If not cash proffers, what?
An interesting proposal from the Free Enterprise Forum to remove cash proffers from Albemarle County’s toolbox for managing new growth. I’m curious to know what alternatives exist that would replace proffers. Proffers are not always effective at restricting growth or helping the County achieve the desired revenue stream to support infrastructure development.
Impact fees, adequate public facilities regulations and legislation â€¦ what else could be done so that new homeowners don’t bear the full burden of growth? (it’s not merely mean old rich developers who pay the fees â€¦ they pass those fees on to new homeowners). This is one bill that failed in the Virginia General Assembly a few years ago – Conditional zoning; replaces cash proffer system with system of impact fees.
The only answer which I can come up with now is that there is no easy answer as to how to pay for the impacts of growth and the lack of sufficient infrastructure, other than we can all agree that both need to be paid for, but we want someone else to pay for it.
I’m curious as to how many developments have gone by-right (not needing a rezoning) because going through the proffer/rezoning process and paying the proffers were cost-prohibitive.
If you’re curious about impact fees (which I believe are traditionally fought by real estate/developers, but I could be wrong), spend a few minutes reading the Virginia Code
A. Any locality that includes within its comprehensive plan a calculation of the capital costs of public facilities necessary to serve residential uses may impose and collect impact fees in amounts consistent with the methodologies used in its comprehensive plan to defray the capital costs of public facilities related to the residential development.
B. Impact fees imposed and collected pursuant to this section shall only be used for public facilities that are impacted by residential development.
C. A locality imposing impact fees as provided in this section shall allow credit against the impact fees for cash proffers collected for the purpose of defraying the capital costs of public facilities related to the residentialdevelopment. A locality imposing impact fees as provided in this section shall also include within its comprehensive plan a methodology for calculating credit for the value of proffered land donations to accommodate public facilities, and for the construction cost of any public facilities or public improvements the construction of which is required by proffer.
D. A locality imposing impact fees under this section may require that such impact fees be paid prior to and as a condition of the issuance of any necessary building permits for residential uses. Â¶
The principles that can be learned from Lerner are four-fold: (1) the decision to phase or time development
should be expressed in the comprehensive plan; (2) the criteria for timing or phasing development should not be so
vague so as to permit their discriminatory application; (3) the actual timing of development should be determined by
the application of reasonably objective criteria, rather than by general statements that public facilities should be
adequate; and (4) the comprehensive plan must likely provide the means for a locality to absorb, in reasonable
measure, its fair share of growth.
In 2002 Va. Op. Atty. Gen. LEXIS 51, the Attorney General issued an opinion concluding that a locality could
adopt, as part of its comprehensive plan, a proffer policy that considers an adequate public facilities requirement.
After a survey of the applicable Virginia law, including Allman and Lerner, the Attorney General recommended that
the following criteria be used by a locality:
ï‚· The impact of the proposed development on public facilities.
ï‚· The protection against undue density of population with respect to the public facilities in existence to serve the
ï‚· The planning by the locality to provide public facilities consonant with the efficient and economical use of
public funds to serve the proposed development.
ï‚· The locality’s interpretation and application of its comprehensive plan concerning the timing of the
development as determined by reasonably objective criteria.