CODE OF VIRGINIA

CONDITIONAL ZONING IN CERTAIN LOCALITIES (§ 15.2-2303)

A. A zoning ordinance may include reasonable regulations and provisions for
conditional zoning as defined in § 15.2-2201 and for the adoption, in counties,
or towns therein which have planning commissions, wherein the urban county
executive form of government is in effect, or in a city adjacent to or
completely surrounded by such a county, or in a county contiguous to any such
county, or in a city adjacent to or completely surrounded by such a contiguous
county, or in any town within such contiguous county, and in the counties east
of the Chesapeake Bay as a part of an amendment to the zoning map of reasonable
conditions, in addition to the regulations provided for the zoning district by
the ordinance, when such conditions shall have been proffered in writing, in
advance of the public hearing before the governing body required by § 15.2-2285
by the owner of the property which is the subject of the proposed zoning map
amendment. Reasonable conditions shall not include, however, conditions that
impose upon the applicant the requirement to 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 § 15.2-2241; however, such
facilities shall not include sidewalks, special street signs or markers, or
special street lighting in public rights-of-way not maintained by the Department
of Transportation. The governing body may also accept amended proffers once the
public hearing has begun if the amended proffers do not materially affect the
overall proposal. Once proffered and accepted as part of an amendment to the
zoning ordinance, 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 ordinance.

B. In the event proffered conditions 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 ordinance with respect to the zoning
district applicable thereto initiated by the governing body, 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.

C. Any landowner who has prior to July 1, 1990, proffered 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, but who has not substantially implemented such proffers
prior to July 1, 1990, shall advise the local governing body by certified mail
prior to July 1, 1991, that he intends to proceed with the implementation of
such proffers. Such notice shall identify the property to be developed, the
zoning district, and the proffers applicable thereto. Thereafter, any landowner
giving such notice shall have until July 1, 1995, substantially to implement
such proffers, or such later time as the governing body may allow. Thereafter,
the landowner in good faith shall diligently pursue the completion of the
development of the property. Any landowner who complies with the requirements of
this subsection shall be entitled to the protection against action initiated by
the governing body affecting use, floor area ratio, and density set out in
subsection B, unless there has been mistake, fraud, or a change in circumstances
substantially affecting the public health, safety, or welfare, but any landowner
failing to comply with the requirements of this subdivision shall acquire no
rights pursuant to this section.

D. Subsections B and C of this section shall be effective prospectively only,
and not retroactively, and shall not apply to any zoning ordinance text
amendments which may have been enacted prior to March 10, 1990. Nothing
contained herein shall be construed to affect any litigation pending prior to
July 1, 1990, or any such litigation nonsuited and thereafter refiled.

E. Nothing in this section shall be construed to affect or impair the authority
of a governing body to (i) accept proffered conditions which include provisions
for timing or phasing of dedications, payments, or improvements; or (ii) accept
or impose valid conditions pursuant to subdivision A 3 of § 15.2-2286,
subdivision 5 of § 15.2-2242, or other provision of law.

F. In any instance in which a locality has accepted proffered conditions that
include pedestrian improvements, and the Virginia Department of Transportation
has reviewed and not objected to the proposed pedestrian improvements during the
processing of the rezoning, the Virginia Department of Transportation shall
allow the proffered improvements to be constructed, except when such
improvements will violate local, state, or federal laws, regulations, or
mandated engineering and safety standards.

G. In addition to the powers granted by the preceding subsections, a zoning
ordinance may include reasonable regulations to implement, in whole or in part,
the provisions of §§ 15.2-2296 through 15.2-2302.

HISTORY: Code 1950, § 15-968.5; 1962, c. 407, § 15.1-491; 1964, c. 564; 1966,
c. 455; 1968, cc. 543, 595; 1973, c. 286; 1974, c. 547; 1975, cc. 99, 575, 579,
582, 641; 1976, cc. 71, 409, 470, 683; 1977, c. 177; 1978, c. 543; 1979, c. 182;
1982, c. 44; 1983, c. 392; 1984, c. 238; 1987, c. 8; 1988, cc. 481, 856; 1989,
cc. 359, 384; 1990, cc. 672, 868; 1992, c. 380; 1993, c. 672; 1994, c. 802;
1995, cc. 351, 475, 584, 603; 1996, c. 451; 1997, c. 587; 2001, c. 703; 2006, c.
450; 2008, c. 733.