Leesburg Picks its Proffer Path

Leesburg Town Council members have decided the best way to move forward in the wake of a state law that restricts to use of proffer agreements to offset the impacts of development.

Last year, council members adopted an interim policy on how to deal with proffer negotiations for rezoning applications filed after July 1, 2016. That is the date some controversial new regulations, handed down from the General Assembly, took effect. The law allows developers to challenge the reasonableness of a proffer even if it was voluntarily submitted. Any proffers submitted by rezoning applicants now have to be “specifically attributable” to resolve the impacts generated by a new development on services such as schools, parks, and public safety.

But, with no end in sight to when state legislators may rethink its new rule on proffers, a permanent town policy was needed. On Tuesday night, council members agreed to a new policy that will guide how rezoning application should be handled moving forward.

The option chosen by the council will take advantage of a provision in the law that exempts areas within certain small area comprehensive plans from the legislation. Those small area plans must be designated as a revitalization areas and include mass transit and mixed-use development.

Assistant to the Town Manager Scott Parker, in presenting to the council this week, said the staff believes that such language can exempt the Crescent District from the regulations, as well as the area being studied for the East Market Street small area plan. Of the latter, Parker said, the East Market Street area includes the Forestier property owned by the Peterson Companies.

“The town feels that’s the next great frontier when it comes to residential rezoning,” Parker said.

The chosen option will require amending the Town Plan to strengthen the exemption for the Crescent District; amending the Town Plan to exempt the primary remaining tracts attractive to rezoning in the East Market Street plan; and amend the Zoning Ordinance to prohibit proffers for residential rezonings elsewhere in town. Planning and Zoning Department Director Susan Berry-Hill estimated that all those necessary updates would be completed by year’s end. A communication protocol adopted last year, that, among other things, strongly advises council members to key in Town Attorney Barbara Notar or defer to her on any rezoning applications, remains in place.

County government used another exemption to the proffer law, which exempts small area plans encompassing existing or planned Metro stations, to protect proffers in the eastern part of the county.

It was the town staff-endorsed option out of three presented. Another option would have perhaps lengthened land development negotiations, and added to an already thin Planning and Zoning Department, by requiring impact studies to be prepared by developers for each rezoning application, and likely for town staff to prepare its own studies.  Rezoning fees would have to be amended to make up for the cost of preparing the impact studies. That option also would have required certification that the submitted proffers were reasonable under the law, and that no unreasonable proffers had been suggested by town staff, the Planning Commission, or Town Council. A third option, staff believed, would have put the town at greater risk for legal challenges. It would have still accepted proffers for rezonings outside of the exemption areas with minor changes to the Town Plan and Zoning Ordinance.

Councilman Tom Dunn was the lone opposition vote on the proposal. He supported the third option was the best way to move forward. Dunn said he believed the option chosen by the council majority was “too restrictive.”

krodriguez@loudounnow.com

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