Gov. Ralph Northam on Friday signed a bill updating legislation from 2016 that local leaders warned would cripple development and public infrastructure in Loudoun.
Before 2016, when developers proposed large projects like Kincora or One Loudoun, they negotiated proffer agreements with the county, which often included cash or infrastructure work. Those agreements have been a major part of the county’s work to keep up with the need for services like roads, fire stations and libraries in Loudoun.
But a state law passed in 2016, 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), put strict limits on what localities could suggest or accept from developers. Supervisors said because of the legal liabilities and presumptions of guilt against the local government established in the bill, they simply stopped negotiating with developers in many areas of the county. In much of the county’s suburban east, they made use of an 11th-hour exception to the bill to establish areas where proffer negotiations can continue as before.
The power of the building industry’s lobby in Richmond is still evident in legislation proposed to update the 2016 law. A bill introduced by Sen. Barbara A. Favola (D-31) and Del. Bob Thomas Jr. (R-28) does not reverse some of the key provisions of the 2016 legislation. But Favola said it reopens lines of communication with between local governments and developers.
“The purpose of this was to make it desirable for all types of developers to evaluate the lay of the land, and determine what kind of partnership they want with the county,” Favola said. “And really, our county governments, they appreciate investment. They need investment, they want to grow in a sensible way.”
Where before county leaders shut down all negotiations with developers in some areas over fears of accidentally tripping one of the law’s presumptions against the county, the new legislation requires developers to make their objections in writing before the local governing body’s decision is made if they are to bring a lawsuit under the law. Previously, local officials worried statements they made could be interpreted as soliciting an “unreasonable proffer” under the law’s strict definition, and ending up with an unwinnable lawsuit.
“The last proffer bill didn’t have technically a gag rule on it that disallowed supervisors from speaking to developers, but we felt so uncomfortable speaking to developers because of the risk of them being able to bring a lawsuit that we just didn’t do it,” said County Chairwoman Phyllis J. Randall (D-At Large).
Now those requests can only be made in writing by the governing body as whole.
“So, if someone’s talking to a developer and they may say, ‘well, I’m interested in having a park,’ that cannot be seen from the individual as making a request,” she said. “Because a request can now only come from a governing body and not any individual. So the fear that we could be sitting with developers and say something that would land us in court, that goes away, so lines of communication re now open, and that’s a good thing.”
And developers can choose to exempt themselves from the 2016 framework altogether.
When asked why her bill did not go further to reverse the 2016 legislation, Favola said, “It was a compromise. Many builders did not want that removed.”
The Homebuilders Association of Virginia on Friday published a press release cheering the new legislation.
“The 2016 law impacted localities and regions in many different ways—in some areas, residential rezonings had completely stopped or been significantly curtailed,” stated Andrew Clark, vice president of government affairs for the Home Builders Association of Virginia. “Housing is a critical component of a robust economy and right now, demand for new housing far surpasses available supply—that stark reality has serious implications for housing affordability and economic development. We are hopeful that this legislation will re-open the lines of communication between the industry and local governments about a residential development’s impact on local infrastructure.”