1.

Proffers defined. Proffers are voluntary and reasonable conditions that may be offered only by a property owner in conjunction with a zoning map amendment ("rezoning") application. Proffered conditions are intended to relieve land use issues and infrastructure shortcomings that may be directly attributable to a proposed land use that requires a rezoning action by the city. Proffers may be offered as improvements, in-kind contributions, phasing, dedications, or other eligible contributions. Proffers may address both on-site and off-site improvements.

2.

Authority for proffers. It is the purpose of this section to provide a procedure by which eligible proffers and conditional zoning may be employed where and when applicable in Martinsville in accordance with the applicable enabling legislation provided in Code of Virginia §§ 15.2-2297, 15.2-2298, 15.2-2302.2, and 15.2-2303.4 as may be amended, and other sections of the Code of Virginia. It is further the purpose of this section to allow for complete and timely review and evaluation of the proffered conditions by the city staff, the planning commission and the city council.

3.

Acceptance of proffers. The city may accept the proffers and approve a conditional rezoning application, thereby approving the proposed use on the condition of compliance with the proffers. It is the policy of the city to encourage, but not require, proffers and conditions in cases where:

a.

The use of traditional zoning methods is inadequate to achieve the desired development objectives of the property owner or the city, and

b.

The proffered conditions will offset identified problems attributable to the impacts of the rezoning.

1.

Proffers and rezoning. This ordinance includes and provides for the proffering in writing, by the property owner, of reasonable and eligible conditions (including improvements, dedications, phasing, and eligible contributions) in conjunction with a public hearing before the planning commission or city council, in addition to the regulations provided for in the zoning district or other applicable zoning documentation by the ordinance, as a part of a rezoning, or amendment to a zoning map.

2.

Proffers must be voluntary and reasonable. The key test for a proffer is:

a.

That it be reasonable, and

b.

That it shall be voluntarily offered by the property owner/applicant. Refer to section VII for specific requirements for zoning amendments and zoning amendment applications in the city.

3.

Approval, acceptance, denial of proffers. Proffers must be reasonable and reasonably applied in consideration of any zoning amendment. The city shall not:

a.

Request or accept any unreasonable proffer in connection with a rezoning or a proffer condition amendment as a condition of approval of a new residential development or new residential use, or

b.

Deny any rezoning application or proffer condition amendment for a new residential development or new residential use where such denial is based in whole or in part on an applicant's failure or refusal to submit an unreasonable proffer or proffer condition amendment the need for which is not generated by the rezoning itself.

4.

Reasonableness test for on-site proffer. An on-site (or proffer condition amendment) offered voluntarily pursuant to Code of Virginia §§ 15.2-2297, 15.2-2298, 15.2-2303, 15.2-2303.1, or 15.2-2303.4, shall be deemed unreasonable unless it addresses an impact that is specifically attributable to the application for a proposed new residential development or other new residential use.

5.

Reasonableness test for off-site proffer. An off-site proffer (or proffer condition amendment) offered voluntarily pursuant to Code of Virginia §§ 15.2-2297, 15.2-2298, 15.2-2303, 15.2-2303.1, or 15.2-2303.4, shall be deemed unreasonable unless it addresses an impact that is specifically attributable to the application for a proposed new residential development or other new residential use. An off-site proffer shall be deemed unreasonable unless it addresses an impact to an off-site public facility, such that:

a.

The new residential development or new residential use creates a need, or an identifiable portion of a need, for one or more public facility improvements in excess of existing public facility capacity at the time of the rezoning or proffer condition amendment, and

b.

Each such new residential development or new residential use applied for receives a direct and material benefit from a proffer made with respect to any such public facility improvements.

6.

Eligibility for acceptance of cash proffers. Cash proffers may be accepted by the city at such time that Martinsville meets state statutory eligibility requirements. This will occur if and when the city achieves a five (5) percent decennial population growth based on the reporting of the U.S. Bureau of Census and as otherwise conditioned by Code of Virginia § 15.2-2298 or subsequent amendments thereto. As of the date of adoption of this ordinance, Martinsville does not meet the eligibility requirements for the acceptance of cash proffers. The city reserves the right to accept cash proffers at such time as population growth eligibility requirements or other statutory requirements have been met.

For purposes of this section and in addition to those definitions provided in section II of this ordinance, the following words and phrases shall apply to the regulations for proffers in this section unless the context requires a different meaning:

New residential development means any construction or building expansion in the city on residentially zoned property, including a residential component of a mixed-use development, that results in either one or more additional residential dwelling units or, otherwise, fewer residential dwelling units, beyond what may be permitted by right under the then-existing zoning of the property, when such new residential development requires a rezoning or proffer condition amendment.

New residential use means any use of residentially zoned property in the city that requires a rezoning or that requires a proffer condition amendment to allow for new residential development.

Off-site proffer means a proffer addressing an impact outside the boundaries of the property to be developed and shall include eligible cash proffers.

On-site proffer means a proffer addressing an impact within the boundaries of the property to be developed and shall not include any eligible cash proffers.

Proffer condition amendment means an amendment to an existing proffer statement applicable to a property or properties.

Public facilities means public transportation facilities, public safety facilities, public school facilities, or public parks.

Public facility improvement means an offsite public transportation facility improvement, a public safety facility improvement, a public school facility improvement, or an improvement to or construction of a public park. No public facility improvement shall include any operating expense of an existing public facility, such as ordinary maintenance or repair, or any capital improvement to an existing public facility, such as a renovation or technology upgrade, that does not expand the capacity of such facility. For purposes of this section, the term "public park" shall include playgrounds and other recreational facilities.

Public safety improvement means construction of new law-enforcement, fire, emergency medical, and rescue facilities or expansion of existing public safety facilities, to include all buildings, structures, parking, and other costs directly related thereto.

Public school facility improvements construction of secondary public schools, to include all buildings, structures, parking, and other costs directly related thereto.

Public transportation facility improvement means public transportation facilities refer to the:

a.

Construction of new city public roads;

b.

Improvement or expansion of existing roads and related appurtenances as required by applicable standards of the state department of transportation, or the applicable standards of the city; and

c.

Construction, improvement, or expansion of buildings, structures, parking, and other facilities in the city directly related to transit.

Residentially zoned property means property zoned or proposed to be zoned for either single-family or multifamily housing.

Small area comprehensive plan means the section or portion of the city's comprehensive plan, adopted into the comprehensive plan pursuant to Code of Virginia § 15.2-2223, that is specifically applicable to a delineated area within the city rather than the city as a whole. The terms "small area plan," "urban development area plan," "urban sector plan," "urban service area plan," "corridor development plan," "corridor improvement plan," or "urban sector plan" may be considered a small area comprehensive plan under this definition if such plans are duly adopted.

1.

Any applicant or landowner for a zoning map amendment (i.e. "rezoning") may, as a part of a rezoning application, voluntarily proffer reasonable conditions concerning the use, improvements, and development for one's property, including off-site improvements, in-kind contributions, or, cash contributions (upon meeting the population eligibility requirements of Code of Virginia § 15.2-2298) that may serve or benefit both the specific property and the public welfare.

2.

Proffers shall only be accepted by the city council as conditions attached to the rezoning if such proffered conditions meet the following criteria:

a.

The rezoning itself must give rise to the need for the condition.

b.

All such conditions shall directly benefit the development and the property subject to the rezoning request.

c.

All such conditions shall serve to fulfill the goals, objectives, and recommendations of the city's comprehensive plan, and, further, shall be consistent with the city's adopted capital improvements plan, official map, and other facilities and infrastructure planning documents, where applicable.

d.

Such conditions shall be voluntarily offered, accepted by the city, and, further, capable of being readily and effectively enforced by the city in conjunction with the development of the property.

e.

Such conditions shall be deemed reasonable, but necessary and sufficient to offset the identified infrastructure problems or public facility capacity deficits caused by the rezoning in a manner not available with traditional zoning methods.

3.

This section shall be construed as supplementary to any existing provisions limiting or curtailing proffers or proffer condition amendments for new residential development or new residential use that are consistent with its terms and shall be construed to supersede any existing statutory provision with respect to proffers or proffer condition amendments for new residential development or new residential use that are inconsistent with its terms.

4.

For the purposes of this section, the city may base its assessment of public facility capacity on relevant and current studies and calculations applicable to the projected impacts specifically attributable to the new residential development or new residential use.

5.

The provisions of this section shall not apply to any eligible new residential development or new residential use occurring within any of the following areas:

a.

An adopted small area comprehensive plan in which the delineated area is designated as a revitalization area, encompasses mass transit as defined in § 33.2-100, includes mixed use development, and allows a density of at least 3.0 floor area ratio in a portion thereof;

b.

An approved small area comprehensive plan that encompasses an existing or planned Metrorail station, or is adjacent to a Metrorail station located in a neighboring locality, and allows additional density within the vicinity of such existing or planned station; or

c.

An approved service district created pursuant to Code of Virginia § 15.2-2400 that encompasses an existing or planned Metrorail station.

1.

In the event proffered conditions include the dedication of real property to the city (or eligible cash contributions as defined in subsection B.6 herein above), such contributions shall not be made or property shall not transfer until the facilities for which such property is dedicated to public facility or infrastructure are included in the city's adopted capital improvements plan, provided that nothing herein shall prevent the property owner/applicant from offering to make acceptable and eligible proffered conditions which are not normally included in such capital improvement program.

2.

If proffered conditions include the dedication of real property city (or other eligible contributions), the proffers shall provide for the disposition of property or other eligible contribution in the event the property or other conditional requirement is not used or employed for the purpose for which proffered within the statutory timeframe in effect as of the date of the rezoning.

3.

Nothing in this section shall be construed to affect or impair the authority of the city council to accept proffered conditions which include provisions for timing or phasing of dedications, or improvements, or to impose or accept conditions of conditional use permits where such conditions are consistent with state enabling statutes in effect at the time of the rezoning.

4.

In the event proffered conditions include dedication of real property (or other eligible contributions) are not to be made until the facilities for which such property is dedicated are included in the capital improvement program, the city attorney shall advise the planning commission and the city council of the adequacy of provisions securing to the city the timely performance of such conditions. Subject to limitations imposed by state enabling statutes in effect as of the date of acceptance of the proffer, such provisions may include bonding, letters of credit or other forms of surety.

5.

Notwithstanding subsection E.4 hereinabove, the provisions of any eligible proffer offered or accepted pursuant to Code of Virginia §§ 15.2-2298, 15.2-2303, or 15.2-2303.1, for residential construction on a per-dwelling unit or per-home basis, the agreed improvements, dedications, or other conditions may be accepted by the city only after completion of the final inspection and prior to the time of the issuance of any certificate of occupancy for the subject property.

6.

In addition to any other relief provided, the circuit court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action successfully challenging an ordinance, administrative action, or other action by the city as being in conflict with this section.

1.

The property owner or rezoning applicant shall submit a written proffer of conditions to accompany the rezoning petition. Refer to section VII for specific requirements for zoning map amendments.

2.

Such written proffers, together with the title certificate, shall be submitted to the planning director as part of the application. In complying with the notice requirements, the planning commission and city council shall state whether conditions have been proffered, and such proffers shall be made available for public review by the planning director as part of the public documents in the case.

3.

Within thirty (30) days after receipt of a complete zoning application, the zoning administrator shall submit to the petitioner a written proffer analysis addressing the following items:

a.

A list of identified problems or reasons, if any, where the proposed rezoning may be deemed to fall short of compliance or policy;

b.

The degree to which the proffered conditions respond to the identified problems;

c.

A list of those proffered conditions, if any, that do not respond to identified problems, are insufficient to offset them, or that are not in keeping with the criteria set forth in this section;

d.

An indication of whether the identified problems will be adequately offset by the voluntarily proffered eligible contributions, dedication of real or personal property, or payment for or construction of off-site improvements; and

e.

The date of the planning commission hearing.

4.

Submission of proffer statements:

a.

A copy of the (i) applicant's written proffers and (ii) the proffer analysis from the zoning administrator shall be forwarded to the planning commission. The proffer may only be accepted when signed by the property owner or its duly appointed developer or agent.

b.

Upon receipt of the proffer analysis, the petitioner may make subsequent voluntary changes deemed appropriate to the written proffers, provided that it is submitted no later than ten (10) calendar days prior to the planning commission public hearing.

c.

Where an amendment to the written proffers provides for a dedication of real or personal property or construction of offsite improvements, the zoning administrator may require that the amended proffers be submitted at least twenty (20) calendar days prior to the public hearing when additional time is deemed necessary to allow for adequate staff review of the sufficiency of such amended proffers.

d.

Upon receipt of the amended proffers, the zoning administrator shall make them part of the public record. The planning commission shall not consider any proffer not made available for public review for at least ten (10) calendar days prior to the public hearing or meeting at which time the proffer statement is scheduled for review.

1.

After holding a public hearing on the rezoning application, the planning commission, in taking its action on the application, may recommend from the following options:

a.

Recommend to the city council approval of the zoning application as submitted;

b.

Recommend to the city council denial of the application as submitted; or

c.

Approval of the application with the deletion of one or more of the proffers in the application.

2.

If the planning commission takes final action on a rezoning application, it shall require the applicant to:

a.

Reduce all proffers made to the planning commission to a final written proffer statement in the proper legal form required by the city, and

b.

Return the final proffer statement to the zoning administrator not more than ten (10) calendar days after the planning commission hearing for subsequent transmittal to the city council.

3.

The planning commission, upon the concurrence of the applicant, may defer action to a later meeting to further consider the revised proffers, provided that such revisions are submitted in proper legal form and are reviewed on the same time schedule as the original zoning application.

4.

Upon completion of planning commission action on the rezoning application, the matter shall be forwarded to the city council in the manner of all rezoning requirements. The city council, in taking action on the zoning amendment proposal and proffers, may:

a.

Approve the zoning application;

b.

Deny the zoning application; or

c.

Consider modification of the proffered conditions for subsequent approval.

5.

The applicant may add to, expand, clarify or otherwise modify the proffer statement in writing at the time of the city council public hearing. Upon receipt of the modification of the proffer statement, the city council may take any one of the following actions:

a.

The council may decline to consider the modification to the proffer statement as not timely filed and act only upon the application which was acted upon by the planning commission if it finds that the additional modifications do not alter the overall application sufficiently to warrant continued review or referral to the planning commission.

b.

The council may continue the hearing on the application to another hearing date, in which case the applicant shall be required to submit to the zoning administrator a final written proffer statement not less than ten (10) days before the scheduled hearing in order for the council to act upon the application with the modified proffers. Nothing herein shall limit the council's discretion to continue application to subsequent dates for further modification.

c.

The council may refer the modified application back to the planning commission for review and recommendation in accordance with the preceding sections.

d.

At its sole discretion, the council may waive the requirement for an additional public hearing or additional review by the planning commission if the proffer modification does not involve a change of land use or land use density.

6.

If an applicant at any time modifies an application by deleting any provision from any proffer that has been reviewed and acted upon by the planning commission, the council may refer the application with such modified proffer back to the planning commission for review and recommendation in accordance with the preceding section.

7.

Subject to subsection 5.d. hereinabove, the city council may also modify any proffered condition, but only with the concurrence of all parties to the proffers and only after a decision is made by the council to conduct a new public hearing to consider the modified proffer. In such case, the modified proffer being submitted in writing to the zoning administrator at least ten (10) days prior to said public hearing.

8.

The city council shall accept only those eligible proffers that have been offered voluntarily and further reviewed and deemed acceptable in legal form, sufficiency and enforceability by the city attorney.

9.

No proffer may be modified or amended except in accordance with these provisions. After the effective date of this section, the city council shall attach no conditions to nor accept any proffer with a rezoning except in accordance with this section.

10.

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

1.

If the city council approves the rezoning petition and accepts the written proffer, the city attorney shall, within ten (10) days of the city council's action, examine the appropriate records so as to determine whether any change in the interest in the property has occurred since the date of the title certificate. In the event that the city attorney determines that no such change in interest has occurred, the city attorney shall, within the said ten (10) day period, present the written proffer to the clerk of the circuit court for recordation.

2.

Upon recordation of the written proffer, the zoning administrator shall promptly delineate by appropriate symbol on the city's official zoning map the existence of the written proffers and other conditional zoning considerations for the subject property. The zoning administrator shall maintain and make available for public inspection the full and complete records of written proffers.

3.

If upon city council approval of the rezoning petition and acceptance of the written proffers, the city attorney determines that a change in interest in the property has taken place, and that, in his opinion, such change may adversely affect the city's interest in the proffer, the applicant shall be notified in writing that the proffer will not be recorded and that the city council's action in approving the rezoning will be rescinded and void unless an appeal is filed for a hearing before the city council within sixty (60) days of the date of the city attorney's letter.

4.

In the event that the applicant files an appeal within sixty (60) days of the date of the city attorney's letter, the applicant shall be given the opportunity for a public hearing before the city council. At the conclusion of such hearing, the city council may, at its legislative discretion, permit the applicant a certain amount of time in which to correct the legal or procedural objection raised by the city attorney or may rescind its earlier action in approving the rezoning.

5.

If the applicant fails to file his appeal within the said sixty-day period or upon hearing an appeal the city council acts to rescind its earlier action, the approval of the rezoning application shall be void.

6.

In no event shall the zoning map be changed to reflect the city council's approval of the conditional zoning application until the zoning administrator receives written notification from the city attorney that the proffer has been properly recorded.

1.

All proffers shall be in writing and shall be in a form suitable for recordation in the deed books maintained in the land records of the city.

2.

No proffer shall be accepted by the city council that has not received the approval of the city attorney as to legal form, sufficiency and enforceability.

3.

Each conditional zoning petition and proffer statement shall be accompanied by a certificate of title, prepared and signed by an attorney licensed to practice law in the Commonwealth of Virginia. The title certificate shall describe the property that is the subject of the petition and shall identify all parties having a recorded interest in the property, including legal and equitable owners and shall state the source of title or interest for each party.

4.

The certificate of title shall state the latest date through which the applicant's attorney examined the title to the property, which date shall not be more than six (6) months prior to the date of the filing of the petition.

5.

The city attorney shall reject any certificate of title that, in the city attorney's opinion, is incomplete or is otherwise insufficient from a legal standpoint.

6.

The written proffer shall name as grantors all owners of the property and shall be signed by all such parties. In the event that the applicant for the rezoning is a contract purchaser, such purchaser shall also be made party to the proffer and shall sign same.

7.

The foregoing provisions shall not be construed as limiting the authority of the city attorney to require that any additional person, firm, association or corporation be made a party and sign the proffer, when, in the city attorney's opinion, the inclusion of such person, firm, association or corporation is necessary to protect the city's interest.

1.

Once proffered and accepted as part of an amendment to the city's zoning ordinance, such proffered conditions shall continue in full force and effect until any subsequent amendment changes the zoning of the property covered by such conditions. However, such proffered conditions shall continue in full force and effect if the subsequent zoning amendment is part of a municipal action to comprehensively implement a new or substantially revised zoning ordinance.

2.

The zoning administrator shall be responsible for recording and referencing on the city's official zoning map the existence of adopted proffered conditions for individual properties. Any site plan, subdivision plat, general development plan, special use permit plan or other land use application thereafter submitted for development of property with proffered conditions shall conform with all of such conditions, and, further, in the absence of full conformity, shall not be approved by any city official or body.

For the purpose of this section, "full conformity" shall mean conformity which leaves a reasonable margin for technical adjustment due to introduction of final engineering and mapping data, but conforms to the general nature and intent of the development plat or plan, the specific uses, as well as the general layout depicted by the plans, profiles, elevations, and other demonstrative materials presented by the applicant's professional consultants.

3.

In the event of an inconsistency between a specific written proffer and a graphic depiction upon an approved general development plan, the proffered text shall control.

4.

The zoning administrator is hereby vested with all necessary authority to enforce such proffered conditions. Failure to comply shall be sufficient cause to deny the approval of (1) site plans, (2) subdivision plats, (3) zoning permits and/or (4) occupancy permits. In exercise of this authority, the zoning administrator may initiate action through the city manager to:

a.

Issue a violation notice and correction order;

b.

Bring legal action to ensure compliance, including lien, injunction and/or abatement; and/or

c.

Proceed with institution of criminal process.

5.

No amendment shall be made to any accepted proffer except in the manner of a new rezoning application as set forth herein.

6.

Any actions brought to contest the action of the city in violation of this section or state enabling legislation shall be brought only by the aggrieved applicant or the owner of the property subject to a rezoning or proffer condition amendment pursuant to subsection F of Code of Virginia § 15.2-2285.

7.

In any action in which the city has denied a rezoning or an amendment to an existing proffer and the aggrieved applicant proves by a preponderance of the evidence that it refused or failed to submit an unreasonable proffer or proffer condition amendment that it has proven was suggested, requested, or required by the city, the circuit court shall presume, absent clear and convincing evidence to the contrary, that such refusal or failure was the controlling basis for the denial.

8.

In any successful action brought pursuant to this section contesting an action of the city in violation of this section, the applicant or property owner may be entitled to an award of reasonable attorney fees and costs and to an order remanding the matter to the city council with a direction to approve the rezoning or proffer condition amendment without the inclusion of any unreasonable proffer.

9.

If the city fails or refuses to approve the rezoning or proffer condition amendment within a reasonable time not to exceed ninety (90) days from the date of the circuit court's order to do so, the court shall enjoin the city from interfering with the use of the property as applied for without the unreasonable proffer. Upon remand to the city council, the requirements of Code of Virginia § 15.2-2204 shall not apply.