Senate Bill 549 New Proffer Legislation

Transcription

1 Senate Bill 549 New Prffer Legislatin Effect: Created Virginia Cde , which limits the ability f lcal gvernments t request/accept prffers fr residential reznings/prffer amendments. 1 Applicability: Applies nly t residential reznings and t the residential cmpnent f mixed-use reznings. Des nt apply t cmmercial reznings r the cmmercial cmpnent f mixed-use reznings. Des nt apply t special use permits. Applies nly t applicatins/cases filed n r after July 1, 2016; des nt apply applicatins/cases filed befre July 1, Elements f the New Statute: Prhibits lcalities, including Prince William Cunty, frm requesting r accepting any unreasnable prffer. Prhibits lcalities frm denying any rezning where such denial is based in whle r in part n an applicant s failure t submit an "unreasnable prffer. What Makes a Prffer Unreasnable? The statute deems prffered cnditins unreasnable unless: The cnditin addresses an impact that is specifically attributable t the prpsed use. Previusly, curts have nly required a reasnable nexus between the impacts f the prpsed use and the cnditins prffered t mitigate thse impacts. 1 This utline will nly use the term rezning, but in each instance, that term is meant t include prffer amendment applicatins. 1

2 In additin t meeting the specifically attributable standard, prffers related t ff-site imprvements are deemed unreasnable unless they address an impact t an ffsite public facility such that: the prpsed use creates a need r identifiable prtin f need fr a public facility imprvement in excess f existing public facility capacity AND the prpsed use receives a direct and material benefit frm a prffer fr a public facility imprvement. Nte that under the statute, all cash cntributins are cnsidered ff-site prffers. Cnsequences f Suggesting, Requesting r Requiring an Unreasnable Prffer: The new statute states that: In any actin in which a lcality has denied a rezning r an amendment t an existing prffer and the aggrieved applicant prves by a prepnderance f the evidence that it refused r failed t submit an unreasnable prffer r prffer cnditin amendment that it has prven was suggested, requested, r required by the lcality, the curt shall presume, absent clear and cnvincing evidence t the cntrary, that such refusal r failure was the cntrlling basis fr the denial. This impacts the lng-used and well-understd fairly debatable standard histrically applied by Virginia curts in such cases. It establishes a higher burden n the lcality t defend its actins if an unreasnable prffer has been suggested, requested r required. It is therefre very imprtant that the Cunty avid suggesting, requesting r requiring prffers deemed unreasnable under the statute. Many Typical Prffers Are Still Acceptable: Reasnable prffers establishing use restrictins, maximum density, site layut, design and architecture are still acceptable under the new statute. 2

3 Bard/Cunty Respnse: In respnse t SB 549, the Bard adpted a reslutin n May 17, 2016, which did the fllwing: 1. Repealed the residential prtin f the Cunty s Plicy Guide fr Mnetary Cntributins, effective July 1, 2016; 2. Directed Cunty staff t research and prepare new plicies t address the mitigatin f impacts f residential reznings; 3. Directed Cunty staff t require applicants in residential rezning cases t identify all impacts f their prpsed use, prpse detailed mitigatin strategies t address thse impacts, state whether thse mitigatin strategies are cnsistent with the new prffer statute, and t demnstrate the validity f thse mitigatin strategies using prfessinal best accepted practices and criteria; 4. Initiated a review f residential rezning and prffer amendment applicatin fees t determine the csts f reviewing the impact analysis required as part f the applicatin; 5. Initiated a Cmprehensive Plan Amendment t review all levels-f-service standards, including the capacity f varius types f Cunty infrastructure; and 6. Directed staff t clse ut all utstanding Cmprehensive Plan map amendments with residential cmpnents by June 30, 2016, unless a cncurrent rezning applicatin has been filed. As directed by the Bard, Cunty staff has begun the prcess f researching, reviewing and preparing new plicies t mitigate the impacts f residential reznings. 3

4 VIRGINIA ACTS OF ASSEMBLY SESSION CHAPTER 322 An Act t amend the Cde f Virginia by adding a sectin numbered , relating t cnditinal zning. Apprved March 8, 2016 [S 549] Be it enacted by the General Assembly f Virginia: 1. That the Cde f Virginia is amended by adding a sectin numbered as fllws: Prvisins applicable t certain cnditinal rezning prffers. A. Fr purpses f this sectin, unless the cntext requires a different meaning: "New residential develpment" means any cnstructin r building expansin n residentially zned prperty, including a residential cmpnent f a mixed-use develpment, that results in either ne r mre additinal residential dwelling units r, therwise, fewer residential dwelling units, beynd what may be permitted by right under the then-existing zning f the prperty, when such new residential develpment requires a rezning r prffer cnditin amendment. "New residential use" means any use f residentially zned prperty that requires a rezning r that requires a prffer cnditin amendment t allw fr new residential develpment. "Offsite prffer" means a prffer addressing an impact utside the bundaries f the prperty t be develped and shall include all cash prffers. "Onsite prffer" means a prffer addressing an impact within the bundaries f the prperty t be develped and shall nt include any cash prffers. "Prffer cnditin amendment" means an amendment t an existing prffer statement applicable t a prperty r prperties. "Public facilities" means public transprtatin facilities, public safety facilities, public schl facilities, r public parks. "Public facility imprvement" means an ffsite public transprtatin facility imprvement, a public safety facility imprvement, a public schl facility imprvement, r an imprvement t r cnstructin f a public park. N public facility imprvement shall include any perating expense f an existing public facility, such as rdinary maintenance r repair, r any capital imprvement t an existing public facility, such as a renvatin r technlgy upgrade, that des nt expand the capacity f such facility. Fr purpses f this sectin, the term "public park" shall include playgrunds and ther recreatinal facilities. "Public safety facility imprvement" means cnstructin f new law-enfrcement, fire, emergency medical, and rescue facilities r expansin f existing public safety facilities, t include all buildings, structures, parking, and ther csts directly related theret. "Public schl facility imprvement" means cnstructin f new primary and secndary public schls r expansin f existing primary and secndary public schls, t include all buildings, structures, parking, and ther csts directly related theret. "Public transprtatin facility imprvement" means (i) cnstructin f new rads; (ii) imprvement r expansin f existing rads and related appurtenances as required by applicable standards f the Virginia Department f Transprtatin, r the applicable standards f a lcality; and (iii) cnstructin, imprvement, r expansin f buildings, structures, parking, and ther facilities directly related t transit. "Residentially zned prperty" means prperty zned r prpsed t be zned fr either single-family r multifamily husing. "Small area cmprehensive plan" means that prtin f a cmprehensive plan adpted pursuant t that is specifically applicable t a delineated area within a lcality rather than the lcality as a whle. B. Ntwithstanding any ther prvisin f law, general r special, n lcality shall (i) request r accept any unreasnable prffer, as described in subsectin C, in cnnectin with a rezning r a prffer cnditin amendment as a cnditin f apprval f a new residential develpment r new residential use r (ii) deny any rezning applicatin r prffer cnditin amendment fr a new residential develpment r new residential use where such denial is based in whle r in part n an applicant's failure r refusal t submit an unreasnable prffer r prffer cnditin amendment. C. Ntwithstanding any ther prvisin f law, general r special, (i) as used in this chapter, a prffer, r prffer cnditin amendment, whether nsite r ffsite, ffered vluntarily pursuant t , , , r , shall be deemed unreasnable unless it addresses an impact that is specifically attributable t a prpsed new residential develpment r ther new residential use applied fr and (ii) an ffsite prffer shall be deemed unreasnable pursuant t

5 2 f 2 subdivisin (i) unless it addresses an impact t an ffsite public facility, such that (a) the new residential develpment r new residential use creates a need, r an identifiable prtin f a need, fr ne r mre public facility imprvements in excess f existing public facility capacity at the time f the rezning r prffer cnditin amendment and (b) each such new residential develpment r new residential use applied fr receives a direct and material benefit frm a prffer made with respect t any such public facility imprvements. Fr the purpses f this sectin, a lcality may base its assessment f public facility capacity n the prjected impacts specifically attributable t the new residential develpment r new residential use. D. Ntwithstanding any ther prvisin f law, general r special: 1. Actins brught t cntest the actin f a lcality in vilatin f this sectin shall be brught nly by the aggrieved applicant r the wner f the prperty subject t a rezning r prffer cnditin amendment pursuant t subsectin F f In any actin in which a lcality has denied a rezning r an amendment t an existing prffer and the aggrieved applicant prves by a prepnderance f the evidence that it refused r failed t submit an unreasnable prffer r prffer cnditin amendment that it has prven was suggested, requested, r required by the lcality, the curt shall presume, absent clear and cnvincing evidence t the cntrary, that such refusal r failure was the cntrlling basis fr the denial. 3. In any successful actin brught pursuant t this sectin cntesting an actin f a lcality in vilatin f this sectin, the applicant may be entitled t an award f reasnable attrney fees and csts and t an rder remanding the matter t the gverning bdy with a directin t apprve the rezning r prffer cnditin amendment withut the inclusin f any unreasnable prffer. If the lcality fails r refuses t apprve the rezning r prffer cnditin amendment within a reasnable time nt t exceed 90 days frm the date f the curt's rder t d s, the curt shall enjin the lcality frm interfering with the use f the prperty as applied fr withut the unreasnable prffer. Upn remand t the lcal gverning bdy pursuant t this subsectin, the requirements f shall nt apply. E. The prvisins f this sectin shall nt apply t any new residential develpment r new residential use ccurring within any f the fllwing areas: (i) an apprved small area cmprehensive plan in which the delineated area is designated as a revitalizatin area, encmpasses mass transit as defined in , includes mixed use develpment, and allws a density f at least 3.0 flr area rati in a prtin theref; (ii) an apprved small area cmprehensive plan that encmpasses an existing r planned Metrrail statin, r is adjacent t a Metrrail statin lcated in a neighbring lcality, and allws additinal density within the vicinity f such existing r planned statin; r (iii) an apprved service district created pursuant t that encmpasses an existing r planned Metrrail statin. 2. That this act shall be cnstrued as supplementary t any existing prvisins limiting r curtailing prffers r prffer cnditin amendments fr new residential develpment r new residential use that are cnsistent with its terms and shall be cnstrued t supersede any existing statutry prvisin with respect t prffers r prffer cnditin amendments fr new residential develpment r new residential use that are incnsistent with its terms. 3. That this act is prspective nly and shall nt be cnstrued t apply t any applicatin fr rezning filed prir t July 1, 2016, r t any applicatin fr a prffer cnditin amendment amending a rezning fr which the applicatin was filed prir t that date.