About the ProfferPro™ System
At the heart of the ProfferPro™ System developed by Virginia Proffer Solutions, is a deep understanding of the federal, state, and local levels of legal scrutiny that must now be applied to each zoning case involving any proffer, condition or impact fee. The foundational legal principals are based in the jurisprudence that has evolved around the “takings” clause in the 5th Amendment to the United States Constitution and Article I, Section 11 of the Virginia Constitution. These legal principals have given birth to the new Virginia Proffer Legislation, which has, in turn, spawned local regulations. Together they require a factual and economic analysis to support every governmental extraction in a land use case.
The ProfferPro™ System provides that factual and statistical basis through an independent, well-researched, and rigorous analysis that can be relied upon by developers and local jurisdictions. The ProfferPro™ System builds on the prior work performed by localities in the creation of monetary proffer guidelines, but corrects several of the defects that made them subject to attack on constitutional grounds. Each ProfferPro™ report documents the facts required to show a nexus between the impacts of a project and the proffer condition or impact fee that is offered and also demonstrates their proportionality to the impacts. Each report is individually prepared and reflects the unique characteristics of each development and each jurisdiction's level of service standards laid out in their planning documents.
A key component of the ProfferPro™ System is its recognition of the interplay between the nexus requirement expressed in the case law and the definition of a reasonable proffer in the new proffer legislation. That definition includes a requirement that “…each such new residential development or new residential use applied for receives a direct and material benefit from a proffer made with respect to any such public facility improvements.” Taken together, these provisions require the recognition of what Virginia Proffer Solutions describes as a Development Impact/ Benefit Zone™. Stated simply, the measurement of impacts a development creates must now relate to specific facilities within a constricted geographic area that will be affected and which directly and materially benefit the project. Countywide impact calculations are no longer granular enough to satisfy the nexus/direct and material benefit requirements.