Attorney warns officials of new law

The city attorney’s office spent part of this week warning Planning Commission and City Council members about the new risks in communicating with residential developers come July 1.

A law that goes into effect at the beginning of the fiscal year says localities cannot request or accept “unreasonable” proffers from residential developers.

It says proffers will be deemed unreasonable unless they address an impact that is specifically attributable to the proposed new residential development under consideration.

“This is very important legislation we need to be mindful of going forward,” Karla Williams, an assistant city attorney, told the Planning Commission on Tuesday.

“It’s always been a requirement that we accept reasonable proffers,” Williams added. “What’s new is what the General Assembly considers to be unreasonable.”

It is common, for example, for residential developers to proffer money for school construction, utility improvements, transportation improvements and more based on the impacts their developments might have on public facilities already in place.

They also sometimes proffer things such as building materials and lot sizes so that city officials can be assured of a high-quality development.

But those days could be over, Williams said.

“I call this bill the ‘Don’t Ask, Don’t Accept’ law,” she told City Council during Wednesday’s work session. “This legislation is going to have a sweeping effect on local practices.”

Williams told members of the Planning Commission on Tuesday that they may want to limit their conversations with developers, who often call them directly to seek support.

“That would just be a best practice not to engage in those kinds of conversations,” she said.

The locality is prohibited from accepting a proffer considered unreasonable even if it is completely voluntary, Williams added.

Councilman Roger Fawcett pointed out on Wednesday that a developer providing money for fire station construction likely won’t be allowed under the new law.

Also no longer allowed is looking at capacity in public schools in more generalized attendance zones, rather than the specific school students who eventually live in the development would be attending. That could get even more complicated when school attendance zones are redrawn.

Planning Commission Chairman Howard Benton asked about how the commission considers applications brought before it.

“Should we have the expectation that unreasonableness has been deleted before it comes to our level of consideration?” he said.

City Attorney Helivi Holland responded that the bigger concern was private conversations.

“Developers might or might not admit that they said something,” she said. “We would be put in a precarious situation trying to say it didn’t happen.”