Middletown sued for denying proffer amendment

The developer of the Village at Middletown LC is suing the Middletown Town Council for denying a request to reduce a planned proffer for the subdivision.

The lawsuit, filed in Frederick County Circuit Court by developer Dave Holliday, argues that Middletown, by accepting the higher initial offer of $13,952 and then not agreeing to lower the proffer, amounts to an “unreasonable illegal proffer.” The lawsuit is asking the court to overturn council’s Jan.16 unanimous decision that denied his request to reduce the proffer to $5,887 per unit.

Stephen L. Pettler, attorney for the Village at Middletown LC and Holliday, declined to answer questions about the lawsuit.

A proffer is a voluntary offer by a landowner to perform an act, contribute money or donate land to offset the impact of new development, in this case additional students attending Frederick County schools.

If the court would agree with Holliday, it would mean Frederick County Public Schools would receive $1.45 million less to help cover the costs of the additional students.

In 2016, as part of a rezoning proposal for the subdivision, the initial proffer amount of $13,952 was based on information available at the time. The Village at Middletown is 180 units under construction on about 60 acres of land near Lord Fairfax Community College. The first proposal figured the schools impacted would be Middletown Elementary School, Robert E. Aylor Middle School, and Sherando High School.

The change was sought after state legislation in July 2016 was enacted that said localities cannot request or accept any “unreasonable proffer” as a condition for approving a residential development. The amount of a proffer must be  attributable to the impact of the development.

Holliday’s staff conducted a reassessment in 2017 by reviewing the Frederick County Public Schools fiscal year 2018 budget. A Sept. 11 amendment request concluded that only Sherando High School would be impacted by the residential development.

Middletown Mayor Charles Harbaugh responded to the court filing.

“No residents voiced support for the proffer change. We looked at the information that we were provided by the county and made the best decision we could.

The town’s insurance provider Virginia Municipal League has provided an attorney for the case, he said.