ENGROSSED
Senate Bill No. 595
(By Senators McCabe and Minard)
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[Introduced February 17, 2010; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §8A-4-2 of the Code of West Virginia,
1931, as amended; and to amend and reenact §8A-5-12 of said
code, all relating to the extension of the vesting period for
subdivision plans and plats and the period in which
requirements for vested plans and plats must occur.
Be it enacted by the Legislature of West Virginia:
That §8A-4-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §8A-5-12 of said code be amended
and reenacted, all to read as follows:
ARTICLE 4. SUBDIVISION AND LAND DEVELOPMENT ORDINANCE.
§8A-4-2. Contents of subdivision and land development ordinance.
(a) A subdivision and land development ordinance shall include
the following provisions:
(1) A minor subdivision or land development process, including
criteria, requirements and a definition of minor subdivision;
(2) The authority of the planning commission and its staff to
approve a minor subdivision or land development;
(3) A major subdivision or land development process, including
criteria and requirements;
(4) The authority of the planning commission to approve a
major subdivision or land development;
(5) The standards for setback requirements, lot sizes, streets,
sidewalks, walkways, parking, easements, rights-of-way, drainage,
utilities, infrastructure, curbs, gutters, street lights, fire
hydrants, storm water management and water and wastewater
facilities;
(6) Standards for flood-prone or subsidence areas;
(7) A review process for subdivision or land development plans
and plats by the planning commission;
(8) An approval process for subdivision or land development
plans and plats by the planning commission, including the authority
to approve subdivision or land development plans and plats with
conditions;
(9) A process to amend final approved subdivision or land
development plans and plats;
(10) A requirement that before development of the land is
commenced, subdivision and land development plans and plats must be
approved by the applicable planning commission, in accordance with
the comprehensive plan, if a comprehensive plan has been adopted;
(11) A requirement that after approval of the subdivision or land development plat by the planning commission and before the
subdivision or development of the land is commenced, the subdivision
and land development plat shall be recorded in the office of the
clerk of the county commission where a majority of the land to be
developed lies;
(12) A schedule of fees to be charged which are proportioned
to the cost of checking and verifying proposed plats;
(13) The process for granting waivers from the minimum
standards of the subdivision and land development ordinance;
(14) Improvement location permit process, including a
requirement that a structure or development of land is prohibited
without an improvement location permit;
(15) The acceptable methods of payment to cover the cost of the
water and sewer service infrastructure, which can include, but are
not limited to, bonds, impact fees, escrow fees and proffers;
(16) The process for cooperating and coordinating with other
governmental agencies affected by the subdivision and land
development and use; and
(17) Penalties for violating the subdivision and land
development ordinance.
(b) A subdivision and land development ordinance may include
the following provisions:
(1) Establishing a board of subdivision and land development
appeals with the same powers, duties and appeals process as set out
for the board of zoning appeals under the provisions of article eight of this chapter;
(2) Requirements for green space, common areas, public grounds,
walking and cycling paths, recreational trails, parks, playgrounds
and recreational areas;
(3) Encourage the use of renewable energy systems and energy-
conserving building design;
(4) Vested property right, including requirements;
(5) Exemptions of certain types of land development from the
subdivision and land development ordinance requirements, including,
but not limited to, single-family residential structures and farm
structures; and
(6) Any other provisions consistent with the comprehensive plan
the governing body considers necessary.
(c) All requirements, for the vesting of property rights
contained in an ordinance enacted pursuant to this section that
require the performance of any action within a certain time period
for any subdivision or land development plan or plat valid under
West Virginia law and outstanding as of January 1, 2010, shall be
extended until July 1, 2014, or longer as agreed to by the
municipality, county commission or planning commission. The
provisions of this subsection also apply to any requirement that a
use authorized pursuant to a special exception, special use permit,
conditional use permit or other agreement or zoning action be
terminated or ended by a certain date or within a certain number of
years.
ARTICLE 5. SUBDIVISION OR LAND DEVELOPMENT PLAN AND PLAT.
PART I. MINOR SUBDIVISION OR LAND DEVELOPMENT PROCESS.
§
8A-5-12. Vested property right.
(a) A vested property right is a right to undertake and
complete the land development. The right is established when the
land development plan and plat is approved by the planning
commission and is only applicable under the terms and conditions of
the approved land development plan and plat.
(b) Failure to abide by the terms and conditions of the
approved land development plan and plat will result in forfeiture
of the right.
(c) The vesting period for an approved land development plan
and plat which creates the vested property right is five years from
the approval of the land development plan and plat by the planning
commission.
(d) Without limiting the time when rights might otherwise vest,
a landowner's rights vest in a land use or development plan and
cannot be affected by a subsequent amendment to a zoning ordinance
or action by the planning commission when the landowner:
(1) Obtains or is the beneficiary of a significant affirmative
governmental act which remains in effect allowing development of a
specific project;
(2) Relies in good faith on the significant affirmative
governmental act; and
(3) Incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the
significant affirmative governmental act.
(e) A vested right is a property right, which cannot be taken
without compensation. A court may award damages against the local
government in favor of the landowner for monetary losses incurred
by the landowner and court costs and attorneys' fees, resulting from
the local government's bad faith refusal to recognize that the
landowner has obtained vested rights.
(f) Any subdivision or land development plan or plat, whether
recorded or not yet recorded, valid under West Virginia law and
outstanding as of January 1, 2010, shall remain valid until July 1,
2014, or such later date provided for by the terms of the planning
commission or county commission's local ordinance or for a longer
period as agreed to by the planning commission or county commission.
Any other plan or permit associated with the subdivision or land
development plan or plat shall also be extended for the same time
period.