Public Announcements

New Bill Addresses Problematic 2016 Proffer Law

New bill addresses problematic 2016 proffer law

February 6, 2019

The Virginia General Assembly has passed a bill to address negative impacts caused by a 2016 law that changed how proffers are used in proposed developments.

Del. Bob Thomas, a Republican whose 28th District includes parts of Fredericksburg and Stafford County, introduced the bill in the House of Delegates. A similar bill sponsored by Sen. Barbara Favola, a Northern Virginia Democrat, was adjusted to mirror Thomas’s.

The bill passed easily, including a 90-7 vote in the Senate.

The 2016 law change had a severe impact on rezoning residential developments across the state, according to news reports and local officials.

Thomas said that spurred him to pursued a new bill.

The law “stopped communications in every locality across the commonwealth,” Thomas said in a Tuesday interview.

Thomas, a former Stafford Board of Supervisor, said his local political background and relationships with developers allowed him to work with both sides to find a solution.

He saw the impacts of the law when he was still a supervisor.

Thomas said Stafford repealed its cash proffer guidelines because it violated the new law.

“We repealed that and stopped talking” with developers about proffers.

Like other localities across the state, Stafford officials were concerned that developers could file lawsuits citing proffer violations, Thomas said.

Stafford spokeswoman Shannon Howell said the board’s “Legislative Committee has decided to hold a neutral stance on bill HB2342. At this time, the County is not accepting any proffers under the 2016 legislation, and the future impacts of the proposed legislation are yet to be determined.”

Meg Bohmke, a current Stafford supervisor, said the pause in rezonings caused by the 2016 law has in a way “been a blessing in disguise” because it slowed development, something she said county officials want.

Yet she also noted that the law “tied our hands” in negotiating with developers. And the situation, if held in place, would create an imbalance in development, which wouldn’t be good. She believes the change in the proffer law should help avoid that.

“We have to balance out the economics of our community, and developers provide a lot of jobs,” Bohmke said.

A proffer is a condition or commitment from a landowner or developer to address impacts on public infrastructure, such as roads and schools. Proffers can come in the form of cash or improvements performed by a developer.

There are alternatives localities can use to address impacts by developments, including transportation impact fees, service districts, bond referendums and tax revenue. But proffers are considered a more creative way to handle the cost of development impacts.

The bill doesn’t completely overhaul the 2016 law, but instead makes several changes.

A key adjustment in Thomas’s bill will allow localities to request or accept an “unreasonable proffer. That was prohibited by the 2016 law, meaning proffers have to address impacts “specifically attributable” to the development.

The new bill should allow localities and developers to start talking about proffers again, Thomas said.

Fredericksburg City Attorney Kathleen Dooley said Thomas’s bill is a good one and that “he worked very hard over the summer talking to everyone.”

While Fredericksburg doesn’t often use proffers—because the city is dense and basically built out—she still felt compelled to speak up for the bill in subcommittee meetings.

“It had really gone too far,” she said of the 2016 law change. “It was getting a little nutty.”

She said local officials feared to even talk about proffers with developers for fear of later repercussions in court.

Thomas said there are a few tweaks he would like to eventually make to the bill, as well as one “long-term goal.”

That goal would be to find a way to replace most proffers with impact fees, which he said would be a more consistent way for localities to obtain cash from developers to deal with impacts.

Thomas expects the bill to be signed into law soon, perhaps by Friday.

Kirsten Alexander Morris

The Vectre Corporation

707 East Main Street, Suite 1800

Richmond, Virginia 23219

Phone: (804) 644-6600

Fax: (804) 644-6628

E-Mail: [email protected]