Section 110. Negotiations; role of board; good faith required

A. The governing body or its designated representatives and the applicant, after submission of notice of intent to file an application for certification of site approval, may meet to discuss any matters pertaining to the site and the facility, including negotiations of a siting agreement. The time and place of any meeting shall be set by agreement, but at least a 48-hour notice shall be given to members of the governing body and the applicant.

B. The board shall assist in facilitating negotiations between the local governing body and the applicant to the extent of recommending a mediator or other conflict resolution mechanism, but shall not become integrally involved in the siting agreement negotiations.

C. The siting agreement may include any terms and conditions, including mitigation of adverse impacts and financial compensation to the host community, concerning the facility. In the event that a provision of a siting agreement conflicts with state or federal law, the state or federal law shall prevail.

D. The siting agreement shall be executed by the signatures of (i) the chief executive officer of the host community, who has been so directed by a majority vote of the local governing body, and (ii) the applicant or authorized agent.

E. Determination of agreement.

1. If the report submitted by the governing body pursuant to § 10.1-1441 of the Code of Virginia indicates that no siting agreement has been reached and contains a written allegation that the applicant has failed or refused to negotiate in good faith, the director shall issue notice to the applicant and host community of the board's intention to hold an informal conference pursuant to § 2.2-4019 of the Virginia Administrative Process Act. The notice shall state the time, place and date of such conference. The purpose shall be to determine the sole issue of whether or not the applicant has failed or refused to negotiate in good faith with the governing body in developing a siting agreement.

2. If the board finds that the governing body has shown by a preponderance of the evidence that the applicant has failed or refused to negotiate in good faith with the governing body for the purpose of attempting to develop a siting agreement, the board may deny the application for certification of site approval. Such a finding shall constitute final action by the board.

3. If the board finds that the governing body has not shown by a preponderance of the evidence that the applicant has failed or refused to negotiate in good faith with the governing body for the purpose of attempting to develop a siting agreement, the board may issue the draft certification of site approval pursuant to § 10.1-1443 of the Code of Virginia. Such finding shall not be considered final action by the board.

Historical Notes

Derived from VR672-01-4 § 3.2, eff. April 30, 1986; amended, Volume 21, Issue 20, eff. July 13, 2005; Volume 32, Issue 24, eff. August 24, 2016.

Statutory Authority

§§ 10.1-1434 and 10.1-1436 of the Code of Virginia.