By. Neil Williamson, President
It is not everyday that an appointed body of government clearly, and unanimously, ignore both legal and planner recommendations and instead recommend a violation of the state code. But that is exactly what happened last night (2/23) Planning Commission meeting in Albemarle County.
While we have been opposed to cash proffers since their inception, for the last eighteen months, the Free Enterprise Forum has been begging Albemarle to revise their current cash proffer policy because it was illegal.
Rather than following other localities and adjusting their cash proffer policy after a 2013 change in state code required proffers only include projects that expand capacity, Albemarle Supervisors delegated to the Fiscal Impact Advisory Committee (FIAC) and the Planning Commission. Now over two years later the illegal policy remains on the books.
On Groundhog Day 2016, Deputy County Attorney Greg Kamptner publicly indicated that since the new law passed the County had not applied the illegal maximum amount proffer to anyone, they were not in violation. In addition, the number was a maximum and should an applicant come forward the recommendations of the Fiscal Impact Advisory Committee would be used. True to his word the staff report included very clear direction from the Albemarle County legal department:
In addition, application of the new amounts based on the current CIP and CNA is consistent with State law. Virginia Code § 15.2-2303 requires that proffers be “reasonable,” and reasonableness is evaluated on whether there is an “essential nexus” between the proffer and the impact it is intended to address, and whether the extent of the proffer is “roughly proportional” to the impact created. The cash proffer amounts recommended by FIAC, based on the current CIP and CNA, provide the best benchmark for reasonableness for a maximum cash proffer amount under the current Cash Proffer Policy. In addition, the new amount proffered is consistent with the current Cash Proffer Policy, which sets a maximum cash proffer amount that the Board will accept but does not identify a minimum amount.
When coupled with Albemarle County’s lack of capital spending over the last few years and the requirement that any proffer funds only apply for those projects that increase capacity, the resulting figures are significantly different than the current policy. Again from the staff report:
At the time of the rezoning the applicant proffered cash proffers for the residential units in the following amounts:
$20,460.57 for each single family detached unit
$13,913.18 for each single family attached or townhouse unit
The applicant requests a change in the cash proffer amounts as follows:
$4,918.00 for each single family detached unit
$3,845.00 for each sing family attached or townhouse unit
In this morning’s Daily Progress, Charlottesville Tomorrow’s Sean Tubbs article accurately depicted the tenor of the meeting:
“In my seven years on the planning commission, we have never been asked to make an evaluation on a cash proffer,” said Commissioner Russell “Mac” Lafferty.
Rather than focusing on the planning question many commissioners looked sadly at a smaller proffer piggy bank. Other commissioners decided to focus on how the school system was spending their budget. Mission Creeping topics of the value of using trailers (AKA “Learning Cottages”), and student population trends were discussed.
Amazingly, one commissioner publicly suggested the applicant should have engaged in proffer “horse trading” prior to the public hearing. Tubbs reported other possible demands of commissioners:
“One of the issues we’ve been woefully behind in our area are basic pedestrian infrastructure,” said Commissioner Pam Reilly, adding that Cetta might be persuaded to build a sidewalk to Cale Elementary School.
The arrogance of the Albemarle County Planning Commission to determine they are above the Code of Virginia is astounding.
Remembering the Planning Commission is merely advisory to the Board of Supervisors, the true question is will the current Board of Supervisors also choose to willfully violate state law?
Only time will tell.
Neil Williamson is the President of The Free Enterprise Forum, a privately funded public policy organization covering the City of Charlottesville as well as Albemarle, Greene, Fluvanna, Louisa and Nelson County.
Photo Credits: Charlottesville Tomorrow, myanimelist.net,