Traditional zoning methods and procedures are sometimes inadequate when competing and incompatible uses conflict. In such cases, more flexible and adaptable zoning methods are needed to permit differing land uses and at the same time to recognize effects of change. It is the purpose of this article to provide a zoning method as authorized under Code of Virginia, §§ 15.2-2296 and 15.2-2303, whereby a zoning reclassification may be allowed subject to certain conditions proffered by the zoning applicant for the protection of the community even though such conditions may not be generally applicable to land similarly zoned. While the conditions may vary from property to property by reason of the nature of the use and different circumstances at a particular location, it is not the intention of this section to authorize conditions limited to a particular individual or group, owner or operator, and the provisions of this article shall not be used for the purpose of discrimination in housing.

(Ord. No. 09-21R2, Att. A, 9-27-2021)

(a)

As a part of an application for amendment to the zoning map, the owner of the property which is the subject of the proposed zoning map amendment may proffer, in writing, reasonable conditions provided that:

(1)

The rezoning itself must give rise for the need for the conditions;

(2)

The conditions shall have a reasonable relation to the rezoning;

(3)

The conditions shall not include a cash contribution to the locality;

(4)

The conditions shall not include a requirement that the applicant create a property owners' association under chapter 26 (§ 55-508 et seq.) of title 55 which includes an express further condition that members of a property owners' association pay an assessment for the maintenance of public facilities owned in fee by a public entity, including open space, parks, schools, fire departments and other public facilities not otherwise provided for in Code of Virginia, § 15.2-2241; however, such facilities shall not include pedestrian paths, special street signs or markers, or special street lighting in public rights-of-way not maintained by the department of transportation;

(5)

The conditions shall not include payment for or construction of off-site improvements except those provided for in Code of Virginia, §§ 15.2-2241 and 15.2-2303.4;

(6)

No condition shall be proffered that is not related to a need created by the physical development or operation of the property; and

(7)

All such conditions shall be in conformity with the comprehensive plan as defined in Code of Virginia, § 15.2-2223.

(8)

At the time each proffer is submitted to the county, it shall be accompanied by a statement signed by the applicant and the owner or their agents which states either:

a.

"Each proffer made in connection with this application for rezoning was made voluntarily and complies with applicable law. Each proffer is reasonably related both in nature and extent to the impacts of the proposed development. No agent of the county has suggested or demanded a proffer that is unreasonable under applicable law." or

b.

That the applicant or the owner or both disagree with the statement in subsection (a)(8)a. above and all the facts and reasons which led to that disagreement.

(b)

Such conditions shall be proffered in advance of the public hearing before the board of supervisors that is required by law. The board of supervisors may also accept amended proffers once the public hearing has begun if the amended proffers do not materially affect the overall proposal.

(c)

Once proffered and accepted as part of an amendment to the zoning chapter, such conditions shall continue in effect until a subsequent amendment changes the zoning on the property covered by such conditions. However, such conditions shall continue if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised zoning chapter.

(d)

If proffered conditions that are duly accepted include a requirement for the dedication of real property of substantial value, or substantial cash payments for, or construction of, substantial public improvements, the need for which is not generated solely by the rezoning itself, then no amendment to the zoning map for the property subject to such conditions, nor the conditions themselves, nor any amendments to the text of the zoning chapter with respect to the zoning district applicable thereto initiated by the board of supervisors, which eliminate, or materially restrict, reduce, or modify the uses, the floor area ratio, or the density of use permitted in the zoning district applicable to such property, shall be effective with respect to such property unless there has been mistake, fraud, or a change in circumstances substantially affecting the public health, safety, or welfare.

(e)

When the county has had population growth of five percent or more from the next-to-latest to latest decennial census year, based on population reported by the United States Bureau of the Census, it may also accept voluntary proffering as allowed in the Code of Virginia, § 15.2-2298.

(f)

The county may accept certain conditional rezoning proffers for residential projects as long as it is not deemed unreasonable as outlined in the Code of Virginia, § 15.2-2303.4. No agent of the county is authorized to suggest, demand, or accept a condition that is unreasonable under applicable law.

(Ord. No. 09-21R2, Att. A, 9-27-2021)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2297.

(a)

For the purpose of this chapter, proffered conditions shall be interpreted to include written statements, development plans, profiles, elevations, and/or demonstrative materials. Materials of whatever nature and intended as conditions shall be referenced and incorporated in a written statement meeting the requirements for recording in the land records of the County and approved as to form by the county attorney.

(b)

Once accepted such conditions shall become a part of the zoning regulations applicable to the property in question, regardless of changes in ownership or operation, unless subsequently changed by an amendment to the zoning district map, and such conditions shall be in addition to the specific regulations set forth in this chapter for the zoning district in question.

(Ord. No. 09-21R2, Att. A, 9-27-2021)

In accordance with Code of Virginia, § 15.2-2299, the zoning administrator shall be vested with all necessary authority on behalf of the board of supervisors to administer and enforce conditions attached to such rezoning or amendment to the zoning district map, including the ordering in writing of the remedy of any noncompliance with such conditions; the bringing of legal action to ensure compliance with such conditions, including injunction, abatement or other appropriate action or proceeding; and requiring a guarantee, satisfactory to the county, in an amount sufficient for and conditioned upon the construction of any physical improvements required by the conditions, or a contract for the construction of such improvements and the contractor's guarantee, in like amount and so conditioned, which guarantee shall be reduced or released by the board of supervisors, or agent thereof, upon the submission of satisfactory evidence that construction of such improvements has been completed in whole or in part. Failure to meet all conditions shall constitute cause to deny the issuance of any of the required use, occupancy, or building permits, as may be appropriate.

(Ord. No. 09-21R2, Att. A, 9-27-2021)

Upon approval, any site plan, subdivision plat or development plan thereafter submitted for the development of the property in question shall be in substantial conformity with all proffered statements, plans, profiles, elevations, or other demonstrative materials, and no development shall be approved by any county official in the absence of such substantial conformity. For the purpose of this article, the term "substantial conformity" shall mean that conformity which leaves a reasonable margin for adjustment to final engineering data but conforms with the general nature of the development, the specific uses, and the general layout depicted by the plans, profiles, elevations, and other demonstrative materials presented by the applicant.

(Ord. No. 09-21R2, Att. A, 9-27-2021)

In accordance with Code of Virginia, § 15.2-2302, once proffered conditions have been approved, and there is cause for an amendment which would not be in substantial conformity with the proffered conditions, then an application shall be filed for an amendment. Such amendment shall be the subject of public hearing in accordance with the requirements for a new application except that when an amendment is requested which does not affect conditions of use or density, the board of supervisors may, in its discretion, waive the required public hearing. Once approved, such proffered conditions, as amended, shall apply to the property and be enforced in the same manner as the original proffered conditions.

(Ord. No. 09-21R2, Att. A, 9-27-2021)

Any zoning applicant or any other person who is aggrieved by a decision of the zoning administrator made pursuant to the provisions of enforcement may petition the board of supervisors for review of the decision of the zoning administrator. All petitions for review shall be filed with the zoning administrator and with the clerk of the board of supervisors within 30 days from the date of the decision for which review is sought and shall specify the grounds upon which the petitioner is aggrieved. A decision by the board of supervisors on an appeal taken pursuant to this section shall be binding upon the owner of the property which is the subject of such appeal only if the owner of such property has been provided written notice of the zoning violation, written determination, or other appealable decision.

(Ord. No. 09-21R2, Att. A, 9-27-2021)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2301.

The zoning map shall show by an appropriate symbol on the map the existence of conditions attached to the zoning on the map. The zoning administrator shall keep in their office and make available for public inspection, a conditional zoning index. The index shall provide ready access to the chapter creating conditions in addition to the regulations provided for in a particular zoning district or zone. The index shall also provide ready access to all proffered cash payments and expenditures disclosure reports prepared by the local governing body pursuant to Code of Virginia, § 15.2-2303.2. The zoning administrator shall update the index annually and no later than November 30 of each year.

(Ord. No. 09-21R2, Att. A, 9-27-2021)

State Law reference— Same; records, Code of Virginia, § 15.2-2300.