Thursday, June 05, 2003

Impact fees in Virginia? Stafford County imposes fees including $1,600 per single-family home

This report in the Richmond Times-Dispatch said that one Virginia county has adopted on a trial basis impact fees for new development.

This makes economic sense for the county, and seems a bit more honest than the charade of "voluntary" proffers which are common in Virginia (as reported here), but I wonder about the nature and extent of the locality's authority to impose such fees, and I wrote a paper in law school concluding that the takings clause required heightened scrutiny of the nexus between the "impact" and the "fee," based on my understanding (to the extent I understood anything) of the Supreme Court's analysis in the Nollan case, among others. In other words, even though an impact fee might be presumptively valid under Virginia law, since an impact fee affects property rights there will be angry people ready to make the government justify its actions.

The current impact fee law in Virginia applies only to "(i) any county having a population of 500,000 or more as determined by the most recent U.S. Census, (ii) any county or city adjacent thereto, (iii) any city contiguous to such adjacent county or city, (iv) any town within such county or an adjacent county, and (v) any county having a population between 58,000 and 62,000," which excludes all or most SW VA counties. Va. Code § 15.2-2317. An "impact fee" is defined as "a charge or assessment imposed against new development in order to generate revenue to fund or recover the costs of reasonable road improvements necessitated by and attributable to the new development. Impact fees may not be assessed and imposed for road repair, operation and maintenance, nor to expand existing roads to meet demand which existed prior to the new development." Va. Code § 15.2-2318. The authorities who are allowed to impose impact fees "may, by ordinance pursuant to the procedures and requirements of this article, assess and impose impact fees on new development to pay all or a part of the cost of reasonable road improvements attributable in substantial part to the new development." Va. Code § 15.2-2319.

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