February 1, 2008

 UPDATED: SPECIAL LEGISLATIVE ALERT
“Proffer” System Bill Moves Forward in Virginia General Assembly
Senate Bill 768 Would Eliminate Voluntary Contributions for Affordable Housing through Rezoning Process

Senate Bill 768, which proposes drastic changes to the land use “proffer” system and could have a significant negative impact on affordable housing in Fairfax County, passed the Senate Local Government Committee on January 29, 2008 and was referred to the Senate Finance Committee. 

The bill is expected to be considered by the Senate Finance Committee on either Tuesday, February 5, or Wednesday, February 6, 2008. Fairfax County has three Senators on the Committee -- Senators Saslaw, Howell and Whipple; the Committee is chaired by Senator Colgan.  A list of the members of the committee can be found at http://leg1.state.va.us/cgi-bin/legp504.exe?081+com+S05. 

ABOUT SENATE BILL 768

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, as amended by the Senate Local Government Committee, can be found at: http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+SB768S1+hil.

Regarding proffered cash contributions, Senate Bill 768, as amended, states: " Notwithstanding any other provision of law, no locality shall accept (i) a cash proffer as a condition for rezoning … for residential development and the residential portion of any mixed-use development or (ii) an off-site proffer on or after July 1, 2009, for a public facility that is the subject of a public facilities improvements plan … or any other proffered condition that is not necessitated by and attributable to the new development, as a condition for rezoning for residential development and the residential portion of any mixed-use development."[Emphasis added.]  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. 

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