Loudoun Board Advances Strategy to Negate Proffer Limits

Three weeks before Virginia’s controversial proffer limitation law takes effect, the Loudoun Board of Supervisors is bracing for a new way of doing business—one expected to see taxpayers at-large picking up more of the cost of providing services to the residents of new development—and, perhaps, spending more time in court.

But the county has a workaround. Loudoun staff and representatives in the General Assembly pushed hard for exemptions to the new proffer law, and one of those excludes small area plans around Loudoun’s future Metro stations.

So the county’s putting the whole eastern half of the county in small area plans.

In a 37-page staff report reviewed by supervisors Tuesday, the county’s legal and planning staff recommends that new planning districts be established to effectively exempt most of eastern Loudoun from the new state prohibitions on collecting cash proffers. In the county’s lower-density transition and rural policy areas, the state’s proffer limitations would take full effect, although few rezonings are expected there.

Local leaders worked unsuccessfully to defeat the proffer limitation bill during the 2016 General Assembly. When it became clear the measure would pass, they worked to limit its impact. That resulted in an exemption for land within “an approved small area comprehensive plan that encompasses an existing or planned Metrorail station, or is adjacent to a Metrorail station located in a neighboring locality, and allows additional density within the vicinity of such existing or planned station.”

The staff’s proposal is to create small area plans that would link the county’s entire suburban area to the Metro growth areas. Planning and Zoning Director Ricky Barker estimated that the process would take three to four months.

Under that concept, the county government could continue to use its existing proffer policies in the fastest growing areas of Loudoun.

Millions of dollars are at stake.

During the past three fiscal years, Loudoun collected more than $107 million in cash proffers from developers as part of the rezoning process. It spent more than $110 million in collected proffer money during the same period, including $52 million this year. Cash proffers are prohibited under the new law, except for transportation, schools, public safety and parks when their need can be directly linked to the development being rezoned. Money cannot be collected for facilities like animal shelters, libraries and recycling centers.

In addition to limiting cash proffers, the staff members say the new law opens the county up to significant legal liability, making it easier for developers to file—and win—lawsuits if proffers are deemed unreasonable or a rezoning application is denied. Operating under those rules in the county’s suburban area would represent a “high risk” for the county, the staff report states. The government likely would hire a special third-party consultant to evaluate the “reasonableness” of each proffer before a rezoning is approved.

The resolution was approved unanimously. Supervisor Suzanne M. Volpe (R-Algonkian), in making the motion, thanked the county staff and private land use attorneys who helped craft the solution. Chairwoman Phyllis J. Randall (D-At Large) was at a loss for words for the proffer law.

“I will only say that this whole issue is an example that bad legislation is completely nonpartisan,” Randall said. “This is… yeah. Okay.”

County staff will return to the June 23 board meeting with a comprehensive plan amendment to establish new small area plan boundaries and a resolution of intent to amend relevant sections of the zoning ordinance.


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