Virginia Supreme Court rules against Albemarle in Jaunt proffer case

Albemarle County acted unconstitutionally when it demanded the developer of the Hollymead Town Center begin making $50,000 annual payments for a transit route operated by Jaunt. That’s according to a Virginia Supreme Court opinion issued this morning by Justice S. Bernard Goodwyn. (read the opinion)

“While a state, under its police power, may regulate land use to further legitimate state interests, it may not use this power as a cudgel to coerce concessions from a land-use applicant who seeks to repurpose her property,” reads the opinion. 

The Board of Supervisors approved the Hollymead Town Center development in September 2007 and under one of the proffered conditions, a company called Octagon Partners agreed to pay $50,000 a year “within thirty days after demand by the County after public transportation service is provided to the Project.” 

At issue is whether this proffer from a 2007 rezoning was sufficient to compel the developer to make specific payments to Route 29 Express 

In November 2015, the Board voted 4-1 to work with Jaunt to develop a commuter route called Route 29 Express to serve the area with a stop at the Kohl’s. 

By that point, the property had transferred to United Land through a subsidiary known as Route 29 LLC. Developer Wendell Wood had previously sought to change the proffer but was unsuccessful. He argued that the triggering of the proffer as presented was unreasonable, but he offered to pay a smaller amount. 

At the time, Rio District Supervisor Brad Sheffield was executive director of Jaunt but he recused himself from the vote. He did not seek re-election to the Board in 2017. In late 2020, Jaunt’s Board of Directors asked him to resign for financial matters not related to this lawsuit. 

Soon after the Route 29 Express service began in May 2016, the county sent two bills to Route 29 LLC demanding payment, and issued a zoning violation in the summer of 2018. Wood refused to pay. 

Wood sued in January 2019 challenging that violation and both parties agreed to a certain set of facts. In May of that year, the county sought dismissal based on a claim that those facts admitted Wood’s acceptance that he needed to pay for the transit service. Albemarle Circuit Court Judge Cheryl Higgins denied that dismissal request and the case went to trial. 

The route map for the continuing Route 29 Express service (Credit: Jaunt)

During the trial, the county also sought to dismiss testimony and evidence introduced by the plaintiff to support their argument that the commuter route did not have any benefits of reducing traffic on U.S. 29. Higgins did not grant a motion to strike and then ruled in favor of Route 29 LLC. 

The county appealed, and now the Virginia Supreme Court affirmed Higgins was correct in not granting the county’s request to dismiss and to strike the evidence. The Court sided with Route29 LLC about the unreasonability of the proffer. 

“In essence, the County contends that when a municipality conditions the grant of a land use permit on acceptance of a conditional proffer, voluntarily entered into, the payment required by the proffer need not possess an essential nexus, nor be roughly proportional, to the impact of the development allowed by the permit in order for the proffer to be legally enforceable,” reads the analysis on page 9 of the opinion.

“We disagree,” the opinion continues. 

The ruling does not dismiss the transit proffer completely. 

“The Owner acknowledges, and we agree, that a different public transportation service may trigger Transit Proffer payments that are enforceable at law,” the opinion continues. “However, the Commuter Route, as it is presently designed, does not.”

A spokeswoman for Jaunt said the organization had no comment on the ruling, but did say that the North 29 Express is still operating and led to several other commuter buses such as one that serves Crozet. 

Albemarle County did not have a comment on the ruling.

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