County Attorney Larry Davis explains the proffer policy to the Supervisors

On August 1, 2007, the

Albemarle County Board of Supervisors

unanimously approved a rezoning for developer Wendell Wood near the National Ground Intelligence Center (NGIC), a site County staff have begun calling the

Rivanna Station Military Base

. The U.S. Defense Intelligence Agency (DIA) oversees NGIC and the Joint Use Intelligence Analysis Facility (JUIAF). Eight to nine hundred jobs are expected to be relocated from JUIAF’s Bolling AFB facility to the Rivanna Station Military Base in Charlottesville.

Wood’s rezoning request for 15 acres in the Piney Mountain designated
growth area was first heard by the County Planning Commission on July
10, 2007. Wood asked the County to rezone the land so he could
construct two 4-story office buildings (89,400 sq. ft. each) and a
3-story 120-unit residential building to facilitate the expansion of
NGIC. This land is not part of the “

NGIC land deal

” nor is it part of
the other land around NGIC and Hollymead Town Center that Wood has
asked be added to the County’s growth area to support new development.

When applicant’s get special treatment like this, public confidence
in your process is but one of the things that suffers and leads to

public opinion numbers like those found in our survey

It is regrettable that County staff have been sent behind closed
doors in the middle of a board meeting to negotiate this deal with
Wendell Wood and that the public hasn’t had a genuine opportunity to

Brian Wheeler, Collectbritain

[Note: complete statement below]

Links for this story:

Staff report


Albemarle County Proffer Policy


Letter from NGIC referenced by Rooker in meeting


Letter provided by Ron White and mentioned in D. Progress article

Podcast produced by Collectbritain * Player by Odeo

Listen using player above or download the podcast


Download 20070801-BOS-NGIC.MP3

There were a number of interesting points in the Board’s discussion, including the process taken to review and amend the proffers.

The entire discussion and the Board’s rationale for approval and the granting of an exception to the proffer policy are included in the audio podcast.

The Daily Progress also covered this story today


Here is a general outline of the proffer discussion


Here is a key point in the discussion on the County’s proffer policy and Wood’s application:

Supervisor Dennis Rooker (Jack Jouett)

“I had a lot of problems with the proffers that were submitted in our package. And just looking these over, it seems to me that the problems I had have been dealt with in these new proffers. The question is…whether the difference between these and what was submitted with the package are so great that under our policy we can’t approve this today. We have a policy of requiring proffers to be in final form a certain number of days in advance of the meeting which allows the public to look at the file and analyze them, etc. And I raise the question whether or not we, I’m not taking a position at this point, I’m really asking Larry whether or not we can vote today on proffers that have been submitted at the last minute?”

Larry Davis, County Attorney

Your policy is that prior to advertising the rezoning final proffers should be received and reviewed by Mark [Graham]. And there was a set of proffers that were submitted and it was advertised. Your policy also says that final signed proffers shall be received nine days in advance of the public hearing. Now if they have not been received, the Board policy is to proceed with the public hearing and unless there is some compelling reason to act, your policy is to defer. But that is certainly an option of the Board. The Board is not bound by that policy in every instance. It’s at the discretion of the Board as to how to follow it, but that is your policy statement and the Board has been consistent in following that since you adopted it [in December 2005.”

Mark Graham, Director of Community Development

“Mr. Chairman, I have copies of the policy if anyone would like to have one and I’ve tried to highlight that the policy actually calls for deferment and scheduling of a second public hearing with those revised materials. That’s just a point of clarification on it.”

Larry Davis, County Attorney

“Since you adopted that policy there has also been a change in the state law which requires that if there is any material change in proffers after the public hearing is opened that a second public hearing is required, which [the change in state law] is not specifically addressed by that proffer policy but it limits making changes to proffers after the public hearing has begun, from a legal standpoint.”

Supervisor David Wyant (White Hall)

“Which public hearing? Planning [Commission]?”

Larry Davis, County Attorney

“This public hearing before the board. So once you open the public hearing, any material changes to these proffers will necessitate a second public hearing.”

Supervisor Dennis Rooker (Jack Jouett)

“Which proffers, the ones that have just been handed out?”

Larry Davis, County Attorney

“Yes sir.”

Supervisor Ken Boyd (Rivanna)

“I am a little bit confused about one thing because you used the term ‘substantive changes’ and I got the impression when you were originally going through that there was just a few substantive changes to it, not many with the exception of the one having to do with the cash proffer for affordable housing. And I still don’t even understand where we are with that particular proffer now. Is it we have the option of doing it either way we want to?”

Supervisor Dennis Rooker (Jack Jouett)

“There are a number of material differences between the proffers…between what was in our package and what we have. I think what was handed out is better for the County than what was in the packet.”

Supervisor Ken Boyd (Rivanna)

“That was in response to our request.”

Larry Davis, County Attorney

“The developer has been, I have to say the developer has addressed the issues as we requested them to address them this morning.”

Supervisor Ken Boyd (Rivanna)

“I understand that there is many of them and there is, probably from a legal standpoint, there are substantive changes. [Are] there substantive changes in what is being proffered?”

Larry Davis, County Attorney

“Yes…” [Mr. Davis then cites examples of the material changes]

Larry Davis, County Attorney

“So there are a number of substantive changes, and I think the proffers in front of you are, I think in good shape, but I have to say I have not had a chance to review them, and as indicated by Mr. Rooker’s question, I really didn’t know because I hadn’t read that part yet. But Greg Kamptner in my office has spent a bunch of time this morning on this and he feels that they are in the best shape that he can get them to you today. He’s assured me that he’s reviewed them within the last hour.”

Mark Graham, Director of Community Development

“And staff’s position would be the same on that. We have tried to, and they look like they have addressed the issue, but quite frankly we have not had the time that we would normally spend on a set of proffers, to give them the scrutiny, and be confident that they adequately address the issue.”

Supervisor Ken Boyd (Rivanna)

“I appreciate what you are saying, but what I am trying to clarify in my mind here is that it appears we got a set of proffers that we didn’t particularly like and either staff, in terms of community development, or legal people, said look we need to clarify this point… and now we have worked through this process.. . Are you all afraid that maybe something else was put in here that you didn’t see? It sounds like you were part of the process of redesigning these all along, which ought to give you some level of comfort because you had studies it before…”

Larry Davis, County Attorney

“It’s been an interactive process the last few days and we have accomplished what I think we were trying to do which was to get a set of proffers that the board could consider and adopt if you chose to do so. And I think we have them in that form. I don’t know that planning staff have had time to re-analyze the planning issues as they have changed in the last few days. But I can’t address that, I think Mark is going to have to address whether they have had adequate time to address the planning issues.”

Mark Graham, Director of Community Development

“And I think that is what I was getting to. We have not had the time to give them the kind of scrutiny we normally would…”

Soon after this exchange, the Board was told they could speak with Wood without opening a public hearing. After those discussions, they
postponed action and asked Wood to leave the room and work
with the County’s staff and attorney to revise the proffers. About an hour later, staff returned with Wood and two versions of
revised proffers. The public hearing was opened.

When the public hearing opened, I made the following remarks:

Good afternoon, my name is Brian Wheeler, Executive Director of Collectbritain. My organization does not have a position on this rezoning or the expansion of NGIC. I would however like to connect some impressions of the County’s review of this request with the voter survey results that I provided you this morning.

Collectbritain had a national public opinion research firm ask 1,045 Albemarle County voters about their level of satisfaction about government’s efforts to ‘create genuine public participation in growth and development decisions.’ Only one-half of the voters were satisfied, 51.9%.

As a member of the public, I have access to the July 2nd proffers and Mr. Wood’s July 12th letter to react to. I don’t have the proffers he submitted this morning. When this project was recommended for approval by a 4-3 vote of the Planning Commission, the commissioners who voter for it did so with statements about how these proffer details would all be vetted by this Board. The commissioners voting against it said they did so in part because the proffers were not in order.

I attended the July 10th meeting, I’ll just read from my notes here:

[Commissioner Marcia] Joseph observes that Planning Commission didn’t have luxury of a work session, applicant is in a hurry.

[Commissioner Bill] Edgerton – There will be tremendous community impact no matter who moves in there. A rezoning is forever… I can’t in good conscience support something this unresolved.

[Commissioner Marcia] Joseph – I can’t support this with so many outstanding issues. I’d prefer to have more information prior to meeting…

While motion was being made and proffers re-written on the fly, Mr. Cannon asks if the Commission can even pass a motion when the applicant hadn’t even proffered the things that they were putting in the motion. [Deputy County Attorney] Kamptner said that that could work.

So flash forward to today and you have proffers your attorney said earlier he has not reviewed. You have proffers your head of community development said he had not reviewed. You have accepted proffers against your internal policy for their review by staff. You have proffers the public has had no opportunity to review.

When applicant’s get special treatment like this, public confidence in your process is but one of the things that suffers and leads to public opinion numbers like those found in our survey.

It is regrettable that County staff have been sent behind closed doors in the middle of a board meeting to negotiate this deal with Wendell Wood and that the public hasn’t had a genuine opportunity to participate. Thank you.

[End of my remarks to the Board]

The rezoning request was approved unanimously by the Board. According to

today’s Daily Progress article

, Supervisor Sally Thomas said

an e-mail indicating NGIC didn’t intend to occupy Wood’s buildings and that was not reviewed prior to her vote would have factored into her decision


“It shows the
value of our policy,” Thomas said during a break. Given the e-mail, and
the fact that board did not follow its own policy, the supervisors
might have “mud on our face,” she said.

The letter from Glenn Wait at NGIC states, in part: “[I]t would indeed be very convenient to have housing within walking distance of the Center. At this time, we have no direct plans or contractual arrangements to lease the proposed apartments that Mr. Wood is wanting to build. I believe that he is being proactive as he knows at some point the Army will be re-negotiating for apartments and I am sure that he would want to be considered.”

Brian Wheeler

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