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2018 SESSION
18100807DBe it enacted by the General Assembly of Virginia:
1. That § 15.2-2303.4 of the Code of Virginia is amended and reenacted as follows:
§ 15.2-2303.4. Provisions applicable to certain conditional rezoning proffers.
A. For purposes of this section, unless the context requires a different meaning:
"New residential development" means any construction or building expansion on residentially zoned property, including a residential component of a mixed-use development, that results in either one or more additional residential dwelling units or, otherwise, fewer residential dwelling units, beyond what may be permitted by right under the then-existing zoning of the property, when such new residential development requires a rezoning or proffer condition amendment.
"New residential use" means any use of residentially zoned property that requires a rezoning or that requires a proffer condition amendment to allow for new residential development.
"Offsite proffer" means a proffer addressing an impact outside the boundaries of the property to be developed and shall include all cash proffers.
"Onsite proffer" means a proffer addressing an impact within the boundaries of the property to be developed and shall not include any cash proffers.
"Proffer condition amendment" means an amendment to an existing proffer statement applicable to a property or properties.
"Public facilities" means public transportation facilities, public safety facilities, public school facilities, or public parks.
"Public facility improvement" means an offsite public transportation facility improvement, a public safety facility improvement, a public school facility improvement, or an improvement to or construction of a public park. No public facility improvement shall include any operating expense of an existing public facility, such as ordinary maintenance or repair, or any capital improvement to an existing public facility, such as a renovation or technology upgrade, that does not expand the capacity of such facility. For purposes of this section, the term "public park" shall include playgrounds and other recreational facilities.
"Public safety facility improvement" means construction of new law-enforcement, fire, emergency medical, and rescue facilities or expansion of existing public safety facilities, to include all buildings, structures, parking, and other costs directly related thereto.
"Public school facility improvement" means construction of new primary and secondary public schools or expansion of existing primary and secondary public schools, to include all buildings, structures, parking, and other costs directly related thereto.
"Public transportation facility improvement" means (i) construction of new roads; (ii) improvement or expansion of existing roads and related appurtenances as required by applicable standards of the Virginia Department of Transportation, or the applicable standards of a locality; and (iii) construction, improvement, or expansion of buildings, structures, parking, and other facilities directly related to transit.
"Residentially zoned property" means property zoned or proposed to be zoned for either single-family or multifamily housing.
"Small area
comprehensive plan" means that portion of a comprehensive plan adopted
pursuant to § 15.2-2223 that is specifically applicable to a delineated area
within a locality rather than the locality as a whole.
B. Notwithstanding any
other provision of law, general or special, no locality shall (i) request or
accept any unreasonable proffer, as described in subsection C, 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 or proffer condition amendment for a new residential development or
new residential use where such denial is based in whole or in part on an applicant's
failure or refusal to submit an unreasonable proffer or proffer condition
amendment.
C. Notwithstanding
any other provision of law, general or special, (i) as used in this chapter, a
proffer, or proffer condition amendment, whether onsite or offsite, offered
voluntarily pursuant to § 15.2-2297, 15.2-2298, 15.2-2303, or 15.2-2303.1,
shall be deemed unreasonable unless it addresses address an impact that is
specifically attributable to a proposed new residential development or other
new residential use applied for, and (ii)
an offsite proffer shall be deemed unreasonable
pursuant to subdivision (i) unless it addresses address an impact to an
offsite 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. For the
purposes of this section, a locality may base its assessment of public facility capacity
improvements on the projected impacts specifically
attributable to the new residential development or new residential use.
D. C. Notwithstanding any other
provision of law, general or special:
1. Actions, actions
brought to contest the action of a locality in violation of this section shall
be brought only by the aggrieved applicant or the owner of the property subject
to a rezoning or proffer condition amendment pursuant to subsection F of §
15.2-2285.
2. 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 an unreasonable proffer or proffer condition
amendment that it has proven was suggested, requested, or required 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.
3. In any successful
action brought pursuant to this section contesting an action of a locality in violation
of this section, the applicant may be entitled to an award of reasonable
attorney fees and costs and to an order remanding the matter to the governing
body with a direction to approve the rezoning or proffer condition amendment
without the inclusion of any unreasonable proffer. If the locality fails or
refuses to approve the rezoning or proffer condition amendment within a
reasonable time not to exceed 90 days from the date of the court's order to do
so, the court shall enjoin the locality from interfering with the use of the
property as applied for without the unreasonable proffer. Upon remand to the
local governing body pursuant to this subsection, the requirements of §
15.2-2204 shall not apply.
E. The
provisions of this section shall not apply to any new residential development
or new residential use occurring within any of the following areas: (i) an
approved small area comprehensive plan in which the delineated area is
designated as a revitalization area, encompasses mass transit as defined in §
33.2-100, includes mixed use development, and allows a density of at least 3.0
floor area ratio in a portion thereof; (ii) an approved small area
comprehensive plan that encompasses an existing or planned Metrorail station,
or is adjacent to a Metrorail station located in a neighboring locality, and
allows additional density within the vicinity of such existing or planned
station; or (iii) an approved service district created pursuant to § 15.2-2400
that encompasses an existing or planned Metrorail station.
F. D. This section shall be
construed as supplementary to any existing provisions limiting or curtailing
proffers or proffer condition amendments for new residential development or new
residential use that are consistent with its terms and shall be construed to
supersede any existing statutory provision with respect to proffers or proffer
condition amendments for new residential development or new residential use
that are inconsistent with its terms.