(Posted June 2, 2022) The Supreme Court of Virginia decides one of its oldest undecided appeals this morning. Albemarle County v. Route 29, LLC is a land-use appeal that addresses an interesting question: Can a developer make a voluntary proffer, get a rezoning based on that proffer, and later challenge enforcement of the proffer as an unconstitutional exaction?

The property is part of the Hollymead Town Center area, near the Charlottesville airport. It’s a few miles north of Charlottesville proper, and features a shopping mall anchored by a large department store. Fifteen years ago, the property’s owner sought a rezoning to develop it into that shopping center.

To persuade the County to grant the rezoning, the developer proffered the payment of up to half a million dollars, paid $50K a year, if and when the County extended public transportation to the site. The County agreed; the result is the shopping center that you can see today.

Eight years later, the County evaluated the prospect of expanding bus service to the site. That service had run in the past but was discontinued for lack of ridership. The County accordingly settled on a slimmed-down plan: a commuter shuttle that would operate during weekday morning and evening rush hours only. The County announced that it was relying on funds from the proffer to make this service financially viable.

The shopping center’s owner rebelled; it noted that this service would do nothing for its customers. It would instead serve folks who lived in northern Albemarle and worked in the City. There would be no service during the mall’s busiest times: midday on weekdays and all day Saturdays. The owner refused to pay the demanded proffers. That eventually led to a notice of zoning violation and a trip to circuit court.

The parties proceeded to a streamlined trial, providing the judge with stipulated facts and documents. The court considered the matter and ruled in favor of the owner, holding that the monetary demand was an unconstitutional application of the proffer: “there must be some nexus roughly relatable to the thing that you want to exercise the proffer for.” Because the commuter service addressed the needs of nearby citizens and not the shopping mall, the court held that the County could not collect the demanded money.

Today the Supreme Court unanimously agrees with the circuit court. This kind of condition amounts to an exaction: an agreement to permit development only if the owner surrenders a constitutional right. Here, the money demanded arose from a situation – the growth of residential communities in that area of Albemarle – that didn’t stem from the mall’s development. The Supreme Court rules that the voluntary nature of the proffer doesn’t deprive the owner of the right to challenge this proposed application of it. The court adds today that if the County ever does start offering real public transportation to the site, then the owner will have to start paying.

Today’s opinion comes from the January argument docket. There’s one undecided appeal left from that session; eight appeals remain from the March session and eight more from April. The June session begins next Wednesday and ends the next morning, with a forlorn four appeals on the argument docket. It should be a quiet summer at Ninth and Franklin.