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.