2019 Virginia Proffer Law Changes: Myths Unraveled

As attorneys and self-proclaimed Proffer Professors, we were concerned by what we were hearing from the industry on the recent proffer reform. Blanket statements like, “oh, it’s just a repeal of the 2016 law” or “proffer schedules are legal now”.  In this post, we clear the air of misconceptions.

Myth: The 2019 law repealed the 2016 law

Fact: To debunk the first myth, we’ll just note that the 2019 law leaves large parts of the 2016 law intact. For example, the law still forbids a local government from denying a rezoning application for residential development “where such denial is based in whole or in part on an applicant’s failure or refusal to submit an unreasonable proffer.” For another, the law still exempts qualified “small area comprehensive plans.” There are some significant changes, though, and we will comment on them in future blog posts.

Myth: Proffer schedules are now legally OK

Fact: As for the second myth, the 2019 law doesn’t clear the constitutional hurdle for proffer schedules. Under federal case law, a proffer first must be connected to the development impacts (that is, it has to have a “nexus”) and second, there must be “rough proportionality,” which refers to the degree of connection between the proffer and the development’s projected impact.

So, just how “rough” can the degree of connection be and still pass muster under the Fifth Amendment of the U.S. Constitution?  The U.S. Supreme Court (in a case called Dolan) answered that question this way:  “No precise mathematical calculation is required, but the [locality] must make some sort of individualized determination that the required dedication is related both in nature and extent to the proposed development.” 

A locality can still provide information about how much it costs to build a school, police station, or park, but because a “one size fits all” proffer schedule lacks the required individualized determination, it is subject to attack on constitutional grounds.

Stay tune for the next topic: So what did change?

By the Proffer Professors: Mike Vanderpool, Martin Crim, and Karen Cohen