A year after the Virginia General Assembly imposed tighter restrictions on the ability of local governments to accept proffers from developers, the Leesburg Town Council on Tuesday revamped its development policies.
Proffers are contributions of cash, land or road improvements made by developers seeking to rezone property for more intense development. Proffer agreements have been valuable tools in fast-growing communities like Leesburg and Loudoun County, helping local governments offset some of the infrastructure costs of serving new residents and businesses.
Representatives of the state building industry in 2016 successfully lobbied the General Assembly to restrict the use of proffers, amid allegations that some jurisdictions were abusing the process by making unreasonable demands. The law allows developers to challenge the reasonableness of a proffer even if it was voluntarily submitted. Any proffers submitted by rezoning applicants now must be “specifically attributable” to resolve the impacts generated by a new development on services such as schools, parks, and public safety.
Among the alternatives facing local governments is to continue with their current policies despite the risk that any proffer could be challenged, and negated, in Circuit Court, or to stop accepting proffers altogether.
The Loudoun Board of Supervisors and, last night, the Leesburg Town Council selected a middle ground. They opted to continue accepting proffers in specific areas, tapping an exemption provided in the state law.
In a 6-1 vote, the council formally adopted changes to both its Zoning Ordinance and Town Plan that will allow the town to continue to accept proffers in two areas where development is guided by specific small area plans—the Crescent Design District, covering land south and east of the downtown historic district, and the Eastern Gateway, along East Market Street outside the Leesburg Bypass. Those two areas are expected to be the key locations for major residential development or redevelopment in the coming years.
The option adopted by the council prohibits the acceptance of any proffers related to residential rezonings filed after July 1, 2016, anywhere else in town. Town staff members had previously advised the council that this option would pose the least legal risk to Leesburg.
Councilman Tom Dunn cast the lone opposition vote. He had previously supported another option presented by the staff to continue to accept proffers for residential rezonings throughout town. He affirmed that position Tuesday night.
“Developers are not going to offer proffers in hopes they can go into court and delay things through lawsuits,” he said. “I think [the majority’s decision] is an excessive, bureaucratic effort to limit what we can do just on the assumption that we’re going to get sued.”
Councilman Ron Campbell was among the supporters of the new policy, saying it best protects Leesburg.
“I think it is reasonable and fair and does protect what it needs to protect—the needs of the town,” he said.