                                 CODE OF VIRGINIA

PROVISIONS APPLICABLE TO CERTAIN CONDITIONAL REZONING PROFFERS (§ 15.2-2303.4)

A. For purposes of this section, unless the context requires a different
meaning:
			&#8220;New residential development&#8221; 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.
			&#8220;New residential use&#8221; means any use of residentially zoned
property that requires a rezoning or that requires a proffer condition amendment
to allow for new residential development.
			&#8220;Offsite proffer&#8221; means a proffer addressing an impact outside
the boundaries of the property to be developed and shall include all cash
proffers.
			&#8220;Onsite proffer&#8221; means a proffer addressing an impact within the
boundaries of the property to be developed and shall not include any cash
proffers.
			&#8220;Proffer condition amendment&#8221; means an amendment to an existing
proffer statement applicable to a property or properties.
			&#8220;Public facilities&#8221; means public transportation facilities,
public safety facilities, public school facilities, or public parks.
			&#8220;Public facility improvement&#8221; 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 &#8220;public park&#8221; shall include
playgrounds and other recreational facilities.
			&#8220;Public safety facility improvement&#8221; 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.
			&#8220;Public school facility improvement&#8221; 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.
			&#8220;Public transportation facility improvement&#8221; 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.
			&#8220;Residentially zoned property&#8221; means property zoned or proposed
to be zoned for either single-family or multifamily housing.
			&#8220;Small area comprehensive plan&#8221; means that portion of a
comprehensive plan adopted pursuant to &#xA7; 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 local
governing body shall (i) 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&#8217;s failure or refusal to submit an
unreasonable proffer or proffer condition amendment.

C. Notwithstanding any other provision of law, general or special, 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:

   1. It addresses an impact that is specifically attributable to a proposed new
   residential development or other new residential use applied for; and

   2. If an offsite proffer, it addresses an impact to an offsite public
   facility, such that (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 (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. 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 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 &#xA7; 15.2-2285, provided that the applicant
   objected in writing to the governing body regarding a proposed condition prior
   to the governing body&#8217;s grant or denial of the rezoning application.

   2. In any action in which a 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 was requested in
   writing by the 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 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 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&#8217;s order to do so,
   the court shall enjoin the 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
   &#xA7; 15.2-2204 shall not apply.

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
&#xA7; 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 &#xA7; 15.2-2400 that
encompasses an existing or planned Metrorail station.

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&#8217;s public
facilities.

HISTORY: 2016, c. 322; 2019, cc. 129, 245.