Richmond caught the attention of the Fairfax County Board of Supervisors this week specifically with House Bill 770 (Gilbert) and Senate B 549 (Obenshain), bills Sharon Bulova says will place “significant restrictions” on development, specifically citing “unreasonable proffers.”

The Board of Supervisors drafted an emergency letter during its board meeting Feb. 2 to the Fairfax County delegation to the General Assembly opposing the two bills.

“Please oppose HB 770/SB 549, or seek amendments to safeguard Fairfax County's proffer authority,” according to the letter.

“Virtually all development in the county is infill development. In these types of cases, proffers are critical in meeting infrastructure and compatibility needs of surrounding areas. If enacted, these bills may require us to rewrite entire sections of our Comprehensive Plan and Zoning Ordinance,” wrote Sharon Bulova, chairman of the board.

The board detailed the way the county works with developers to balance the impact of new development with “added demand for county services and public facilities that result from that development.”

“We do that through the proffer system, which provides an opportunity for developers to work with the county to address community concerns related to the increased density of such development,” according to the Board of Supervisors. “In Fairfax County, our collaboration with our partners in the development community has led to successful, innovative plans such as the redesign of Tysons, construction of the Mosaic District, and the revitalization of Springfield.”

The board approved drafting the letter during its regularly scheduled meeting on Feb. 2.

The House of Delegates passed the bill later that day, 68-27. Local delegates voting in favor of the bill restricting local proffer authority included Dave Albo (R-42), Eileen Filler-Corn (D-41), Charniele Herring (D-46), Patrick Hope (D-47), Tim Hugo (R-40), Paul Krizek (D-44), Mark Levine (D-45), Ken Plum (D-36) and Vivian Watts (D-39).

Local delegates who voted against the bill included Jennifer Boysko (D-86), David Bulova (D-37), Mark Keam (D-35), Kaye Kory (D-38), Jim LeMunyon (R-67), Alfonso Lopez (D-49), Kathleen Murphy (D-34), Mark Sickles (D-43), and Marcus Simon (D-53).

Lobbying continued on the Senate version of the bill but it was expected to pass in the Senate on Tuesday, Feb. 9. The Senate version would exempt development around current or planned Metro stations.

Simon said he voted against the bill because it wasn’t ready. “Fairfax uses proffer system as it currently exists to be creative in developing areas like Tysons and the Mosaic District,” he said.

“We have to communicate how bad this bill is,” said Dranesville Supervisor John Foust. “It flies in the face of everything we are trying to do for the economic success of Fairfax County.”

“The more I thought about this bill, the worse it seems to get,” said Providence Supervisor Linda Smyth, warning of profound effects on in-fill development. “We will no longer get proffer features on design issues.” Later version of the bill in the Senate appear to allow architectural and design proffers.

“If enacted it may require us to rewrite our entire Comprehensive Plan. We will have to rewrite our entire ordinance,” said Lee Supervisor Jeff McKay.

“This is major in terms of the repercussions we will face here in Fairfax County,” said Smyth. “This will be huge, it will be time consuming, and it will be expensive to us.”

Smyth and other supervisors discussed the ability of developers to work with the community during the proffer process.

“There may be a unique opportunity, a community that may need a stream restored, and all that will be gone, and we will have to rewrite our residential zoning,” said Smyth.

“Our development community does not support this. What they are seeing is something set up in other parts of the state that will undermine what we are doing here,” she said. “We have a very responsible development community.”

Springfield Supervisor Pat Herrity voted against the letter.

“I think we have gone too far with proffers,” he said. “This will lower the cost of housing in Fairfax County.”

“I agree with Supervisor Herrity that we have to be careful about the requirements we put on builders. It is expensive to build in this county,” said Braddock Supervisor John Cook.

“The answer to this problem is not asking Richmond to fix this problem for us,” Cook said. “Going to Richmond for the answer is a bad, bad, bad idea.”

But legislators in Richmond who support the bill said localities have gone too far with proffers, using them in ways that were never intended.

“What businesses have repeatedly told me about being able to work with the government, whether it's zoning, procurement, public-private partnerships, etc., is that they need to have fairness, predictability, and systems that work,” said Sen. Scott Surovell (D-36). “Otherwise, they don't want to put the time into trying to get to the end zone. Right now the litigation check on [proffers] is totally tilted towards the localities. That can't continue.”

Sen. Dave Marsden (D-37) admitted that one reason localities turned to proffers was because of severely limited tax authority. But he supports the bill, with amendments, in part because the costs of proffers add to the cost of housing, making houses less affordable. Proffers should also serve the area around the new development, not the other side of the county, he said.

“I did feel like something needed to be done on behalf of the builders,” Marsden said. “It’s a depressed industry.”

Del. Kathleen Murphy (D-34) voted against the House bill, but added it is a work in progress. “The abuses that have driven this bill are not centered on NOVA,” she said. “We are working with Supervisors and the business community to make sure this is done right because it is so important to economic development.”

Richmond caught the attention of the Fairfax County Board of Supervisors this week specifically with House Bill 770 (Gilbert) and Senate B 549 (Obenshain), bills Sharon Bulova says will place “significant restrictions” on development, specifically citing “unreasonable proffers.”

The Board of Supervisors drafted an emergency letter during its board meeting Feb. 2 to the Fairfax County delegation to the General Assembly opposing the two bills.

“Please oppose HB 770/SB 549, or seek amendments to safeguard Fairfax County's proffer authority,” according to the letter.

“Virtually all development in the county is infill development. In these types of cases, proffers are critical in meeting infrastructure and compatibility needs of surrounding areas. If enacted, these bills may require us to rewrite entire sections of our Comprehensive Plan and Zoning Ordinance,” wrote Sharon Bulova, chairman of the board.

The board detailed the way the county works with developers to balance the impact of new development with “added demand for county services and public facilities that result from that development.”

“We do that through the proffer system, which provides an opportunity for developers to work with the county to address community concerns related to the increased density of such development,” according to the Board of Supervisors. “In Fairfax County, our collaboration with our partners in the development community has led to successful, innovative plans such as the redesign of Tysons, construction of the Mosaic District, and the revitalization of Springfield.”

The board approved drafting the letter during its regularly scheduled meeting on Feb. 2.

The House of Delegates passed the bill later that day, 68-27. Local delegates voting in favor of the bill restricting local proffer authority included Dave Albo (R-42), Eileen Filler-Corn (D-41), Charniele Herring (D-46), Patrick Hope (D-47), Tim Hugo (R-40), Paul Krizek (D-44), Mark Levine (D-45), Ken Plum (D-36) and Vivian Watts (D-39).

Local delegates who voted against the bill included Jennifer Boysko (D-86), David Bulova (D-37), Mark Keam (D-35), Kaye Kory (D-38), Jim LeMunyon (R-67), Alfonso Lopez (D-49), Kathleen Murphy (D-34), Mark Sickles (D-43), and Marcus Simon (D-53).

Lobbying continued on the Senate version of the bill but it was expected to pass in the Senate on Tuesday, Feb. 9. The Senate version would exempt development around current or planned Metro stations.

Simon said he voted against the bill because it wasn’t ready. “Fairfax uses proffer system as it currently exists to be creative in developing areas like Tysons and the Mosaic District,” he said.

“We have to communicate how bad this bill is,” said Dranesville Supervisor John Foust. “It flies in the face of everything we are trying to do for the economic success of Fairfax County.”

“The more I thought about this bill, the worse it seems to get,” said Providence Supervisor Linda Smyth, warning of profound effects on in-fill development. “We will no longer get proffer features on design issues.” Later version of the bill in the Senate appear to allow architectural and design proffers.

“If enacted it may require us to rewrite our entire Comprehensive Plan. We will have to rewrite our entire ordinance,” said Lee Supervisor Jeff McKay.

“This is major in terms of the repercussions we will face here in Fairfax County,” said Smyth. “This will be huge, it will be time consuming, and it will be expensive to us.”

Smyth and other supervisors discussed the ability of developers to work with the community during the proffer process.

“There may be a unique opportunity, a community that may need a stream restored, and all that will be gone, and we will have to rewrite our residential zoning,” said Smyth.

“Our development community does not support this. What they are seeing is something set up in other parts of the state that will undermine what we are doing here,” she said. “We have a very responsible development community.”

Springfield Supervisor Pat Herrity voted against the letter.

“I think we have gone too far with proffers,” he said. “This will lower the cost of housing in Fairfax County.”

“I agree with Supervisor Herrity that we have to be careful about the requirements we put on builders. It is expensive to build in this county,” said Braddock Supervisor John Cook.

“The answer to this problem is not asking Richmond to fix this problem for us,” Cook said. “Going to Richmond for the answer is a bad, bad, bad idea.”

But legislators in Richmond who support the bill said localities have gone too far with proffers, using them in ways that were never intended.

“What businesses have repeatedly told me about being able to work with the government, whether it's zoning, procurement, public-private partnerships, etc., is that they need to have fairness, predictability, and systems that work,” said Sen. Scott Surovell (D-36). “Otherwise, they don't want to put the time into trying to get to the end zone. Right now the litigation check on [proffers] is totally tilted towards the localities. That can't continue.”

Sen. Dave Marsden (D-37) admitted that one reason localities turned to proffers was because of severely limited tax authority. But he supports the bill, with amendments, in part because the costs of proffers add to the cost of housing, making houses less affordable. Proffers should also serve the area around the new development, not the other side of the county, he said.

“I did feel like something needed to be done on behalf of the builders,” Marsden said. “It’s a depressed industry.”

Del. Kathleen Murphy (D-34) voted against the House bill, but added it is a work in progress. “The abuses that have driven this bill are not centered on NOVA,” she said. “We are working with Supervisors and the business community to make sure this is done right because it is so important to economic development.”

Reporting contributed by Mary Kimm

Tying County Hands in Development?

HB 770 Conditional zoning; provisions applicable to all proffers.

SUMMARY AS INTRODUCED:

Conditional zoning. Provides that no locality shall (i) 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 or (ii) deny any rezoning application, including an application for amendment to an existing proffer, for a new residential development or new residential use where such denial is based on an applicant’s failure or refusal to submit, or remain subject to, an unreasonable proffer. A proffer shall be deemed unreasonable unless it addresses an impact that is specifically and uniquely attributable to a proposed new residential development or other new residential use applied for. An off-site proffer shall be deemed unreasonable pursuant to the above unless it addresses an impact to an off-site public facility, such that, (a) 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) 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. In any action in which a locality 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, or remain subject to, an unreasonable proffer that it has proven was suggested, requested, or required, formally or informally, by the locality, the court shall presume, absent clear and convincing evidence to the contrary, that such refusal or failure was the controlling basis for the denial. The bill also provides that certain conditional rezoning proffers related to building materials, finishes, methods of construction, or design features on a new residential development are prohibited.

Emergency Letter

The Board of Supervisors wrote the Fairfax County General Assembly Delegation Members on Tuesday, Feb. 2, to oppose HB 770 (Gilbert) and SB 549 (Obenshain), or “seek amendments to shield Fairfax County from the significant restrictions these bills would place on development.”

Verbatim:

“As you know, Fairfax County works closely with our development community to balance the impacts of new development with the added demand for County services and public facilities that result from that development. We do that through the proffer system, which provides an

opportunity for developers to work with the County to address community concerns related to the increased density of such development.

“In Fairfax County, our collaboration with our partners in the development community has led to successful, innovative plans such as the redesign of Tysons, construction of the Mosaic District, and the revitalization of Springfield, among others.

“Though the bills apply only to residential development, that also includes the residential components of mixed use developments, as well as multi-family residential development.

“Proffers for such development could only include public facility improvements for schools, transportation, and public safety (under the current House version parks would also be included).

“However, developers often tell us that they prefer flexibility to negotiate a wider range of items — this bill would limit that flexibility by prohibiting them from including libraries, workforce housing, and other public facilities in those negotiations.

“Passage of this legislation would severely hinder our ability to work with developers to address the concerns of our shared constituents. In addition, developers will be negatively impacted if they no longer have the flexibility to negotiate a wider range of proffered improvements, because they may be precluded by this legislation from qualifying for density bonuses or similar higher density redevelopment options in the County's Comprehensive Plan.

“As you may know, the County has worked closely with industry and community stakeholders to amend our Comprehensive Plan, as we continue to prepare for exceptional, innovative growth in the coming years. We have already seen success in the transformation of Tysons, which is the most publicized new development in the County; the House bill addresses concerns about that area by exempting it from the legislation.

“However, Tysons is only one part of the County. We also continue to make progress in planning communities through transit-oriented development, by enhancing the growth and success of our newer developments while revitalizing our older commercial areas, ensuring active and vibrant districts throughout Fairfax County.

“Virtually all development in the County is infill development. In these types of cases, proffers are critical in meeting infrastructure and compatibility needs of surrounding areas. If enacted, these bills may require us to rewrite entire sections of our Comprehensive Plan and Zoning Ordinance.

“We know that these new developments will augment the strong business climate we have already created — a business climate that helps us attract and retain both Fortune 500 companies and entrepreneurial start-ups every year, benefitting the entire Commonwealth. “Retaining our land use authority is essential to that effort, and we need your help to make that happen — please oppose HB 770/SB 549, or seek amendments to safeguard Fairfax County's proffer authority.”