COMMITTEE SUBSTITUTE
FOR
H. B. 4511
(By Delegates Wysong, Tabb, Blair, J., Miller, Cowles, Michael,
Duke, Williams, Barker, Shaver and Long)
(Originating in the
Committee on the Judiciary.)
[February 21, 2008]
A BILL to amend and reenact §8A-7-7, §8A-7-8 and §8A-7-13 of the
Code of West Virginia, 1931, as amended, all relating to
zoning ordinance adoption by election or otherwise; reducing
the threshold for triggering a zoning ordinance election by
petition; setting forth procedures for amending a zoning
ordinance; amending notice requirements; setting forth
petition requirements; requiring specific notice requirements
to affected owners of affected parcels when a proposed zoning
ordinance modification would change the zoning classification
of a parcel of land; clarifying the relevant notice and
adoption procedures as they pertain to adoption or
modification of a nontraditional zoning ordinance.
Be it enacted by the Legislature of West Virginia:
That §8A-7-7, §8A-7-8 and §8A-7-13 of the Code of West
Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 7. ZONING ORDINANCE.
§8A-7-7. Election on a zoning ordinance.
(a) The governing body of a municipality or a county may
submit a proposed zoning ordinance for approval or rejection at any
primary election, general election or special election, to the
qualified voters residing:
(1) Within the entire jurisdiction of the governing body, if
the proposed zoning ordinance is for the entire jurisdiction; or
(2) In the specific area to be zoned by the proposed zoning
ordinance, if the proposed zoning ordinance only applies to part of
the governing body's jurisdiction.
(b) The election laws of this state apply to any election on
a proposed zoning ordinance.
(c) If a petition for an election on a zoning ordinance is
filed with the clerk of a governing body within ninety days after
the enactment of a zoning ordinance by a governing body without an
election, then a zoning ordinance does not take effect until an
election is held and a majority of the voters approves it. At
least fifteen ten percent of the total eligible voters in the area
to be affected by the proposed zoning ordinance must sign, in their
own handwriting, the petition for an election on a zoning
ordinance.
(d) Notice for an election on a proposed zoning ordinance must
be published in a local newspaper of general circulation in the
area affected by the proposed zoning ordinance, as a Class II-0
legal advertisement, in accordance with the provisions of article
three, chapter fifty-nine of this code.
(e) The ballots for an election on a zoning ordinance shall
have the following:
/ / For Zoning
/ / Against Zoning
(f) The zoning ordinance is adopted if it is approved by a
majority of the voters and is effective on the date the results of
an election are declared. If a zoning ordinance is rejected, the
zoning ordinance does not take effect. The governing body may
submit the zoning ordinance to the voters again at the next primary
or general election.
§8A-7-8. Amendments to the zoning ordinance by the governing
body.
(a) After the enactment of the zoning ordinance by a
municipality, the governing body of the municipality or the county
may amend the zoning ordinance without holding an election. After
the enactment of a zoning ordinance by a county commission, the
county commission may submit any proposed amendment to the zoning
ordinance for approval or rejection at any primary election, general election or special election to the qualified voters
residing:
(1) Within the entire jurisdiction of the county, if the
county zoning ordinance applies to the entire county; or
(2) In the specific area to which the county zoning ordinance
applied, if the zoning ordinance only applies to a part of the
county.
(b) The election laws of this state apply to any election on
a proposed amendment to a zoning ordinance.
(c) If a petition for an election on an amendment to a zoning
ordinance enacted by a county commission is filed with the clerk of
the county commission within ninety days after the enactment of the
amendment without an election, then the amendment may not take
effect until an election is held and a majority of the voters
approve it. At least ten percent of the eligible voters in the
area to which the zoning ordinance applies must sign, in their own
handwriting, the petition for an election on a zoning ordinance
amendment.
(d) Notice for an election on a proposed zoning ordinance
amendment must be published in a local newspaper of general
circulation in the area affected by the zoning ordinance to be
amended, as a Class II-0 legal advertisement, in accordance with
the provisions of article three, chapter fifty-nine of this code.
(e) If an election on a zoning ordinance amendment is done in
accordance with subsections (a) or (c) of this section, the zoning
ordinance amendment is adopted if it is approved by a majority of
the voters and is effective on the date the results of an election
are declared. If a zoning ordinance amendment is rejected, the
amendment does not take effect. The governing body may submit the
zoning ordinance amendment to the voters again at another primary
or general election.
(f) If an amendment is proposed to a zoning ordinance adopted
by a county commission, any person may request that an election,
that is authorized by subsections (a) or (c) of this section, on a
zoning ordinance amendment be done at a special election upon
written request to the governing body.
(g) Before amending the zoning ordinance, the governing body
with the advice of the planning commission, must find that the
amendment is consistent with the adopted comprehensive plan. If
the amendment is inconsistent, then the governing body with the
advice of the planning commission, must find that there have been
major changes of an economic, physical or social nature within the
area involved which were not anticipated when the comprehensive
plan was adopted and those changes have substantially altered the
basic characteristics of the area.
(h) When a proposed amendment of a zoning ordinance enacted by a county commission involves a change in the zoning map
classification of any parcel of land, or a change to the applicable
zoning ordinance text regulations that decreases the allowed
dwelling unit density of any parcel of land, then written notice
shall be given by the governing body, at least thirty days before
the enactment of the amendment if there is no election or thirty
days before an election on the amendment to a zoning ordinance to
the owner of each parcel of land involved. One notice sent by first
class mail to the last known address of the owner as shown on the
current real estate tax assessment books or current real estate tax
assessment records shall be deemed adequate compliance with this
requirement, provided that the head of the governing body shall
make affidavit that such mailings have been made and file such
affidavit with its clerk.
8A-7-13. Process to replace nontraditional zoning ordinance.
(a) A governing body that has adopted or enacted a
nontraditional zoning ordinance may replace the nontraditional
zoning ordinance with a zoning ordinance. A nontraditional zoning
ordinance may be replaced with a zoning ordinance by:
(1) The governing body; or
(2) A petition by the voters in the affected area. If the
voters petition to replace the nontraditional zoning ordinance with
a zoning ordinance, then the provisions of this section and this chapter shall be followed.
(b)At least fifteen ten percent of the total eligible voters
in the affected area may petition the governing body to replace the
nontraditional zoning ordinance with a zoning ordinance. The
petition must include:
(1) The governing body's name to which the petition is
addressed;
(2) The reason for the petition, including:
(A) Replacing the nontraditional zoning ordinance with a
zoning ordinance; and
(B) That the question of replacing the nontraditional zoning
ordinance with a new zoning ordinance be put to the voters of the
affected area; and
(3) Signatures in ink or permanent marker.
(c) Each person signing the petition must be a registered
voter in the affected area and in the governing body's
jurisdiction. The petition must be delivered to the clerk of the
affected governing body. There are no time constraints on the
petition.
(d) Upon receipt of the petition with the required number of
qualifying signatures, the governing body shall place the question
on the next special, primary or general election ballot. Notice
for an election on replacing a zoning ordinance must be published in a local newspaper of general circulation in the area affected by
the nontraditional zoning ordinance, as a Class II-0 legal
advertisement, in accordance with the provisions of article three,
chapter fifty-nine of this code.
(e) The ballots for an election on replacing a zoning
ordinance shall have the following:
"Shall __________ (name of governing body) replace _________
(name of commonly known nontraditional zoning ordinance) with a
zoning ordinance?
___ Yes___ No"
(f) Upon a majority vote of the voters voting in favor of
replacing a non-traditional zoning ordinance with a zoning
ordinance, the governing body shall immediately begin the process
of adopting and enacting a zoning ordinance, in accordance with the
provisions of chapter eight-a of this code. The governing body has
a maximum of three years from the date of the election to adopt a
zoning ordinance.
(g) The governing body may amend its nontraditional zoning
ordinance during the process of adopting and enacting a zoning
ordinance.
(h) If a majority of the voters reject replacing the
nontraditional zoning ordinance with a zoning ordinance, the
affected voters may not petition for a vote on the issue for at least two years from the date of the election.
(i) Nothing in this section shall prevent a governing body
from amending its zoning ordinance in accordance with this chapter.
(j) If a county commission chooses to replace a nontraditional
zoning ordinance with a traditional zoning ordinance without
election, a petition for an election on the traditional zoning
ordinance may be filed with the clerk of the county commission
within ninety days after the enactment of the traditional zoning
ordinance by the county commission to require an election on the
question of the adoption of a traditional zoning ordinance. If a
petition is timely filed, the traditional zoning ordinance may not
take effect until a majority of the eligible voters approve it. At
least ten percent of the eligible voters who reside in the area to
be affected by the proposed zoning ordinance must sign, in their
own handwriting, the petition for an election on a zoning
ordinance.