A new approach to planning
It would be hard to argue that developers wishing for a piece of the action in modern Suffolk have faced anything other than open arms. But developers and city officials have long had to at least create an impression that someone other than the developers benefits when rezonings and conditional use permits result in new neighborhoods, huge apartment complexes and strip malls in areas where they’d not otherwise have been allowed.
For years, cities and counties across the commonwealth have relied on the proffer system for cover when they’ve overturned comprehensive plans, unified zoning ordinances and other carefully prepared land-use instruments in order to accommodate developers with big plans and bigger promises.
The idea was that developers pay a certain fee for each new house or apartment, recognizing there’s an inherent cost to a community for each new family a development attracts. From elementary schools to fire stations to highway improvements, every new development exerts new pressures and causes new problems that cities must be able to address.
Comprehensive plans and zoning ordinances are intended, among other things, to make sure solutions are economical, efficient and fair to both taxpayers and developers. One of the main purposes of the proffer system is to ensure developers help pay for the costs of veering from the path set out by land use plans and codified zoning ordinances.
Folks can disagree about the amount of money a community might expect in return for allowing a new apartment complex — maybe it’s too much to attract reasonable development or maybe it’s too little to pay for the burdens development would create — but the proffer system at least allowed taxpayers to pretend they were part of the development equation.
Thanks the Virginia’s General Assembly, any actual or perceived protection that system offered communities will be gone July 1, when new legislation takes effect that tells planners and elected officials they can no longer request or accept “unreasonable” proffers from developers.
The devil is always in the details, but the legislature was unhelpful with a simple definition of “unreasonable,” meaning there’s no way to discern exactly what details of a development agreement a judge might rule as running afoul of the law.
In effect, as Suffolk’s attorneys have explained to the city’s planning commissioners, the new law takes a “Don’t ask, don’t accept” approach to many of the proffers communities had become used to requesting in exchange for rezoning a property or approving a conditional use for it.
Even something as straightforward as reimbursement for the number of students a school division could expect to gain from a big new apartment complex could become a legal minefield under the new legislation.
All, however, is not lost, as municipalities continue to wield a powerful weapon to protect their citizens from the dangers associated with rampant, unchecked development. It’s a weapon they’ve always had, but it’s one that in many cases they choose to ignore — or even to dismantle.
That weapon is the comprehensive plan, bolstered by the zoning ordinances that derive from it.
In the past, officials saw no reason to justify their easy acquiescence when developers asked for a rezoning or conditional use permit for a project that fell outside of the land uses allowed under the adopted land use plans. The proffer system gave them cover.
Without that cover, the comprehensive plan and zoning laws are citizens’ only defense against the ravages of unregulated development. Suffolk’s officials would now be wise to recognize how important it is for them to protect the virtue and purity of the land use plans they adopt.
In one regard, at least, Virginia’s legislature made things a lot easier for officials whose communities are being courted by developers. With the reduced likelihood that communities will be adequately reimbursed for allowing development outside prescribed boundaries, the answer to those seeking rezoning or conditional use permits should increasingly be a polite “No.”
A pervasively and steadfastly inflexible zoning environment around the state would soon convince developers to go back to Richmond and beg legislators for the opportunity to offer the fiscal incentives necessary to help pay for the costs their developments inflict on communities.
But getting that result will require cities like Suffolk to stand behind the very land-use plans they’ve spent years ignoring and undermining. Frankly, we wonder if such a new approach is even possible.