For the second time in two months, the Albemarle County Planning Commission has recommended denial of a request from developer Vito Cetta to pay reduced cash proffers.

“We typically have not been involved in calculating the proffers,” said Commissioner Russell “Mac” Lafferty.

Proffers are intended to help mitigate the impacts new development has on county services and are calculated in part by using the capital improvement program.

The denial is the latest milestone in the evolution of the cash proffer policy adopted by supervisors in October 2007.

Legislation passed by the General Assembly in 2013 has forced the county to change the formula that calculates the proffer amount. The county’s Fiscal Impact Advisory Committee (FIAC) studied the issue and concluded last year that the maximum amounts should be reduced to comply with the 2013 law.

Cetta’s Out of Bounds, off Barracks Road, was rezoned from “single family residential” to the denser “neighborhood model” category in December 2013. As part of that agreement, he must pay $20,460 for each single-family detached unit and $13,913 for each attached or townhome unit.

“They wish to change to the FIAC-recommended amount,” said county planner Megan Yaniglos.

In February, the commission unanimously recommended denial of Spring Hill Village, a 100-unit development Cetta hopes to build on Avon Street Extended.

Tuesday’s public hearing saw the same result.

Lafferty said he had concerns about the impacts caused by Out of Bounds.

“Most schools are at capacity if not over capacity,” he said.

Valerie Long, an attorney with the firm Williams Mullen, said 18 of the units have sold so far. Out of Bounds is being marketed to older citizens who want to live closer to town.

“There’s not a single purchaser under the age of 60,” Long said. “The impact to the school system so far is none at all.”

Long said Out of Bounds was rezoned following the 2013 law and, therefore, the proffers should reflect the lower amount.

“The state law says that the proffers have to be based on a formula that expands capacity,” Long said. “All we’re doing is asking the county to modify the proffers so they can comply with state law.”

Cetta said Spring Hill Village will not be built unless the proffers are reduced and that he would prefer to see a system where all developers pay the same amount so that they all operate on a level playing field.

“There’s no way we can build the project with those cash proffers,” Cetta said.

“We’re competing with places like Cascadia that have cash proffers of $2,500,” Cetta added, referring to a development on Pantops that was rezoned in August 2006, before the cash proffer policy was adopted.

David Benish, the county’s acting director of planning, said developers have always had the ability to ask for lower proffer amounts.

“The cash proffer amounts have been set as the maximum amount as the policy was drafted,” Benish said. “They are theoretically negotiable but the policy was set to the maximum amount.”

Deputy County Attorney Greg Kamptner said applicants always have the option to ask for a negotiation to reduce them.

“I think staff recognizes we’re dealing with a couple of issues in a state of flux,” Kamptner said. “FIAC’s recommendations have not been accepted by the board, so the proffer policy has not been changed.”

Additionally, the county is considering legislation adopted by the General Assembly this year that further restricts the ability of localities to use proffers to pay for new infrastructure. Localities must now show that proffers are used to directly pay for the impacts of specific developments.

The Planning Commission will consider a repeal of the cash proffer policy on May 10.

“Staff hopes that it will be a simple repeal,” Kamptner said. “We think it does need to be repealed before July 1.”

Kamptner said a new proffer policy would be put in place to be in compliance with the new law.

“It will be a project by project analysis,” Kamptner said. “There will be a whole new type of analysis focusing on four areas, and it will be done on a case-by-case basis.”