2006 Code of Virginia § 15.2-2297 - Same; conditions as part of a rezoning or amendment to zoning map

15.2-2297. Same; conditions as part of a rezoning or amendment to zoningmap.

A. A zoning ordinance may include and provide for the voluntary proffering inwriting, by the owner, of reasonable conditions, prior to a public hearingbefore the governing body, in addition to the regulations provided for thezoning district or zone by the ordinance, as a part of a rezoning oramendment to a zoning map; provided that (i) the rezoning itself must giverise for the need for the conditions; (ii) the conditions shall have areasonable relation to the rezoning; (iii) the conditions shall not include acash contribution to the locality; (iv) the conditions shall not includemandatory dedication of real or personal property for open space, parks,schools, fire departments or other public facilities not otherwise providedfor in 15.2-2241; (v) the conditions shall not include a requirement thatthe applicant create a property owners' association under Chapter 26 (55-508 et seq.) of Title 55 which includes an express further condition thatmembers of a property owners' association pay an assessment for themaintenance of public facilities owned in fee by a public entity, includingopen space, parks, schools, fire departments and other public facilities nototherwise provided for in 15.2-2241; however, such facilities shall notinclude sidewalks, special street signs or markers, or special streetlighting in public rights-of-way not maintained by the Department ofTransportation; (vi) the conditions shall not include payment for orconstruction of off-site improvements except those provided for in 15.2-2241; (vii) no condition shall be proffered that is not related to thephysical development or physical operation of the property; and (viii) allsuch conditions shall be in conformity with the comprehensive plan as definedin 15.2-2223. The governing body may also accept amended proffers once thepublic hearing has begun if the amended proffers do not materially affect theoverall proposal. Once proffered and accepted as part of an amendment to thezoning ordinance, the conditions shall continue in effect until a subsequentamendment changes the zoning on the property covered by the conditions.However, the conditions shall continue if the subsequent amendment is part ofa comprehensive 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 construction of substantial publicimprovements, the need for which is not generated solely by the rezoningitself, then no amendments to the zoning map for the property subject to suchconditions, nor the conditions themselves, nor any amendments to the text ofthe zoning ordinance with respect to the zoning district applicable theretoinitiated by the governing body, which eliminate, or materially restrict,reduce, or modify the uses, the floor area ratio, or the density of usepermitted in the zoning district applicable to such property, shall beeffective with respect to such property unless there has been mistake, fraud,or a change in circumstances substantially affecting the public health,safety, or welfare.

C. Any landowner who has prior to July 1, 1990, proffered the dedication ofreal property of substantial value or construction of substantial publicimprovements, the need for which is not generated solely by the rezoningitself, but who has not substantially implemented such proffers prior to July1, 1990, shall advise the local governing body by certified mail prior toJuly 1, 1991, that he intends to proceed with the implementation of suchproffers. The notice shall identify the property to be developed, the zoningdistrict, and the proffers applicable thereto. Thereafter, any landownergiving such notice shall have until July 1, 1995, substantially to implementthe proffers, or such later time as the governing body may allow. Thereafter,the landowner in good faith shall diligently pursue the completion of thedevelopment 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 subsection shall acquire no rightspursuant to this section.

D. The provisions of subsections B and C of this section shall be effectiveprospectively only, and not retroactively, and shall not apply to any zoningordinance text amendments which may have been enacted prior to March 10,1990. Nothing contained herein shall be construed to affect any litigationpending prior to July 1, 1990, or any such litigation nonsuited andthereafter refiled.

Nothing in this section shall be construed to affect or impair the authorityof a governing body to:

1. Accept proffered conditions which include provisions for timing or phasingof dedications, payments, or improvements; or

2. Accept or impose valid conditions pursuant to provision 3 of 15.2-2286or other provision of law.

(1978, c. 320, 15.1-491.2; 1982, c. 293; 1990, c. 868; 1997, c. 587; 2001,c. 703; 2006, c. 450.)