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January 28, 2008

SPECIAL LEGISLATIVE ALERT
Virginia General Assembly Considering Sweeping Changes to “Proffer” System
Senate Bill 768 Would Eliminate Voluntary Contributions for Affordable Housing through Rezoning Process

The Virginia Senate is now considering dramatic changes to the land use “proffer” system which could have a significant negative impact on affordable housing in Fairfax County.   Senate Bill 768 proposes to entirely eliminate proffered cash contributions, severely restrict non-cash proffers, and enact an “impact fee” system.  If adopted, this measure will end developer contributions to Fairfax County’s Housing Trust Fund as part of a rezoning approval and render inoperative the Board of Supervisors’ new Workforce Housing program.  (The full text of Senate Bill 768 can be found at: http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+SB768+hil.)

Regarding proffered cash contributions, Senate Bill 768 states: "Notwithstanding any other provision of law, no locality shall accept (i) a cash proffer as a condition for rezoning proffered on or after January 1, 2009, or (ii) an off-site proffer as a condition for rezoning for residential development and the residential portion of any mixed-use development proffered on or after January 1, 2009.  [Emphasis added.]  No locality shall accept any off-site proffer as a condition for rezoning for nonresidential development and the nonresidential portion of any mixed-use development unless the proffered condition is limited to transportation improvements." This language would prevent Fairfax County from accepting cash contributions from developers to the Housing Trust Fund, which is a critical tool in the county’s efforts to sustain and grow its stock of affordable housing. 

In terms of non-cash proffers, the bill states: "A voluntary proffer of conditions ... made on or after January 1, 2009, shall be limited to reasonable non-cash, on-site conditions necessitated by and attributable to the new development resulting from the rezoning…” [Emphasis added.]  The restrictive nature of this clause could prevent developers from proffering Affordable Dwelling Units and Workforce Housing Units as a part of their rezoning application process.  In September 2007, the Board of Supervisors adopted a new Workforce Housing Program based on the proffer-based incentive system recommended by the High-rise Affordability Panel (follow this link for further information).  From June 2006 through October 2007, a total of 731 Workforce Housing Units had been committed through rezonings approved by the Board. 

STATUS OF THE BILL

On Friday, January 18th, the Board of Supervisors Legislative Committee (with seven Board members present) voted to oppose Senate Bill 768. 

The bill is expected to be in the Senate Local Government Committee at 2:00 pm this coming Tuesday, January 29, 2008. Fairfax County has 4 Senators on that Committee -- Senators Ticer, Puller, Herring and Cuccinelli.  A list of the members of the committee can be found at http://leg1.state.va.us/cgi-bin/legp504.exe?081+com+S07.