In our first blog post on the 2019 Virginia proffer legislation, we told you what hasn’t changed with the new law. As promised, now we will address what has changed.
Myth: Under the
new law, localities have no liability exposure for unreasonable demands unless
the governing body requests one in writing, so planning staff can talk to
Reality: The new legislation says that developers and localities can talk, but the old legislation didn’t say they couldn’t. The reason why local government attorneys warned staff against talking to developers was the Koontz decision from the US Supreme Court, and specifically Justice Kagan’s dissent in that case which warned that “no local government official with a decent lawyer would have a conversation with a developer” because of the risk of liability. (That hasn’t changed.) There’s also the question of whether a local governing body authorizes or ratifies a written request from a staff member.
The bottom line is that the new law changes the liability exposure of localities, but localities should still exercise caution.
Myth: Under the
new law, localities can expect to receive proffers for facilities in addition
to the four enumerated facility types of transportation, schools, public
safety, and parks.
Reality: The new
legislation allows for proffers to be deemed reasonable if signed by the
applicant and property owner, even if they are for off-site proffers that
aren’t for the four kinds of public facility. However, beware that the new law
takes away with one hand what it hands out with the other. Right after the
language about the owner and applicant being able to make any offsite proffer
reasonable just by signing it, the General Assembly wrote the following:
2. Failure to submit proffers as
set forth in subdivision 1 shall not be a basis for the denial of any rezoning
or proffer condition amendment application.
This raises an interesting question if the locality relies upon impacts on facilities other than transportation, parks, schools and public safety to deny a rezoning.
Myth: Under the
new law, an applicant has to object in writing to a proffer request in order to
challenge it later.
Reality: Challenges based on violations of “this section” (Va. Code Section 15.2-2303.4) require a written objection to the governing body before the aggrieved applicant can file suit. This limits the availability of the legal remedies under that code section, but does not limit the remedies available for a constitutional challenge or a challenge based on another statute. It is also important to note that this section does not extend to conditions imposed pursuant to a special use permit.
Localities still need to do their own analysis on whether a proffer request is reasonable. Maybe not as much changed with the new law as some people are hoping.
As attorneys and self-proclaimed Proffer Professors, we were concerned by what we were hearing from the industry on the recent proffer reform. Blanket statements like, “oh, it’s just a repeal of the 2016 law” or “proffer schedules are legal now”. In this post, we clear the air of misconceptions.
Myth: The 2019 law repealed the 2016 law
Fact: To debunk the
first myth, we’ll just note that the 2019 law leaves large parts of the 2016 law
intact. For example, the law still forbids a local government from denying a
rezoning application for residential development “where such denial is based in
whole or in part on an applicant’s failure or refusal to submit an unreasonable
proffer.” For another, the law still exempts qualified “small area
comprehensive plans.” There are some significant changes, though, and we will
comment on them in future blog posts.
schedules are now legally OK
Fact: As for the
second myth, the 2019 law doesn’t clear the constitutional hurdle for proffer
schedules. Under federal case law, a proffer first must be connected to the development impacts (that is, it has to have a
“nexus”) and second, there must be “rough proportionality,” which refers to the
degree of connection between the
proffer and the development’s projected impact.
So, just how “rough” can the degree of connection be and
still pass muster under the Fifth Amendment of the U.S. Constitution? The U.S. Supreme Court (in a case called Dolan) answered that question this
way: “No precise mathematical
calculation is required, but the [locality] must make some sort of
individualized determination that the required dedication is related both in
nature and extent to the proposed development.”
A locality can still provide information about how much it costs to build a school, police station, or park, but because a “one size fits all” proffer schedule lacks the required individualized determination, it is subject to attack on constitutional grounds.
According to a recent article, the Virginia town of Blacksburg received $27,000 in taxes for four months of Airbnb rentals after it signed an agreement with the vacation rental company. Sounds like a win for localities, right?
VF&N’s municipal attorney Martin Crim says differently.
“Blacksburg is getting $6750 per month in transient occupancy taxes from AirBnB, but had to give up the right to have information on individual hosts to get it,” Martin explains. “This means that Blacksburg can’t, for example, determine if the right amount of taxes is being paid, or determine if a property is being used in violation of its zoning ordinance or the Uniform Statewide Building Code. I’m surprised that the Town would agree to that trade-off.”
Since its controversial passage in 2016, Virginia’s Proffer Reform Law has continued to stir debate. Despite the rift between homebuilders and local governments over the law, efforts are underway to find common ground.
Initially, opponents of the law sought either outright repeal or additional exemptions to make the law inapplicable to certain parts of the Commonwealth. However, recent efforts have instead focused on reforming the Proffer Reform law.
This published article, co-authored by VF&N Attorneys Michael R. Vanderpool and Karen L. Cohen, highlights some of the key concerns voiced by both opponents and supporters of the law, and evaluates what types of legislative changes may be appropriate in light of common law and constitutional limitations.
On Wednesday, representatives from the City of Manassas came together with Governor Terry McAuliffe and Buchanan Partners to announce the receipt of grants permitting the construction of a new brewery and restaurant in the commercial development of the Gateway Center, now known as The Landing at Cannon Branch. The attorneys at VF&N are pleased to have represented the City of Manassas Economic Development Authority regarding the legal work necessary for the development of The Landing at Cannon Branch and the proceedings moving forward.
The Landing at Cannon Branch is a 40 acre, $250 million-dollar mixed used development which will house, not only the brewery, but hotels, retail, offices, restaurants and over 270 new homes, aiding in the community’s economic growth and engagement. Governor Terry McAuliffe announced that 66 new jobs will be created in the City of Manassas due to the placement of the brewery.
The City of Manassas has been marketing the Gateway property for twenty years, waiting on the best project and development partners to collaborate and make it into a unique place that residents of the locality and businesses can benefit from.
Buchanan Partners is working as the master developer of the project, while Stanley Martin will be developing a component in the residential side of the property. The location will also feature hotels, restaurants, and other commercial developments. As the attorney’s overseeing the City of Manassas developments for this project, we look forward to seeing what’s in store for this site.
PRINCE WILLIAM, VA — The law firm of Vanderpool, Frostick & Nishanian, P.C. is pleased to announce that its shareholder Martin Crim has been appointed Town Attorney for the town of Middleburg.
Martin Crim, Middleburg Town Attorney
Middleburg’s former town attorney Angela Plowman gave notice of her intent to resign in December of 2016 after having served almost five years.
Martin R. Crim currently serves as Town Attorney for the towns of Culpeper, Haymarket and Occoquan, as well as City Attorney for Manassas. Martin specializes in municipal law and is a recognized expert in the fields of sign regulation and zoning proffers. He has been an attorney for over twenty five years. Among his most recent accolades, Martin was presented with the Special Project Award for his work on behalf of the Local Government Attorneys of Virginia in drafting a model sign ordinance.
“We are thrilled to come on board to represent the historic Town of Middleburg” said Michael Vanderpool, Managing Shareholder of Vanderpool, Frostick & Nishanian. “We have spent a great deal of time getting to know this wonderful town and are pleased to have the honor of representing them. We will continue to strive to serve them well.”
About Vanderpool, Frostick & Nishanian, P.C.
Based in Prince William, Virginia, Vanderpool, Frostick & Nishanian provide a range of legal services and expertise to clients throughout the Northern Virginia area. Since its start in 1986, VF&N has striven to provide its clients with solutions from lawyers they trust. VF&N’s practice areas include business and corporate law, civil litigation & ADR, construction law, commercial real estate law and lending, employment law, government contracts, intellectual property, land use and zoning, municipal law, social services and tax and estate administration. For more information, please visit www.vfnlaw.com, or call 703-369-4738.