Reston Pleads for Governor’s Veto

Reston Pleads for Governor’s Veto

Reston Association and Reston 20/20 weigh in on proffer controversy.

Reston Association and the Reston 20/20 Committee asked Virginia Governor Terry McAuliffe to veto a bill about proffers that passed the Virginia General Assembly.

Or seriously amend it.

“Being a planned community means that a deliberate and balanced mix is maintained of open space and developed areas; of different land uses, of different housing types, of active and passive recreation areas, and of community RA facilities,” according to Ellen Graves, Reston Association president. “The Reston Association opposes the Proffer Reform Legislation (Senate Bill No. 549 and House Bill No. 770) as it is currently written because it adversely affects the ability of Reston Association, the County and a Developer to mitigate impacts of residential development on Reston Association’s budget, facilities and programs.”

The final House and Senate product is expected to go to McAuliffe to be signed into law shortly, according to Reston Association, although many localities are calling on McAuliffe to veto or amend the bill.

Terry Maynard and Tammi Petrine, co-chairs of the Reston 20/20 Committee took an even stronger approach.

“The proposed changes seek relief from the impact of the legislated proffer restrictions on local communities, such as Reston, that plan to urbanize, but need proffers to create the infrastructure essential to offset the impacts of urbanization,” said Maynard.

According to Maynard and Petrine:

“Reston 20/20 has always called for developers to be socially conscious corporate citizens who invest in all the public improvements necessary to offset the effects their private development generates (congestion, education, environmental, etc.) to sustain — if not improve — our community's quality of life.”

“A proffer law as outlined in these proffer bills that ignores the increased specificity of the constraints on its applicability to urbanizing areas would seriously damage thousands of residents and taxpayers in Reston alone. Fairfax County (and Reston) simply cannot absorb the massive cuts in proffers the draft legislation would dictate without a steep decline in essential public services from police, fire and rescue to the education of our children. These fiscal cuts would lead to substantial reductions in our quality of life and residential property values accompanied by massive increases in property and other local taxes that would slow, if not reverse, the county's — and our community's — growth.”

RICHMOND CAUGHT the attention of the Fairfax County Board of Supervisors 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.

“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).

The Senate version passed on Tuesday, Feb. 9, 29-8. The Senate version would exempt development around current or planned Metro stations.

Local Senators voting for bill included George Barker (D-39), Barbara Favola (D-31), Janet Howell (D-32), Dave Marsden (D-37), Dick Saslaw (D-35), Scott Surovell (D-36). Local Senators who voted against the bill included Adam Ebbin (D-30), Chap Petersen (D-34) and Jennifer Wexton (D-33).

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 state 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.”

STATE 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.


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.