MIDDLETOWN – Town Council members at a Monday night special session unanimously approved a motion they hope resolves a civil lawsuit filed by the developer of The Village of Middletown subdivision.
Middletown officials made a motion to reconsider and accept the revised proffer offer developer Dave Holliday submitted in December 2017 that would have reduced the initial proffer from $13,952 to $5,887.
“This is a step in that direction,” said town attorney J. David Griffin when asked whether the lawsuit could soon be resolved.
Holliday filed a civil lawsuit in March 2018 in Frederick County Circuit Court. He argued that the town, by accepting the higher initial offer of $13,952 and then not agreeing to lower the proffer, was supporting what amounted to an “unreasonable illegal proffer.”
The lawsuit asked the court to overturn the council’s Jan. 16 unanimous decision that denied Holliday’s request to reduce the proffer and declare all proffers void.
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 Public Schools.
The reduced proffer amount would mean the school division would receive $1.45 million less to help cover the costs of the additional students.
After 30 days the new proffer amount could begin to be collected, ultimately resolving the lawsuit, Griffin said.
During the litigation process, it was discovered that about the same time as Holliday was building The Village of Middletown, another developer was building a different subdivision called Southern Hills Phase 2 in Frederick County.
It was found that developer had filed a similar proffer amendment for Southern Hills Phase 2. That amended proffer was ultimately accepted by Frederick County while Holliday’s amendment was rejected.
Griffin was not able to discuss the discrepancy any further as the litigation is still pending.
The conflict began 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 near Lord Fairfax Community College. The first proposal figured the schools impacted by the housing would be Middletown Elementary School, Robert E. Aylor Middle School, and Sherando High School.
The change of the proffer amount 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 school division's fiscal year 2018 budget. They concluded that only Sherando High School would be impacted by the residential development.