RD350 - Report on Proffered Cash Payments and Expenditures By Virginia’s Counties, Cities and Towns 2009-2010


Executive Summary:
Section 15.2-2303.2 of the Code of Virginia directs the Commission on Local Government to collect annually data concerning local government revenues and expenditures resulting from the acceptance of voluntarily proffered cash payments.(*1) These voluntarily proffered payments, also referred to as cash proffers, comprise either (1) any money voluntarily proffered in writing signed by the owner of property subject to rezoning, and accepted by a locality pursuant to the authority granted by §15.2-2298 or §15.2-2303 of the Code of Virginia; or (2) any payment of money made pursuant to a development agreement entered into under the authority granted by §15.2-2303.1 of the Code of Virginia.

Cash proffers are a form of conditional zoning in Virginia. Conditional zoning involves “proffered” conditions voluntarily offered by a developer or property owner that limit or qualify how the property subject to the conditions will be used or developed. These conditions are in addition to the general, uniform regulations otherwise applicable to land within the same zoning district, and they are made to lessen the potential negative effects of an unrestricted rezoning.

Upon approval by the local governing body, the conditions become part of the rezoning and pass with the ownership of the property.(*2) In some instances, the condition proffered by the developer or property owner may include cash contributions to the locality. Cash proffers generally are used to offset the impacts of a particular development by providing funding for new roads, schools, or other public facilities and services. Depending on the statutory authority under which the locality is eligible to accept the cash proffer, the development impacts being mitigated may or may not be directly related to the development at issue.(*3)

Although the Code of Virginia has authorized every jurisdiction to use some form of conditional zoning since 1987, only localities meeting specific criteria may accept cash proffers. On the basis of these criteria and data from the 2000 Census of Population, 285 Virginia localities (88 counties, 36 cities, and 161 towns) were eligible to accept cash proffers during FY 2010.(*4) (*5) The table below shows the statutory authority for and categories of localities eligible to accept cash proffers.(*6)

Statutory Authority: § 15.2-2298

Types of Localities Eligible to Accept Cash Proffers:

With the exception of localities eligible under the terms of § 15.2-2303:
• Any locality with a decennial census growth rate ?5%;
• Any city adjoining another city or county which had a decennial census growth rate ?5%;
• Any towns located within a county which had a decennial census growth rate ?5%;
• Any county contiguous with at least three counties which had a decennial census growth rate ?5%; and
• Any towns located within a county which was contiguous with at least three counties which had a decennial census growth rate ?5%.

Statutory Authority: § 15.2-2303

Types of Localities Eligible to Accept Cash Proffers:

• Any county with an urban county executive form of government (i.e., Fairfax County);
• Any town within a county with an urban county executive form of government;
• Any city adjacent to or completely surrounded by a county with an urban county executive form of government;
• Any county contiguous to a county with an urban county executive form of government;
• Any city adjacent to or completely surrounded by a county contiguous to a county with an urban county executive form of government;
• Any town within a county contiguous to a county with an urban county
___________________________________
(*1) See Appendix A for the text of § 15.2-2303.2, Code of Virginia, which directs the Commission to collect data on local government proffered cash payments and expenditures for the preceding fiscal year and report by November 30 of each year to the Chairmen of the Senate Committee on Local Government and the House Committee on Counties, Cities and Towns.
(*2) Virginia Citizens Planning Association and the Virginia Department of Housing and Community Development, The Language of Planning, Community Planning Series, V (June, 1986), p. 10.
(*3) John H. Foote, “Planning and Zoning,” Handbook of Virginia Local Government Law, ed. by Susan Warriner Custer, 2001 Edition, pp. 1-11 – 1-14.
(*4) U.S. Department of Commerce, Bureau of the Census, 1990 Census of Population, Number of Inhabitants, Table 4; U.S. Department of Commerce, Bureau of the Census, 2000 Census of Population and Housing, Summary File 1 (SF 1) 100-Percent Data for counties (includes Virginia cities) and places (includes towns). Sec. 1-235, Code of Va. states that unless otherwise specified, unadjusted population statistics are to the used in determining the decennial growth rate. See Appendix B for the list of Virginia localities with statutory authority to accept cash proffers.
(*5) Four towns within Russell County that have been permitted to accept cash proffers since FY 2007 were inadvertently omitted in prior editions of this report. They are now included in Appendix B. None of these towns have populations in excess of 3,500; therefore they are not required to report proffer collections to the Commission.
(*6) HB 1506, enacted by the General Assembly in 2006, became effective on July 1, 2006 and amended § 15.2-2298 to permit a locality to accept proffered conditions if such locality has had population growth of five percent or more from the next-to-latest to latest decennial census year, based on population reported by the United States Bureau of the Census. Prior to the passage of HB 1506, the statute required population growth of ten percent or more. As a result of this change, seven additional counties, two additional cities and 20 additional towns became eligible to accept cash proffers in FY 2007.