Governor Signs Controversial Proffer Bill into Law

Late Monday night, Governor Terry McAuliffe signed a bill that Loudoun supervisors, staff, and representatives in the General Assembly have battled since its introduction.

The bill limits what localities can accept in proffer agreements, curtailing many of the creative agreements Loudoun reaches with developers to keep up with the county’s growth.

Senate Bill 549 was written by the Homebuilders Association of Virginia and introduced by Harrisonburg Sen. Mark D. Obenshain (R-26) and Springfield Sen. Richard L. Saslaw (D-35). Loudoun County supervisors have been in Richmond several times attempting to amend the bill, and have succeeded in inserting exemptions to allow developers to offer to help with transportation upgrades, public safety, parks, and some special districts such as the Metro tax district. However, the new law prohibits other elements that are common in Loudoun’s proffer agreements.  Proffer agreements are reached as conditions for approval when a developer applies to rezone a property to allow more intense development.

HBAV Vice President Ryan Flogale has argued that the bill protects developers against local governments taking advantage of the proffer system and keeps home prices down.

The Loudoun board last week passed a resolution asking the governor to veto the bill, although supervisors acknowleged had little hope of stopping the bill.

On Monday, Chairwoman Phyllis J. Randall (D-At Large) sent a letter to the Gov. Terry McAuliffe (D) asking him to veto the bill or include further exemptions for workforce housing, offsite roadways, libraries, senior centers and community centers, pedestrian facilities, group homes and services for the mentally ill, historic structure preservation, downstream water quality and stormwater management, and environmental features. None of these was included in the signed bill.

“What it says to me is that neither the General Assembly members or the governor are listening to the people, because when [the Virginia Association of Counties] and [the Virginia Municipal League] are saying with one voice that this is a bad deal, then that is the voice of the commonwealth,” Randall said.

Supervisors’ attempts to meet with the governor about the bill have been denied, and his office did not immediately respond to emailed requests for comment Monday evening.

The bill provides a definition for  a “reasonable proffer” and, if a developer brings a locality to court over the new law, the burden of proof is on the locality to show that it did not deny a rezoning application because a developer did not agree to provide an unreasonable proffer under the bill’s definition.

“I think what it means, we will be forced to say no more often, and there will be by-right developments that are probably not good for the county as a whole, and I don’t think developers want to do that because they won’t be able to get as many units as they want,” Randall said. “We might see a little bit of a moratorium on new developments for the next year until we see the impacts of the bill.”

“I’m concerned with some of the rezonings that could be coming to us in the eastern part of the county, because they’re a very significant amount of residential,” said Vice Chairman Ralph M. Buona (R-Ashburn.) The cost of that infrastructure, he said, will now fall on the backs of taxpayers.

“It means fewer roads, fewer schools, fewer libraries, and more taxes,” said Supervisor Ron A. Meyer Jr. (R-Broad Run). “You cannot claim to be a fiscal conservative and vote for this bill if you truly understand the implications.”