Chamber Insider Blog

Brian’s Corner: A (pr)offer you can’t refuse

Column written by Brian Fauls, Manager of Government Affairs

I’ve lived in Virginia for close to 20 years now, and in that time I’ve come to learn that Virginia is unique in many, many strange and mysterious ways. 

For example, did you know that in 1634, the General Assembly decided the state should be divided into eight territories known as Shires (long before J.R.R. Tolkien made shires cool)?  To date, so far as I can determine, Virginia is the only colony or state to ever have shires. Thankfully – or not if you are a huge Lord of the Rings fan – the shires were sensibly renamed “counties” just a few years later.

Flash forward almost 400 years and Virginia is still doing things its own way when it comes to its land-use.  Case in point, under Virginia law a locality may not impose conditions on a rezoning, period.  However, IF a rezoning applicant were to say ‘voluntarily’ offer conditions in writing, the local governing body could incorporate the conditions into the rezoning. 

These conditions are called “proffers” and trust me they are a system unique to Virginia. To be enforceable, a local government may only accept, not impose, proffers. But the law doesn’t compel a government to accept a proffer and the reality is that many county governments negotiate with applicant about what kinds of proffers are offered.

It’s a delicate dance that, let’s be fair, is a little bit of a game of legal bribery and legal government extortion.

Don’t get me wrong, the intent of the proffer system is actually honorable; namely having the private sector help mitigate anticipated negative impacts associated with development.  And generally, over the years, proffers have followed a consistent pattern:

  • Restrictions on the uses in the rezoned area;
  • Donations of real property for public use – land for a park, schools, community centers, etc;
  • Private-sector construction of public improvements – roads, utilities; and/or
  • Cash for any or all of the above

Proffers can provide a significant benefit to the public. Since 2001, Loudoun County has used proffers – in whole or in part – to build 41 schools, 9 fire stations, 2 libraries, 7 group homes, 8 park and ride lots and 10 parks.  These public facilities have improved the quality of life of Loudoun residents.  That high quality of life is an important factor when businesses consider locating or expanding in Loudoun County.

On the other hand, proffers can also create headaches.  If you’ve ever driven on a road in Northern Virginia that just stops and mysteriously restarts 2 miles further on, chances are good the construction of that road was proffered and that proffered never got executed. They become even more of a headache when a local government ‘negotiates’ for odd conditions.  Some localities in Virginia have in recent years allegedly been encouraging rezoning applicants to proffer things like stainless steel appliances in all homes built as part of the rezoning. 

Stainless steel appliances are nice but how do they mitigate the cost to the community of thousands of new homes and residents?  Hint, hint, they don’t. 

So now, surprise, surprise, the General Assembly wants to do something to “fix” the proffer system – I told you that you have to watch these guys.

Senate Bill 549 and House Bill 770, “provides that no locality shall request or accept any unreasonable proffer in connection with a rezoning or a proffer condition amendment as a condition of approval of a new residential development or new residential use.”  While that sounds reasonable, it’s never impossible to actually define what is or is not an “unreasonable proffer.” 

Common-sense probably tells you that suggesting that every new home in the area has stainless steel appliances is unreasonable, but is it unreasonable to suggest building a library or installing a traffic light six blocks away from her housing development?  I’ll bet you someone out there is willing to make that claim; especially as the bills create a new legal presumption that any rezoning with proffers attached that gets rejected MUST have been rejected because the local government wanted an unreasonable proffer.  It’s hard to imagine how any local government would continue with proffers with that kind of legal sword hanging over them. 

In a high growth community like Loudoun County, not having private sector support to build the millions of dollars’ worth of infrastructure we need would be devastating. 

Some members of the General Assembly are working to fix the bills but it’s likely that they will pass. That would be bad for Loudoun County taxpayers and bad for Loudoun County’s business.

If only we could go back to the Shire. 

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