H. B. 4364
(By Delegates Doyle, Duke)
[Introduced
February 5, 2010
; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §8A-1-2 of the Code of West Virginia,
1931, as amended; and to amend and reenact §8A-7-7 and §8A-7-
13 of said code, all relating to land use planning; zoning;
process to replace a noneuclidean zoning ordinance; and
providing that the term "zoning ordinance" means either
"euclidean zoning ordinance" or "noneuclidean zoning
ordinance".
Be it enacted by the Legislature of West Virginia:
That §8A-1-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §8A-7-7 and §8A-7-13 of said
code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS.
§8A-1-2. Definitions.
As used in this chapter, the following words and terms have
the following meanings, unless the context clearly indicates otherwise:
(a) "Abandonment" means the relinquishment of property or a
cessation of the use of the property by the owner or lessee without
any intention of transferring rights to the property to another
owner or resuming the nonconforming use of the property for a
period of one year.
(b) "Aggrieved" or "aggrieved person" means a person who:
(1) Is denied by the planning commission, board of subdivision
and land development appeals, or the board of zoning appeals, in
whole or in part, the relief sought in any application or appeal;
or
(2) Has demonstrated that he or she will suffer a peculiar
injury, prejudice or inconvenience beyond that which other
residents of the county or municipality may suffer.
(c) "Comprehensive plan" means a plan for physical
development, including land use, adopted by a governing body,
setting forth guidelines, goals and objectives for all activities
that affect growth and development in the governing body's
jurisdiction.
(d) "Conditional use" means a use which because of special
requirements or characteristics may be permitted in a particular
zoning district only after review by the board of zoning appeals
and upon issuance of a conditional use permit, and subject to the
limitations and conditions specified in the zoning ordinance.
(e) "Contiguous" means lots, parcels, municipal boundaries or county boundaries that are next to, abutting and having a boundary,
or portion thereof, that is coterminous. Streets, highways, roads
or other traffic or utility easements, streams, rivers, and other
natural topography are not to be used to determine lots, parcels,
municipal boundaries or county boundaries as contiguous.
(f) "Essential utilities and equipment" means underground or
overhead electrical, gas, communications not regulated by the
federal communications commission, water and sewage systems,
including pole structures, towers, wires, lines, mains, drains,
sewers, conduits, cables, fire alarm boxes, public telephone
structures, police call boxes, traffic signals, hydrants,
regulating and measuring devices and the structures in which they
are housed, and other similar equipment accessories in connection
therewith. Essential utility equipment is recognized in three
categories:
(1) Local serving;
(2) Nonlocal or transmission through the county or
municipality; and
(3) Water and sewer systems, the activities of which are
regulated, in whole or in part, by one or more of the following
state agencies:
(A) Public Service Commission;
(B) Department of Environmental Protection; or
(C) The Department of Health and Human Resources.
(g) "Existing use" means use of land, buildings or activity permitted or in existence prior to the adoption of a zoning map or
ordinances by the county or municipality. If the use is
nonconforming to local ordinance and lawfully existed prior to the
adoption of the ordinance, the use may continue to exist as a
nonconforming use until abandoned for a period of one year:
Provided, That in the case of natural resources, the absence of
natural resources extraction or harvesting is not abandonment of
the use.
(h) "Exterior architectural features" means the architectural
character and general composition of the exterior of a structure,
including, but not limited to, the kind, color and texture of the
building material, and the type, design and character of all
windows, doors, massing and rhythm, light fixtures, signs, other
appurtenant elements and natural features when they are integral to
the significance of the site, all of which are subject to public
view from a public street, way or place.
(i) "Factory-built homes" means modular and manufactured
homes.
(j) "Flood-prone area" means any land area susceptible to
repeated inundation by water from any source.
(k) "Governing body" means the body that governs a
municipality or county.
(l) "Historic district" means a geographically definable area,
designated as historic on a national, state or local register,
possessing a significant concentration, linkage or continuity of sites, buildings, structures or objects united historically or
aesthetically by plan or physical development.
(m) "Historic landmark" means a site, building, structure or
object designated as historic on a national, state or local
register.
(n) "Historic site" means the location of a significant event,
a prehistoric or historic occupation or activity, or a building or
structure whether standing, ruined or vanished, where the location
itself possesses historical, cultural or archaeological value
regardless of the value of any existing structure and designated as
historic on a national, state or local register.
(o) "Improvement location permit" means a permit issued by a
municipality or county, in accordance with its subdivision and land
development ordinance, for the construction, erection,
installation, placement, rehabilitation or renovation of a
structure or development of land, and for the purpose of regulating
development within flood-prone areas.
(p) "Infill development" means to fill in vacant or underused
land in existing communities with new development that blends in
with its surroundings.
(q) "Land development" means the development of one or more
lots, tracts or parcels of land by any means and for any purpose,
but does not include easements, rights-of-way or construction of
private roads for extraction, harvesting or transporting of natural
resources.
(r) "Manufactured home" means housing built in a factory
according to the federal manufactured home construction and safety
standards effective June 15,1976.
(s) "Modular home" means housing built in a factory that meets
state or local building codes where the homes will be sited.
(t) "Nontraditional zoning ordinance" "Noneuclidean zoning
ordinance" means an ordinance that sets forth development standards
and approval processes for land uses within the jurisdiction, but
does not necessarily divide the jurisdiction into distinct zoning
classifications or districts requiring strict separation of
different uses, and does not require a zoning map amendment.
(u) "Permitted use" means any use allowed within a zoning
district, subject to the restrictions applicable to that zoning
district and is not a conditional use.
(v) "Plan" means a written description for the development of
land.
(w) "Planning commission" means a municipal planning
commission, a county planning commission, a multicounty planning
commission, a regional planning commission or a joint planning
commission.
(x) "Plat" means a map of the land development.
(y) "Preferred development area" means a geographically
defined area where incentives may be used to encourage development,
infill development or redevelopment in order to promote well
designed and coordinated communities.
(z) "Public place" means any lots, tracts or parcels of land,
structures, buildings or parts thereof owned or leased by a
governing body or unit of government.
(aa) "Sprawl" means poorly planned or uncontrolled growth,
usually of a low-density nature, within previously rural areas,
that is land consumptive, auto-dependent, designed without respect
to its surroundings, and some distance from existing development
and infrastructure.
(bb) "Streets" means streets, avenues, boulevards, highways,
roads, lanes, alleys and all public ways.
(cc) "Subdivision or partition" means the division of a lot,
tract or parcel of land into two or more lots, tracts or parcels of
land, or the recombination of existing lots, tracts or parcels.
(dd) "Unit of government" means any federal, state, regional,
county or municipal government or governmental agency.
(ee) "Urban area" means all lands or lots within the
jurisdiction of a municipal planning commission.
(ff) "Utility" means a public or private distribution service
to the public that is regulated by the Public Service Commission.
(gg) "Zoning" means the division of a municipality or county
into districts or zones which specify permitted and conditional
uses and development standards for real property within the
districts or zones and may be either euclidean or noneuclidean
zoning.
(hh) "Zoning map" means a map that geographically illustrates all zoning district boundaries within a municipality or county, as
described within the zoning ordinance, and which is certified as
the official zoning map for the municipality or county.
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 euclidian zoning ordinance or noneuclidean 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: Provided, That all registered
voters of a municipality may be qualified to vote on a county
zoning ordinance if the municipality is located entirely within
that county.
(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 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-7-13. Process to replace
nontraditional noneuclidean zoning
ordinance.
(a) A governing body that has adopted or enacted a
nontraditional noneuclidean zoning ordinance may replace the
nontraditional noneuclidean zoning ordinance with a
euclidean
zoning ordinance. A
nontraditional noneuclidean zoning ordinance may be replaced with a
euclidean 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 noneuclidean zoning
ordinance with a
euclidean zoning ordinance, then the provisions of
this section and this chapter shall be followed.
(b) At least ten percent of the total eligible voters in the
affected area may petition the governing body to replace the
nontraditional noneuclidean zoning ordinance with a
euclidean
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 noneuclidean zoning ordinance
with a
euclidean zoning ordinance; and
(B) That the question of replacing the
nontraditional
noneuclidean zoning ordinance with a new
euclidean 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 noneuclidean 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
noneuclidean
zoning ordinance shall have the following:
"Shall __________ (name of governing body) replace _________
(name of commonly known
nontraditional noneuclidean zoning
ordinance) with a
euclidean zoning ordinance?
___ Yes
___ No"
(f) Upon a majority vote of the voters voting in favor of
replacing a
nontraditional noneuclidean zoning ordinance with a
euclidean zoning ordinance, the governing body shall immediately
begin the process of adopting and enacting a
euclidean 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
euclidean zoning ordinance.
(g) The governing body may amend its
nontraditional
noneuclidean zoning ordinance during the process of adopting and
enacting a
euclidean zoning ordinance.
(h) If a majority of the voters reject replacing the
nontraditional noneuclidean zoning ordinance with a
euclidean 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 prevents a governing body
from amending its zoning ordinance in accordance with this chapter.
(j) If a governing body of a county chooses to replace a
nontraditional noneuclidean zoning ordinance with a
traditional
euclidean zoning ordinance without holding an election, a petition,
signed by at least ten percent of the eligible voters who reside in
the area affected by the zoning ordinance, for an election on the
question of adopting a
traditional euclidean zoning ordinance may
be filed with the governing body of the county within ninety days
after the enactment of the
traditional euclidean zoning ordinance
by the governing body of the county. If a petition is timely
filed, then the
traditional euclidean zoning ordinance does not
take effect until:
(1) Notice of the election and the zoning ordinance is
published in a local newspaper of general circulation in the area
affected by the zoning ordinance, as a Class II-0 legal
advertisement, in accordance with the provisions of article three,
chapter fifty-nine of this code;
(2) An election is held; and
(3) A majority of the voters approve it.
NOTE: The purpose of this bill is to provide that the term
"zoning ordinance" means either "euclidean zoning ordinance" or
"noneuclidean zoning ordinance". It also deals with the process of
a governing body replacing a noneuclidean zoning ordinance.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.