Impact Fees / Conditional Zoning, Land Use Management and the Impact on Cities and Towns

2009 Go Green Virginia Regional Forum, Richmond Round Table 2: Go Green Land Use Policies, PDRs & TDRs

Mark Flynn, Director of Legal Services Virginia Municipal League

For sustainable communities, Virginia needs:  Livable communities on a human scale  Mixed uses  Higher density development that doesn’t rely on the car for EVERY trip from home

Land use / growth management tools have largely failed these goals across the Commonwealth

WHY? One of many reasons: Virginia localities rely on cash proffers in conditional zoning as a principal means of development paying a part of its way.

Urban Development Areas (UDA) – this was to be a cure

The UDA law encourages localities to help the Commonwealth transition from a growth system that encourages, or, at least, accommodates sprawl to one that promotes higher density development and a mixing of uses. Va. Code § 15.2-223.1

But, where are we?

The comp plan is the broad sketch. Va. Code § 15.2-2223. Zoning is the tool that puts the aspirations of the comp plan on the ground. Until a county and town or city amend their zoning ordinances to direct high-density growth to the areas the comp plans say it should go, the old sprawling methods will likely be continued.

This is because development will happen where it makes the most profit. Cheaper land, removed from the urban center – land that can be developed fairly rapidly - is the way to maximize those profits.

Assume a county and town want to cooperate to amend the comp plan to create one or more UDAs. Under current law, if they rezone land without waiting for rezoning applications from developers, cash proffers that would come with the rezoning are lost.

So, with a cash proffer system, counties are strongly discouraged to do comprehensive rezoning to move the growth into and around the cities and towns – the regional urban centers. This makes it difficult for the urban centers to grow and remain healthy.

The alternative to the cash proffer part of conditional zoning is the impact fee (IF) system we have flirted with for the last several years. For growth management, IFs allow a county, working with a city and/or town, to rezone the areas for high density without losing developments’ paying part of the costs associated. As a part of the comprehensive rezoning, the county can make it more difficult to obtain rezonings for sprawl development farther away from the areas appropriate for growth.

In addition, a properly drafted IF allows the locality to lower the fees in the areas most appropriate for growth and to have higher fees farther from the city center. With this system, the higher cost of land in areas in and around town is partially offset by the lower impact fees. Also, the transactional costs of time and money are less, because the county and town are can rezone land so that they allow by-right development, instead of the long, uncertain process of obtaining a rezonings.

§ 15.2-2223.1. Comprehensive plan to include comprehensive plan and in accordance with the urban development areas; new urbanism most recent available population growth estimates and projections. Such districts may be A. Every county, city, or town that has adopted areas designated for redevelopment or infill zoning pursuant to Article 7 (§ 15.2-2280 et seq.) development. of Chapter 22 of Title 15.2 and that (i) has a population of at least 20,000 and population B. The comprehensive plan shall further growth of at least 5% or (ii) has population incorporate principles of new urbanism and growth of 15% or more, shall, and any county, traditional neighborhood development, which city or town may, amend its comprehensive plan may include but need not be limited to (i) to incorporate one or more urban development pedestrian-friendly road design, (ii) areas. For purposes of this section, population interconnection of new local streets with existing growth shall be the difference in population from local streets and roads, (iii) connectivity of road the next-to-latest to the latest decennial census and pedestrian networks, (iv) preservation of year, based on population reported by the United natural areas, (v) satisfaction of requirements for States Bureau of the Census. For purposes of this stormwater management, (vi) mixed-use section, an urban development area is an area neighborhoods, including mixed housing types, designated by a locality that is appropriate for (vii) reduction of front and side yard building higher density development due to proximity to setbacks, and (viii) reduction of subdivision transportation facilities, the availability of a street widths and turning radii at subdivision public or community water and sewer system, or street intersections. proximity to a city, town, or other developed area. The comprehensive plan shall provide for C. The comprehensive plan shall describe any commercial and residential densities within financial and other incentives for development in urban development areas that are appropriate for the urban development areas. reasonably compact development at a density of at least four residential units per gross acre and a D. No county, city, or town that has amended its minimum floor area ratio of 0.4 per gross acre comprehensive plan in accordance with this for commercial development. The section shall limit or prohibit development comprehensive plan shall designate one or more pursuant to existing zoning or shall refuse to urban development areas sufficient to meet consider any application for rezoning based projected residential and commercial growth in solely on the fact that the property is located the locality for an ensuing period of at least 10 outside the urban development area. but not more than 20 years, which may include phasing of development within the urban E. Any county, city, or town that would be development areas. Future growth shall be based required to amend its plan pursuant to this on official estimates and projections of the section that determines that its plan Weldon Cooper Center for Public Service of the accommodates growth in a manner consistent University of Virginia or other official with this section, upon adoption of a resolution government sources. The boundaries and size of certifying such compliance, shall not be required each urban development area shall be to further amend its plan. reexamined and, if necessary, revised every five years in conjunction with the update of the F. Any county that amends its comprehensive § 15.2-2223. Comprehensive plan to be plan pursuant to this section may designate one prepared and adopted; scope and or more urban development areas in any incorporated town within such county, if the purpose governing body of the town has also amended its … comprehensive plan to designate the same areas The comprehensive plan shall be general in as urban development areas with at least the nature, in that it shall designate the general or same density designated by the county. approximate location, character, and extent of each feature, including any road improvement G. To the extent possible, state and local and any transportation improvement, shown on transportation, housing, and economic the plan and shall indicate where existing lands development funding shall be directed to the or facilities are proposed to be extended, urban development area. widened, removed, relocated, vacated, narrowed, abandoned, or changed in use as the case may be.

Recommended reading: A Guide to Impact Fees and Housing Affordability, Nelson, Arthur C., et als. Island Press, 2008.