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 developers again. 

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.

By the Proffer Professors: Mike Vanderpool & Martin Crim

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.

Myth: Proffer 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.

Stay tune for the next topic: So what did change?

By the Proffer Professors: Mike Vanderpool, Martin Crim, and Karen Cohen