Starting July 1, 2016 Virginia local governments must, in reviewing a residential rezoning or concept plan amendment, determine whether a requested land use exaction addresses an impact that is “specifically attributable” to the proposed new residential development. Virginia’s unique proffer system allows a rezoning applicant to voluntarily offer to provide reasonable conditions governing the proposed use of property as part of classifying land into areas and districts by legislative action.  Virginia builders and developers, like their counterparts throughout the United States, are familiar with the reality of the land use entitlement process that allows the government to condition adjudicative approval of a use on the dedication of property, payment of fees or performance of obligations to the public, so long as the government quantifies an “essential nexus” and “rough proportionality” between the exaction the government demands and the social costs of the applicant’s proposal.

The revised proffer legislation codified in Code of Virginia Section 15.2-2303.4 places the burden on local government to demonstrate a proffer is not unreasonable because it addresses an impact that is “specifically attributable” to a proposed new residential development.  After July 1, 2016 Virginia local governmental entities must establish that the proffer addresses 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 and each such new residential development applied for receives a direct and material benefit from the proffer.

Not surprisingly, Virginia units of local government strongly opposed the new proffer legislation arguing that the legislation will put an end to a constructive and collaborative development process and eliminate the ability of developers to offer proffers for public facilities or improvements.

The tension between units of local government and developers can be resolved by a cooperative effort to prepare a sound nexus study of the impact of a proposed project.  Some jurisdictions analyze environmental impacts of projects under state versions of the National Environmental Policy Act (“NEPA”).  The environmental impact statements required under NEPA and a variety of state legislation similar to NEPA could provide a model for determining the essential nexus and rough proportionality of Nollan and Dolan in the context of the “specifically attributable” impact analysis required by Code of Virginia Section 15.2-2303.4.

By using the same sort of analysis conducted for environmental review in some jurisdictions, Virginia units of local government and land use applicants could engage in a cooperative fact-based application impact analysis that would address the requirements of Code of Virginia Section 15.2-2303.4, without engaging in rezoning moratoria or unnecessary acrimonious debates that may follow the July 1, 2016 implementation of the new proffer legislation.  Use of an impact statement combined with supportive findings could allow units of local government and developers to comply with the new statute while achieving common goals.  Such a process would allow compliance with U.S. Supreme Court dictates while addressing the Virginia General Assembly’s revised proffer requirements.