Bill Text: VA SB1373 | 2019 | Regular Session | Chaptered
Bill Title: Conditional rezoning proffers; extensive changes to conditional zoning provisions.
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Passed) 2019-02-21 - Governor: Acts of Assembly Chapter text (CHAP0129) [SB1373 Detail]
Download: Virginia-2019-SB1373-Chaptered.html
Be it enacted by the General Assembly of Virginia:
1. That §15.2-2303.4 of the Code of Virginia is amended and reenacted as follows:
§15.2-2303.4. Provisions applicable to certain conditional rezoning proffers.
A. For purposes of this section, unless the context requires a different meaning:
"New residential development" means any construction or building expansion on residentially zoned property, including a residential component of a mixed-use development, that results in either one or more additional residential dwelling units or, otherwise, fewer residential dwelling units, beyond what may be permitted by right under the then-existing zoning of the property, when such new residential development requires a rezoning or proffer condition amendment.
"New residential use" means any use of residentially zoned property that requires a rezoning or that requires a proffer condition amendment to allow for new residential development.
"Offsite proffer" means a proffer addressing an impact outside the boundaries of the property to be developed and shall include all cash proffers.
"Onsite proffer" means a proffer addressing an impact within the boundaries of the property to be developed and shall not include any cash proffers.
"Proffer condition amendment" means an amendment to an existing proffer statement applicable to a property or properties.
"Public facilities" means public transportation facilities, public safety facilities, public school facilities, or public parks.
"Public facility improvement" means an offsite public transportation facility improvement, a public safety facility improvement, a public school facility improvement, or an improvement to or construction of a public park. No public facility improvement shall include any operating expense of an existing public facility, such as ordinary maintenance or repair, or any capital improvement to an existing public facility, such as a renovation or technology upgrade, that does not expand the capacity of such facility. For purposes of this section, the term "public park" shall include playgrounds and other recreational facilities.
"Public safety facility improvement" means construction of new law-enforcement, fire, emergency medical, and rescue facilities or expansion of existing public safety facilities, to include all buildings, structures, parking, and other costs directly related thereto.
"Public school facility improvement" means construction of new primary and secondary public schools or expansion of existing primary and secondary public schools, to include all buildings, structures, parking, and other costs directly related thereto.
"Public transportation facility improvement" means (i) construction of new roads; (ii) improvement or expansion of existing roads and related appurtenances as required by applicable standards of the Virginia Department of Transportation, or the applicable standards of a locality; and (iii) construction, improvement, or expansion of buildings, structures, parking, and other facilities directly related to transit.
"Residentially zoned property" means property zoned or proposed to be zoned for either single-family or multifamily housing.
"Small area comprehensive plan" means that portion of a comprehensive plan adopted pursuant to §15.2-2223 that is specifically applicable to a delineated area within a locality rather than the locality as a whole.
B. Notwithstanding any other provision of law, general or
special, no locality local governing body shall (i) request or
accept require any unreasonable proffer, as described in subsection
C, in connection with a rezoning or a proffer condition amendment as a
condition of approval of a new residential development or new residential use
or (ii) deny any rezoning application or proffer condition amendment for a new
residential development or new residential use where such denial is based in
whole or in part on an applicant's failure or refusal to submit an unreasonable
proffer or proffer condition amendment.
C. Notwithstanding any other provision of law, general or
special, (i) as used in this chapter, a proffer, or proffer condition
amendment, whether onsite or offsite, offered voluntarily pursuant to §
15.2-2297, 15.2-2298, 15.2-2303, or 15.2-2303.1, shall be deemed unreasonable
unless it:
1. It addresses an impact that is specifically attributable
to a proposed new residential development or other new residential use applied
for; and (ii) an offsite proffer shall be deemed unreasonable
pursuant to subdivision (i) unless
2. If an offsite proffer, it addresses an impact to an
offsite public facility, such that (a) (i) the new residential
development or new residential use creates a need, or an identifiable portion
of a need, for one or more public facility improvements in excess of existing
public facility capacity at the time of the rezoning or proffer condition
amendment and (b) (ii) each such new residential development or
new residential use applied for receives a direct and material benefit from a
proffer made with respect to any such public facility improvements. For the
purposes of this section, a A locality may base its assessment of
public facility capacity on the projected impacts specifically attributable to
the new residential development or new residential use.
D. Notwithstanding the provisions of subsection C:
1. An applicant or owner may, at the time of filing an application pursuant to this section or during the development review process, submit any onsite or offsite proffer that the owner and applicant deem reasonable and appropriate, as conclusively evidenced by the signed proffers.
2. Failure to submit proffers as set forth in subdivision 1 shall not be a basis for the denial of any rezoning or proffer condition amendment application.
E. Notwithstanding any other provision of law, general or special:
1. Actions brought to contest the action of a locality
local governing body in violation of this section shall be brought only by
the aggrieved applicant or the owner of the property subject to a rezoning or
proffer condition amendment pursuant to subsection F of §15.2-2285,
provided that the applicant objected in writing to the governing body regarding
a proposed condition prior to the governing body's grant or denial of the
rezoning application.
2. In any action in which a locality local governing
body has denied a rezoning or an amendment to an existing proffer and the
aggrieved applicant proves by a preponderance of the evidence that it refused
or failed to submit an unreasonable proffer or proffer condition amendment that
it has proven was suggested, requested, or required in
writing by the locality local governing body in violation of this
section, the court shall presume, absent clear and convincing evidence to
the contrary, that such refusal or failure was the controlling basis for the
denial.
3. In any successful action brought pursuant to this section
contesting an action of a locality local governing body in
violation of this section, the applicant may be entitled to an award of
reasonable attorney fees and costs and to an order remanding the matter to the
governing body with a direction to approve the rezoning or proffer condition
amendment without the inclusion of any unreasonable proffer or to amend the
proffer to bring it into compliance with this section. If the locality
local governing body fails or refuses to approve the rezoning or proffer
condition amendment, or fails or refuses to amend the proffer to bring it
into compliance with this section, within a reasonable time not to exceed
90 days from the date of the court's order to do so, the court shall enjoin the
locality local governing body from interfering with the use of the
property as applied for without the unreasonable proffer. Upon remand to the
local governing body pursuant to this subsection, the requirements of §
15.2-2204 shall not apply.
E. F. The provisions of this section shall not
apply to any new residential development or new residential use occurring
within any of the following areas: (i) an approved small area comprehensive
plan in which the delineated area is designated as a revitalization area,
encompasses mass transit as defined in §33.2-100, includes mixed use
development, and allows a density of at least 3.0 floor area ratio in a portion
thereof; (ii) 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; or (iii) an approved service
district created pursuant to §15.2-2400 that encompasses an existing or
planned Metrorail station.
F. G. This section shall be construed as
supplementary to any existing provisions limiting or curtailing proffers or
proffer condition amendments for new residential development or new residential
use that are consistent with its terms and shall be construed to supersede any
existing statutory provision with respect to proffers or proffer condition
amendments for new residential development or new residential use that are
inconsistent with its terms.
H. Notwithstanding any provision in this section to the contrary, nothing contained herein shall be deemed or interpreted to prohibit or to require communications between an applicant or owner and the locality. The applicant, owner, and locality may engage in pre-filing and post-filing discussions regarding the potential impacts of a proposed new residential development or new residential use on public facilities as defined in subsection A and on other public facilities of the locality, and potential voluntary onsite or offsite proffers, permitted under subsections C and D, that might address those impacts. Such verbal discussions shall not be used as the basis that an unreasonable proffer or proffer condition amendment was required by the locality. Furthermore, notwithstanding any provision in this section to the contrary, nothing contained herein shall be deemed or interpreted to prohibit or to require presentation, analysis, or discussion of the potential impacts of new residential development or new residential use on the locality's public facilities.
2. That the third enactment of Chapter 322 of the Acts of Assembly of 2016 is repealed.
3. That this act shall be effective as to any application for a rezoning filed on or after July 1, 2019, or for a proffer condition amendment amending a rezoning that was filed on or after July 1, 2019, or to any then-pending rezoning application in which the applicant elects to proceed hereunder, by amendment of that pending application.
4. That an applicant with a pending application for a rezoning or proffer condition amendment that was filed prior to July 1, 2016, may continue to proceed under the law as it existed prior to that date, and an applicant with a pending rezoning application filed on or after July 1, 2016, but before July 1, 2019, or proffer condition amendment application amending a rezoning for which the application was filed on or after July 1, 2016, but before July 1, 2019, may continue to proceed under the law as it existed during that period.