“If we make a decision to permit this [request], that will frame and set policy on the status quo,” said Supervisor Rick Randolph, adding that other developers who have had rezonings since 2007 will come forward to ask for the same thing.
Cetta and his attorney said the cash proffers required by the rezoning do not comply with a 2013 law adopted by the General Assembly.
“The only reason we’re here is I’ve been told that the county is violating a state law,” Cetta said.
Spring Hill Village is a neighborhood model development planned for Avon Street Extended, near its intersection with Route 20. It was approved by the Board of Supervisors in October 2014. The re-zoning allows between 80 and 100 units and up to 10,000 square feet of non-residential development.
Cetta sought to reduce the cash proffer in the developments from $20,460 for each single-family home to $4,918 and from $13,913 for each townhouse to $3,844.
The Planning Commission recommended denial of both zoning amendments earlier this year.
Supervisors adopted a cash proffer policy in 2007 that required each developer to pay a per-unit fee calculated using the capital improvement program and a capital needs assessment that looks 10 years into the county’s future.
However, the General Assembly restricted the use of the formula in 2013.
“The state law provision at issue is an amendment that took effect July 1, 2013, that said any cash proffers for existing capital improvements had to be used to expand capacity and couldn’t be used for operating expenses,” said County Attorney Greg Kamptner.
The county’s Fiscal Impact Advisory Committee studied ways to proceed through a series of meetings and recommended the lower amounts last year.
The Board of Supervisors has not yet taken up the recommendations because a piece of legislation that passed the General Assembly this year that further restricts cash proffer policies. In June, supervisors repealed the policy and have yet to come up with a formal replacement.
On Wednesday, they held fast to keeping the higher proffer amounts in place.
“We were following the rules in existence at the time when this particular rezoning was done,” Supervisor Ann H. Mallek said during Wednesday night’s public hearing for Out of Bounds.
However, attorney Valerie Long argued that is not the case because both of Cetta’s projects were rezoned after the General Assembly’s 2013 action on proffers.
“The formula that the cash proffer policy was based on included all of the projects in the capital improvement program, which we now know was mostly a maintenance program,” Long said. “Since the state law was enacted in 2013, it made it clear those funds could not be used for those projects that did not increase capacity.”
Kamptner disagreed with Long’s interpretation.
“Our office has disagreed with the assertion that we are not in compliance with state law because the cash proffer amount was always a maximum amount,” Kamptner said. “That policy is no longer in place. Impacts are no longer tied to the capital improvement program], so we’re now in a different environment than we were in even six weeks ago.”
Kamptner said the proffers are voluntary legal documents that were signed with free will. Long disputed this notion.
“The cash proffer system has been voluntary in name only,” Long said. “[Planning staff] tell you very clearly what they want you to do. If you don’t make those proffers, they won’t recommend approval of your project. And if you can’t get a recommendation for approval, you’ve got a real uphill fight to get your project approved.”
The vote to keep the higher proffers at Out of Bounds was unanimous.
“It’s a two-thirds reduction, but it’s still $427,000 that would be used for capital projects,” Long said, adding that Cetta likely would not pursue the project if the reductions were not granted.
Supervisors voted, 4-2, to deny the rezoning for Spring Hill Village, with Norman Dill and Diantha McKeel voting against. Dill said he felt differently about Spring Hill Village than Out of Bounds because the former has not yet been built.
“I’m sorry I bought the land, frankly,” Cetta said. “I’m competing with projects like Cascadia that have cash proffers of $2,500 for a single-family home. I can’t compete with that.”
Cetta said he would explore his options before proceeding.
All supervisors said it is time to begin to look for a new model for how to calculate how much developers should pay to mitigate the impact of development.
“The state has changed the rules and now we’re back to where we were before we had a proffer policy of evaluating each individual development,” said Supervisor Liz Palmer.
David Benish, the county’s acting director of planning, said work on a new policy is underway.
“We will be looking at a methodology to do that to try to provide as much standardization and consistency,” Benish said. “It is by its nature a much less predictable process.”