Rowland v. Warrenton: Rezoning by Proffer Statement & After Planning Commission Denial

On May 28, 2020, the Virginia Supreme Court issued its decision in the case of Rowland v. Town Council of Warrenton, 842 S.E. 398 (2020). The case provides useful insight and practical tools for those navigating the rezoning process in Virginia.

The Rowland case involved a group of 10 property owners (Owners) who filed an application with the Warrenton Planning Commission to rezone 31 acres of land from industrial to industrial planned unit development (I-PUD) for purposes of developing a mixed-use project. At the first public hearing, the Planning Commission voted 6-1 to recommend denial of the rezoning. During the next three months, the Owners made adjustments to the application in consultation with town staff and submitted a final revised proffer statement and master plan. The proffer statement included a mix of industrial, commercial, and residential uses that did not comply with the Zoning Ordinance’s requirements for an I-PUD district.

The Warrenton Town Council held a public hearing on the revised application and proffer statement. The staff report summarized the proposal to date, including the Planning Commission’s recommendation for denial and the project’s inconsistency with the Zoning Ordinance’s land use mix requirements. Nevertheless, the staff report recommended that the Town Council approve the rezoning because it was consistent with the intent of both the I-PUD District and the Comprehensive Plan and because the final submission addressed the Planning Commission’s concerns. The Town Council approved the rezoning by a 6-1 vote.

After the approval, a group of residents located near the project filed a lawsuit challenging the Town Council’s approval. The lawsuit primarily challenged: (1) the Town Council’s authority to accept conditional proffers that were not reviewed by the Planning Commission, that permitted a nonconforming balance between land use percentages, and that effectively modified the Zoning Ordinance’s requirements of the I-PUD zone; and (2) the Town Council’s authority to review and vote on the revised rezoning application without further review by the Planning Commission. The Circuit Court ruled in favor of the Town Council and the Owners, and the Supreme Court of Virginia granted the neighbors’ appeal.

Proffer Statements

The principal issue in the case was whether the Town Council, as Warrenton’s governing body, had the authority to accept a proffer that resulted in an I-PUD parcel with a lower threshold for industrial land use than other properties under the I-PUD zoning designation. In other words, did the Town Council have the power to effectively rezone the project property as an I-PUD that could have a greater proportion of commercial and residential uses than other I-PUDs?

After analyzing Virginia Code provisions governing a local government’s power to accept conditional proffers in a rezoning, the Court concluded that the answer is “Yes”:

The General Assembly intended for local governments to have authority to accept proffers that depart from the requirements of the zoning ordinance for a specific property as part of a conditional rezoning process…. In Virginia, proffers, once accepted, have the force of law equal to the requirements of the zoning ordinance…. Because the acceptance of proffers by a locality has the force of law, the acceptance of a proffer which alters the rezoning requirements of a particular property is the functional equivalent of an amendment to the zoning ordinance.

In reaching its conclusion, the Court noted that localities need flexibility in their decision-making process in order to act in the best interest of the community with respect to a particular piece of property, even if an accepted proffer “creates a condition not generally applicable to land similarly zoned.” Ultimately, the Court upheld the Town Council’s acceptance of the proffer because it was consistent with the intended mixed-use development of an I-PUD district and resulted in only a de minimis variation in the land use mix, and because the proffer statement addressed issues resulting from the variation (such as increased traffic).

Planning Commission Review

The neighbors also argued that the Town Council could not consider the revised application because it was not referred back to the Planning Commission. The neighbors relied on a provision of the Town’s Zoning Ordinance that empowers the Town Council to consider and act upon such applications “upon recommendation of the planning commission.” The Court found the neighbor’s argument too restrictive and impractical because it would require Planning Commission approval of the final version of a rezoning application without any modifications between the Planning Commission and Town Council levels. Furthermore, the Planning Commission sits in merely an advisory role with respect to the Town Council’s final decision-making authority. The practical effect of “find[ing] that every change resulting from continued negotiations between a developer and a locality requires an additional planning commission hearing would mean that the public hearing process may never come to a conclusion.” The Court found that the revised application was substantially the same as the original application and that the amendments made with guidance from town staff adequately addressed the Planning Commission’s concerns, which were the Planning Commission’s recommendations for purposes of the Zoning Ordinance.

Key Takeaways

The Rowland case provides the following key takeaways for rezoning matters in Virginia:

• A locality’s governing body may accept a proffer that is beneficial to the community, even if the proffer does not comport with Ordinance requirements.
• A locality’s governing body may approve a substantially revised rezoning application after Planning Commission denial.