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Court to decide developer’s costs

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When Spotsylvania County approved the 127-home Summerfield subdivision in 2009, it did so with a caveat: The developer would pay the county $3.2 million to offset the community’s impact on schools, roads and other infrastructure.

After more than a year of legal wrangling, that $3.2 million is still in play, and a judge will likely decide what chunk of those proffers—if any—the county will ultimately collect from the development off U.S. 1 near the Fredericksburg line.

The controversy started in 2011, when Summerfield’s developer—former Spotsylvania Supervisor Marion Hicks—asked the Board of Supervisors to reduce the proffer amount by $1.9 million. He contended that the development wouldn’t have the financial impact on the county that was first estimated.

Supervisors rejected Hicks’ request in March 2012 and declined to consider his subsequent application to reduce the fees by a lesser amount.

So Hicks, who is in his 90s, sued the county. In June, he earned a small victory when Spotsylvania Circuit Court Judge J. Howe Brown issued a partial summary judgment that eliminated $686,485 of Summerfield’s cash proffers, a move Hicks’ attorney called “highly significant.”

That money was designated for general government and judicial services, law enforcement, fire and rescue and solid waste. The court said at the time that it would consider the other proffers later.

The county appealed, and on Oct. 18, Brown reversed his decision, placing all of the proffers—including $2.1 million for schools—back on the table.

Hicks’ lawsuit against the county is now slated to go to trial, probably sometime in March or April, said Stafford County attorney Clark Leming, who is representing Hicks.

He downplayed the judge’s recent reversal, saying the Virginia Supreme Court advises against summary judgments before cases go to trial. The Spotsylvania judge was concerned that the state Supreme Court would not uphold his earlier summary judgment and decided he “needed to at least permit the county to put on evidence,” Leming said in an email.

County Attorney James Benkahla declined to comment.

Hicks had initially agreed to pay the cash proffers when his 34-acre development was approved in 2009.

But the lawsuit claims the proffers exceed the actual impact of Summerfield on the county’s infrastructure and that they don’t conform to Spotsylvania’s Comprehensive Plan as required by state code.

Assistant County Attorney Brandi Law wrote in court papers that the plan is merely a guide and noted that proffers are voluntary under state law. The Comprehensive Plan “is not intended to be a concrete set of rules that must be followed rigidly,” Law wrote.

Many developers scoff at the notion that proffers are voluntary. They are typically paid as homes are built, not all at once.

The lawsuit says Hicks has been unable to develop or sell housing lots at Summerfield because the proffer amounts have rendered them unmarketable. Hicks says supervisors wouldn’t have approved the development without proffers.

Meanwhile, the county Board of Supervisors last week voted to reduce cash proffers for a planned 43-home neighborhood off River Road that was approved in 2004.

The developer of River Glen is now scheduled to pay about $429,000 in cash proffers, a reduction of about $240,000.

Supervisors have also approved several mixed-use developments in recent months with no cash proffers. Board members will likely discuss changes to the proffer policy in the coming months.

Jeff Branscome: 540/374-5402


Fredericksburg City Council recently approved the final subdivision plat and plan for the 14.735 acres of the Summerfield development that lies within city limits.

The city portion of the project calls for 68 townhouses. Summerfield did not go through a rezoning in the city, so there were no proffers. However, as part of approving a special-use permit for the land in 2010, the council included conditions on the project. Among them, the developer is to pay $3,448.27 per unit when a building permit is approved to help offset the financial impact on city schools.

Council also noted that all conditions were to be interpreted “consistently with the proffered conditions adopted by Spotsylvania County by resolution 2009–170.”

—Pamela Gould