Senate Bill No. 256
(By Senator Snyder)
[Introduced February 16, 2009; referred to the Committee on
Government Organization; and then to the Committee on the
A BILL to amend and reenact §8-6-1 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto a new
section, designated §8-6-7; to amend and reenact §8A-1-2 of
said code; and to amend and reenact §8A-7-2 of said code, all
relating to the annexation of land by a municipality in
counties that have adopted a countywide zoning ordinance which
includes urban growth boundaries; requiring the land to be
contiguous to the municipality outside the urban growth
boundaries; requiring that annexation take place in the
county's designated urban growth boundaries; providing for
annexation outside the urban growth boundary; providing for
annexation of property in another municipality's urban growth
boundary by intergovernmental agreement between the
municipalities; defining "contiguous"; requiring a public
hearing and signage for property annexation outside the urban
growth boundary; and providing the authority to identify and establish urban growth boundaries within county zoning
Be it enacted by the Legislature of West Virginia:
That §8-6-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §8-6-7; that §8A-1-2 of said code
be amended and reenacted; and that §8A-7-2 of said code be amended
and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 6. ANNEXATION.
PART I. GENERAL.
§8-6-1. Annexation of unincorporated territory.
(a) Unincorporated territory may be annexed to and become part
of a municipality contiguous thereto only in accordance with the
provisions of this article.
(b) Any farmlands or operations as described in article
nineteen, chapter nineteen of this code which may be annexed into
a municipality shall be protected in the continuation of
agricultural use after being annexed.
(c) Any new imposition of a tax or any increase in the rate of
tax upon any business, occupation or privilege following annexation
shall be applied in accordance with the provisions of section five,
article thirteen, chapter eight of this code.
(d) Unincorporated territory outside an urban growth boundary
may not be annexed without an election, or by minor boundary
adjustment, in any county that has adopted a county wide zoning ordinance pursuant to the provisions of article seven, chapter
eight-a of this code, and the zoning ordinance includes an "urban
growth boundary", as that term is defined under the provisions of
section two, article one, chapter eight-a of this code, on its
recorded zoning map for the municipality, unless the requirements
of section seven, of this article are met.
§8-6-7. Annexation in any county that has adopted a county wide
zoning ordinance that includes urban growth boundaries.
A petition for annexation, without an election or by minor
boundary adjustment, may not be recorded or become effective in any
county where a county-wide zoning ordinance has been adopted
pursuant to the provisions of article seven, chapter eight-a of
this code and the zoning ordinance includes and incorporates an
"urban growth boundary" as defined in section two
, article one,
chapter eight-a, of this code without first meeting the
requirements of this article and meeting the following additional
requirements and conditions:
(1) Property that is proposed for annexation outside the urban
growth boundary shall be contiguous to the municipality and the
main territory where the municipal seat of government is located.
For the purposes of this section "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, river or other natural topography are not to be
used to determine lots, parcels, municipal boundaries or county boundaries as contiguous: Provided, That the width of a street,
highway, road or other traffic or utility easement, stream, river
or other natural topography
, but not the length thereof, may be
used to determine lots, parcels, municipal boundaries or county
boundaries as contiguous
. The common practice known as "pipe stem
annexation" may not be used to make a property contiguous in
determining that the territory containing the municipal seat is
contiguous outside the urban growth boundary. Property proposed
for annexation entirely within the municipality's urban growth
boundary does not have to be contiguous. In absence of such an
urban growth boundary shown on the county zoning map, this section
of the code may not apply.
(2) County commission approval is not required for annexation
without an election or by minor boundary adjustment within a
municipality's own urban growth boundary. Any territory proposed
to be annexed without county commission approval shall be
completely within the municipality's urban growth boundary and
established and shown on the county's recorded zoning map. If the
municipality is satisfied that the petition is sufficient in every
respect, including the finding that the property is located within
its urban growth boundary, the governing body of the municipality
shall enter that fact upon its journal and forward a certificate to
that effect to the county commission of the county wherein the
municipality or the major portion of that territory, including the
additional territory, is located. The county commission shall
thereupon enter an order as described in section three of this article. After the date of the order, the corporate limits of the
municipality shall be as set forth therein. Annexation of property
by a municipality in another municipality's designated urban growth
boundary is only permitted if the two municipalities have executed
an intergovernmental agreement regarding the annexation of the
subject property. In the absence of such an urban growth boundary
shown on a county zoning map, this section may not apply.
(3) Prior to the recordation of any annexation without
election pursuant to this section, the petition or municipality
seeking the annexation shall provide to the county commission both
metes and bounds description of the property to be annexed and a
survey map of the property drawn by a professional licensed to
perform this work.
(4) The county commission shall hold an appropriately noticed
public hearing and place appropriate public notice signage on the
subject property, which signage shall be the same that would be
required for property that is to be rezoned, before considering any
petition for annexation of property outside the urban growth
boundary of any municipality. At least fifteen days prior to the
date set for the public hearing, the county commission shall
publish a notice of the date, time and place of the public hearing
as a Class I legal advertisement in compliance with the provisions
of article three, chapter fifty-nine of this code.
(5) The county commission shall verify that the conditions of
this article and section have been met before entering an order
pursuant to section three of this article for any petition for annexation without an election or by minor boundary adjustment for
property located outside the urban growth boundary. A finding of
fact stating any deficiencies must be placed in the county
commission's record along with the petition for annexation. The
county commission may not deny or refuse the recordation of an
order described in section three of this article for which the
total property to be annexed is inside the municipality's
designated urban growth boundary shown on the county's recorded
zoning map for that municipality or an intergovernmental agreement
has been executed between two municipalities concerning the
annexation of property in another municipality's urban growth
(6) The county commission may approve and order to be
recorded any petition, without an election or annexation by minor
boundary adjustment, that does not meet the requirements and
conditions of this section, if the county commission finds after a
public hearing and on-site signage notice that the proposed
annexation is for the good of the county as a whole.
CHAPTER 8A. LAND USE PLANNING.
ARTICLE 1. GENERAL PROVISIONS.
As used in this chapter, the following words and terms have
the following meanings, unless the context clearly indicates
(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;
(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
(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
(1) Local serving;
(2) Nonlocal or transmission through the county or
(3) Water and sewer systems, the activities of which are
regulated, in whole or in part, by one or more of the following
(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
(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
(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
(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
(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" 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
(w) "Planning commission" means a municipal planning
commission, a county planning commission, a multicounty planning
commission, a regional planning commission or a joint planning
(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
(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) "Urban growth boundary" means a site-specific line,
delineated on a zoning map or written description in a zoning
ordinance identifying an area around and outside the corporate
limits of a municipality within which there is sufficient supply of
developable land within the boundary for at least a prospective
twenty-year period of municipal growth based on demographic
forecasts and the time reasonably required to effectively provide
municipal services to the identified area. The urban growth
boundary may be called by any name chosen by the county commission,
but the word "boundary" shall be used in the name of the boundary.
The boundary shall be established by the county commission in
consultation with each individual municipality regarding that
municipality's boundary. If the county commission and municipality
cannot agree upon the location or size of the boundary, either
party may file for declaratory judgment relief in the circuit
court which shall submit the dispute to mediation or arbitration
prior to final resolution by the circuit court. Once a county has adopted an urban growth boundary by its designation on an adopted
county zoning map, the gross area inside the boundary may not be
reduced without written consent of the municipality. The county
commission shall review each urban growth boundary at a period not
to exceed ten years or upon request of the individual municipality.
"Utility" means a public or private distribution
service to the public that is regulated by the Public Service
"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.
"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
ARTICLE 7. ZONING ORDINANCE.
§8A-7-2. Contents of zoning ordinance.
(a) The following must be considered when enacting a zoning
(1) Promoting general public welfare, health, safety, comfort
(2) A plan so that adequate light, air, convenience of access,
and safety from fire, flood and other danger is secured;
(3) Ensuring attractiveness and convenience is promoted;
(4) Lessening congestion;
(5) Preserving historic landmarks, sites, districts and
(6) Preserving agricultural land; and
(7) Promoting the orderly development of land.
(b) A zoning ordinance may include the following:
(1) Regulating the use of land and designating or prohibiting
specific land uses;
(2) Authorizing flexible planning standards to create,
redevelop, reuse, protect, and enhance the physical qualities of
(3) Designating historic districts and regulating the uses of
land and the design of buildings within the historic district;
(4) Establishing corridor overlay districts to achieve land
design goals and regulating the uses of land within the corridor
(5) Establishing design standards and site plan approval
(6) Dividing the land of the governing body into different
zone classifications regulating the use of land, establishing
performance standards for various land uses when dividing is not
desired, or any combination of both;
(7) Authorizing overlay districts and special design districts
within which specific additional development standards for each
permitted, accessory and conditional use shall apply;
(8) Regulating the height, area, bulk, use and architectural features of buildings, including reasonable exterior architectural
features and reasonable aesthetic standards for factory-built
(9) Authorizing a process and standards for factory-built
That a governing body is prohibited from
establishing a process and standards for regulating factory-built
homes that is more restrictive than a process and standards for
(10) Preserving green spaces and requiring new green spaces,
landscaping, screening and the preservation of adequate natural
(11) Regulating traffic flow and access, pedestrian flow and
access, parking and loading;
(12) Identifying flood-prone areas subject to periodic
flooding, and regulating with specific control the permitted use,
type of construction and height of floor levels above base flood
elevation permitted in the area so as to lessen or avoid the
hazards to persons and damage to property resulting from the
accumulation of storm or flood waters;
(13) Designating an airport area and establishing land-use
regulations within a specific distance from the boundaries of the
(14) Authorizing planned unit developments to achieve more
efficient use of land and setting standards and regulations for the
(15) Identifying and establishing urban growth boundaries as defined and provided in section two, article one of this chapter
(c) A zoning ordinance shall:
(1) Create a board of zoning appeals;
(2) Specify certification requirements for zoning district
maps that are consistent with the governing body's comprehensive
(3) Adopt procedures and requirements for nonconforming land
(4) Adopt procedures and requirements for variances; and
(5) Adopt procedures and requirements for conditional use
NOTE: The purpose of this bill is to provide additional
requirements and conditions on annexation without an election or by
minor boundary adjustment in counties that have adopted a
county-wide zoning ordinance and have designated urban growth
boundaries around the municipalities within that county. It
requires that property to be annexed outside the municipality's
urban growth boundary must be contiguous. Property outside the
urban growth boundary requires county commission approval for
annexation. Property within the municipality's designated urban
growth boundary does not require county commission approval for
annexation and does not have to be contiguous. It also requires a
public hearing and signage notice and review by the county
commission for land being annexed outside the designated urban
growth boundary. The power to establish and a definition for
Urban Growth Boundary has been added to the WV Land Use Code.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
§8-6-7 is new; therefore strike-throughs and underscoring have