Proffers...

[gtpeach]

Our state made some changes to the code regarding proffers. The code basically said that a residential rezoning request could not be denied because an applicant failed to include an unreasonable proffer. Basically, this interpretation has nothing to do with us. We never accepted cash proffers like many of the larger localities in VA did, I was always careful to state that proffers were voluntary, and we also did our best to make sure that the proffers that would be included were created by the proposed project. There were localities that basically had proffer fee schedules that they would enforce, and I think the legislation was aimed more at them.

For whatever reason, our attorney has gone nuts over this. I now have to include two separate disclaimers in the application the applicant signs, include a note on all my future staff reports, and I am not allowed to even mention the word "proffers" to any applicants. If they want information, I've been instructed by our lawyers to just hand them the section of the state code covering proffers.

That's fine for developers that know what proffers are, but we have a lot of little joe shmoes come in that don't do this for a living that maybe just want to put in a duplex or something for some extra income. They are driving me crazy!!!!

Moderator note:

split from RTDNTOTO

 

[Whose Yur Planner]

Our state made some changes to the code regarding proffers. The code basically said that a residential rezoning request could not be denied because an applicant failed to include an unreasonable proffer. Basically, this interpretation has nothing to do with us. We never accepted cash proffers like many of the larger localities in VA did, I was always careful to state that proffers were voluntary, and we also did our best to make sure that the proffers that would be included were created by the proposed project. There were localities that basically had proffer fee schedules that they would enforce, and I think the legislation was aimed more at them.

For whatever reason, our attorney has gone nuts over this. I now have to include two separate disclaimers in the application the applicant signs, include a note on all my future staff reports, and I am not allowed to even mention the word "proffers" to any applicants. If they want information, I've been instructed by our lawyers to just hand them the section of the state code covering proffers.

That's fine for developers that know what proffers are, but we have a lot of little joe shmoes come in that don't do this for a living that maybe just want to put in a duplex or something for some extra income. They are driving me crazy!!!!

If you don't mind me asking, what is a proffers? I have never heard of the term and I've been in planning a long time.

 

[AG74683]

Our state made some changes to the code regarding proffers. The code basically said that a residential rezoning request could not be denied because an applicant failed to include an unreasonable proffer. Basically, this interpretation has nothing to do with us. We never accepted cash proffers like many of the larger localities in VA did, I was always careful to state that proffers were voluntary, and we also did our best to make sure that the proffers that would be included were created by the proposed project. There were localities that basically had proffer fee schedules that they would enforce, and I think the legislation was aimed more at them.

For whatever reason, our attorney has gone nuts over this. I now have to include two separate disclaimers in the application the applicant signs, include a note on all my future staff reports, and I am not allowed to even mention the word "proffers" to any applicants. If they want information, I've been instructed by our lawyers to just hand them the section of the state code covering proffers.

That's fine for developers that know what proffers are, but we have a lot of little joe shmoes come in that don't do this for a living that maybe just want to put in a duplex or something for some extra income. They are driving me crazy!!!!

I mean....this kind of sounds like extortion right, especially in the case of cash proffers? Like, you don't get a rezoning approved if you haven't paid enough? Something like this is strictly prohibited in NC unless you're in a conditional use zoning district, and even then you have to ASK to be put in one, it cannot be forced on you. Attaching conditions isn't allowed. We call it contract zoning here. I've seen loads of old rezonings here that were done FOR something, and then would revert back to the prior zoning after that use was discontinued, which is very much illegal.

 

[DVD]

I have to admit, I looked up proffers, I've never used the term. It sounds like conditional zoning of some type. I've always used some type of PAD/PUD zoning to get that level of detail in a zoning application. Otherwise it just sounds like a form of contract zoning (which is what PAD/PUD zoning is to me).

 

[gtpeach]

I mean....this kind of sounds like extortion right, especially in the case of cash proffers? Like, you don't get a rezoning approved if you haven't paid enough? Something like this is strictly prohibited in NC unless you're in a conditional use zoning district, and even then you have to ASK to be put in one, it cannot be forced on you. Attaching conditions isn't allowed. We call it contract zoning here. I've seen loads of old rezonings here that were done FOR something, and then would revert back to the prior zoning after that use was discontinued, which is very much illegal.

Proffers are basically voluntary restrictions an applicant can put on their properties as a condition of the rezoning if they think it will help them resolve some sort of issue that may prevent the approval of the request. Virginia is one of the few states that permits cash proffers, but our locality has always had a policy against them, which I think is good. Other localities have used them basically as impact fees with schedules of how much different types of request would cost in terms of additional infrastructure (for example, schools, road improvements, parks, libraries, etc.) and would put that money into an account to use for those types of improvements. I've always had an issue with that!

The proffers my county accepts are things like what kind of material fencing or natural barriers will be made out of, or how far off property lines certain uses will have to occur (no buildings wihtin X number of feet), that kind of thing. Again, we are very careful to enforce the policy that it must be volunteered from the applicants and not solicited from staff or the approval bodies, but sometimes our PC and Board forget that. Normally, applicants do it as a good faith effort to resolve concerns between them and the surrounding property owners.

 

[michaelskis]

If you don't mind me asking, what is a proffers? I have never heard of the term and I've been in planning a long time.

Is it like a Cheesy-Poof?

I too have never heard the term.

 

[gtpeach]

Is it like a Cheesy-Poof?

I too have never heard the term.

This is fascinating to me. I just took it for granted that this was a common thing that happened in a lot of places. Those of you that googled it, did you find anything that wasn't in VA?

 

[WSU MUP Student]

This is fascinating to me. I just took it for granted that this was a common thing that happened in a lot of places. Those of you that googled it, did you find anything that wasn't in VA?

Here in the civilized world, we just say something like "good faith" so I imagine that this proffer nonsense is just some quirky commonwealth thing. Proffers are big in Virginia and Kentucky and Connecticut and Pennsylvania.

 

[Whose Yur Planner]

Here in the civilized world, we just say something like "good faith" so I imagine that this proffer nonsense is just some quirky commonwealth thing. Proffers are big in Virginia and Kentucky and Connecticut and Pennsylvania.

They aren't in KY. When I worked there, we never had them. Thanks gtpeach, I'm surprised there has never been a court challenge over them. I could see the potential abuse on both sides.

 

[gtpeach]

They aren't in KY. When I worked there, we never had them. Thanks gtpeach, I'm surprised there has never been a court challenge over them. I could see the potential abuse on both sides.

Well, there's been some kind of challenge over them because they're now all of a sudden a really big deal!

If used correctly, they're actually intended to help developers get projects passed that wouldn't be otherwise. Neighbors are concerned about something that can be mitigated by a proffer, developer requests the proffer, and the Board can feel safer approving the request whereas without the proffer they may have denied it. Once the request with the proffer is approved, the proffered conditions get enforced just like they were part of the zoning ordinance.

The cash proffer system is a whole different issue, though. I'd like to see that go away completely.

You are all welcome for your education this afternoon!

 

[AG74683]

Well, there's been some kind of challenge over them because they're now all of a sudden a really big deal!

If used correctly, they're actually intended to help developers get projects passed that wouldn't be otherwise. Neighbors are concerned about something that can be mitigated by a proffer, developer requests the proffer, and the Board can feel safer approving the request whereas without the proffer they may have denied it. Once the request with the proffer is approved, the proffered conditions get enforced just like they were part of the zoning ordinance.

The cash proffer system is a whole different issue, though. I'd like to see that go away completely.

You are all welcome for your education this afternoon!

Why not use conditional use permits for this? It's the same idea but it's not voluntary. This kind of just seems like a convenient excuse for a poorly written zoning ordinance.

 

[gtpeach]

Well... because then everything would basically have to be conditional uses...

I don't think I'm seeing how that would work. Someone wants to rezone property from single family residential to multi family residential. Surrounding property owners may have concerns about privacy, or trash, or any number of things. So the developer meets with the adjoining owners and agrees that they will plant a certain type of tree around the perimeter of the property as well as stay x number of feet off the property line. How would a conditional use permit work in that situation?

The issue we might have that others don't is that we have a relatively small number of zoning classifications. A single duplex is in the same zoning district as townhomes and apartments - all are multi-family.

**I say "we" as in my county, but this is how it works all over VA.

 

[ursus]

Well... because then everything would basically have to be conditional uses...

I don't think I'm seeing how that would work. Someone wants to rezone property from single family residential to multi family residential. Surrounding property owners may have concerns about privacy, or trash, or any number of things. So the developer meets with the adjoining owners and agrees that they will plant a certain type of tree around the perimeter of the property as well as stay x number of feet off the property line. How would a conditional use permit work in that situation?

The issue we might have that others don't is that we have a relatively small number of zoning classifications. A single duplex is in the same zoning district as townhomes and apartments - all are multi-family.

**I say "we" as in my county, but this is how it works all over VA.

So, if the developer makes the proffers and the city approves the zone change with the proffers and 2 months later the developer is belly-up and a new developer comes on board would the proffers still apply to him? Do they run with the land? In Utah, we don't (or shouldn't) attach conditions to changes of zoning (or proffers, as the case would be for you). If the zone change is appropriate - neighbor complaints notwithstanding - then the zone change can and should be approved but our state ombudsmen would have our asses for re-zoning something based on a promise or condition that the development would look a certain way. Quid pro quo, you know?

Very very interesting, gt. Never heard of proffers before. You learn something new every day.

 

[gtpeach]

So, if the developer makes the proffers and the city approves the zone change with the proffers and 2 months later the developer is belly-up and a new developer comes on board would the proffers still apply to him? Do they run with the land? In Utah, we don't (or shouldn't) attach conditions to changes of zoning (or proffers, as the case would be for you). If the zone change is appropriate - neighbor complaints notwithstanding - then the zone change can and should be approved but our state ombudsmen would have our asses for re-zoning something based on a promise or condition that the development would look a certain way. Quid pro quo, you know?

Yes, proffers stay with the property until there is a zoning change initiated to change them. Requesting to amend existing proffers is considered a rezoning request, and is treated the exact same way.

 

[AG74683]

Well... because then everything would basically have to be conditional uses...

I don't think I'm seeing how that would work. Someone wants to rezone property from single family residential to multi family residential. Surrounding property owners may have concerns about privacy, or trash, or any number of things. So the developer meets with the adjoining owners and agrees that they will plant a certain type of tree around the perimeter of the property as well as stay x number of feet off the property line. How would a conditional use permit work in that situation?

The issue we might have that others don't is that we have a relatively small number of zoning classifications. A single duplex is in the same zoning district as townhomes and apartments - all are multi-family.

**I say "we" as in my county, but this is how it works all over VA.

We consider all possible permitted uses in the district here. I typically try to keep applicants and my boards away from asking what the proposed use is during a rezoning because we aren't supposed to consider a that at all. The City of Greensboro used to flat prohibit testimony during rezoning hearings as to what the proposed use is going to be. We don't have very many districts here either (I have 3 residential, 1 commercial, and 1 industrial). We further break those down to permitted, permitted with design standards, or conditional use. Those uses deemed as potentially obtrusive go in the conditional use category and then get vetted through a much more rigorous process. Things like additional setback requirements, more stringent buffer requirements, etc. get picked up then and approved via the CU process.

Realistically, almost ALL my uses are in CU categories, which is a royal PITA because the CU process is so in depth. What you're describing is handled through the conditional use rezoning process.

 

[Whose Yur Planner]

Well... because then everything would basically have to be conditional uses...

I don't think I'm seeing how that would work. Someone wants to rezone property from single family residential to multi family residential. Surrounding property owners may have concerns about privacy, or trash, or any number of things. So the developer meets with the adjoining owners and agrees that they will plant a certain type of tree around the perimeter of the property as well as stay x number of feet off the property line. How would a conditional use permit work in that situation?

The issue we might have that others don't is that we have a relatively small number of zoning classifications. A single duplex is in the same zoning district as townhomes and apartments - all are multi-family.

**I say "we" as in my county, but this is how it works all over VA.

For us, the we would have setback, landscaping and buffering requirements that would kick in. Plus, the dumpster and other issues would be resolved during site review. We also have more zoning districts For us, patio homes, town homes and multi family are all separate zoning districts. Our CUs are related the the permitted uses in that zoning district. They just require a higher level of review, plus we can place conditions on them to help mitigate the harmful impacts. My concern with your system is two fold. One, it could lead to contact zoning, which can be dicey. Second, it might not pass the rational nexus test. That is something we are careful to do. Any condition we place on an approval is directly related to a goal we have already established and furthers that goal.

 

[gtpeach]

For us, the we would have setback, landscaping and buffering requirements that would kick in. Plus, the dumpster and other issues would be resolved during site review. We also have more zoning districts For us, patio homes, town homes and multi family are all separate zoning districts. Our CUs are related the the permitted uses in that zoning district. They just require a higher level of review, plus we can place conditions on them to help mitigate the harmful impacts. My concern with your system is two fold. One, it could lead to contact zoning, which can be dicey. Second, it might not pass the rational nexus test. That is something we are careful to do. Any condition we place on an approval is directly related to a goal we have already established and furthers that goal.

We have a CUP process, too, but that's for those types of uses that are potentially more intensive that require additional reviews and we can apply conditions to those. A lot of the issues like whether a buffer is required is up to the discretion of the ZA in the reviews of the site plan, but if the property owners are very specific about certain things they want or don't want, a lot of times that goes into a proffered condition.

The way we apply proffers at our county, I'm not concerned about it. If people are submitting proffers, it's usually because they think there are some impacts that would work against them if they are unregulated additionally, and we are also very careful not to accept proffers, even if offered that are outside the legal intention. For example, we had one applicant proffer that he would only allow applicants with credit scores above a certain level rent from him. We made him take that out of his request.

The problem is more with the elected officials, but our attorney is very quick to steer them back on course if they start drifting into questionable territory. The problem with any regulation is that it can be abused, and in the case of cash proffers, I think they certainly were. And, of course, if you have someone that doesn't understand them well enough, you will get into issues where there isn't a rational nexus. But again, the way we apply them here, I think they work to the benefit of the developers most of the time.

 

[DVD]

My experience is no conditions on zoning so I've usually seen things defined under one of three things. CUPs to get all the conditions you want. Plats to get all the exactions and/or adjust setbacks, buildable areas, etc. Site plans or permits to get the final details.

 

[Maister]

whoa, way too much technical discussions on this thread

I know what you mean. I feel like I've wandered into the wrong forum. :science:

Sounds like real live genuine planner talk!!

 

[Whose Yur Planner]

I know what you mean. I feel like I've wandered into the wrong forum. :science:

Sounds like real live genuine planner talk!!

On Cyburbia of all places.

 

[DVD]

This has been a Cyburbia educational moment.

 

[gtpeach]

And all I wanted to do was complain about our attorney!

 

[Whose Yur Planner]

And all I wanted to do was complain about our attorney!

It does show how planning changes from state to state or from jurisdiction to jurisdiction within a state.

 

[Tobinn]

Development Agreement

I'd not heard of the term "proffers" either but based on the discussion we, on occasion, will run an application concurrent with a Development Agreement (DVA). We have an annexation, zoning/land use application going through now which has a DVA attached to it which will provide a certain comfort level to neighbors and the City as to what sort of development will (may) occur on the property.

We also require a DVA with regard to certain applications where the applicant may obtain additional density on a property. The DVA will require a conceptual site plan and elevations.

It's worked out fairly well with us and the general arrangement of the DVA was developed with input and support from the development community.

I noticed a reference to cash - I don't understand that part of it. I can tell you that we, in My Fair City, don't include any sort of cash payment with a development agreement.

 

[DVD]

I think the cash part is their version of impact fees.

 

[JNA]

Proffers are basically voluntary restrictions an applicant can put on their properties as a condition of the rezoning if they think it will help them resolve some sort of issue that may prevent the approval of the request. .... Again, we are very careful to enforce the policy that it must be volunteered from the applicants and not solicited from staff or the approval bodies, but sometimes our PC and Board forget that. Normally, applicants do it as a good faith effort to resolve concerns between them and the surrounding property owners.

Here we call that a "Use and Development Commitment" defined by State Code 36-7-4-1015

 

[Whose Yur Planner]

I think the cash part is their version of impact fees.

It's been my experience that with impact fees that there is a high degree of accountability with them, or at least there should be. One place I worked had the ability to do them, but didn't use them. It ended up being too much of a hassle to administer them.

 

[fringe]

...the proffer idea looks related to "vested interest" which works wonders around here, where use regs are likely intentionally vague, so that, if a developer gets a nod, whether verbal, non-verbal, or a wink from any official, he can proceed to sink money till he has a significant financial stake in a proposed use. After that the court will always find in favor of the investor.

 

[mike gurnee]

Proffers. It's a Virginia thing. It started decades ago. Early on, developers would "proffer" stop lights and turning lanes to ease congestion. I am sure it has gotten out of hand in many areas. Cash? Get real.