officials interact with developers. Some critics say the wording in the new rules is vague.

State Sens. Mark Obenshain, R-Harrisonburg, and Richard Saslaw, D-Springfield, introduced the legislation that imposes changes to conditional zoning regulations and how local governments encourage developers to include voluntary commitments, known as proffers, with rezoning applications. Developers can proffer land, cash or services with a project. Localities cannot require developers to include proffers.

Warren County Planning Director Taryn Logan said last week she knows about legislation. Logan noted that the county attorney’s office plans to conduct more specific training for the Planning Commission and the department’s staff in the near future.

Members of the Virginia Association of Counties raised concerns about the changes to the law, said Joe Lerch, the group’s director of local government policy, by email Monday.

“There was unanimous consent at a meeting of VACo’s Economic Development & Planning Steering Committee that the proffer legislation adopted by the General Assembly is problematic,” Lerch states. “Due to the ambiguity embodied in terms such as ‘unreasonable proffer’ and ‘direct and material benefit’ many counties are simply deciding not to sit down and talk to residential developers seeking rezonings.

“This is because anything they discuss prior to voting on an application could lead to unwarranted, and unnecessary, legal challenges,” Lerch goes on to state. “Unfortunately this state of affairs is having a chilling effect on the ability of municipalities and developers to have an open dialogue.”

Frederick County Planning Director Mike Ruddy recently talked to the Planning Commission and the Board of Supervisors about the new regulations and the concerns that they have raised.

Shenandoah County Director of Community Development Bradley Polk said last week that his department and the Planning Commission have not yet discussed the changes to the regulations.

“Obviously there’s a difference now in what you can ask the developer for as far as when they are trying to mitigate their offsite impacts for their proposed development,” Polk said.

Developers can file complaints in circuit court if they deem proffers “unreasonable” and don’t have a “rational nexus to their development,” especially if the local government turns down a rezoning request based on the proffers, Polk added.

Shenandoah County uses a capital intensity factor to determine the monetary impact of any rezoning. However, the county based this on the old proffer legislation, Polk said.

“Obviously we’re going to have to revisit that and come up with another way to do that calculation,” Polk said.

The change states that no locality shall request or accept any “unreasonable” proffer in connection with a rezoning or a proffer condition amendment as a condition of approval of a new, residential development or new, residential use. Nor can a locality deny any rezoning application, including an application for amendment to an existing proffer for a new residential development or use where such denial is based on an applicant’s failure or refusal to submit, or remain subject to, an unreasonable proffer.

The section indicates that a proffer shall be deemed unreasonable unless it addresses an impact that is specifically attributable to a proposed new residential development or other new residential use. An offsite proffer shall be deemed unreasonable unless it addresses an impact to an offsite public facility when it a new residential development or use creates a need for improvements to public facilities.

Contact staff writer Alex Bridges at 540-465-5137 ext. 125, or abridges@nvdaily.com