Impact f Prffer Legislatin Changes General Infrmatin n New Statute VA Cde Sectin 5.2-2303.4 Senate Bill (SB) 549 206 Sessin Reprt Senate Bill (SB) 549 New Prffer Legislatin (Handut) Slide 9 & 0 frm Schl Bard CIP Presentatin n January, 207 Prffer changes and impact n Schl site acquisitin Prepared: April 4, 207 ver.
General Infrmatin n the New Prffer Statute VA Cde Sectin 5.2-2303.4 During its 206 legislative sessin, the General Assembly passed Senate Bill 549, which created a new sectin f the Virginia Cde 5.2 2303.4. The dcuments fllwing this general infrmatin will prvide mre detail n specific prvisins f the new statute. In particular, the new statute prhibits lcalities frm requesting r accepting unreasnable prffers, and prhibits lcalities frm denying a rezning where the denial is based in whle r in part n an applicant s failure t submit an unreasnable prffer. Mst significantly, the statute establishes a presumptin that each individual prffer is unreasnable. T vercme that presumptin, a prffer must satisfy certain criteria. As a threshld matter, every prffer must address an impact that is specifically attributable t the underlying prject. In additin, an ffsite prffer (defined as a prffer addressing an impact utside the bundaries f the prject; all cash prffers are deemed t be ffsite prffers) is nly reasnable if: () it creates the need fr new r expanded public facilities by pushing an existing facility ver capacity; and (2) the prject will receive a direct and material benefit frm the new r expanded public facility. Prir t July, 206, the Cunty s Plicy Guide fr Mnetary Cntributins recmmended cash prffers fr certain public infrastructure based n the levels f service plicies set frth in the Cunty s Cmprehensive Plan. The recmmended cash prffers were determined using Cunty wide averages t perfrm a mathematical calculatin f the per unit cst f delivering each type f infrastructure (e.g., rads, schls, libraries, fire and rescue statins, parks). Hwever, because the plicy was based n Cunty wide averages and did nt accunt fr existing capacity in existing infrastructure, there is a great risk that a curt wuld find that the plicy did nt meet the specifically attributable r direct and material benefit standards. The Bard f Cunty Supervisrs therefre repealed the plicy effective July, 206, fr all residential r mixed use rezning prjects filed n r after that date. Staff is wrking t examine pssible alternative plicies, but it is difficult t cnceive f a generally applicable Cuntywide plicy that will meet the statute s criteria. Nearly every lcality with an aggressive cash prffer plicy prir t the 206 sessin f the General Assembly used a similar levels f service based methdlgy. Almst all f these jurisdictins including Ludun, Staffrd, Sptsylvania, Fauquier, Frederick, Albemarle and James City Cunties, and the City f Chesapeake repealed their plicies shrtly after Prince William Cunty. Chesterfield Cunty repealed its plicy with respect t all public facilities except rads. Sme jurisdictins including James City Cunty and the Cities f Nrflk and Prtsmuth are nt accepting any prffers at all, cash r therwise. Of jurisdictins surveyed, nly Gchland Cunty has nt yet repealed its plicy, althugh based n a telephne cnversatin with Gchland s recently appinted Cunty Attrney last week, it will likely be the subject f a repeal reslutin in the near future.
Senate Bill (SB) 549 206 Sessin Reprt SB 549 Cnditinal zning; prvisins applicable t certain rezning prffer signed by gvernr n March 8, 206. The bill became law n July, 206. The main impacts f the bill include: The bill nly applies t residential land use applicatins. A prffer is deemed as unreasnable unless it addresses an impact t an ffsite public facility such that: The new develpment creates a need fr ne r mre public facility imprvements in excess f existing capacity at the time f the applicatin, and Each new residential use receives a direct and material benefit frm the prffer Prhibiting and labeling as unreasnable ffsite prffers fr categries utside f the fllwing: transprtatin, public safety, schls and parks. These fur categries are the nly areas lcalities may receive ffsite prffers. Lcalities may nt request r accept unreasnable prffers, meaning lcalities cannt accept prffers utside f these fur categries, even if an applicant wants t vluntarily make that prffer. Lcalities may nt deny a land use applicatin because an applicant refused t make an unreasnable prffer. The legal remedy fr an applicant whse land use applicatin is nt apprved and wishes t have it heard in curt: Must prve by a prepnderance f the evidence that the applicant refused r failed t submit an unreasnable prffer and that the prffer was suggested, requested r required by the lcality. If this is prven, the curt shall presume that such refusal r failure was the cntrlling basis fr the denial. The applicant may be entitled t an award f attrney fees and csts and t an rder remanding the matter t the gverning bdy with directin t apprve the applicatin. The legislatin is prspective nly and des nt apply t any applicatin filed prir t July, 206. Link t final apprved bill n Virginia Legislative Infrmatin System https://lis.virginia.gv/cgibin/legp604.exe?6+sum+sb549
Senate Bill (SB) 549 New Prffer Legislatin (handut) Effect: Created Virginia Cde 5.2 2303.4, which limits the ability f lcal gvernments t request/accept prffers fr residential reznings/prffer amendments. 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, 206; des nt apply applicatins/cases filed befre July, 206. 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. 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. This utline will nly use the term rezning, but in each instance, that term is meant t include prffer amendment applicatins.
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. Bard/Cunty Respnse: In respnse t SB 549, the Bard adpted a reslutin n May 7, 206, which did the fllwing:. Repealed the residential prtin f the Cunty s Plicy Guide fr Mnetary Cntributins, effective July, 206; 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, 206, 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. 2
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