2006 Code of Virginia § 15.2-2303 - Conditional zoning in certain localities

15.2-2303. Conditional zoning in certain localities.

A. A zoning ordinance may include reasonable regulations and provisions forconditional zoning as defined in 15.2-2201 and for the adoption, incounties, or towns therein which have planning commissions, wherein the urbancounty executive form of government is in effect, or in a city adjacent to orcompletely surrounded by such a county, or in a county contiguous to any suchcounty, or in a city adjacent to or completely surrounded by such acontiguous county, or in any town within such contiguous county, and in thecounties east of the Chesapeake Bay as a part of an amendment to the zoningmap of reasonable conditions, in addition to the regulations provided for thezoning district by the ordinance, when such conditions shall have beenproffered in writing, in advance of the public hearing before the governingbody required by 15.2-2285 by the owner of the property which is thesubject of the proposed zoning map amendment. Reasonable conditions shall notinclude, however, conditions that impose upon the applicant the requirementto create a property owners' association under Chapter 26 ( 55-508 et seq.)of Title 55 which includes an express further condition that members of aproperty owners' association pay an assessment for the maintenance of publicfacilities owned in fee by a public entity, including open space, parks,schools, fire departments, and other public facilities not otherwise providedfor in 15.2-2241; however, such facilities shall not include sidewalks,special street signs or markers, or special street lighting in publicrights-of-way not maintained by the Department of Transportation. Thegoverning body may also accept amended proffers once the public hearing hasbegun if the amended proffers do not materially affect the overall proposal.Once proffered and accepted as part of an amendment to the zoning ordinance,such conditions shall continue in effect until a subsequent amendment changesthe zoning on the property covered by such conditions. However, suchconditions shall continue if the subsequent amendment is part of acomprehensive implementation of a new or substantially revised zoningordinance.

B. In the event proffered conditions include a requirement for the dedicationof real property of substantial value, or substantial cash payments for orconstruction of substantial public improvements, the need for which is notgenerated solely by the rezoning itself, then no amendment to the zoning mapfor the property subject to such conditions, nor the conditions themselves,nor any amendments to the text of the zoning ordinance with respect to thezoning district applicable thereto initiated by the governing body, whicheliminate, or materially restrict, reduce, or modify the uses, the floor arearatio, or the density of use permitted in the zoning district applicable tosuch property, shall be effective with respect to such property unless therehas been mistake, fraud, or a change in circumstances substantially affectingthe public health, safety, or welfare.

C. Any landowner who has prior to July 1, 1990, proffered the dedication ofreal property of substantial value, or substantial cash payments for orconstruction of substantial public improvements, the need for which is notgenerated solely by the rezoning itself, but who has not substantiallyimplemented such proffers prior to July 1, 1990, shall advise the localgoverning body by certified mail prior to July 1, 1991, that he intends toproceed with the implementation of such proffers. Such notice shall identifythe property to be developed, the zoning district, and the proffersapplicable thereto. Thereafter, any landowner giving such notice shall haveuntil July 1, 1995, substantially to implement such proffers, or such latertime as the governing body may allow. Thereafter, the landowner in good faithshall diligently pursue the completion of the development of the property.Any landowner who complies with the requirements of this subsection shall beentitled to the protection against action initiated by the governing bodyaffecting use, floor area ratio, and density set out in subsection B, unlessthere has been mistake, fraud, or a change in circumstances substantiallyaffecting the public health, safety, or welfare, but any landowner failing tocomply with the requirements of this subdivision shall acquire no rightspursuant to this section.

D. Subsections B and C of this section shall be effective prospectively only,and not retroactively, and shall not apply to any zoning ordinance textamendments which may have been enacted prior to March 10, 1990. Nothingcontained herein shall be construed to affect any litigation pending prior toJuly 1, 1990, or any such litigation nonsuited and thereafter refiled.

E. Nothing in this section shall be construed to affect or impair theauthority of a governing body to (i) accept proffered conditions whichinclude provisions for timing or phasing of dedications, payments, orimprovements; or (ii) accept or impose valid conditions pursuant to provision3 of 15.2-2286, provision 5 of 15.2-2242, or other provision of law.

F. In addition to the powers granted by the preceding subsections, a zoningordinance may include reasonable regulations to implement, in whole or inpart, the provisions of 15.2-2296 through 15.2-2302.

(Code 1950, 15-968.5; 1962, c. 407, 15.1-491; 1964, c. 564; 1966, c. 455;1968, cc. 543, 595; 1973, c. 286; 1974, c. 547; 1975, cc. 99, 575, 579, 582,641; 1976, cc. 71, 409, 470, 683; 1977, c. 177; 1978, c. 543; 1979, c. 182;1982, c. 44; 1983, c. 392; 1984, c. 238; 1987, c. 8; 1988, cc. 481, 856;1989, cc. 359, 384; 1990, cc. 672, 868; 1992, c. 380; 1993, c. 672; 1994, c.802; 1995, cc. 351, 475, 584, 603; 1996, c. 451; 1997, c. 587; 2001, c. 703;2006, c. 450.)