ENGROSSED*
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 454
(By Senators Bowman, Minard, Kessler, McCabe, Rowe, Snyder,
Minear and McKenzie
)
____________
[Originating in the Committee on the Judiciary;
reported March 1, 2004.]
____________
A BILL to repeal §8-24-1, §8-24-2, §8-24-3, §8-24-4, §8-24-5,
§8-24-6, §8-24-7, §8-24-8, §8-24-9, §8-24-10, §8-24-11,
§8-24-12, §8-24-13, §8-24-14, §8-24-15, §8-24-16, §8-24-17,
§8-24-18, §8-24-19, §8-24-20, §8-24-21, §8-24-22, §8-24-23,
§8-24-24, §8-24-25, §8-24-26, §8-24-27, §8-24-28, §8-24-29,
§8-24-30, §8-24-31, §8-24-32, §8-24-33, §8-24-34, §8-24-35,
§8-24-36, §8-24-37, §8-24-38, §8-24-39, §8-24-40, §8-24-41,
§8-24-42, §8-24-43, §8-24-44, §8-24-45, §8-24-46, §8-24-47,
§8-24-48, §8-24-49, §8-24-50, §8-24-50a, §8-24-50b, §8-24-51,
§8-24-52, §8-24-53, §8-24-54, §8-24-55, §8-24-56, §8-24-57,
§8-24-58, §8-24-59, §8-24-60, §8-24-61, §8-24-62, §8-24-63,
§8-24-64, §8-24-65, §8-24-66, §8-24-67, §8-24-68, §8-24-69,
§8-24-70, §8-24-71, §8-24-72, §8-24-73, §8-24-73a, §8-24-73b, §8-24-73c, §8-24-73d, §8-24-74, §8-24-74a, §8-24-74b,
§8-24-74c, §8-24-75, §8-24-76, §8-24-77, §8-24-78, §8-24-79,
§8-24-80, §8-24-81, §8-24-82, §8-24-83, §8-24-84 and §8-24-85
of the code of West Virginia, 1931, as amended; and to amend
said code by adding thereto a new chapter, designated §8A-1-1,
§8A-1-2, §8A-2-1, §8A-2-2, §8A-2-3, §8A-2-4, §8A-2-5, §8A-2-6,
§8A-2-7, §8A-2-8, §8A-2-9, §8A-2-10, §8A-2-11, §8A-3-1,
§8A-3-2, §8A-3-3, §8A-3-4, §8A-3-5, §8A-3-6, §8A-3-7, §8A-3-8,
§8A-3-9, §8A-3-10, §8A-3-11, §8A-3-12, §8A-3-13, §8A-3-14,
§8A-4-1, §8A-4-2, §8A-4-3, §8A-4-4, §8A-4-5, §8A-4-6, §8A-4-7,
§8A-5-1, §8A-5-2, §8A-5-3, §8A-5-4, §8A-5-5, §8A-5-6, §8A-5-7,
§8A-5-8, §8A-5-9, §8A-5-10, §8A-5-11, §8A-5-12, §8A-6-1,
§8A-6-2, §8A-6-3, §8A-7-1, §8A-7-2, §8A-7-3, §8A-7-4, §8A-7-5,
§8A-7-6, §8A-7-7, §8A-7-8, §8A-7-9, §8A-7-10, §8A-7-11,
§8A-7-12, §8A-7-13,
§8A-8-1, §8A-8-2, §8A-8-3, §8A-8-4, §8A-8-
5, §8A-8-6, §8A-8-7, §8A-8-8, §8A-8-9, §8A-8-10, §8A-8-11,
§8A-8-12, §8A-9-1, §8A-9-2, §8A-9-3, §8A-9-4, §8A-9-5,
§8A-9-6, §8A-9-7, §8A-10-1, §8A-10-2, §8A-10-3, §8A-10-4,
§8A-10-5, §8A-11-1, §8A-11-2, §8A-12-1, §8A-12-2, §8A-12-3,
§8A-12-4, §8A-12-5, §8A-12-6, §8A-12-7, §8A-12-8, §8A-12-9,
§8A-12-10, §8A-12-11, §8A-12-12, §8A-12-13, §8A-12-14, §8A-12-
15, §8A-12-16, §8A-12-17, §8A-12-18, §8A-12-19, §8A-12-20 and
§8A-12-21, all relating to land-use planning; planning
commissions; comprehensive plan; subdivision and land
development ordinance; subdivision or
land development plan
and plat; improvement location permit; zoning; board of zoning appeals; appeal process; enforcement; penalties; special
provisions; and voluntary farmland protection program.
Be it enacted by the Legislature of West Virginia:
That §8-24-1, §8-24-2, §8-24-3, §8-24-4, §8-24-5, §8-24-6,
§8-24-7, §8-24-8, §8-24-9, §8-24-10, §8-24-11, §8-24-12, §8-24-13,
§8-24-14, §8-24-15, §8-24-16, §8-24-17, §8-24-18, §8-24-19,
§8-24-20, §8-24-21, §8-24-22, §8-24-23, §8-24-24, §8-24-25,
§8-24-26, §8-24-27, §8-24-28, §8-24-29, §8-24-30, §8-24-31,
§8-24-32, §8-24-33, §8-24-34, §8-24-35, §8-24-36, §8-24-37,
§8-24-38, §8-24-39, §8-24-40, §8-24-41, §8-24-42, §8-24-43,
§8-24-44, §8-24-45, §8-24-46, §8-24-47, §8-24-48, §8-24-49,
§8-24-50, §8-24-50a, §8-24-50b, §8-24-51, §8-24-52, §8-24-53,
§8-24-54, §8-24-55, §8-24-56, §8-24-57, §8-24-58, §8-24-59,
§8-24-60, §8-24-61, §8-24-62, §8-24-63, §8-24-64, §8-24-65,
§8-24-66, §8-24-67, §8-24-68, §8-24-69, §8-24-70, §8-24-71,
§8-24-72, §8-24-73, §8-24-73a, §8-24-73b, §8-24-73c, §8-24-73d,
§8-24-74, §8-24-74a, §8-24-74b, §8-24-74c, §8-24-75, §8-24-76,
§8-24-77, §8-24-78, §8-24-79, §8-24-80, §8-24-81, §8-24-82,
§8-24-83, §8-24-84 and §8-24-85 of the code of West Virginia, 1931,
as amended, be repealed; and that said code be amended by adding
thereto a new chapter, designated §8A-1-1, §8A-1-2, §8A-2-1,
§8A-2-2, §8A-2-3, §8A-2-4, §8A-2-5, §8A-2-6, §8A-2-7, §8A-2-8,
§8A-2-9, §8A-2-10, §8A-2-11, §8A-3-1, §8A-3-2, §8A-3-3, §8A-3-4,
§8A-3-5, §8A-3-6, §8A-3-7, §8A-3-8, §8A-3-9, §8A-3-10, §8A-3-11,
§8A-3-12, §8A-3-13, §8A-3-14, §8A-4-1, §8A-4-2, §8A-4-3, §8A-4-4,
§8A-4-5, §8A-4-6, §8A-4-7, §8A-5-1, §8A-5-2, §8A-5-3, §8A-5-4, §8A-5-5, §8A-5-6, §8A-5-7, §8A-5-8, §8A-5-9, §8A-5-10, §8A-5-11,
§8A-5-12, §8A-6-1, §8A-6-2, §8A-6-3, §8A-7-1, §8A-7-2, §8A-7-3,
§8A-7-4, §8A-7-5, §8A-7-6, §8A-7-7, §8A-7-8, §8A-7-9, §8A-7-10,
§8A-7-11, §8A-7-12, §8A-7-13,
§8A-8-1, §8A-8-2, §8A-8-3, §8A-8-4,
§8A-8-5, §8A-8-6, §8A-8-7, §8A-8-8, §8A-8-9, §8A-8-10, §8A-8-11,
§8A-8-12, §8A-9-1, §8A-9-2, §8A-9-3, §8A-9-4, §8A-9-5, §8A-9-6,
§8A-9-7, §8A-10-1, §8A-10-2, §8A-10-3, §8A-10-4, §8A-10-5,
§8A-11-1, §8A-11-2, §8A-12-1, §8A-12-2, §8A-12-3, §8A-12-4,
§8A-12-5, §8A-12-6, §8A-12-7, §8A-12-8, §8A-12-9, §8A-12-10,
§8A-12-11, §8A-12-12, §8A-12-13, §8A-12-14, §8A-12-15, §8A-12-16,
§8A-12-17, §8A-12-18, §8A-12-19, §8A-12-20 and §8A-12-21, all to
read as follows:
CHAPTER 8A. LAND USE PLANNING.
ARTICLE 1. GENERAL PROVISIONS.
§8A-1-1. Legislative findings.
(a) The Legislature finds, as the object of this chapter, the
following:
(1) That planning land development and land use is vitally
important to a community;
(2) A planning commission is helpful to a community to plan
for land development, land use and the future;
(3) A plan and a vision for the future is important when
deciding uses for and development of land;
(4) That sprawl is not advantageous to a community;
(5) A comprehensive plan is a guide to a community's goals and objectives and a way to meet those goals and objectives;
(6) That the needs of agriculture, residential areas, industry
and business be recognized in future growth;
(7) That the growth of the community is commensurate with and
promotive of the efficient and economical use of public funds;
(8) Promoting growth that is economically sound,
environmentally friendly and supportive of community livability to
enhance quality of life is a good objective for a governing body;
and
(9) Governing bodies of municipalities and counties need
flexibility when authorizing land development and use.
(b) Therefore, the Legislature encourages and recommends the
following:
(1) The goal of a governing body should be to have a plan and
a vision for the future, and an agency to oversee it;
(2) A governing body should have a planning commission, to
serve in an advisory capacity to the governing body, and promote
the orderly development of its community;
(3) A comprehensive plan should be the basis for land
development and use, and be reviewed and updated on a regular
basis;
(4) A goal of a governing body should be to reduce sprawl;
(5) That planning commissions prepare a comprehensive plan and
governing bodies adopt the comprehensive plans;
(6) Governing bodies, units of government and planning
commissions work together to provide for a better community;
(7) Governing bodies may have certain regulatory powers over
developments affecting the public welfare; and
(8)Based upon a comprehensive plan, governing bodies may:
(A) Enact a subdivision and land development ordinance;
(B) Require plans and plats for land development;
(C) Issue improvement location permits for construction; and
(D) Enact a zoning ordinance.
§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 of 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 the fifteenth day of June, one thousand nine
hundred seventy-six.
(s) "Modular home" means housing built in a factory that meets
state or local building codes where the homes will be sited.
(t) "Non-traditional 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.
(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 2. PLANNING COMMISSIONS.
§8A-2-1. Planning commissions authorized.
(a) A governing body of a municipality or county may, by
ordinance, create a planning commission to promote the orderly
development of its jurisdiction.
(b) Governing bodies may, by ordinance, create a multicounty
planning commission, a regional planning commission or a joint
planning commission to promote the orderly development of land and
reduce duplication of effort.
(c) The planning commission shall serve in an advisory
capacity to the governing body or governing bodies that created it
and have certain regulatory powers over land planning.
(d) Governing bodies and planning commissions are authorized
to carry out the objectives and overall purposes of this chapter.
(e) A planning commission has only those powers, duties and
jurisdiction as given to it in the ordinance creating it.
§8A-2-2. Continuation of established planning commissions.
(a) A planning commission established prior to the effective date of this chapter shall continue to operate as though
established under the terms of this chapter. All actions lawfully
taken under prior acts are hereby validated and continued in effect
until amended or repealed by action taken under the authority of
this chapter.
(b) The membership of an existing planning commission shall
continue unchanged until the first regular meeting, after the
enactment of this chapter, of the governing body that established
the planning commission. At that time, any appointments or changes
necessary shall be made to bring the membership of the existing
planning commission into conformity with the provisions of this
chapter.
§8A-2-3. Municipal planning commission.
(a) A municipal planning commission shall have not less than
five nor more than fifteen members, the exact number to be
specified in the ordinance creating the planning commission.
(b) The members of a municipal planning commission must be:
(1) Residents of the municipality; and
(2) Qualified by knowledge and experience in matters
pertaining to the development of the municipality.
(c) At least three fifths of all of the members must have been
residents of the municipality for at least three years prior to
nomination or appointment and confirmation.
(d) The members of a municipal planning commission must fairly
represent different areas of interest, knowledge and expertise,
including, but not limited to, business, industry, labor, government and other relevant disciplines. One member must be a
member of the municipal governing body or a designee and one member
must be a member of the administrative department of the
municipality or a designee. The term of membership for these two
members is the same as their term of office.
(e) The remaining members of the municipal planning commission
first selected shall serve respectively for terms of one year, two
years and three years, divided equally or as nearly equally as
possible between these terms. Thereafter, members shall serve
three-year terms. Vacancies shall be filled for the unexpired term
and made in the same manner as original selections were made.
(f) The members of a municipal planning commission shall serve
without compensation, but shall be reimbursed for all reasonable
and necessary expenses actually incurred in the performance of
their official duties.
(g) Nominations for municipal planning commission membership
shall be made by the administrative authority and confirmed by the
governing body when the administrative authority and the governing
body are separate, or appointed and confirmed by the governing body
where the administrative authority and governing body are the same.
(h) An individual may serve as a member of a municipal
planning commission, a county planning commission, a multicounty
planning commission, a regional planning commission or a joint
planning commission, at the same time.
(i) The governing body of the municipality may establish
procedures for the removal of members of the planning commission for inactivity, neglect of duty or malfeasance. The procedures
must contain provisions requiring that the person to be removed be
provided with a written statement of the reasons for removal and an
opportunity to be heard on the matter.
§8A-2-4. County planning commission.
(a) A county planning commission shall have not less than five
nor more than fifteen members, the exact number to be specified in
the ordinance creating the planning commission.
(b) The members of a county planning commission must be:
(1) Residents of the county; and
(2) Qualified by knowledge and experience in matters
pertaining to the development of the county.
(c) At least three fifths of all of the members must have been
residents of the county for at least three years prior to
appointment and confirmation by the county commission.
(d) The members of a county planning commission must fairly
represent different areas of interest, knowledge and expertise,
including, but not limited to, business, industry, labor, farming,
government and other relevant disciplines. One member must be a
member of the county commission or a designee. The term of
membership for this member is the same as the term of office.
(e) The remaining members of the county planning commission
first selected shall serve respectively for terms of one year, two
years and three years, divided equally or as nearly equally as
possible between these terms. Thereafter, members shall serve
three-year terms. Vacancies shall be filled for the unexpired term and made in the same manner as original selections were made.
(f) The members of a county planning commission shall serve
without compensation, but shall be reimbursed for all reasonable
and necessary expenses actually incurred in the performance of
their official duties.
(g) Appointments for county planning commission membership
shall be made and confirmed by the county commission.
(h) An individual may serve as a member of a municipal
planning commission, a county planning commission, a multicounty
planning commission, a regional planning commission or a joint
planning commission, at the same time.
(i) The county commission may establish procedures for the
removal of members of the planning commission for inactivity,
neglect of duty or malfeasance. The procedures must contain
provisions requiring that the person to be removed be provided with
a written statement of the reasons for removal and an opportunity
to be heard on the matter.
§8A-2-5. Multicounty planning commission, regional planning
commission or joint planning commission.
(a) A multicounty planning commission, a regional planning
commission or a joint planning commission shall have not less than
five nor more than fifteen members, the exact number to be
specified in the ordinance creating the planning commission.
(b) The members of a multicounty planning commission, a
regional planning commission or a joint planning commission must
be:
(1) Residents of the jurisdiction of the multicounty planning
commission, regional planning commission or joint planning
commission; and
(2) Qualified by knowledge and experience in matters
pertaining to the development of the jurisdiction.
(c) The members of a multicounty planning commission, a
regional planning commission or a joint planning commission must
equally represent the jurisdictions in the planning commission, and
must have been residents of the jurisdiction he or she represents
for at least three years prior to appointment and confirmation.
(d) The members of a multicounty planning commission, a
regional planning commission or a joint planning commission must
fairly represent different areas of interest, knowledge and
expertise, including, but not limited to, business, industry,
labor, farming, government and other relevant disciplines. Each
governing body participating in the planning commission must have
one member from its governing body on the planning commission. The
term of membership for this member is the same as the term of
office.
(e) The remaining members of the multicounty planning
commission, regional planning commission or joint planning
commission first selected shall serve respectively for terms of one
year, two years and three years, divided equally or as nearly
equally as possible between these terms. Thereafter, members shall
serve three-year terms. Vacancies shall be filled for the
unexpired term and made in the same manner as original selections were made.
(f) The members of a multicounty planning commission, a
regional planning commission or a joint planning commission shall
serve without compensation, but shall be reimbursed for all
reasonable and necessary expenses actually incurred in the
performance of their official duties.
(g) Appointments for a multicounty planning commission, a
regional planning commission or a joint planning commission
membership shall be made and confirmed by each governing body
participating in the planning commission.
(h) An individual may serve as a member of a municipal
planning commission, a county planning commission, a multicounty
planning commission, a regional planning commission or a joint
planning commission, at the same time.
(i) The governing bodies may establish procedures for the
removal of members of the planning commission for inactivity,
neglect of duty or malfeasance. The procedures must contain
provisions requiring that the person to be removed be provided with
a written statement of the reasons for removal and an opportunity
to be heard on the matter.
§8A-2-6. Sharing planning commissions.
(a) The governing body of a municipality located within a
county with a planning commission may, by ordinance, designate the
county planning commission as the municipal planning commission.
A county planning commission designated as a municipal planning
commission has all the powers, authority and duties granted under this article to a municipal planning commission.
(b) The county commission of a county with a municipal
planning commission may, by ordinance, designate the municipal
planning commission as the county planning commission. A municipal
planning commission designated as a county planning commission has
all the powers, authority and duties granted under this article to
a county planning commission.
(c) If a municipality is located in more than one county, this
section only applies to the county where the major portion of the
territory of the municipality is located.
(d) Municipalities and counties may contract annually with
each other to pay expenses for shared planning commissions.
§8A-2-7. Planning commission meetings.
(a) A planning commission shall meet at least quarterly and
may meet more frequently at the request of the president or by two
or more members.
(b) Notice for a special meeting must be in writing, include
the date, time and place of the special meeting, and be sent to all
members at least two days before the special meeting.
(c) Written notice of a special meeting is not required if the
date, time and place of the special meeting were set in a regular
meeting.
§8A-2-8. Quorum.
A planning commission must have quorum to conduct a meeting.
A majority of the members of a planning commission is a quorum. No
action of a planning commission is official unless authorized by a majority of the members present at a regular or properly called
special meeting.
§8A-2-9. Officers.
At its first regular meeting each year, a planning commission
shall elect from its members a president and vice president. The
vice president shall have the power and authority to act as
president of the planning commission during the absence or
disability of the president.
§8A-2-10. Governing body's duties.
(a) The county commission in the case of a county planning
commission, and the governing body of the municipality in the case
of a municipal planning commission, shall provide the planning
commission with:
(1) Suitable offices for the holding of meetings and the
preservation of plans, maps, documents and accounts; and
(2) Appropriate money to defray the reasonable expenses of the
planning commission.
(b) In the ordinance creating a multicounty planning
commission, a regional planning commission or a joint planning
commission, the governing bodies shall designate office space and
will each equally appropriate money sufficient to defray the
reasonable expenses of the planning commission.
(c) Planning commissions are authorized to accept gifts, funds
and donations which will be deposited with the appropriate
governing body in a special nonreverting planning commission fund to be available for expenditures by the planning commission for the
purpose designated by the donor.
§8A-2-11. Planning commission's powers and duties.
A planning commission has the following powers and duties:
(1) Exercise general supervision for the administration of the
affairs of the commission;
(2) Prescribe rules and regulations pertaining to
administration, investigations and hearings: Provided, That the
rules and regulations are adopted by the governing body
;
(3) Supervise the fiscal affairs and responsibilities of the
commission;
(4) With consent from the governing body, hire employees
necessary to carry out the duties and responsibilities of the
planning commission: Provided, That the governing body sets the
salaries;
(5) Keep an accurate and complete record of all planning
commission proceedings;
(6) Record and file all bonds and contracts;
(7) Take responsibility for the custody and preservation of
all papers and documents of the planning commission;
(8) Make recommendations to the appropriate governing body
concerning planning;
(9) Make an annual report to the appropriate governing body
concerning the operation of the planning commission and the status
of planning within its jurisdiction;
(10) Prepare, publish and distribute reports, ordinances and other material relating to the activities authorized under this
article;
(11) Adopt a seal, and certify all official acts;
(12) Invoke any legal, equitable or special remedy for the
enforcement of the provisions of this article or any ordinance,
rule and regulation or any action taken thereunder;
(13) Prepare and submit an annual budget to the appropriate
governing body;
(14) If necessary, establish advisory committees;
(15) Delegate limited powers to a committee composed of one or
more members of the commission; and
(16) Contract for special or temporary services and
professional counsel with the approval of the governing body. Upon
request, a county prosecuting attorney, the county surveyor, the
county engineer, or any other county employee
may render assistance
and service
to a planning commission without
compensation.
ARTICLE 3. COMPREHENSIVE PLAN.
§8A-3-1. Purpose and goals of a comprehensive plan.
(a) The general purpose of a comprehensive plan is to guide a
governing body to accomplish a coordinated and compatible
development of land and improvements within its territorial
jurisdiction, in accordance with present and future needs and
resources.
(b) A comprehensive plan is a process through which citizen
participation and thorough analysis are used to develop a set of
strategies that establish as clearly and practically as possible the best and most appropriate future development of the area under the
jurisdiction of the planning commission. A comprehensive plan aids
the planning commission in designing and recommending to the
governing body ordinances that result in preserving and enhancing
the unique quality of life and culture in that community and in
adapting to future changes of use of an economic, physical or social
nature. A comprehensive plan guides the planning commission in the
performance of its duties to help achieve sound planning.
(c) A comprehensive plan must promote the health, safety,
morals, order, convenience, prosperity and general welfare of the
inhabitants, as well as efficiency and economy in the process of
development.
(d) The purpose of a comprehensive plan is to:
(1) Set goals and objectives for land development, uses and
suitability for a governing body, so a governing body can make an
informed decision;
(2) Ensure that the elements in the comprehensive plan are
consistent;
(3) Coordinate all governing bodies, units of government and
other planning commissions to ensure that all comprehensive plans
and future development are compatible;
(4) Create conditions favorable to health, safety, mobility,
transportation, prosperity, civic activities, recreational,
educational, cultural opportunities and historic resources;
(5) Reduce the wastes of physical, financial, natural or human
resources which result from haphazard development, congestion or scattering of population;
(6) Reduce the destruction or demolition of historic sites and
other resources by reusing land and buildings and revitalizing
areas;
(7) Promote a sense of community, character and identity;
(8) Promote the efficient utilization of natural resources,
rural land, agricultural land and scenic areas;
(9) Focus development in existing developed areas and fill in
vacant or underused land near existing developed areas to create
well designed and coordinated communities; and
(10) Promote cost-effective development of community facilities
and services.
(e) A comprehensive plan may provide for innovative land use
management techniques, including:
(1) Density bonuses and/or density transfer;
(2) Clustering;
(3) Design guidelines, including planned unit developments;
(4) Conservation easements;
(5) Infill development;
(6) Consolidation of services; and
(7) Any other innovative land use technique that will promote
the governing body's development plans.
§8A-3-2. Study guidelines for a comprehensive plan.
(a) When preparing or amending a comprehensive plan, a planning
commission shall make comprehensive surveys and studies of the
existing conditions and services and probable future changes of such conditions and services within the territory under its jurisdiction.
(b) The comprehensive surveys and studies may cover such
factors as population density, health, general welfare, historic
sites, mobility, transportation, food supply, education, water and
sanitation requirements, public services, accessibility for the
disabled and future potential for residential, commercial,
industrial or public use.
(c) The major objective of the planning process is providing
information to and coordination among divergent elements in the
municipality or county. The elements in the comprehensive plan
shall be consistent and governing bodies, units of government and
planning commissions must work together to ensure that comprehensive
plans and future development are compatible.
§8A-3-3. Authority for planning commission.
(a) A planning commission shall prepare a comprehensive plan
for the development of land within its jurisdiction. A planning
commission shall then recommend the comprehensive plan to the
appropriate governing body for adoption.
(b) A county, multicounty, regional or joint comprehensive plan
may include the planning of towns, villages or municipalities to the
extent to which, in the planning commission's judgment, they are
related to the planning of the unincorporated territory of the
county as a whole: Provided, That the comprehensive plan shall not
be considered a comprehensive plan for any town, village or
municipality without the consent of the planning commission and/or
the governing body of the town, village or municipality.
(c) A comprehensive plan should be coordinated with the plans
of the department of transportation, insofar as it relates to
highways, thoroughfares, trails and pedestrian ways under the
jurisdiction of that planning commission.
(d) A county planning commission may prepare a comprehensive
plan for either the entire county or a part of the county.
(e) A multicounty, regional or joint planning commission may
prepare a comprehensive plan for land within its jurisdiction.
§8A-3-4. Mandatory components of a comprehensive plan.
(a) The comprehensive plan is a written statement on present
and future land use and development patterns consisting of
descriptive materials, including text, graphics and maps, covering
the objectives, principles and
guidelines for the orderly and
balanced present and future economic, social, physical,
environmental and fiscal development of the area under the
jurisdiction of the planning commission.
(b) A comprehensive plan shall meet the following objectives:
(1) A statement of goals and objectives for a governing body,
concerning its present and future land development;
(2) A timeline on how to meet short and long-range goals and
objectives;
(3) An action plan setting forth implementation strategies;
(4) Recommend to the governing body a financial program for
goals and objectives that need public financing;
(5) A statement of recommendations concerning future land use
and development policies that are consistent with the goals and objectives set forth in the comprehensive plan;
(6) A program to encourage regional planning, coordination and
cooperation with other governing bodies, units of government and
planning commissions; and
(7) Maps, plats, charts and/or descriptive material presenting
basic information on the land included in the comprehensive plan,
including present and future uses.
(c) The comprehensive plan shall have, but is not limited to,
the following components:
(1) Land use. -- Designate the current, and set goals and
programs for the proposed general distribution, location and
suitable uses of land, including, but not limited to:
(A) Residential, commercial, industrial, agricultural,
recreational, educational, public, historic, conservation,
transportation, infrastructure or any other use of land;
(B) Population density and building intensity standards;
(C) Growth and/or decline management;
(D) Projected population growth or decline; and
(E) Constraints to development, including identifying
flood-prone and subsidence areas.
(2) Housing. -- Set goals, plans and programs to meet the
housing needs for current and anticipated future residents of the
jurisdiction, including, but not limited to:
(A) Analyzing projected housing needs and the different types
of housing needed, including affordable housing and universally
designed housing accessible to persons with disabilities;
(B) Identifying the number of projected necessary housing units
and sufficient land needed for all housing needs;
(C) Addressing substandard housing;
(D) Rehabilitating and improving existing housing; and
(E) Adaptive reuse of buildings into housing.
(3) Transportation. -- Consistent with the land use component,
identify the type, location, programs, goals and plans to meet the
intermodal transportation needs of the jurisdiction, including, but
not limited to:
(A)Vehicular, transit, air, port, railroad, river and any other
mode of transportation system;
(B) Movement of traffic and parking;
(C) Pedestrian and bicycle systems; and
(D) Intermodal transportation.
(4) Infrastructure. -- Designate the current, and set goals,
plans and programs, for the proposed locations, capabilities and
capacities of all utilities, essential utilities and equipment,
infrastructure and facilities to meet the needs of current and
anticipated future residents of the jurisdiction.
(5) Public services. -- Set goals, plans and programs, to
ensure public safety, and meet the medical, cultural, historical,
community, social, educational and disaster needs of the current and
anticipated future residents of the jurisdiction.
(6) Rural. -- Consistent with the land use component, identify
land that is not intended for urban growth and set goals, plans and programs for growth and/or decline management in the designated
rural area.
(7) Recreation. -- Consistent with the land use component,
identify land, and set goals, plans and programs for recreational
and tourism use in the area.
(8) Economic development. -- Establish goals, policies,
objectives, provisions and guidelines for economic growth and
vitality for current and anticipated future residents of the
jurisdiction, including, but not limited to:
(A) Opportunities, strengths and weaknesses of the local
economy and workforce;
(B) Identifying and designating economic development sites
and/or sectors for the area; and
(C) Type of economic development sought, correlated to the
present and projected employment needs and utilization of residents
in the area.
(9) Community design. -- Consistent with the land use
component, set goals, plans and programs to promote a sense of
community, character and identity.
(10) Preferred development areas. -- Consistent with the land
use component, identify areas where incentives
may be used to
encourage development, infill development
or redevelopment in order
to promote well designed and coordinated communities and prevent
sprawl.
(11) Renewal and/or redevelopment. -- Consistent with the land use component, identify slums and other blighted areas and set
goals, plans and programs for the elimination of such slums and
blighted areas and for community renewal, revitalization and/or
redevelopment.
(12) Financing. -- Recommend to the governing body short and
long-term financing plans to meet the goals, objectives and
components of the comprehensive plan.
(13) Historic preservation. -- Identify historical, scenic,
archaeological, architectural or similar significant lands or
buildings, and specify preservation plans and programs so as not to
unnecessarily destroy the past development which may make a viable
and affordable contribution in the future.
§8A-3-5. Optional components of a comprehensive plan.
The comprehensive plan may have, but is not limited to, the
following components:
(1) History. -- An analysis of the history of the area to
better provide for the future.
(2) Environmental. -- Recommend programs where appropriate to
appropriate regulatory agencies to protect the area from all types
of pollution and promote a healthy environment.
(3) Tourism. -- Recommend programs to promote tourism and
cultural and heritage development in the area.
(4) Conservation. -- Recommend
programs to conserve and protect
wildlife, natural habitats, sensitive natural areas, green spaces
and direct access to sunlight.
(5) Safety. -- Recommend
public safety programs to educate and
protect the public from disasters, both natural and man-made.
(6) Natural resources use. -- Identify areas for natural
resources use in an urban area.
§8A-3-
6. Notice and public participation requirement for a
comprehensive plan.
(a) Prior to recommending a new or amended comprehensive plan
to a governing body for adoption, the planning commission shall give
notice and hold a public hearing on the new or amended comprehensive
plan.
(b) At least thirty days prior to the date set for the public
hearing, the planning 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. The publication area shall be the
area covered by the comprehensive plan.
(c) A planning commission shall include public participation
throughout the process of studying and preparing a comprehensive
plan and amending a comprehensive plan. A planning commission shall
adopt procedures for public participation throughout the process of
studying and preparing or amending a comprehensive plan.
(d) A planning commission shall request input from other
affected governing bodies and units of government.
§8A-3-7. Submission of comprehensive plan.
(a) After the comprehensive plan is prepared and before it is approved, the planning commission shall hold a public hearing.
After the public hearing and approval, the planning commission shall
submit the recommended comprehensive plan to the applicable
governing body for consideration and adoption.
(b) At the first meeting of the applicable governing body
following the submission of the recommended comprehensive plan by
the planning commission to the governing body, the planning
commission shall present the recommended comprehensive plan to the
governing body.
(c) After the presentation of the recommended comprehensive
plan by the planning commission to the governing body and prior to
adoption, the governing body shall hold a public hearing after
giving notice.
(d) At least fifteen days prior to the date set for the public
hearing, the planning 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. The publication area shall be the
area covered by the comprehensive plan.
§8A-3-8. Adoption of comprehensive plan by governing body.
(a) Within the latter of ninety days or three scheduled
meetings after the submission of the recommended comprehensive plan
to the governing body, the governing body must act by either
adopting, rejecting or amending the comprehensive plan.
(b) If the comprehensive plan is adopted by the governing body,
then the governing body may adopt the comprehensive plan as an ordinance or designate what other effect the comprehensive plan may
have.
(c) If the comprehensive plan is adopted by the governing body
and an ordinance is published, the comprehensive plan may be
incorporated by reference in the ordinance and the full text of the
comprehensive plan does not have to be published.
§8A-3-9. Filing the comprehensive plan.
After the adoption of a comprehensive plan by a governing body,
the governing body must file the adopted comprehensive plan in the
office of the clerk of the county commission where the comprehensive
plan applies. If an adopted comprehensive plan covers more than one
county, a certified copy of the adopted comprehensive plan must be
filed in the office of the clerk of the county commission of each
county covered by the adopted comprehensive plan.
§8A-3-10. Rejection or amendment of comprehensive plan
by
governing body.
(a) If a governing body rejects or amends the recommended
comprehensive plan, then the comprehensive plan must be returned to
the planning commission for its consideration, with a written
statement of the reasons for the rejection or amendment.
(b) The planning commission has forty-five days to consider the
rejection or amendment and make recommendations to the governing
body.
(c) If the planning commission approves the amendment to the
comprehensive plan, then the comprehensive plan shall stand as adopted by the governing body.
(d) If the planning commission disapproves of the rejection or
amendment, then the planning commission shall state its reasons in
its written recommendations to the governing body.
(e) Within forty-five days of receipt of the planning
commission's written recommendations for disapproval, the governing
body must act on the comprehensive plan.
(f) If the planning commission does not file a written
recommendation with the governing body within forty-five days, then
the action in rejecting or amending the comprehensive plan is final.
§8A-3-11. Amending comprehensive plan after adoption.
(a) After the adoption of a comprehensive plan by the governing
body, the planning commission shall follow the comprehensive plan,
and review the comprehensive plan and make updates at least every
ten years.
(b) After the adoption of a comprehensive plan by the governing
body, all amendments to the comprehensive plan shall be made by the
planning commission and recommended to the governing body for
adoption in accordance with the procedures set forth in sections
six, seven, eight and nine of this article. The planning commission
shall hold a public hearing prior to its recommendation to the
governing body.
(c) If a governing body wants an amendment, it may request in
writing for the planning commission to prepare an amendment. The
planning commission must hold a public hearing within one hundred
twenty days after the written request by the governing body to the planning commission is received.
(d) Within the latter of ninety days or three scheduled
meetings after the submission of the recommended amendment to the
comprehensive plan to the governing body, the governing body must
act by either adopting, rejecting or amending the comprehensive
plan.
§8A-3-12. Validation of prior comprehensive plans.
(a) The adoption of a comprehensive plan or any general
development plans by a planning commission, under the authority of
prior acts, is hereby validated and the plans shall continue in
effect for ten years after the effective date of this chapter.
(b) After the effective date of this chapter, amendments to
prior plans shall be made in accordance with the provisions of this
article.
§8A-3-13. Intergovernmental cooperation.
(a) With a view to coordinating and integrating the planning
of municipalities and/or counties with each other, all governing
bodies and units of government within the lands under the
jurisdiction of the planning commission preparing or amending a
comprehensive plan, all governing bodies and units of government
affected by the comprehensive plan, and any other interested or
affected governing body, unit of government or planning commission,
must cooperate, participate, share information and give input when
a planning commission prepares or amends a comprehensive plan.
(b) All planning commissions, governing bodies and units of
government are authorized to cooperate and share information with each other and may adopt rules and regulations to coordinate and
integrate planning.
(c) All planning commissions, governing bodies and units of
government must make available, upon the request of a planning
commission, any information, maps, documents, data and plans
pertinent to the preparation of a comprehensive plan.
§8A-3-14. Jurisdiction of municipal planning commission.
The jurisdiction of a municipal planning commission shall not
extend beyond the corporate limits of the municipality.
ARTICLE 4. SUBDIVISION AND LAND DEVELOPMENT ORDINANCE.
§8A-4-1. Subdivision and land development ordinances authorized.
(a) The governing body of a municipality or a county may
regulate subdivisions and land development within its jurisdiction
by:
(1) Adopting a comprehensive plan; and
(2) Enacting a subdivision and land development ordinance.
(b) A municipality may adopt, by reference, the subdivision and
land development ordinance of the county in which it is located.
(c) With the prior approval of the county planning commission,
a municipality may, by ordinance, designate the county planning
commission as the planning commission for the municipality to review
and approve subdivision or land development plans and plats.
§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;
(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;
(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.
§8A-4-3. Enactment of subdivision and land development ordinance.
(a) Before a governing body enacts a subdivision and land
development ordinance, the governing body shall hold at least one
public hearing and give public notice.
(b) The public notice of the date, time and place of the public
hearing must be published in a local newspaper of general
circulation in the area as a Class I legal advertisement, in
accordance with the provisions of article three, chapter fifty-nine
of this code, at least thirty days prior to the public hearing. The
public notice must contain a brief summary of the principal
provisions of the proposed subdivision and land development
ordinance and a reference to the place or places where copies of the
proposed subdivision and land development ordinance may be examined.
(c) After the public hearing, if the governing body makes other than technical amendments to the proposed subdivision and land
development ordinance prior to voting on it, the governing body
shall hold another public hearing and give public notice. The
public notice shall be as provided in subsection (b) of this
section, and must contain a brief summary of the amendments.
§8A-4-4. Filing the subdivision and land development ordinance.
After the enactment of the subdivision and land development
ordinance by a governing body, the governing body must file the
enacted subdivision and land development ordinance in the office of
the clerk of the county commission where the subdivision and land
development ordinance applies.
§8A-4-5. Amendments to the subdivision and land development
ordinance.
After the enactment of the subdivision and land development
ordinance by the governing body, all amendments to the subdivision
and land development ordinance shall be made by the governing body
after holding a public hearing with public notice.
§8A-4-6. Effect of adopted subdivision and land development
ordinance.
After enactment of a subdivision and land development ordinance
by the governing body, all subsequent subdivisions and
land
development must be done in accordance with the provisions of the
subdivision and land development ordinance.
§8A-4-7. Validation of prior subdivision and land development
ordinance.
All subdivision and land development ordinances, all
amendments, supplements and changes to the ordinance, legally
adopted under prior acts, and all action taken under the authority
of the ordinance, are hereby validated and the ordinance shall
continue in effect until amended or repealed by action of the
governing body taken under authority of this article. These
ordinances shall have the same effect as though previously adopted
as a comprehensive plan of land use or parts thereof.
ARTICLE 5. SUBDIVISION OR LAND DEVELOPMENT PLAN AND PLAT.
§8A-5-1. Jurisdiction of planning commissions.
(a) A planning commission has the authority to:
(1) Approve a minor subdivision or land development application
within its jurisdiction;
(2) Exempt an application for a
minor subdivision or land
development
within its jurisdiction;
and
(3) Approve a major subdivision or land development application
within its jurisdiction.
(b) The staff of a planning commission has the authority to
approve a minor subdivision or land development application within
its jurisdiction, if granted such authority by the governing body
in the subdivision and land development ordinance.
(c) If a subdivision or
land development plan and plat cannot
be approved through the minor subdivision or land development
process, then an applicant must use the major subdivision or land
development approval process.
PART I. MINOR SUBDIVISION OR LAND DEVELOPMENT PROCESS.
§8A-5-2. Requirements for a minor subdivision or land development.
(a) An application for approval of a subdivision or
land
development plan and plat may be considered a minor subdivision or
land development if it meets the following requirements:
(1) Only creates the maximum number of lots specifically
permitted by the subdivision and land development ordinance for a
minor subdivision or land development
;
(2) Will not require the development of new or the extension
of existing off-tract infrastructure; and
(3) Such other requirements as determined by the governing body
to ensure that required improvements are installed and not avoided
by a series of minor subdivisions or land developments.
(b) The following can be considered a minor subdivision or land
development if approved by the planning commission:
(1) Merger or consolidation of parcels of land;
(2) Land transfers between immediate family members; and
(3) Minor boundary line adjustments.
§8A-5-3. Application for minor subdivision or land development.
(a) An applicant submits a copy of a land development plat and
the fees to the planning commission having jurisdiction over the
land.
(b) Within seven days after the submission of the subdivision
or
land development plat, the applicant and the staff of the
planning commission shall meet to discuss the proposed subdivision
or
land development and the criteria used to classify the proposal
as minor.
(c) The staff of the planning commission may make a site
inspection of the proposed subdivision or
land development.
(d) Within ten days after the submission of the subdivision or
land development plat, the staff of the planning commission shall
notify the applicant in writing that the proposed subdivision or
land development has been classified a minor subdivision or land
development.
§8A-5-4. Approval of minor subdivision or
land development plans
and plats.
(a) Within ten days after a plat has been classified a minor
subdivision or land development, then the planning commission or
staff, if the authority has been given by the governing body, shall
approve or deny the plat.
(b) If the planning commission approves the plat, then the
planning commission shall affix its seal on the plat.
(c) If the planning commission approves the plat with
conditions, then the planning commission must state the conditions.
(d) If the planning commission denies the plat, then the
planning commission shall notify the applicant in writing of the
reasons for the denial.
§8A-5-5. Recording of minor subdivision or land development plat.
After approval of a minor subdivision or
land development plat
by the planning commission and before the subdivision or
development
is commenced, the subdivision or
land development plat shall be
recorded by the applicant in the office of the clerk of the county commission where the land is located.
PART II. MAJOR SUBDIVISION OR LAND DEVELOPMENT PROCESS.
§8A-5-6. Application for major subdivision or land development.
(a) An applicant for approval of a major subdivision or
land
development plan and plat shall submit written application, a copy
of the proposed land development plan and plat, and the fees to the
planning commission having jurisdiction over the land.
(b) Within thirty days after receipt of the application, the
planning commission shall review the application for completeness
and either accept or deny it.
(c) If the application is not complete, then the planning
commission may deny the application and must notify the applicant
in writing stating the reasons for the denial.
§8A-5-7. Contents of a major subdivision or
land development plan
and plat.
(a) A land development plan and plat must include everything
required by the governing body's subdivision and land development
ordinance.
(b) If a governing body does not have a subdivision and land
development ordinance or if a governing body's subdivision and land
development ordinance does not specify what may be included in a
subdivision or
land development plan and plat, then the following
may be included, when applicable, in a subdivision or
land
development plan and plat:
(1) Show that the subdivision or
land development conforms to the governing body's comprehensive plan;
(2) A method of payment to cover the cost of the water and
sewer service infrastructure, which can include, but is not limited
to, bonds, impact fees, escrow fees and proffers;
(3) Coordination among land development with adjoining land
owners, including but not limited to, facilities and streets;
(4) Distribution of population and traffic in a manner tending
to create conditions favorable to health, safety, convenience and
the harmonious development of the municipality or county;
(5) Show that there is a fair allocation of areas for different
uses, including but not limited to, streets, parks, schools, public
and private buildings, utilities, businesses and industry;
(6) Show that there is a water and sewer supply;
(7) Setback and lot size measures were used;
(8) The standards used for designating land which is subject
to flooding or subsidence, details for making it safe, or
information showing that such land will be set aside for use which
will not endanger life or property and will not further aggravate
or increase the existing menace;
(9) The control measures for drainage, erosion and sediment;
(10) The coordination of streets, sidewalks and pedestrian
pathways in and bordering the land development; and
(11) The design, construction and improvement measures to be
used for the streets, sidewalks, easements, rights-of-way, drainage,
utilities, walkways, curbs, gutters, street lights, fire hydrants,
water and wastewater facilities, and other improvements installed, including the width, grade and location for the purpose of
accommodating prospective traffic, customers and facilitating fire
protection.
§8A-5-8. Approval of major subdivision or land development plans
and plats.
(a) Upon written request of the applicant for a determination,
the planning commission must determine by vote at the next regular
meeting or at a special meeting, whether or not the application is
complete based upon a finding that the application meets the
requirements set forth in its governing body's subdivision and land
development ordinance.
(b) If a governing body's subdivision and land development
ordinance does not specify what may be included in a land
development plan and plat, then the planning commission must
determine that an application is complete if the application meets
the requirements set forth in subsection (b), section seven of this
article.
(c) At a meeting where the application is determined to be
complete, the planning commission must set a date, time and place
for a public hearing and a meeting to follow the public hearing to
vote on the application. The public hearing must be held within
forty-five days, and the planning commission must notify the
applicant of the public hearing and meeting in writing unless notice
is waived in writing by the applicant. The planning commission must
publish a public notice of the public hearing and meeting in a local
newspaper of general circulation in the area at least twenty-one days prior to the public hearing.
(d)
At a meeting at the conclusion of the public hearing or a
meeting held within fourteen days after the public hearing, the
planning commission shall vote to approve, deny or hold the
application.
(e) The application may be held for additional information
necessary to make a determination. An application may be held for
up to forty-five days.
(f) The planning commission shall approve the application
after
the planning commission determines that an application is complete
and meets the requirements of the governing body's subdivision and
land development ordinance; or if the governing body does not have
a subdivision and land development ordinance or
if the subdivision and land development ordinance does not specify
what may be included in a subdivision or land development plan and
plat, that the application meets the requirements
set forth in
subsection (b) section seven of this article.
(g) If the planning commission approves the application, then
the planning commission shall affix its seal on the subdivision or
land development plan and/or plat.
(h) If the planning commission approves the application with
conditions, then the planning commission must specify those
conditions.
(i) If the planning commission denies the application, then the
planning commission shall notify the applicant in writing of the
reasons for the denial. The applicant may request, one time, a reconsideration of the decision of the planning commission, which
request for reconsideration must be in writing and received by the
planning commission no later than ten days after the decision of the
planning commission
is received by the applicant.
§8A-5-9. Recording of major subdivision or land development plat.
After approval of a major subdivision or
land development plat
by the planning commission and after the conditions of the planning
commission are met, the subdivision or
land development plat shall
be recorded by the applicant in the office of the clerk of the
county commission where the land is located. If the land is located
in more than one county, then the land development plat shall be
recorded in the county of the initial land development and
subsequently recorded in the other counties when there is land
development in that county.
§8A-5-10. Appeal process.
(a) An appeal may be made by an aggrieved person from any
decision or ruling of the planning commission
to:
(1) The circuit court, pursuant to the provisions of article
nine of this chapter; or
(2) A board of subdivision and land development appeals, if the
governing body has established a board of subdivision and land
development appeals by ordinance.
(b) Within thirty days after the date of the denial
, the
petition, specifying the grounds of the appeal in writing, must be
filed with:
(1) The circuit court of the county in which the affected land or the major portion of the affected land is located; or
(2) The board of subdivision and land development appeals that
has jurisdiction over the affected land
.
§8A-5-11. Effect of approval of land development plans and plats.
A land development plan and plat that has not been approved by
the planning commission is without legal effect: Provided, That
failure to comply with this article shall not invalidate or affect
the title to any land within the area of the land development plat.
§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.
ARTICLE 6. METHODS OF SECURITY.
§8A-6-1. Bond requirements.
(a) If a bond is used as an acceptable method of security for
infrastructure construction, then it shall meet the following
requirements:
(1) Be in an amount to cover the infrastructure construction,
as determined by the governing body;
(2) Be payable to the governing body;
(3) Have adequate surety and be satisfactory to the governing
body;
(4) Specify the time for the completion of the infrastructure
construction; and
(5) Specify the date and/or condition for when the bond will
be released.
(b) The money from the bond shall only be used by the governing
body to which the bond is payable, for the completion of the
infrastructure construction, when the infrastructure construction
is not completed as approved at the issuance of the bond.
§8A-6-2. Conditions as part of final plat approval.
(a) A subdivision and land development ordinance may provide
for the voluntary proffering by a landowner as a requirement of
final plat approval for a development project.
(b) For purposes of this section, a "voluntary proffer" is a
written offer by a landowner to a governing body whereby the
landowner offers to satisfy certain reasonable conditions as a
requirement of the final plat approval for a development project.
A voluntary proffer made to a governing body shall be in lieu of
payment of an impact fee as authorized by section four, article
twenty, chapter seven of this code: Provided, That no proffer may
be accepted by a governing body
in lieu of
an impact fee
that would
otherwise go to schools without the approval of the county board of
education.
(c) For purposes of this section, a condition contained in a
voluntary proffer is considered reasonable if:
(1) The development project results in the need for the
conditions;
(2) The conditions have a reasonable relation to the
development project; and
(3) All conditions are in conformity with the comprehensive
plan adopted pursuant to this chapter.
(d) No proffer may be accepted by a governing body unless it
has approved a list detailing any proposed capital improvements from
all areas within the jurisdiction of the governing body to which the
proffer is made, which list contains descriptions of any proposed
capital improvements, cost estimates, projected time frames for
constructing the improvements and proposed or anticipated funding
sources: Provided, That the approval of the list does not limit the
governing body
from accepting proffers relating to items not
contained on the list.
(e) For purposes of this section, "capital improvement" has the
same definition as found in section three, article twenty, chapter
seven of this code.
(f) If a voluntary proffer includes the dedication of real
property or the payment of cash, the proffer shall provide for the
alternate disposition of the property or cash payment in the event
the property or cash payment is not to be used for the purpose for
which it was proffered.
(g) Notwithstanding any provision of this code to the contrary,
a municipality may transfer the portion of the proceeds of a
voluntary proffer intended by the terms of the proffer to be used
by the board of education of a county in which the municipality is
located upon the condition that the portion so transferred may only
be used by the board for capital improvements.
§8A-6-3. Enforcement and guarantees.
(a) The planning commission is vested with all the necessary
authority to administer and enforce conditions attached to the final
plat approved for a development project, including, but not limited
to, the authority to:
(1) Order, in writing, the remedy for any noncompliance with
the conditions;
(2) Bring legal action to ensure compliance with the
conditions, including injunction, abatement, or other appropriate
action or proceeding; and
(3) Require a guarantee satisfactory to the planning commission
in an amount sufficient for and conditioned upon the construction
of any physical improvements required by the conditions, or a
contract for the construction of the improvements and the
contractor's guarantee, in like amount and so conditioned, which
guarantee shall be reduced or released by the planning commission
upon the submission of satisfactory evidence that construction of
the improvements has been completed in whole or in part.
(b) Failure to meet all conditions attached to the final plat
approved for a development project shall constitute cause to deny
the issuance of any of the required use, occupancy or improvement
location permits, as may be appropriate.
ARTICLE 7. ZONING ORDINANCE.
§8A-7-1. Authority for zoning ordinance.
(a) The governing body of a municipality or a county may
regulate land use within its jurisdiction by:
(1) Adopting a comprehensive plan;
(2) Working with the planning commission and the public to
develop a zoning ordinance; and
(3) Enacting a zoning ordinance.
(b) A zoning ordinance may cover a county's entire jurisdiction
or parts of its jurisdiction.
(c) A zoning ordinance shall cover a municipality's entire
jurisdiction.
(d) A municipality may adopt, by reference, the zoning
ordinance of the county in which it is located.
§8A-7-2. Contents of zoning ordinance.
(a) The following must be considered when enacting a zoning
ordinance:
(1) Promoting general public welfare, health, safety, comfort
and morals;
(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
buildings;
(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 the
community;
(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
overlay districts;
(5) Establishing design standards and site plan approval
procedures;
(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 homes;
(9) Authorizing a process and standards for factory-built
homes: Provided, 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
site-built homes;
(10) Preserving green spaces and requiring new green spaces,
landscaping, screening and the preservation of adequate natural light;
(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
airport; and
(14) Authorizing planned unit developments to achieve more
efficient use of land and setting standards and regulations for the
developments.
(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 plan;
(3) Adopt procedures and requirements for nonconforming land
uses;
(4) Adopt procedures and requirements for variances; and
(5) Adopt procedures and requirements for conditional use
permits.
§8A-7-3. Zoning -- Generally.
(a) A zoning ordinance may cover a county's entire jurisdiction or parts of its jurisdiction.
(b) The different zones created in a zoning ordinance by a
governing body do not have to cover or include the same territory,
and may overlap.
(c) Overlay districts and special design districts may have
specific additional development standards for each permitted,
accessory and conditional use.
(d) Each zone will be subject to the same rules, regulations,
standards and designations throughout the zone, unless specific
provisions are made by the governing body in the zoning ordinance.
(e) Essential utilities and equipment are a permitted use in
any zoning district.
(f) Several areas of a municipality or county may be classified
in a zone even though the areas are not contiguous.
(g) The boundaries of each zone and the designated
classifications must be shown on a zoning district map. The
boundaries may only be changed after appropriate public hearing and
zoning district map changes are adopted by the governing body.
(h) A governing body shall certify the original zoning district
map. Subsequent versions of the zoning district map shall be
certified and clearly identified with an effective date.
(i) All certified zoning district maps must be filed with the
clerk of the applicable governing body, the applicable planning
commission and the office of the clerk of the applicable county
commission.
§8A-7-4. Study and report on zoning.(a) After adoption of a comprehensive plan and before enacting
a zoning ordinance, a governing body with the applicable planning
commission must study the land within its jurisdiction. The study
may include:
(1) Evaluating the existing conditions, the character of the
buildings, the most desirable use for the land and the conservation
of property values in relation to the adopted comprehensive plan;
and
(2) Holding public hearings and meetings with notice to receive
public input.
(b) The planning commission must use the information from the
study and the comprehensive plan and prepare a report on zoning.
The report shall include the proposed zoning ordinance, with
explanatory maps showing the recommended boundaries of each
district, and the rules, regulations and restrictions for each
district.
(c) No zoning ordinance may be enacted without a study and
report.
§8A-7-5. Enactment of zoning ordinance.
(a) After the study and the report, and before the governing
body enacts the proposed zoning ordinance, the governing body shall
hold at least two public hearings and give public notice. At least
one public hearing shall be held during the day and at least one
public hearing shall be held during the
evening.
(b) The public notice shall be published in a local newspaper
of general circulation in the area affected by the proposed zoning ordinance, as a Class II legal advertisement in accordance with the
provisions of article three, chapter fifty-nine of this code, at
least fourteen consecutive days prior to the public hearing. The
public notice must contain the following:
(1) The date, time and place of the public hearings;
(2) That it is a public hearing on a proposed zoning ordinance;
(3) A brief summary of the principal provisions of the proposed
zoning ordinance;
(4) A reference to the place where copies of the proposed
zoning ordinance may be examined; and
(5) That written objections to the proposed zoning ordinance
may be made and will be heard at the public hearings and must be
filed with the clerk of the applicable governing body.
(c) Copies of the proposed zoning ordinance
must be made
available to the public, at least two weeks prior to the public
hearings, at the office of the governing body and all public
libraries in the area to be zoned.
(d) After the public hearings, if the governing body makes
substantial amendments to the proposed zoning ordinance prior to
voting on the zoning ordinance, the governing body shall hold
another public hearing, after public notice. The public notice
shall be as provided in subsections (b) and (c) of this section, and
must contain a brief summary of the amendments.
(e) After the public hearings and any amendments, the governing
body may enact the zoning ordinance or it may hold an election to
have the qualified voters residing in the affected area approve the zoning ordinance.
§8A-7-6. Filing the zoning ordinance.
After the enactment of a zoning ordinance by a governing body,
the governing body shall file the enacted zoning ordinance in the
office of the clerk of the county commission where the zoning
ordinance applies.
§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 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, the governing
body of the municipality or the county may amend the zoning
ordinance without holding an election.
(b) 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.
§8A-7-9. Amendments to the zoning ordinance by petition.
(a) After the enactment of the zoning ordinance, the planning
commission or the owners of fifty percent or more of the real
property in the area to which the petition relates may petition to
amend the zoning ordinance. The petition must be signed and be
presented to the planning commission or the clerk of the governing
body.
(b) Within sixty days after a petition to amend the zoning
ordinance is received by the planning commission or the governing
body, then the planning commission or the governing body must hold
a public hearing after giving public notice. The public notice of
the date, time and place of the public hearing must be published in
a local newspaper of general circulation in the area affected by the
proposed zoning ordinance, as a Class I legal advertisement, in
accordance with the provisions of article three, chapter fifty-nine
of this code, at least fifteen days prior to the public hearing.
(c) If the petition to amend the zoning ordinance is from the
owners of fifty percent or more of the real property in the area,
then 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.
§8A-7-10. Effect of enacted zoning ordinance.
(a) After enactment of a zoning ordinance by a municipality or
county, all subsequent land development must be done in accordance
with the provisions of the zoning ordinance.
(b) All zoning ordinances, and all amendments, supplements and
changes thereto, legally adopted under any prior enabling acts, and
all actions taken under the authority of any such ordinances, are
hereby validated and continued in effect until amended or repealed
by action of the governing body of the municipality or the county
taken under authority of this article. These ordinances shall have
the same effect as though previously adopted as a comprehensive plan
of land use or parts thereof.
(c) Land, buildings or structures in use when a zoning
ordinance is enacted can continue the same use and such use cannot
be prohibited by the zoning ordinance, so long as the use of the
land, buildings or structures is maintained. A zoning ordinance may
provide for the enlargement or extension of a nonconforming use, or
the change from one nonconforming use to another.
(d) If a use of a property that does not conform to the zoning
ordinance has ceased and the property has been vacant for one year,
abandonment will be presumed unless the owner of the property can
show that the property has not been abandoned:
Provided, That in
the case of natural resources, the absence of natural resources extraction or harvesting is not abandonment of the use.
If the
property is shown to be abandoned, then any future use of the land,
buildings or structures must conform with the provisions of the
zoning ordinance regulating the use where the land, buildings or
structures are located, unless the property is a duly designated
historic landmark, historic site or historic district.
(e)Nothing in this chapter authorizes an ordinance, rule or
regulation preventing, outside of urban areas, the complete use of
natural resources by the owner.
§8A-7-11. Variance.
(a) A variance is a deviation from the minimum standards of the
zoning ordinance and shall not involve permitting land uses that are
otherwise prohibited in the zoning district nor shall it involve
changing the zoning classifications of a parcel of land.
(b) The board of zoning appeals may grant a variance to the
zoning ordinance if it finds that the variance:
(1) Will not adversely affect the public health, safety or
welfare, or the rights of adjacent property owners or residents;
(2) Arises from special circumstances not ordinarily found in
the zone and not created by the person seeking the variance;
(3) Would eliminate an unnecessary hardship and permit a
reasonable use of the land; and
(4) Will allow the intent of the zoning ordinance to be
observed and substantial justice done.
§8A-7-12. Validation of prior zoning ordinance.
All zoning ordinances, all amendments, supplements and changes to the ordinance, legally adopted under prior acts, and all action
taken under the authority of the ordinance, are hereby validated and
the ordinance shall continue in effect until amended or repealed by
action of the governing body taken under authority of this article.
§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 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.
ARTICLE 8. BOARD OF ZONING APPEALS.
PART I. BOARD OF ZONING APPEALS.
§8A-8-1. Board of zoning appeals
authorized.
If a governing body adopts a zoning ordinance, then as part of
that zoning ordinance it shall create a board of zoning appeals to
hear appeals on zoning issues.
§8A-8-2. Continuation of established boards of zoning appeals.
A board of zoning appeals established prior to the effective
date of this chapter shall continue to operate as though established
under the terms of this chapter. All actions lawfully taken under
prior acts are hereby validated and continued in effect until
amended or repealed by action taken under the authority of this
chapter.
§8A-8-3. Municipal board of zoning appeals.
(a) A municipal board of zoning appeals shall have five members
to be appointed by the governing body of the municipality.
(b) The members of a municipal board of zoning appeals must be:
(1) Residents of the municipality for at least three years
preceding his or her appointment;
(2) Cannot be a member of the municipal planning commission;
and
(3) Cannot hold any other elective or appointive office in the
municipal government.
(c) Upon the creation of a board of zoning appeals, the members
shall be appointed for the following terms: One for a term of one
year; two for a term of two years; and two for a term of three
years. The terms shall expire on the first day of January of the
first, second and third year, respectively, following their
appointment. Thereafter, members shall serve three-year terms. If
a vacancy occurs, the governing body of the municipality shall
appoint a member for the unexpired term.
(d) The governing body of the municipality may appoint up to
three additional members to serve as alternate members of the
municipal board of zoning appeals. The alternate members must meet
the same eligibility requirements as set out in subsection (b) of
this section. The term for an alternate member is three years. The
governing body of the municipality may appoint alternate members on
a staggered term schedule.
(e) An alternate member shall serve on the board when one of
the regular members is unable to serve. The alternate member shall
serve until a final determination is made in the matter to which the
alternate member was initially called on to serve.
(f) The municipal board of zoning appeals shall establish rules
and procedures for designating an alternate member. An alternate
member shall have the same powers and duties of a regular board
member.
(g) The members and alternate members of a county board of
zoning appeals shall serve without compensation, but shall be
reimbursed for all reasonable and necessary expenses actually
incurred in the performance of their official duties.
§8A-8-4. County board of zoning appeals.
(a) A county board of zoning appeals shall have five members
to be appointed by the governing body of the county.
(b) The members of a county board of zoning appeals must be:
(1) Residents of the county for at least three years preceding
his or her appointment;
(2) Cannot be a member of the county planning commission; and
(3) Cannot hold any other elective or appointive office in the
county government.
(c) Where only a portion of the county is zoned, the members
of the board of zoning appeals for that part of the county that is
zoned, must be:
(1) Residents of that part of the county that is zoned for at
least three years preceding his or her appointment;
(2) Cannot be a member of the county planning commission; and
(3) Cannot hold any other elective or appointive office in the
county government.
(d) Upon the creation of a board of zoning appeals, the members shall be appointed for the following terms: One for a term of one
year; two for a term of two years; and two for a term of three
years. The terms shall expire on the first day of January of the
first, second and third year, respectively, following their
appointment. Thereafter, members shall serve three-year terms. If
a vacancy occurs, the governing body of the county shall appoint a
member for the unexpired term.
(e) The governing body of the county may appoint up to three
additional members to serve as alternate members of the county board
of zoning appeals. The alternate members must meet the same
eligibility requirements as set out in subsection (b) or subsection
(c) of this section, as applicable. The term for an alternate
member is three years. The governing body of the county may appoint
alternate members on a staggered term schedule.
(f) An alternate member shall serve on the board when one of
the regular members is unable to serve. The alternate member shall
serve until a final determination is made in the matter to which the
alternate member was initially called on to serve.
(g) The county board of zoning appeals shall establish rules
and procedures for designating an alternate member. An alternate
member shall have the same powers and duties of a regular board
member.
(h) The members and alternate members of a county board of
zoning appeals shall serve without compensation, but shall be
reimbursed for all reasonable and necessary expenses actually
incurred in the performance of their official duties.
§8A-8-5. Board of zoning appeals meetings.
(a) A board of zoning appeals shall meet quarterly and may meet
more frequently at the written request of the chairperson or by two
or more members.
(b) Notice for a special meeting must be in writing, include
the date, time and place of the special meeting, and be sent to all
members at least two days before the special meeting.
(c) Written notice of a special meeting is not required if the
date, time and place of the special meeting were set in a regular
meeting.
§8A-8-6. Quorum.
A board of zoning appeals must have quorum to conduct a
meeting. A majority of the members of a board of zoning appeals is
a quorum. No action of a board is official unless authorized by a
majority of the members present at a regular or properly called
special meeting.
§8A-8-7. Officers.
At its first regular meeting each year, a board of zoning
appeals shall elect a chairperson and vice chairperson from its
membership. The vice chairperson shall have the power and authority
to act as chairperson during the absence or disability of the
chairperson.
§8A-8-8. Governing body's duties.
The county commission in the case of a county board of zoning
appeals, and the governing body of the municipality in the case of a municipal board of zoning appeals, shall provide the board of
zoning appeals with:
(1) Suitable offices for the holding of meetings and the
preservation of plans, maps, documents and accounts; and
(2) Appropriate money to defray the reasonable expenses of the
board.
§8A-8-9. Powers and duties of board of zoning appeals.
A board of zoning appeals has the following powers and duties:
(1) Hear, review and determine appeals from an order,
requirement, decision or determination made by an administrative
official or board charged with the enforcement of a zoning ordinance
or rule and regulation adopted pursuant thereto;
(2) Authorize exceptions to the district rules and regulations
only in the classes of cases or in particular situations, as
specified in the zoning ordinance;
(3) Hear and decide conditional uses of the zoning ordinance
upon which the board is required to act under the zoning ordinance;
(4) Authorize, upon appeal in specific cases, a variance to the
zoning ordinance;
(5) Reverse, affirm or modify the order, requirement, decision
or determination appealed from and have all the powers and authority
of the official or board from which the appeal was taken;
(6) Adopt rules and regulations concerning:
(A) The filing of appeals, including the process and forms for
the appeal;
(B) Applications for variances and conditional uses;
(C) The giving of notice; and
(D) The conduct of hearings necessary to carry out the board's
duties under the terms of this article;
(7) Keep minutes of its proceedings;
(8) Keep an accurate and complete audio record of all the
board's proceedings and official actions
and keep the audio record
in a safe manner, which audio record is accessible within twenty-
four hours of demand, for three years;
(9) Record the vote on all actions taken;
(10) Take responsibility for the custody and preservation of
all papers and documents of the board. All minutes and records
shall be filed in the office of the board and shall be public
records;
(11) With consent from the governing body, hire employees
necessary to carry out the duties and responsibilities of the board:
Provided, That the governing body sets the salaries; and
(12) Supervise the fiscal affairs and responsibilities of the
board.
PART II. APPEAL PROCESS
TO BOARD OF ZONING APPEALS
.
§8A-8-10. Appeal to board of zoning appeals.
(a) An appeal from any order, requirement, decision or
determination made by an administrative official or board charged
with the enforcement of a zoning ordinance, or rule and regulation
adopted pursuant to a zoning ordinance, shall be filed with the
board of zoning appeals.
(b) The appeal shall:
(1) Specify the grounds of the appeal;
(2) Be filed within thirty days of the original order,
requirement, decision or determination made by an administrative
official or board charged with the enforcement of a zoning
ordinance; and
(3) Be on a form prescribed by the board.
(c) Upon request of the board of zoning appeals, the
administrative official or board shall transmit all documents, plans
and papers constituting the record of the action from which the
appeal was taken.
§8A-8-11. Notice and hearing of appeal.
(a) Within ten days of receipt of the appeal by the board of
zoning appeals, the board shall set a time for the hearing of the
appeal and give notice. The hearing on the appeal must be held
within forty-five days of receipt of the appeal by the board.
(b) At least fifteen days prior to the date set for the hearing
on the appeal, the board of zoning appeals shall publish a notice
of the date, time and place of the hearing on the appeal as a Class
I legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, and written notice shall be
given to the interested parties. The publication area shall be the
area covered in the appeal.
(c) The board of zoning appeals may require the party taking
the appeal to pay for the cost of public notice and written notice
to interested parties.
(d) At the hearing, any party may appear in person, by agent or by an attorney licensed to practice in this state.
(e) Every decision by the board must be in writing and state
findings of fact and conclusions of law on which the board based its
decision.
§8A-8-12. Stays; exception.
When an appeal has been filed with the board of zoning appeals,
all proceedings and work on the premises in question shall be
stayed, unless the official or board from where the appeal was taken
certifies in writing to the board of zoning appeals, that a stay
would cause imminent peril to life or property. If the written
certification is filed, proceedings or work on the premises shall
not be stayed. Nothing in this section prevents obtaining a
restraining order.
ARTICLE 9. APPEAL PROCESS.
§8A-9-1. Petition for writ of certiorari.
(a) Every decision or order of the planning commission, board
of subdivision and land development
appeals
, or board of zoning
appeals is subject to review by certiorari.
(b) Within thirty days after a decision or order by the
planning commission, board of subdivision and land development
appeals
, or board of zoning appeals, any aggrieved person may
present to the circuit court of the county in which the affected
premises are located, a duly verified petition for a writ of
certiorari setting forth:
(1) That the decision or order by the planning commission, board of subdivision and land development
appeals
, or board of
zoning appeals is illegal in whole or in part; and
(2) Specify the grounds of the alleged illegality.
§8A-9-2. Notice to adverse parties.
(a) Upon filing a petition for a writ of certiorari with the
clerk of the circuit court of the county in which the affected
premises are located, the petitioner shall cause a notice to be
issued and served by the sheriff of the county upon:
(1) The adverse party, as shown by the record of the appeal in
the office of the planning commission, board of subdivision and land
development
appeals
, or board of zoning appeals; and
(2) The chairperson or secretary of the planning commission,
board of subdivision and land development
appeals
, or board of
zoning appeals, as applicable.
(b) The adverse party is any property owner appearing at the
hearing before the planning commission, board of subdivision and
land development
appeals,
or board of zoning appeals in opposition
to the petitioner.
(c) If the record shows a written document containing the names
of more than three property owners opposing the request of the
petitioner, then the petitioner is required to cause notice to be
issued and served upon the three property owners whose names first
appear upon the written document. Notice to the other parties named
in the written document is not required.
(d) The notice shall:
(1) State that a petition for a writ of certiorari has been filed in the circuit court of the county asking for a review of the
decision or order of the planning commission, board of subdivision
and land development
appeals,
or board of zoning appeals;
(2) Designate the affected premises; and
(3) Specify the date of the decision or order that is the
subject of the petition for a writ of certiorari.
(e) Service of the notice by the sheriff on the chairperson or
secretary of the planning commission, board of subdivision and land
development
appeals,
or board of zoning appeals shall constitute
notice to the commission or boards. Service of the notice by the
sheriff to the governing body and to any official or board thereof
charged with the enforcement of the subdivision and land development
ordinance, subdivision
or land development plan and plat, or zoning
ordinance. No further summons or notice with reference to the
filing of such petition shall be necessary.
(f) Notice is sufficient upon a showing that the chairperson
or secretary of the planning commission, board of subdivision and
land development
appeals,
or board of zoning appeals and all
adjacent landowners to the affected premises have received personal
service of process of the notice containing information as required
in subsection (d) of this section. As to all other interested
parties, notice shall be sufficient if notice containing information
as required in subsection (d) of this section, is published as a
Class III-0 legal advertisement, in the county or counties wherein
the affected premises are located.
§8A-9-3. Court action on petition.
(a) Within twenty days after a petition for a writ of
certiorari is presented, the planning commission, board of
subdivision and land development
appeals,
or board of zoning appeals
must show the circuit court, or a judge in vacation, of the county
in which the affected premises are located, cause why a writ of
certiorari should not be issued.
(b) If the planning commission, board of subdivision and land
development
appeals,
or board of zoning appeals fails to show the
court or judge that a writ should not be issued, then the court or
judge may allow a writ of certiorari directed to the planning
commission, board of subdivision and land development
appeals,
or
board of zoning appeals.
(c) The writ shall prescribe the time in which a return shall
be made to it. This time shall be not less than ten days from the
date of issuance of the writ and may be extended by the court or
judge.
§8A-9-4. Stay of work on allowance of writ.
(a) The allowance of the writ of certiorari shall not stay
proceedings or work on the premises affected by the decision or
order to be brought up for review.
(b) The court or judge may, upon application and on notice to
all parties to the decision or order and on due cause shown, grant
such relief as the circumstances of the case may require, including
an order staying the proceedings or work until final determination
of the case by the court or judge.
(c) The staying order may be issued by the court or judge without requiring the petitioner to enter into a written undertaking
with the adverse party or parties affected thereby for the payment
of damages by reason of such staying order.
§8A-9-5. Return to writ.
(a) The return to the writ of certiorari by the planning
commission, board of subdivision and land development
appeals,
or
board of zoning appeals must concisely set forth the pertinent facts
and data and present material to show the grounds of the decision
or order appealed. The return must be verified by the secretary of
the planning commission, board of subdivision and land development
appeals,
or board of zoning appeals.
(b) The planning commission, board of subdivision and land
development
appeals,
or board of zoning appeals does not have to
return the original papers acted upon by it. It shall be sufficient
to return certified copies of all or such portion of the papers as
may be called for by the writ.
§8A-9-6. Action by circuit court or judge.
(a) The court or judge may consider and determine the
sufficiency of the allegations of illegality contained in the
petition without further pleadings and may make a determination and
render a judgment with reference to the legality of the decision or
order of the planning commission, board of subdivision and land
development
appeals,
or board of zoning appeals on the facts set out
in the petition and return to the writ of certiorari.
(b) If it appears to the court or judge that testimony is
necessary for the proper disposition of the matter, the court or judge may take evidence to supplement the evidence and facts
disclosed by the petition and return to the writ of certiorari, but
no such review shall be by trial de novo.
(c) In passing upon the legality of the decision or order of
the planning commission, board of subdivision and land development
appeals,
or board of zoning appeals, the court or judge may reverse,
affirm or modify, in whole or in part, the decision or order.
§8A-9-7. Appeal from final judgment of circuit court or judge.
An appeal may be taken to the West Virginia supreme court of
appeals from the final judgment of the court or judge reversing,
affirming or modifying the decision or order of the planning
commission, board of subdivision and land development
appeals,
or
board of zoning appeals within the same time, in the same manner,
and upon the same terms, conditions and limitations as appeals in
other civil cases.
ARTICLE 10. ENFORCEMENT PROVISIONS.
§8A-10-1. Enforcement.
The governing body of a municipality or county may:
(1) Enforce penalties, set out in section two of this article,
for failure to comply with the provisions of any ordinance or rule
and regulation adopted pursuant to the provisions of this chapter;
and
(2) Declare that any buildings erected, raised or converted,
or land or premises used in violation of any provision of any
ordinance or rule and regulation adopted under the authority of this chapter shall be a common nuisance and the owner of the building,
land or premises shall be liable for maintaining a common nuisance.
§8A-10-2. Penalty.
A person who violates any provision of this chapter is guilty
of a misdemeanor, and upon conviction, shall be fined not less than
fifty dollars nor more than five hundred dollars.
§8A-10-3. Injunction.
(a) The planning commission, board of subdivision and land
development
appeals,
the board of zoning appeals or any designated
enforcement official may seek an injunction in the circuit court of
the county where the affected property is located, to restrain a
person or unit of government from violating the provisions of this
chapter or of any ordinance or rule and regulation adopted pursuant
hereto.
(b) The planning commission, board of subdivision and land
development
appeals,
the board of zoning appeals or any designated
enforcement official may also seek a mandatory injunction in the
circuit court where the affected property is located, directing a
person or unit of government to remove a structure erected in
violation of the provisions of this chapter or of any ordinance or
rule and regulation adopted pursuant hereto.
(c) If the planning commission, board of subdivision and land
development
appeals,
the board of zoning appeals or the designated
enforcement official is successful in any such suit, the respondent
shall bear the costs of the action.
§8A-10-4. Special provisions.
(a) The planning and zoning provisions of this chapter are
supplemental to and do not abrogate the powers and authority
extended to agencies, bureaus, departments, commissions, divisions
and officials of the state government by other state statute and
those powers and authority shall remain in full force and effect.
(b) The powers of supervision and regulation by the divisions
of the state government over municipal, county and other local
governmental units and persons are also not abrogated and shall
continue in full force and effect.
§8A-10-5. General repealer.
All acts or parts of acts, including special legislative
charters, inconsistent with the provisions of this chapter are
hereby repealed to the extent of their inconsistency, except as
provided in this chapter.
ARTICLE 11. SPECIAL PROVISIONS.
§8A-11-1. Standards for factory-built homes.
(a) Notwithstanding any existing provisions of law, municipal
or county ordinance, or local building code, but excluding any
provisions relating to zoning or land use control, the standards for
factory-built homes, housing prototypes, subsystems, materials and
components certified as acceptable by the federal department of
housing and urban development are considered acceptable and are
approved for use in housing construction in this state.
(b) A certificate from the state director of the federal
housing administration of the department of housing and urban development shall constitute prima facie evidence that the products
or materials listed therein are acceptable and such certificates
shall be furnished by the building contractor to any local building
inspector or other local housing authority upon request.
§8A-11-2. Permitted use for group residential facility.
(a) A group residential facility as defined in article
seventeen, chapter twenty-seven of this code, shall be a permitted
residential use of property for the purposes of zoning and is a
permitted use in zones or districts where single family dwelling
units or multifamily dwelling units are permitted.
(b) A governing body of a municipality or a county, and a
planning commission, cannot discriminate in regard to housing and
cannot require a group residential facility or its owner or
operator, to obtain a conditional use permit, special use permit,
special exception or variance to locate a group residential facility
in a zone or district where single family dwelling units or
multi-family dwelling units are permitted.
(c) The provisions of this section do not exempt any group
residential facility from the structural requirements of any bona
fide historic preservation district.
ARTICLE 12. VOLUNTARY FARMLAND PROTECTION PROGRAMS.
§8A-12-1. Legislative findings and purpose.
(a) The Legislature hereby finds and declares that agriculture
is a unique "life support" industry and that a need exists to assist
those agricultural areas of the state which are experiencing the irreversible loss of agricultural land.
(b) It is the intent of the Legislature to provide persons and
other entities an opportunity to voluntarily protect agricultural
land and woodland in order to:
(1) Assist in sustaining the farming community;
(2) Provide sources of agricultural products within the state
for the citizens of the state;
(3) Control the urban expansion which is consuming the
agricultural land, topsoil and woodland of the state;
(4) Curb the spread of urban blight and deterioration;
(5) Protect agricultural land and woodland as open-space land;
(6) Enhance tourism; and
(7) Protect worthwhile community values, institutions and
landscapes which are inseparably associated with traditional
farming.
(c) Further, it is the intent of the Legislature to establish
a West Virginia agricultural land protection authority, hereinafter
"authority", to assist persons, other entities and counties to
obtain funding from any source available to accomplish the purposes
of the voluntary farmland protection programs.
§8A-12-2. County farmland protection programs and farmland
protection boards authorized; authority of county
commission to approve purchase of farmland easements;
expense reimbursement of actual expenses for the
board members.
(a) The county commission of each county may adopt and
implement a farmland protection program within the county. The
county commission of each county which decides to adopt and
implement a farmland protection program shall appoint a farmland
protection board. The farmland protection board shall administer
on behalf of the county commission all matters concerning farmland
protection. The county commission has final approval authority for
any and all purchases of easements for the farmland protection
program by the board.
(b) The farmland protection board shall adopt bylaws
prescribing the board's officers, meeting dates, record-keeping
procedures, meeting attendance requirements and other internal
operational procedures. The member of the farmland protection board
who is a county commissioner shall serve as temporary chairman of
the board until the board's bylaws are adopted and until the board's
officers are selected as prescribed by those bylaws. The farmland
protection board shall prepare a document proposing a farmland
protection program which is consistent with the Legislature's
intent.
(c) Each member of the board shall receive expense
reimbursement for actual expenses incurred while engaged in the
discharge of official duties, the actual expenses not to exceed the
amount paid to members of the Legislature.
§8A-12-3. Content and requirements of farmland protection programs.
(a) An adopted farmland protection program shall include only
those qualifying properties which are voluntarily offered into the program by the landowners of the properties.
(b) An adopted farmland protection program shall meet the
following minimum requirements:
(1) The program shall be developed by the county farmland
protection board and approved by the county commission. The county
farmland protection board, in consultation with the local
conservation district, shall administer the farmland protection
program;
(2) The board shall establish uniform standards and guidelines
for the eligibility of properties for the program. The standards
and guidelines shall take into consideration the following: Current
and past uses of the property; existing property improvements,
property tract size and shape; location of the property tract in
relation to other potential agricultural property tracts; impending
threat of conversion of the property to nonagricultural uses;
property ownership and existing deed covenants; and restrictions
with respect to the property; and
(3) The guidelines established by the board shall outline the
various methods of farmland protection which are available to
prospective participating property owners and the procedures to be
followed in applying for program consideration.
§8A-12-4. Farmland protection boards -- appointment, composition,
terms.
(a) Composition. -- A farmland protection board shall be
composed of seven members, each serving without compensation.
Membership on the farmland protection board shall consist of the following: One county commissioner; the executive director of the
county development authority; one farmer who is a county resident
and a member of the county farm bureau; one farmer who is a county
resident and a member of a conservation district; one farmer who is
a county resident; and two county residents who are not members of
any of the foregoing organizations. All members of the farmland
protection board shall be voting members, except the county
commissioner who shall serve in an advisory capacity as a nonvoting
member.
(b) Terms. -- Each member of a farmland protection board shall
be appointed for a term of office of four years except the initial
appointment of two voting board members shall be for a term of two
years:
(1) No member may serve for more than two consecutive full
terms; and
(2) An appointment to fill a vacancy shall be for the remainder
of the unexpired term.
§8A-12-5. Farmland protection boards -- powers.
A farmland protection board has the following general powers:
(a) Power to sue. -- To sue and be sued in contractual matters
in its own name;
(b) Power to contract. -- To enter into contracts generally and
to execute all instruments necessary or appropriate to carry out its
purposes;
(c) Power to restrict use of land. -- To acquire or cohold, by gift, purchase, devise, bequest or grant, easements in gross, fee
or other rights to restrict the use of agricultural land and
woodland as may be designated to maintain the character of the land
as agricultural land or woodland: Provided, That the county
commission has final approval authority for any and all purchases
of easements for the farmland protection program by the board;
(d) Power to implement rules. -- To implement rules necessary
to achieve the purposes of the voluntary farmland protection
programs;
(e) Power to disseminate information. -- To promote the
dissemination of information throughout the county concerning the
activities of the farmland protection board; and
(f) Power to seek funding. -- To pursue and apply for any and
all county, state, federal and private funding available, consistent
with the purpose of the voluntary farmland protection programs.
§8A-12-6. Farmland protection board duties.
The duties of each farmland protection board are as follows:
(a) To report to the county commission with respect to the
acquisition of easements by the farmland protection board within the
county and to obtain final approval authority for any and all
purchases of easements for the farmland protection program by the
board;
(b) To advise the authority concerning county priorities for
agricultural protection;
(c) To promote protection of agriculture within the county by offering information and assistance to landowners with respect to
the acquisition of easements;
(d) To seek and apply for all available funds from federal,
state, county and private sources to accomplish the purposes of the
voluntary farmland protection programs; and
(e) To perform any other duties assigned by the county
commission.
§8A-12-7. West Virginia agricultural land protection authority --
established.
A West Virginia agricultural land protection authority is
established within the department of agriculture. The authority has
the powers and duties provided in this article.
§8A-12-8. West Virginia agricultural land protection authority --
board of trustees.
(a) Composition; chairman; quorum; qualifications. -- The
authority established on the first day of July, two thousand two,
shall be governed and administered by a board of trustees composed
of the state treasurer, the auditor and the commissioner of
agriculture, who shall serve as ex officio members, and nine members
to be appointed by the governor, by and with the advice and consent
of the Senate, at least five of whom shall be representative of
farmers from different areas of the state. The state treasurer,
auditor and the commissioner of agriculture may appoint designees
to serve on the board of trustees. One of the appointed members who
is not a representative of farmers shall be a representative of the division of natural resources; one of the appointed members who is
not a representative of farmers shall be a representative of the
conservation district; and one of the appointed members who is not
a representative of farmers shall be a representative of an I.R.C.
501(c)(3) qualified land trust. Three of the five representatives
of farmers shall be appointed as follows:
(1) Two from a list of five nominees submitted by the West
Virginia department of agriculture; and
(2) One from a list of three nominees submitted by the West
Virginia farm bureau.
The governor shall appoint the chairman of the board from among
the nine appointed members. A majority of the members of the board
serving at any one time constitutes a quorum for the transaction of
business.
Notwithstanding any provision of law to the contrary, a person
may be appointed to and serve on the board as an appointed member
even if prior to the appointment the person conveyed an easement on
the person's land to the authority.
(b) Terms. -- (1) The governor, with the advice and consent of
the Senate, shall appoint the nine members for the following terms:
(A) Three for a term of four years;
(B) Three for a term of three years; and
(C) Three for a term of two years.
(2) Successors to appointed members whose terms expire shall
be appointed for terms of four years. Vacancies shall be filled for
the unexpired term. An appointed member may not serve more than two successive terms. Appointment to fill a vacancy may not be
considered as one of two terms.
(c) Oath. -- Appointed members shall take the oath of office
as prescribed by law.
(d) Compensation and expenses. -- Members shall not receive
compensation. Each member of the board shall receive expense
reimbursement for actual expenses incurred while engaged in the
discharge of official duties, the actual expenses not to exceed the
amount paid to members of the Legislature.
§8A-12-9. West Virginia agricultural land protection authority --
powers.
The authority has the following general powers:
(a) Power to sue. -- To sue and be sued in contractual matters
in its own name;
(b) Power to contract. -- To enter into contracts generally and
to execute all instruments necessary or appropriate to carry out its
purposes;
(c) Power to restrict use of land. -- To acquire or cohold, by
gift, purchase, devise, bequest or grant, easements in gross, fee
or other rights to restrict the use of agricultural land and
woodland as may be designated to maintain the character of the land
as agricultural land or woodland;
(d) Power to disseminate information. -- To promote the
dissemination of information throughout the state concerning the
activities of the farmland protection board; and
(e) Power to seek funding. -- To pursue and apply for any and
all state, federal and private funding available consistent with the
purpose of the voluntary farmland protection programs.
§8A-12-10. West Virginia agricultural land protection authority --
duties.
The authority shall:
(a) Disseminate information regarding agricultural land
protection and promote the protection of agricultural land;
(b) Assist county farmland protection boards in applying for
and obtaining all state and federal funding available consistent
with the purposes of the farmland protection programs;
(c) Upon request of a farmland protection board, provide
technical and legal services necessary to procure, acquire, draft,
file and record conservation and preservation easements;
(d) Prepare and file electronically with the governor's office
and with the Legislature by the thirty-first day of August of each
year a report including, but not limited to, the following
information:
(1) The cost per easement obtained;
(2) The identity of all applicants for conservation and
preservation easements; and
(3) The identity of all applicants from whom conservation and
preservation easements have been acquired;
(e) Seek and apply for all available funds from federal, state
and private sources to accomplish the purposes of the farmland
protection programs.
§8A-12-11. Definitions.
For purposes of the voluntary farmland protection programs, the
following terms have the meanings set forth in this section.
(a) Acquisition of easement. -- The holding or coholding of
land-use restrictions as defined in this article, whether obtained
through purchase, gift, devise, bequest, grant or contract to cohold
with another holder.
(b) Conservation easement. -- This article incorporates the
definition of a conservation easement found in section three,
article twelve, chapter twenty of this code, except that a
conservation easement created under this article must be held or
coheld by at least one "holder" as defined in that section in
perpetuity.
(c) Farm, farmland or agricultural land. -- A tract, or
contiguous tracts of land, of any size, used or useable for
agriculture, horticulture or grazing and includes all real property
designated as wetlands that are part of a property used or useable
as farmland.
(d) Preservation easement. -- This article incorporates the
definition of a preservation easement found in section three,
article twelve, chapter twenty of this code, except that a
preservation easement created under this article must be held or
coheld by at least one "holder" as defined in that section and must
be perpetual in its duration.
(e) Woodland. -- Woodland shall be considered land of a farm only if it is part of or appurtenant to a tract of land which is a
farm, or held by common ownership of a person or entity owning a
farm, but in no event may woodland include land used primarily in
commercial forestry or the growing of timber for commercial purposes
or any other use inconsistent with farm use.
(f) Opt-out provision. -- A provision which may be inserted
into any conservation or preservation easement agreement entered
into pursuant to this article which would act as a mechanism to
place the easement selling price into an escrow fund for the purpose
of allowing the owner or owners up to five years to rescind the
decision to enter into the farmland protection program.
§8A-12-12. Methods of farmland protection.
(a) The authority or a county farmland protection board may
negotiate with and compensate eligible property owners to ensure the
protection of farmland within the county or state. Methods of
protecting farmland may include, but are not limited to, the
following:
(1) Acquisition of conservation easement or preservation
easement. -- With the consent of a property owner, the county
farmland protection board or the authority may acquire and place on
record a conservation or preservation easement. Acquired easements
apply only to those properties which qualify for consideration under
the terms established by an adopted farmland protection program; and
(2) Acquisition of land and disposition. -- With the consent
of a property owner, the county farmland protection board or the authority may acquire any property which qualifies for agricultural
protection under terms established by an adopted farmland protection
program. The county farmland protection board or the authority may
lease, as lessor, acquired property for agricultural uses or may
restrict the property to agricultural uses and sell the property at
fair market value for use as a farm. Any property acquired by a
county farmland protection board or the authority and then sold
shall be sold subject to a conservation or preservation easement.
If the property is leased, the lessee shall pay to the county
commission, in addition to rent, an annual fee set by the county
commission. The amount of this annual fee shall be commensurate
with the amount of property taxes which would be assessed in
accordance with the provisions of this code upon the property if the
property were held by a private landowner.
(b) Revenues from the sale of properties restricted to
agricultural uses shall be used to recover the original purchase
costs of the properties and shall be returned to the applicable
funds which were used by the county farmland protection board or the
authority to purchase the property. Any profits resulting from the
sale of property restricted to agricultural uses shall be deposited
in a farmland protection fund.
§8A-12-13. Offer of conservation or preservation easements.
(a) Owner may offer to sell or donate a conservation or
preservation easement. -- An owner of farmland may offer by written
application to sell or donate a conservation or preservation
easement on all or any portion of the farm to a county farmland board or the authority.
(b) Requirements for application to sell or donate. -- In order
to be considered by a county farmland protection board or the
authority, an application to sell or donate shall:
(1) Include an asking price, if any, at which the owner is
willing to sell a conservation or preservation easement and shall
specify the terms under which the offer is made; and
(2) Include a complete description of the land, including, but
not limited to, an itemization of all debts secured by the land and
the identity and amount of all liens.
§8A-12-14. Value of conservation or preservation easement.
(a) Maximum value. -- The maximum value of any conservation or
preservation easement acquired by the county farmland protection
board or the authority is the asking price or the difference between
the fair market value of the land and the agricultural value of the
land, whichever is lower.
(b) Fair market value. -- The fair market value of the land is
the price as of the valuation date for the highest and best use of
the property which a vendor, willing but not obligated to sell,
would accept for the property, and which a purchaser, willing but
not obligated to buy, would pay for the property if the property was
not subject to any restriction imposed under this article.
(c) Agricultural value. -- The agricultural value of land is
the price as of the valuation date which a vendor, willing but not
obligated to sell, would accept for the property, and which a purchaser, willing but not obligated to buy, would pay for the
property subject to the restrictions placed upon it by the
conservation or preservation easement.
(d) Determination of values. -- The value of the easement is
determined at the time the county farmland protection board or the
authority is requested in writing to acquire the easement. The fair
market value is determined by the county farmland protection board
or the authority based on one or more appraisals obtained by the
county farmland protection board or the authority, and appraisals,
if any, of the landowner.
(e) Arbitration. -- If the landowner and the county farmland
protection board or the authority do not agree on the value of the
easement as determined by the state, the landowner, the county
farmland protection board or the authority may request that the
matter be referred to a mutually agreed upon mediator for
arbitration as to the value of the easement. The arbitration shall
be conducted in accordance with the rules promulgated by the
American arbitration association. The value determined at
arbitration is binding upon the owner and the county farmland
protection board or the authority in a purchase of the easement made
subsequent to the arbitration for a period of two years, unless the
landowner and the county farmland protection board or the authority
agree upon a lesser value or the landowner, the county farmland
protection board or the authority appeals the results of the
arbitration to the circuit court.
§8A-12-15. Criteria for acquisition of conservation and preservation easements by county farmland protection
boards and the authority.
The authority and county farmland protection boards, in ranking
applications for conservation and preservation easements, shall
consider the following factors as priorities:
(a) The imminence of residential, commercial or industrial
development;
(b) The total acreage offered for conservation or preservation
easement;
(c) The presence of prime farmland, unique farmland, farmland
of statewide importance, other locally significant farmlands and the
productive capacity of the acreage;
(d) Whether the property offered is contiguous or appurtenant
to working farms;
(e) The ratio of the asking price, if any, of the easement to
the fair market value of the easement;
(f) The historical, architectural, archaeological, cultural,
recreational, natural, scenic, source water protection or unique
value of the easement: Provided, That determinations of the
authority or a county farmland protection board are not a substitute
for and do not have the effect of other procedures under state or
federal law for granting protected status to land, including, but
not limited to, procedures under the National Historic Preservation
Act of 1966, as amended, or rules of the director of the historic
preservation section of the division of culture and history
authorized in section eight, article one, chapter twenty-nine of this code, or procedures under the authority of the tourism
commissioner or the parks and recreation section of the division of
natural resources;
(g) The existence and amount of secured debt upon the property,
as determined by a title search, and whether the total exceeds the
agricultural value of the land as determined by the appraisal as
required in subsection (d), section fourteen of this article; and
(h) The length of the protective easement.
§8A-12-16. Use of land for which conservation or preservation
easement acquired.
(a) Provisions to be included in conservation or preservation
easement and county farmland protection board rules, or the
authority rules. -- Farmland upon which a conservation or
preservation easement has been recorded may be used for the
following:
(1) Farm use;
(2) Businesses directly related to the retail sale of farm
products;
(3) Any activity performed for religious, charitable or
educational purposes or to foster tourism; and
(4) Any home-based business that does not require a division
of environmental protection permit to operate.
Notwithstanding any of the exceptions in this subsection, any
use of land under preservation or conservation easement must be
consistent with the purpose of the farmland protection programs.
(b) Use for commercial, industrial or residential purposes. --
Excepting existing and future uses described in subsections (c), (d)
and (e) of this section, a landowner whose land is subject to a
conservation or preservation easement may not develop the land for
any commercial, industrial, residential or other nonfarm purpose.
Nonresidential, noncommercial, nonindustrial farm support buildings
or structures are permitted.
(c) Exclusion for single residential dwelling. -- On request
to a county farmland protection board or the authority, an owner may
exclude two acres per each single residential dwelling, which
existed at the time of the sale of the easement, from the easement
prohibitions on residential development. A land survey and
recordation identifying each single residential dwelling shall be
provided at the expense of the owner. However, before any exclusion
is granted, an owner shall agree with the county farmland protection
board or the authority not to subdivide further for residential
purposes any acreage allowed to be excluded. This agreement shall
be recorded among the land records where the land is located and
shall bind all future owners.
(d) Exclusion for certain existing and future uses. -- This
article neither abrogates nor creates any preexisting rights in the
land owned by any person not joining as a grantor of a conservation
or preservation easement. Neither the creation nor the existence
of a conservation or preservation easement shall prevent existing
or future use of the land based on a preexisting right, or prevent
any existing or future use consistent with state law with respect to transmission and telecommunications facilities' rights-of-way,
easements and licenses.
(e) Condemnation of private property for public use. -- This
article neither abrogates nor creates any rights inconsistent with
state or federal law respecting the power of condemnation of private
property for public use. Any person or entity exercising the power
of eminent domain must pay compensation at not less than the fair
market value of the land to the court having jurisdiction of the
proceeding or as directed by the court. The term "fair market
value" as used in this subsection shall be determined without regard
to the existence of the conservation or preservation easement.
Neither the creation nor the existence of a conservation or
preservation easement shall prevent acquisition of real property,
or any right or interest in the property, for public use.
§8A-12-17. Funding of farmland protection programs.
(a) County funds. --
(1) Creation of county funds. -- Once having created a county
farmland protection program, a county commission may authorize the
county farmland protection board to create and maintain a farmland
protection fund and hire staff as it considers appropriate.
(2) Sources. -- A county farmland protection fund is comprised
of:
(A) Any moneys not specifically limited to other uses and
dedicated to the fund by a county commission;
(B) Any moneys collected pursuant to section twenty-one of this article;
(C) Any money made available to the fund by grants or transfers
from governmental or private sources; and
(D) Any money realized by investments, interest, dividends or
distributions.
(b) State fund. --
(1) Created and continued. -- The West Virginia farmland
protection fund is created for the purposes specified in this
article.
(2) Sources. -- The West Virginia farmland protection fund is
comprised of:
(A) Any money made available to the fund by general or special
fund appropriations;
(B) Any money made available to the fund by grants or transfers
from governmental or private sources;
(C) Any money realized by investments, interest, dividends or
distributions; and
(D) Any money appropriated by the Legislature for the West
Virginia farmland protection fund.
(3) Disbursements. -- The treasurer may not disburse any money
from the fund other than:
(A) For costs associated with the staffing, administration, and
technical and legal duties of the authority;
(B) For reasonable expenses incurred by the members of the
board of trustees of the authority in the performance of official
duties; and
(C) For consideration in the purchase of farmland conservation
and preservation easements.
(4) Money remaining at end of fiscal year. -- Any money
remaining in the fund at the end of a fiscal year shall not revert
to the general revenue fund of the state, but shall remain in the
West Virginia farmland protection fund to be used for the purposes
specified in this article.
(5) Budget. -- The estimated budget of the authority for the
next fiscal year shall be included with the budget of the West
Virginia department of agriculture.
(6) Audit. -- The fund shall be audited annually.
§8A-12-18. Disbursements by the authority to county farmland
protection boards.
(a) Applications; amount. -- If a county has established a
county farmland protection program, the authority shall distribute
within sixty days after the end of its fiscal year at least eighty
percent of that fiscal year's remaining funds to county farmland
protection boards who have certified to the authority that there is
then pending an application for one or more conservation or
preservation easements. Each certification shall include:
(1) The name of each applicant for an easement and the date of
each application for an easement during the fiscal year;
(2) A description of the property upon which an easement is
offered; and
(3) An appraisal of the value of the conservation or preservation easement as provided in section fourteen of this
article.
(b) Disbursement formula. -- Disbursement of authority funds
to qualifying counties shall be based on the ratio of each county
farmland protection board's appraisal value of conservation and
preservation easement applications, including those applications to
donate easements, received during the fiscal year to the total of
the appraisal value of all applications for conservation and
preservation easements for the fiscal year received by the authority
from county farmland protection boards. Applications for easement
donations may only be counted if the county farmland protection
board holds or coholds the easement.
§8A-12-19. Classification of land subject to conservation or
preservation easement.
Notwithstanding any statute or rule to the contrary, any
property held or coheld by a holder under a conservation or
preservation easement as defined in this article, regardless of
ownership, shall be taxed as "agricultural lands" for ad valorem
property tax purposes without further requirement, restriction or
disqualification. For ad valorem property tax purposes, any
property held or coheld by a holder under a perpetual conservation
or preservation easement as defined by this article, regardless of
ownership, shall be taxed as "agricultural lands" without further
requirement, restriction or disqualification.
§8A-12-20. Authorization for commissioner of agriculture to promulgate proposed rules.
The commissioner of agriculture may propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code to implement the
provisions of this article.
§8A-12-21. Tax on privilege of transferring real property.
(a) Notwithstanding the provisions of section two, article
twenty-two, chapter eleven, and effective the sixth day of June, two
thousand three, and thereafter, in addition to the tax imposed
pursuant to article twenty-two, chapter eleven of this code, any
county commission that has created a farmland protection program may
impose an additional county excise tax for the privilege of
transferring title to real estate at the rate of no more than one
dollar and ten cents for each five hundred dollars' value or
fraction thereof, as represented by any document as defined in
section one, article twenty-two, chapter eleven of this code,
payable at the time of delivery, acceptance or presentation for
recording of the document.
(b) The tax imposed pursuant to this section is to be
administered and collected as the tax on the privilege of
transferring title to real estate imposed pursuant to the provisions
of article twenty-two, chapter eleven of this code.
(c) The tax imposed pursuant to this section is to be used
exclusively for the purpose of funding farmland preservation.