CLIENT UPDATE: General Assembly Bills Developers Should Note — That Aren’t the Proffer Amendment Bill

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CLIENT UPDATE: General Assembly Bills Developers Should Note — That Aren’t the Proffer Amendment Bill

 CLIENT UPDATE: General Assembly Bills Developers Should Note — That Aren’t the Proffer Amendment Bill

By Meg McEvoy

MARCH 7, 2016 — Of course, the Virginia General Assembly bill most on the development community’s minds this year was HB 770, a bill that would limit localities’ ability to request or accept “unreasonable” proffered conditions associated with residential building projects.

HB 770 has been closely tracked by builder and industry groups, and has been covered extensively by major news outlets.  The landmark legislation is currently on Governor Terry McAuliffe’s desk, having passed the House and Senate.

Although none are as significant as the proffer bill, there are a few pieces of legislation on the General Assembly’s 2016 agenda that the development community should be paying attention to.

Stormwater Laws – A Coming Wave?

HB 1250, the Virginia Erosion and Stormwater Management Act combines existing statutory programs relating to soil erosion and stormwater management, directing the State Water Control Board (the Board) to permit, regulate, and control both erosion and stormwater runoff.  This bill consolidates four different regulatory schemes under the Department of Environmental Quality and effectively writes one law for them, a move that builder groups supported for ease of administration.  The bill itself doesn’t change anything, and the Board must adopt regulations to implement the new law, so it won’t become effective until the later of July 1, 2017 or 30 days after the Board adopts regulations.

But, as Michael S. Rolband of Wetland Studies and Solutions, Inc. points out, these regulations will be formulated over the next 18 months to two years – just as the Chesapeake Bay TMDL midpoint assessment occurs in 2017.

“It just so happens the VSMP is going to be opened for revision right when this midpoint data correction comes down,” Rolband says.

So, with Virginia Stormwater Management Permits expiring July 1, 2019, Rolband says, if the Chesapeake Bay isn’t meeting benchmarks, Northern Virginia developers should be prepared for water quality standards that look a lot more like Maryland’s.

“I’m thinking, if overall we’re not meeting the Chesapeake Bay program goals, and you want to tighten things up, one target is development,” Rolband says.  “Across the Potomac River they’re going to this other, lower standard” – that would be around 0.10 to 0.12 pounds of phosphorus per acre per year, depending on soil type.

“Storm water permits expire in 2019 so that is likely place where they’ll make this change,” Rolband says. “We’re most likely going to get to Maryland standards,” adding another layer of costs that the local development community hasn’t fully contemplated yet, Rolband says.

HB 1250 passed the Senate on March 1.

One to Watch

One bill that was left in committee this year should be getting more support from the builder community going forward, says Rolband.

HB 787 allows persons applying for a stormwater permit to acquire nutrient credits for construction activities from credit providers located outside the tributary where the construction activity is occurring.  Currently, the acquisition of such credits is generally limited to the same or adjacent eight-digit hydrologic code as defined by the U.S. Geological Survey.

Nutrient credits to offset environmental impacts on local watersheds are “not cheap and prices are going up,” says Rolband.

HB 787 came about because counties in Southwest Virginia and on the Eastern Shore wanted to allow trading of nutrient credits throughout the state to reduce costs in developing areas while still improving the overall health of the Chesapeake Bay.

The bill was left in committee because the building industry didn’t support it, according to Rolband, “but there is an opportunity next year to get this passed.”

“I think it would be advantageous for the building industry to push it next year because the larger the service area that you expand for trading credits the lower the price will be,” Rolband says.

Outcomes depend on whether the legislature prioritizes the overall health of the Chesapeake Bay or focuses on individual affected watersheds.

Smaller Impacts

SB 237 provides that, for the purposes of condemnation, the value of a portion of a common area of a property owners’ association shall be based on the common area’s highest and best use as though it were free from restriction to sole use as a common area. As of March 4, SB 237 had passed both the Senate and House.

HB 746 would add to Va. Code § 55-519 to require disclosure to purchasers of residential property the zoning classification or permitted uses of parcels adjacent to the parcel that is being purchased. HB 746 is currently on the governor’s desk for signature.

The information provided in this Client Update is not intended as legal advice and does not create an attorney-client relationship.  For more information, contact Meg McEvoy at Compton & Duling at 703-583-6060.