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2019 Legislative Program, Appendix
Guiding Principles to Amendment of the 2016 Proffer Law
The Chesapeake City Council supports amendments to the 2016 proffer statute which will foster responsible development that contributes appropriately to offsetting the costs borne by local taxpayers in addressing public infrastructure needs related to new development through a more fair and flexible process.
The following principles should be followed in considering possible amendments:
1. Remove the punitive provisions around proffer discussions that have been shown to have a chilling effect on communications. Avoid replacing “suggest or request” with similar ambiguous language (e.g., “require”).
2. Modify “specifically attributable” to a more workable standard not based on impact fee/exactions law since conditional rezoning in Virginia is not equivalent to a broader-based impact fee process.
a. Suggest - Replace unclear standards in the statutory test for offsite proffers (e.g., “need or identifiable portion of a need,” “direct and material benefit”) with established and understood principles of proffer law (e.g., “gives rise to the need,” “reasonable relation to”).
3. Require applicants to provide written notice to the locality of any objections of unreasonableness when submitting proffers in order to have access to the statutory presumption provisions on appeal, and allow for the prevailing party to receive attorney fees in litigation not just the applicant.
4. Provide a clear alternative process for applicants who find it in their best interest to not be restricted by the 2016 statute (e.g., sign a waiver to “opt out”). However, avoid creating different layers of laws that may apply in fact-specific cases as such a framework will be difficult for locality’s to understand and implement. As passed, the proffer law places localities in a vulnerable position and adding complication (e.g., this test applies in case A and this test applies in case B) is problematic and patently unfair to localities.
5. Provide additional small area comprehensive plan exemptions for definable areas targeted for growth or redevelopment and revitalization.
6. Eliminate the limited definition of “public facilities” or expand it beyond transportation, public schools, public safety and parks to include other specific categories of need such as affordable housing, public libraries and stormwater facilities.
Posted : Feb. 14, 2019