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Enabling Legislation.
The Virginia legislature has three separate types of
proffer legislation, which apply to differing localities
statewide. These
categories are summarized below.
1.
The first category is commonly referred to as the “old
style” proffering (refer to Virginia Code 15.2-2296).
This category is wide open to a jurisdiction; anything
may be proffered and it applies to a very select number of
localities: Fairfax County, Loudoun County, Prince William County and
Virginia Beach. Under
this type of conditional zoning, a developer/applicant may
proffer anything to the locality without the requirement that
the proffer need arises from the proposed rezoning.
An example could be a residential developer proposing to
dedicate land and/or construct a commuter parking lot or
commuter rail stop along the Dulles Toll Road.
The
second type of proffer legislation can be referred to as the
“high growth” or “middle style” of proffers (refer to
Virginia Code 15.2-2298).
This enabling legislation is limited to those
jurisdictions that had a population growth of ten percent or
more from “the next to latest decennial census year,” also
to certain localities which are located or adjacent to such a
locality as defined in that section.
This code section allows these localities to accept
proffers if: “ (i)
the rezoning itself gives rise to the need for the conditions;
(ii) the conditions have a reasonable relation to the
rezoning; and (iii) all conditions are in conformity with the
comprehensive plan as defined in 15-2-2223.”
These
restrictions are important since they limit proffers to impacts
arising out of the rezoning application.
For example, to accept a cash or land proffer for
schools, it must be theoretically shown that the development
will need new or additional construction in that area of the
county to serve that project, or that school seats will have to
shift to another school as a result of the proposed residential
rezoning. In
addition to the nexus standard, the Virginia Code also requires
that the proffer of cash or real estate not be accepted until
the project is shown in the jurisdiction’s capital
improvements program.
3. The third
and final type of proffer is normally referred to as the “new
style” proffering (refer to Virginia Code 15.2-2297).
This category is the most limited.
While it has similarities to the high growth proffering
process and requirements, it prohibits cash contributions,
mandatory dedication of real or personal property for enumerated
uses, construction of off-site improvements or proffers not
related to the physical development or operation of the
property.
Fauquier County
falls under the requirements of the high
growth proffer category, and the criteria outlined in
the previous section. The Fauquier County Board of Supervisors enacted changes to
the Zoning Ordinance on August 7, 1990 to accept cash proffers
from applicants seeking rezoning approvals in accordance with
the enabling legislation adopted by the Virginia Assembly on
July 1, 1990.
Proffer
Policy Analysis Report. Other
jurisdictions have enacted ways to mitigate capital facilities
impacts of a proposed rezoning application by accepting
combinations of land dedications, actual construction and
differing amounts of cash proffers as shown in the previous
sections of this report. The referenced report, which was
prepared in 1999, reviewed and summarized the methodologies used
by the Counties of Chesterfield, Loudoun, Prince William and
Stafford, as well as the City of Chesapeake.
All established approaches are successful and were
designed pursuant to the applicable proffer limitations
established in the Virginia Code for their jurisdiction.
The
report analyzed the following options from the latter
jurisdictions, and all provide the requisite building blocks
needed to determine capital costs for all facilities.
These options are described as:
1.
The Capital Improvement Program (CIP) Methodology
2.
Existing Service Levels Methodology (ELS)
3.
Cost to Build Methodology, similar to the existing
Fauquier County policy shown for schools (CTB); and
4.
Level of Service Cutoffs Methodology (LOSAX).
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