2006 Code of Virginia § 15.2-2298 - Same; additional conditions as a part of rezoning or zoning map amendment in certain high-growth lo...

15.2-2298. Same; additional conditions as a part of rezoning or zoning mapamendment in certain high-growth localities.

A. Except for those localities to which 15.2-2303 is applicable, thissection shall apply to (i) any locality which has had population growth of 5%or more from the next-to-latest to latest decennial census year, based onpopulation reported by the United States Bureau of the Census; (ii) any cityadjoining such city or county; (iii) any towns located within such county;and (iv) any county contiguous with at least three such counties, and anytown located in that county.

In any such locality, notwithstanding any contrary provisions of 15.2-2297,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 gives riseto the need for the conditions; (ii) the conditions have a reasonablerelation to the rezoning; and (iii) all conditions are in conformity with thecomprehensive plan as defined in 15.2-2223.

Reasonable conditions may include the payment of cash for any off-site roadimprovement or any off-site transportation improvement that is adopted as anamendment to the required comprehensive plan and incorporated into thecapital improvements program, provided that nothing herein shall prevent alocality from accepting proffered conditions which are not normally includedin a capital improvement program. For purposes of this section, "roadimprovement" includes construction of new roads or improvement or expansionof existing roads as required by applicable construction standards of theVirginia Department of Transportation to meet increased demand attributableto new development. For purposes of this section, "transportationimprovement" means any real or personal property acquired, constructed,improved, or used for constructing, improving, or operating any (i) publicmass transit system or (ii) highway, or portion or interchange thereof,including parking facilities located within a district created pursuant tothis title. Such improvements shall include, without limitation, public masstransit systems, public highways, and all buildings, structures, approaches,and facilities thereof and appurtenances thereto, rights-of-way, bridges,tunnels, stations, terminals, and all related equipment and fixtures.

Reasonable conditions shall not include, however, conditions that impose uponthe applicant the requirement to create a property owners' association underChapter 26 ( 55-508 et seq.) of Title 55 which includes an express furthercondition that members of a property 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. 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.

No proffer shall be accepted by a locality unless it has adopted a capitalimprovement program pursuant to 15.2-2239 or local charter. In the eventproffered conditions include the dedication of real property or payment ofcash, the property shall not transfer and the payment of cash shall not bemade until the facilities for which the property is dedicated or cash istendered are included in the capital improvement program, provided thatnothing herein shall prevent a locality from accepting proffered conditionswhich are not normally included in a capital improvement program. Ifproffered conditions include the dedication of real property or the paymentof cash, the proffered conditions shall provide for the disposition of theproperty or cash payment in the event the property or cash payment is notused for the purpose for which proffered.

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 tothe property, shall be effective with respect to the 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. The 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 the 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 above,unless there has been mistake, fraud, or a change in circumstancessubstantially affecting the public health, safety, or welfare, but anylandowner failing to comply with the requirements of this subsection shallacquire no rights pursuant 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.

(1989, c. 697, 15.1-492.2:1; 1990, c. 868; 1991, c. 233; 1997, c. 587;2001, c. 703; 2006, cc. 450, 882.)