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Stafford dislikes proffer bill page 2
Proffer bill upsets Stafford officials

Date published: 2/17/2011

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"We put this bill in that just said, 'We mean it,'" Obenshain said.

Stafford Supervisor Cord Sterling said the bill is designed to undo private contracts, while Supervisor Mark Dudenhefer said it's an example of "builders run amok" in Richmond.

Sterling and Stimpson came to Richmond to oppose Obenshain's bill.

After some work in a House committee, the bill now says courts "may" make localities pay those fees.

Stimpson says that essentially guts the bill and eases Stafford's concerns with it.

"It is now essentially a paper tiger and if there is a genuinely fair legal dispute between developers and the people, we can move forward, representing the people, without the threat of the original unnecessary mandate and the people can have their day in court," Stimpson said.

But changing "shall" to "may" doesn't alter the underlying dispute over proffers.

The law was changed last year, moving the timing of proffer payments to when the certificate of occupancy is issued, instead of when the building permit is issued.

It will expire in three years, and was intended to help the struggling homebuilding industry recover from the recession.

"In today's current climate, cash for builders is short," said Mike Toalson, of the Homebuilders Association of Virginia.

Stafford plans to obey the change for proffer deals that may be made since it went into effect. But as Stimpson said, county officials believe it should not apply retroactively to proffer contracts made before the new law.

According to Deputy County Administrator Mike Neuhard and county public information officer Cathy Riddle, paying proffers at occupancy means the county gets the cash months later than it would have under the old way of doing things.

The certificate of occupancy is the last thing in the process of new construction, Neuhard said, and is the only leverage localities have to ensure that the proffer is paid.

By the time it's issued, he said, people are ready to move into a new house.

"We've had moving vans on the street when we're issuing the occupancy permit," he said.

Delaying the proffer payment also could delay construction of the infrastructure that proffers are meant to pay for, said Riddle. Proffer money is used for roads, sewer and water, schools and other things required by new developments.

So far, Stafford has not had any proffer agreements made under the new rules, Neuhard said.

When that happens, Obenshain's bill might become more prominent.

The attorney general was asked for a ruling on the matter, and he said it applies to prior proffers. He also noted that an amendment to exempt existing proffer agreements had been rejected by the General Assembly. And he wrote that a proffer agreement is not a contract, and is not protected under the state's contract clause.

That is, Stimpson said, "one attorney's opinion."

The bill has passed the Senate and the House, but a House amendment means it will have to go back through the Senate before going on to the governor.

--Staff reporter Jonas Beals contributed to this story.

Chelyen Davis: 804/343-2245
Email: cdavis@freelancestar.com


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