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Introduced Version House Bill 4561 History

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Key: Green = existing Code. Red = new code to be enacted
HB4561 INTR
H. B. 4561


(By Mr. Speaker, Mr. Chambers, and Delegate Burk)
[Introduced February 22, 1994; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact sections one, two, three, four, five, six, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-seven, twenty-eight, thirty, thirty-one, thirty-three, thirty-five, thirty-six, forty, forty-one, forty-two, forty-three, forty-four, forty-five, forty-six, forty-seven, forty-eight, forty-nine, fifty, fifty-one, fifty-two, fifty-three, fifty-five, sixty-eight, sixty-nine and seventy-one, article twenty-four, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article twenty-four by adding thereto nine new sections, designated sections seventeen-a, twenty-seven-a, twenty-eight-a, twenty-nine-a, thirty-three-a, thirty-seven-a, thirty-nine-a, forty-five-a and fifty-five-a, all relating to planning and zoning; urban and rural planning commissions; eliminating the freeholder requirement in planning commission membership; reducing the maximum size from fifteen to nine for municipalities; changing the title of officers from president and vice-president to chair and vice-chair; establishing procedures for the removal of inactive members; changing comprehensive planning procedures and standards relating to required elements, citizen participation, time frame for preparation, adoption and upgrading, intergovernmental review and establishing a mandatory review of all public improvement projects with regard to their compliance with the comprehensive plan; enabling planning commission to develop subdivision rules for nonresidential as well as residential developments; providing for the establishment of homeowners associations as part of subdivision rules; providing enforcement remedies; permitting governing bodies to prescribe fee to process improvement location permits; expanding the scope of zoning powers of local governments; specifying the minimum number of public hearings required for zoning ordinance adoption and amendment, and requiring thirty days' notice for public hearings; making it more difficult to amend the zoning map; reducing exemptions granted to agriculture, industry and manufacturing operations within urban and high density unincorporated areas; specifying conditions under which a variance may be granted; providing that the planning commission rather than the board of zoning appeals approves conditional uses; providing development of a unified comprehensive development ordinance; changing county court to county commission; and providing civil and criminal penalties.

Be it enacted by the Legislature of West Virginia:

That sections one, two, three, four, five, six, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-seven, twenty-eight, thirty, thirty-one, thirty-three, thirty-five, thirty-six, forty, forty-one, forty-two, forty-three, forty-four, forty-five, forty-six, forty-seven, forty-eight, forty-nine, fifty, fifty-one, fifty-two, fifty-three, fifty-five, sixty-eight, sixty-nine and seventy-one, article twenty-four, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended be amended and reenacted; and to further amend said article twenty-four by adding thereto nine new sections, designated sections seventeen-a, twenty-seven-a, twenty-eight-a, twenty-nine-a, thirty-three-a, thirty-seven-a, thirty-nine-a, forty-five-a and fifty-five-a, all to read as follows:
ARTICLE 24. PLANNING AND ZONING.

PART I. URBAN AND RURAL PLANNING -- PLANNING COMMISSIONS

AUTHORIZED; OBJECTIVE; DEFINITIONS.

§ 8 - 24 - 1. Planning commissions authorized; statement of objective.

The governing body of every municipality and the county court commission of every county may by ordinance create a planning commission in order to promote the orderly development of its governmental units and its environs. It is the object of this article to encourage local units of government to improve the present health, safety, convenience and welfare of their citizens and to plan for the future development of their communities to the end that transportation systems be carefully planned; that new community centers grow only with adequate transportation, utility, health, educational and recreational facilities; that the needs of agriculture, industry and business be recognized in future growth; that residential areas provide healthy surroundings for family life; and that the growth of the community is commensurate with and promotive of the efficient and economical use of public funds.

In accomplishing this objective, it is intended that the planning commission shall serve in an advisory capacity to the governing body of a municipality or a county court commission, that certain regulatory powers be created over developments affecting the public welfare and not now otherwise controlled, and that additional powers and authority be granted to the governing bodies of municipalities and to counties to carry out the objective and overall purposes of this article.
§ 8 - 24 - 2. Continuation of planning commissions heretofore established.

Any planning commission heretofore established shall continue to operate as though established under the terms of this article. 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 article.

The membership of existing commissions shall continue unchanged until the first regular meeting of the governing body of a municipality or the county court commission in January of the year following enactment of this article. At that time, any appointments or changes necessary shall be made to bring the membership of the commissions into conformity with the provisions of this article.
§ 8 - 24 - 3. Definitions.

As used in this article:

(a) "Commission or planning commission" shall mean a municipal planning commission or a county planning commission, as the case may be;
(b) "Comprehensive plan" shall mean a complete comprehensive plan or any of its parts such as a comprehensive plan of land use, and zoning, of thoroughfares, of sanitation, of recreation transportation, community facilities and services, housing, economic development, and other related matters, and including such ordinance or ordinances as may be deemed necessary to implement such complete comprehensive plan or parts thereof by legislative approval and provision for such rules as are deemed necessary and their enforcement;
(c) "Exterior architectural features" includes 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, 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;
(d) "Historic district" is a geographically definable area possessing a significant concentration, linkage or continuity of sites, buildings, structures or objects united historically or aesthetically by plan or physical development;
(e) "Historic landmark" is a site, building, structure or object designated as a "Landmark" either on a national, state or local register;
(f) "Historic site" is 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;
(g) "Public place" includes any tracts owned by the state or its subdivisions;
(h) "Streets" includes streets, avenues, boulevards, highways, roads, lanes, alleys and all public ways;
(i) "Subdivision" includes any parcel of land split into two or more parcels for the purpose of lease, sale or improvement, whether immediate or future;
(i) (j) "Unit of government" means any federal, state, regional, county or municipal government or governmental corporation; and
(j) (k) "Utility" means any facility used in rendering providing service which the public has a right to demand.
PART II. SAME -- EXERCISE OF POWERS AND AUTHORITY;

ORGANIZATIONS AND FUNCTION OF COMMISSIONS.

§ 8 - 24 - 4. How powers and authority exercised.

Where power and authority are conferred herein, singly or disjunctively, on the governing body or administrative authority of a municipality, that power and authority may be exercised only in relation to a municipal planning commission. Where power and authority are conferred herein, singly or disjunctively, on a county court commission, that power may be exercised only in relation to a county planning commission.

§ 8 - 24 - 5. Municipal planning commission generally.

A municipal planning commission shall consist of not less than five nor more than fifteen nine individuals, the exact number to be specified in the ordinance creating such commission, all of whom shall be freeholders and residents of the municipality, who shall be qualified by knowledge and experience in matters pertaining to the development of the municipality, who shall include representatives of business, industry and labor, and who shall be nominated by the administrative authority and confirmed by the governing body of the municipality or appointed by the governing body where the administrative authority and governing body are the same: Provided, That in the case of commissions with greater than nine members on the last day of July, one thousand nine hundred ninety-four, such vacancies thereafter created by the expiration of the terms of members, but not including exofficio members shall not be filled until the number of members shall be reduced to no more than nine. At least three fifths of all of the members must have been residents of the municipality for at least one year prior to nomination and confirmation or appointment. One member of the commission shall may also be a member of the governing body of the municipality and one member shall also be a member of the administrative department of the municipality, the term of these two members to be coextensive with the term of office to which they have been elected or appointed, unless the governing body and administrative authority of the municipality at the first regular meeting of the commission each year designate others to serve as the municipality's representatives. The remaining members of the 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 be selected for terms of three years each. A planning commission shall establish procedures for the removal of any inactive member. Vacancies shall be filled for the unexpired term only, in the same manner as original selections are made. Members of the commission shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their official duties.

§ 8 - 24 - 6. County planning commission generally.

A county planning commission shall consist of not less than five nor more than fifteen individuals, the exact number to be specified in the ordinance creating such commission, all of whom shall be freeholders and residents of the county, who shall be qualified by knowledge and experience in matters pertaining to the development of the county, who shall include representatives of business, industry, labor and farming, and who shall be appointed by the county commission. At least three fifths of all of the members must have been residents of the county for at least one year prior to appointment. One member of the commission shall also be a member of the county commission, the term of such member to be coextensive with the term of office to which he has been elected, unless the county commission at the first regular meeting of the commission each year appoints another member to serve as its representative. The remaining members of the commission first appointed 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 be appointed for terms of three years each. A planning commission shall establish procedures for the removal of any inactive member. Vacancies shall be filled by appointment by the county commission for the unexpired term only. Members of the commission shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their official duties. An individual may at the same time serve as a member of a municipal planning commission and as a member of a county planning commission.

§ 8 - 24 - 10. Offices; appropriation for expenses.

The county court 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 commission with suitable offices for the holding of meetings and the preservation of plans, maps, documents and accounts, and shall provide by appropriation a sum sufficient to defray the reasonable expenses of the commission.

§ 8 - 24 - 11. Election of officers.

At its first regular meeting in each year the commission shall elect from its members a president and vice president chair and vice-chair. The vice president shall have vice-chair has the power and authority to act as president chair of the commission during the absence or disability of the president chair.

§ 8 - 24 - 12. Appointment, duties and compensation of secretary and employees; special and temporary services; legal assistance.

Any commission may appoint and prescribe the duties and fix the compensation of a secretary and such employees as are necessary for the discharge of the duties and responsibilities of the commission. All such compensation, however, shall be in conformity to and in compliance with the salaries and compensation theretofore fixed by the governing body or county court commission of such municipalities or counties.

A commission may make contracts for special or temporary services and any professional counsel. The prosecuting attorney of a county, upon request, shall, without additional compensation, render legal assistance and service to the county planning commission.
§ 8 - 24 - 13. Municipal - county commission; powers and authority; expenses.

The governing body of any municipality located within a county having an established planning commission may, by ordinance, designate such county planning commission as the municipal planning commission. The county court commission of any county within which a municipality having an established planning commission is located may, by ordinance, designate such municipal planning commission as the county planning commission. In the event any such municipality is located partly within one county and partly within another county or counties, the foregoing provisions of this section shall apply only to the county within which the major portion of the territory of the municipality is located.

A county planning commission designated as a municipal planning commission shall have for that municipality all the powers, authority and duties granted under this article to a municipal planning commission. A municipal planning commission designated as a county planning commission shall have for that county all the powers, authority and duties granted under this article to a county planning commission.
Any municipality designating a county planning commission as its municipal planning commission may contract annually to pay to the county a proportionate part of the expenses which is properly chargeable to the planning service rendered to such municipality, and any such payments received by the county shall be appropriated by the county to the county planning commission in addition to any funds budgeted for planning purposes, although the county court commission may, if it so elects, agree to pay the total cost. Any county designating a municipal planning commission as its county planning commission may contract annually to pay to the municipality a proportionate part of the expenses which is properly chargeable to the planning service rendered to such county, and any such payments received by the municipality shall be appropriated by the municipality to the municipal planning commission in addition to any funds budgeted for planning purposes.
PART III. SAME -- POWERS, AUTHORITY AND DUTIES.

§ 8 - 24 - 14. Administrative powers and authority.

To effectuate the purposes of this article, a commission shall have has the power, authority and duty to:

(1) Exercise general supervision of and make rules and regulations for the administration of the affairs of the commission;
(2) Prescribe uniform rules and regulations pertaining to its investigations and hearings;
(3) Supervise the fiscal affairs and responsibilities of the commission;
(4) Prescribe the qualifications of, appoint, remove and fix the compensation of, the employees of the commission, such compensation to be in conformity to and in compliance with the salaries and compensation theretofore fixed by the governing body or county court commission of such municipalities or counties;
(5) Delegate to employees authority to perform ministerial acts in all cases except where final action of the commission is necessary;
(6) Keep an accurate and complete record of all departmental proceedings, and record and file all bonds and contracts and assume responsibility for the custody and preservation of all papers and documents of the commission;
(7) Make recommendations and an annual report to the governing body of the municipality or to the county court commission concerning the operation of the commission and the status of planning within its jurisdiction;
(8) Prepare, publish and distribute reports, ordinances and other material relating to the activities authorized under this article;
(9) Adopt a seal, and certify all official acts;
(10) Invoke any legal, equitable or special remedy for the enforcement of the provisions of this article or any ordinance, rule or any action taken thereunder;
(11) Prepare and submit an annual budget in the same manner as other departments of municipal and county government and the commission shall be limited in all expenditures to the provisions made therefor by the governing body of such municipality or by the county court commission of such county;
(12) If deemed advisable, establish an advisory committee or committees; and
(13) Delegate to a committee composed of one or more members of the commission the power to hold any public hearings or conferences required or permitted under this article to be held by the commission. If the hearing or conference is held by a committee, a written record of the substance of the hearing or conference shall be made and preserved with the records of the commission for not less than five years. The committee shall have authority only to conduct the hearing and report to the commission.
§ 8 - 24 - 15. Appropriations; expenditures; disposition of gifts; participation in federal planning assistance programs.

After the governing body of a municipality or a county court commission has adopted an ordinance creating a planning commission, the governing body or county court commission shall appropriate funds to carry out the duties of the commission.

The planning commission shall have the power and authority to expend, under regular municipal or county procedure as provided by law, all sums appropriated to it for the purposes and activities authorized under this article.
A municipality or county may accept gifts and donations for planning commission purposes. Any moneys so accepted shall be deposited with the municipality or county in a special nonreverting planning commission fund to be available for expenditures by the planning commission for the purpose designated by the donor. The disbursing officer of a municipality or county shall draw warrants against such special nonreverting fund only upon vouchers signed by the president and secretary of the planning commission.
A municipal or county planning commission is empowered and authorized to spend funds made available for the purposes of this article, and to accept and use funds provided for the purposes of this article by the government of the United States and any other agency or group whose interests are in harmony with such purposes, in accordance with federal requirements and subject to such conditions or limitations as the constitution or law of the state may provide. In this connection a municipal or county planning commission is hereby expressly authorized to participate in the federal planning assistance programs as set forth in the "Federal Housing Act of 1954," as amended, and any subsequent acts.
PART IV. SAME -- COMPREHENSIVE PLAN.

§ 8 - 24 - 16. Comprehensive plan for physical development of territory - - Generally.

A planning commission shall make and recommend for adoption to the governing body of the municipality or to the county court commission, as the case may be, a comprehensive plan for the physical development of the territory within its jurisdiction. Any county plan may include the planning of towns or villages to the extent to which, in the commission's judgment, they are related to the planning of the unincorporated territory of the county as a whole: Provided, That the plan shall not be considered as a comprehensive plan for any town or village without the consent of any planning commission and the governing body of such town or village. The county plan shall be coordinated with the plans of the state road commission, insofar as it relates to highways or thoroughfares under the jurisdiction of that commission. A county planning commission may prepare, and the county court commission is empowered and authorized to adopt, a comprehensive plan and zoning ordinance for either the entire county, or for any part or parts thereof which constitute an effective region or regions for planning and zoning purposes without the necessity of adopting a plan and ordinance for any other part. In determining what constitutes an effective region or regions for planning and zoning purposes, due consideration shall be given to such factors as population density, health, general welfare, water and sanitation requirements, and future potential for residential, commercial, industrial or public use. The procedure for the preparation and adoption of a comprehensive plan and zoning ordinance for a part of such county shall be the same as the procedure for the preparation and adoption of a plan and ordinance for the entire county, except that the election provided for in section forty-eight of this article shall be restricted to the qualified electors residing within the part or parts affected.

The comprehensive plan, with the accompanying maps, plats, charts and descriptive and explanatory matter, shall show recommendations for the development of the territory covered by the plan and may include, among other things, the general location, character and extent of streets, viaducts, bridges, waterways and waterfront developments, parkways, playgrounds, forests, reservations, parks, airports and other public ways, grounds, places and spaces; the general location and extent of publicly owned utilities and terminals, and other purposes; the acceptance, widening, removal, extension, relocation, narrowing, vacation, abandonment or change of use of any of the foregoing public ways, grounds, places, spaces, buildings, properties, utilities or terminals; the general character, location and extent of community centers, municipal sites or housing development; the general location and extent of forests, agricultural areas and open-development areas for the purposes of conservation, food and water supply, sanitary drainage facilities or the protection of urban development; a land classification and utilization program; the distribution of population, and the uses of land for trade, industry, habitation, recreation, agriculture, forestry, soil and water conservation and other purposes.
In the preparation of a comprehensive plan, a planning commission shall make careful and comprehensive surveys and studies of the existing conditions and probable future changes of such conditions within the territory under its jurisdiction. The comprehensive plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the area which will, in accordance with present and future needs and resources, best promote the health, safety, morals, order, convenience, prosperity or general welfare of the inhabitants, as well as efficiency and economy in the process of development, including, among other things, such distribution of population and of the uses of land for urbanization, trade, industry, habitation, recreation, agriculture, forestry and other purposes as will tend:
(1) To create conditions favorable to health, safety, transportation, prosperity, civic activities and recreational, educational and cultural opportunities;
(2) To reduce the wastes of physical, financial or human resources which result from either excessive congestion or excessive scattering of population; and
(3) Toward the efficient and economic utilization, conservation and production of the supply of food and water and of drainage, sanitary and other facilities and resources.
8 - 24 - 17. Comprehensive plan for physical development of territory - - Contents.

A comprehensive plan, with accompanying maps, plats, charts and descriptive and explanatory matter shall show the planning commission's recommendations for the development of the area covered by the plan and shall include, among other things:

(a) A statement of goals and objectives of the county or municipality concerning its future development, including, but not limited to, the location and character of future development;
(b) A land use element which designates the proposed general distribution, location, intensity, extent and timing of such uses of land including housing, business, industry, agriculture, recreation, education, public buildings and grounds, open space, transportation and categories of public and private uses of land as may be appropriate to the community; such element shall include identification and analysis of important natural and cultural resource areas and physical constraints to development in order to identify prime development areas;
(c) A transportation element consisting of the general location and extent of existing and proposed freeways, highways, arterial, collector streets, local street systems, parking facilities, transit systems, pedestrian and bikeway systems, terminals, airfields, port facilities, railroad facilities and all other modes of transport that may be appropriate, all correlated with the land use element of the plan;
(d) A community facilities and services element which may show general plans for water, sewer, waste disposal, drainage, utilities, police and fire protection, hospitals, emergency medical services, disaster relief and civil defense, libraries and cultural facilities, public and private education, parks and recreation, and other similar facilities, services and uses;
(e) A housing element which may consist of plans and programs to meet the housing needs of the community, which may include conservation of presently sound housing, rehabilitation, new housing, elimination of blight and community redevelopment;
(f) An economic element which may be comprised of appropriate studies and an economic development plan. The economic base analysis may include community revenue and expenditures, revenue resources, identification of base and residentiary industry, primary and secondary market areas, employment and retail sales activity, and identification of economic development sites and sectors appropriate for future development or expansion;
(g) A discussion of short- and long-range plan implementation strategies, which may take the form of zoning and subdivision ordinances, capital improvement programming and other appropriate actions;
(h) A statement describing the relationship of existing and proposed development in the county or municipality to the existing and proposed development and plans of municipalities within the county or of the county in which the municipality is located. A statement indicating the relationship of existing and proposed development of the county or municipality to the existing and proposed development and plans of contiguous counties and municipalities; and
(i) Any other such elements that the planning commission may deem appropriate for the community.
§ 8-24-17a. Same -- Time frame for preparation, adoption and updating of comprehensive plan.

Any planning commission created or existing after the last day of July, one thousand nine hundred ninety-four, shall, to the greatest extent feasible and affordable, prepare and recommend for adoption to the local governing body a comprehensive plan for the development of the territory under its jurisdiction that meets the requirements of this article within three years of the date of appointment of the initial commission members for newly created planning commissions or no later than the last day of July, one thousand nine hundred ninety-seven, for existing planning commissions. The above requirements shall not constitute grounds for dissolution of or withdrawal of funding for a duly constituted planning commission by the local governing body.

A planning commission shall review its comprehensive plan no less frequently than every five years and shall thoroughly revise and update its comprehensive plan no less frequently than every ten years. Any change or amendment to any comprehensive plan after the first day of June, one thousand nine hundred ninety-four, shall conform to the requirements of this article.
§ 8 - 24 - 18. Same -- Public participation in the planning process.

It is the intent of the Legislature that the public participate in the comprehensive planning process to the fullest extent possible. Towards this end, local planning commissions and local governmental units are directed to adopt procedures designed to provide effective process, including identification of development problems, concerns and needs; formulation of goals, objectives, policies and alternatives; and formulation of implementing ordinances and programs. The provisions and procedures required in this article are set out as the minimum requirements towards this end.

With respect to a proposed plan or amendments thereto, the locally owned commission or the governing body, of the municipality or the county commission shall adopt procedures for broad dissemination of the proposals and alternatives, opportunity for written comments, public hearings as provided herein, open discussions, communications programs, information services and consideration of and response to public comments.
Prior to considering the adoption of a comprehensive plan, a local planning commission shall give notice, as specified in this section, and shall hold a public hearing on the plan and the proposed ordinance for its enforcement.
At least thirty days prior to the date set for hearing, the local planning commission shall publish notice of the date, time and place of the hearing as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the municipality or county, as the case may be.
§ 8 - 24 - 19. Comprehensive plan for physical development of territory - - Adoption by commission.

After a public hearing has been held, the commission may by resolution adopt the comprehensive plan and recommend the ordinance to the governing body of the municipality or to the county court commission.

§ 8 - 24 - 20. Same -- Certification and presentment to governing body or county commission.

Upon adoption of the comprehensive plan and recommendation of the ordinance, the secretary shall certify a copy of the plan to the governing body of the city or to the county court commission.

At the first meeting of the governing body of the municipality or of the county court commission after adoption of the plan, the secretary or a member of the commission shall present the plan and ordinance to the governing body or to the county court commission.
§ 8 - 24 - 21. Same -- Consideration of plan and ordinance by governing body or county commission; publication.

After certification of the plan and ordinance to the governing body of the municipality or to the county court commission, the governing body of the municipality or the county court commission shall proceed to a consideration of the plan and ordinance and shall either adopt, reject or amend the same. If the ordinance adopting the comprehensive plan is published, the plan may be incorporated by reference in the ordinance and the full text of said plan not published.

§ 8 - 24 - 22. Same - - Rejection or amendment by governing body or county commission; consideration and report by commission.

If the governing body of the municipality or the county court commission rejects the plan and ordinance or amends it, then it shall be returned to the commission for its consideration, with a written statement of the reasons for its rejection or amendment.

The commission shall have forty-five sixty days in which to consider the rejection or amendment and report thereon to the governing body of the municipality or to the county court commission. If the commission approves the amendment, the ordinance shall stand as adopted by the governing body of the municipality or the county court commission as of the date of the filing of the commission's report with the governing body of the municipality or with the county court commission. If the commission disapproves the rejection or amendment, it shall state its reasons in the report, and the governing body of the municipality or the county court commission shall again consider said plan and ordinance, and its action in rejecting or amending said plan and ordinance, after such consideration, shall be final.
In case the commission does not file a report with the governing body of the municipality or with the county court commission within forty-five sixty days, the action in rejecting or amending the ordinance shall be final.
§ 8 - 24 - 23. Same - - Amendment of plan and ordinance after adoption.

After the adoption of a comprehensive plan and ordinance, all amendments to it shall be adopted according to the procedures set forth in sections eighteen through twenty-two of this article, except that publication of notice of the date, time and place of hearing upon amendment of the zoning ordinance need be only fifteen or more days prior to the date set for such hearing, and except that, if the governing body of the municipality or the county court commission desires an amendment, it may direct the planning commission to prepare an amendment and submit it to public hearing within sixty days after formal written request by the governing body of the municipality or by the county court commission.

§ 8-24-27. Same -- Intergovernmental review and coordination of plans.

Upon preparation of a proposed comprehensive plan or plan amendment and at least forty-five days prior to the public hearing required in section eighteen of this article, the planning commission shall forward a copy of the proposed plan or amendment to the planning commissions of all contiguous municipalities and counties for their review and comment with respect to coordination with their existing plans. Where no such planning commission exists, a copy of the same shall be forwarded to the governing body of the municipality or the county commission, as the case may be. In addition, a copy of the plan or amendment shall be forwarded to the local county board of education, the appropriate regional planning and development council, West Virginia public service commission, and to the West Virginia development office for review and comment with respect to coordination with their plans and policies.

The transportation element of the comprehensive plan shall be forwarded to the state department of transportation for its review and comments.
The comments of these entities shall be considered by the planning commission prior to the adoption of the comprehensive plan or amendment, but, if these units fail to respond within forty-five days, the planning commission may proceed without their comments.
Upon adoption of the final plan or amendment, a copy shall be forwarded to the above entities for their information and use.
§ 8-24-27a. Same -- Consideration of planned construction; report of findings.

When the planning commission has adopted and certified the comprehensive plan, no public improvement, public facility or utility of a type embraced within the recommendations of the comprehensive plan may be constructed without first being submitted to and reviewed by the planning commission for consistency with the plan. The planning commission shall report its findings within thirty days to the governing body. If the planning commission finds that any such proposed public improvement, facility or utility does not conform to the plan, the commission shall report in writing to the governing body, on the manner in which such proposed improvement, facility or utility does not conform. The governing body may override the plan and the report of the planning commission, in which event the plan shall be deemed to have been amended.

If the planning commission finds that a proposed public improvement, public facility or utility of a type embraced within the recommendations of the comprehensive plan or portion thereof is in conformity with such plan, no further action by the planning commission shall be necessary under this section.
PART V. SAME -- SUBDIVISION CONTROL.

§ 8 - 24 - 28. Same -- Subdivision plats - - Approval required prior to recordation.

After a comprehensive plan and an ordinance containing provisions for subdivision control and the approval of plats and replats have been adopted by the governing body of the municipality or by the county court commission and a certified copy of the ordinance has been filed with the clerk of the county court commission (being in the case of a municipal plan and ordinance the county court commission of the county in which the municipality is located), a plat of a subdivision shall not be recorded by the clerk of such county court commission unless it has first been approved by the planning commission having jurisdiction over the area. If in the case of a municipal plan and ordinance, the municipality is located in more than one county, a certified copy of the ordinance shall be filed with the clerk of the county court commission of each such county.

§ 8-24-28a. Same -- Residential, nonresidential, mixed and planned development subdivisions.

Subdivision regulations are hereby authorized for residential, commercial and industrial subdivisions or a mixture thereof. Special subdivision regulations are also authorized for planned developments, or planned unit developments, as may be authorized, in part, under the zoning ordinances adopted by the local governing bodies.

§ 8-24-29a. Same -- Maintenance or homeowners' associations required in subdivisions outside the corporate limits of a municipality; maintenance of the streets, roads, common areas, water, sanitary and storm sewerage systems of the subdivision by the association.

Every subdivision situated outside the corporate limits of a municipality, the plat of which is submitted for approval on or after the first day of July, one thousand nine hundred ninety-four, shall include plans for the establishment of a maintenance or homeowners' association, including provisions for the maintenance by the association of all subdivision improvements not dedicated to and accepted by a public body or utility including streets, roads, common areas, water, sanitary and storm sewerage systems within the bounds or along the perimeter of the subdivision.

The provisions of this section shall also apply to subdivisions located within corporate limits when the streets or other common facilities are not dedicated to the municipality.
§ 8 - 24 - 30. Same - - Basis for commission's action upon application for approval.

(a) In determining whether an application for approval shall be granted, the commission shall determine if the plat provides for:

(1) Coordination of subdivision streets with existing and planned streets;
(2) Coordination with and extension of facilities included in the comprehensive plan;
(3) Establishment of minimum width, depth and area of lots within the projected subdivision;
(4) Distribution of population and traffic in a manner tending to create conditions favorable to health, safety, convenience and the development of the municipality or county; and
(5) Fair allocations of areas for streets, parks, schools, public and semipublic buildings, homes, utilities, business and industry.
(b) As a condition of approval of a plat the commission may specify:
(1) The manner in which streets shall be laid out, graded and improved;
(2) Provisions for water, sewage and other utility services;
(3) Provision for schools;
(4) Provision for essential municipal services; and
(5) Provision for recreational facilities; and
(6) Provision for drainage, erosion and sediment control.
§ 8 - 24 - 31. Subdivision plats - - Effect of approval or disapproval.

After hearing and within a reasonable time after the filing of an application for approval of the plat the commission shall approve or disapprove it. If the commission approves the application, it shall affix the commission's seal upon the plat and the clerk of the county shall, in a timely manner, record the plat. If it disapproves the application, it shall set forth its reasons in its own records and provide the applicant with a copy thereof.

§ 8 - 24 - 33. Same - - Plats filed without approval.

After a comprehensive plan and an ordinance containing provisions for subdivision control and the approval of plats and replats have been adopted and a certified copy of the ordinance has been filed with the clerk of the county court commission as aforesaid, the filing and recording of a plat involving the subdivision of lands covered by such comprehensive plan and ordinance shall be without legal effect unless approved by the commission: Provided, That failure to comply with this section shall not invalidate or affect the title to any land within the area of such plat: Provided, however, That if such plat shall bear the seal of the commission it shall be presumed to have been approved thereby.

§ 8-24-33a. Same -- Enforcement remedies.

Any person violating the provisions of any subdivision ordinance enacted under this article or prior enabling laws is subject to a fine of not more than five hundred dollars or less than one hundred dollars plus court costs and reasonable attorney fees incurred by the governing body as a result thereof. Each day that the violation exists shall constitute a separate violation.

§ 8 - 24 - 35. Same - - Jurisdiction and control; inconsistent provisions for platting control repealed.

After a comprehensive plan and an ordinance containing provisions for subdivision control and the approval of plats and replats have been adopted and a certified copy of the ordinance has been filed with the clerk of the county court commission as aforesaid, the municipal planning commission, in the case of a municipal plan and ordinance, shall have exclusive control over the approval of all plats involving land covered by such municipal plan and ordinance and located within the corporate limits of such municipality, and the county planning commission, in the case of a county plan and ordinance, shall have exclusive control over the approval of plats involving unincorporated lands covered by such county plan and ordinance and located within its jurisdiction.

All control over plats granted by other statutes, so far as such statutes are in harmony with the provisions of this article, shall be transferred to the commission having jurisdiction over the lands involved. Existing provisions for platting control, so far as they are inconsistent with the provisions of this article, are hereby repealed to the extent of such inconsistency.
PART VI. SAME -- IMPROVEMENT LOCATION PERMITS.

§ 8 - 24 - 36. Improvement location permits - - Conformity of structure to comprehensive plan and ordinance.

After a comprehensive plan and an ordinance containing provisions for subdivision control and the approval of plats and replats have been adopted and a certified copy of the ordinance has been filed with the clerk of the county court commission as aforesaid, within the corporate limits of the municipality, a structure shall not be located and an improvement location permit for a structure on platted or unplatted lands shall not be issued unless the structure and its location conform to the municipality's comprehensive plan and ordinance. A structure shall not be located and an improvement location permit shall not be issued for a structure on unincorporated lands within the jurisdiction of the county planning commission unless the structure and its location conform to the county's comprehensive plan and ordinance.

§ 8-24-37a. Same -- Fee for processing improvement location permit.

The governing body of any county or municipality may prescribe and charge a reasonable fee for processing an improvement location permit.

PART VIII. URBAN AND RURAL ZONING -- ZONING GENERALLY.

§ 8-24-39a. Same -- Additional powers.

(a) Any governing body of a municipality or a county commission may adopt zoning regulations including any of the following provisions:

(1)
Conditional uses. -- In any district, certain uses may be permitted only by approval of the planning commission if general and specific standards to which each permitted use must conform are prescribed in the zoning regulations and if the planning commission after public notice and public hearing determines that the proposed use will conform to such standards. Such general standards shall require that the proposed conditional use may not adversely affect:
(i) The capacity of existing or planned community facilities;
(ii) The character of the area affected;
(iii) Traffic on roads and highways in the vicinity;
(iv) Bylaws then in effect; or
(v) Utilization of renewable energy resources.
Such specific standards may include requirements with respect to:
(i) Minimum lot size;
(ii) Distance from adjacent or nearby uses;
(iii) Minimum off-street parking and loading facilities; landscaping and fencing;
(iv) Design and location of structures and service areas;
(v) Size, location and design of signs; and
(vi) Any other factors the zoning regulations may include.
In granting such conditional use, the board may attach such additional reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter and the zoning regulations. The planning commission shall act to approve or disapprove any requested conditional use within sixty days after the date of the final public hearing held under this section, and failure to so act within such period is deemed approval.
(2)
Parking and loading facilities. -- Provisions setting forth standards for permitted and required facilities for off-street parking and loading which may vary by district and by uses within each district. The regulations may also include provisions covering the location, size, design, access, landscaping and screening of the facilities.
(3)
Site plan approval. -- As prerequisite to the approval of any use other than one and two-family dwellings, the approval of site plans by the planning commission may be required. In reviewing site plans the planning commission may impose appropriate conditions and safeguards with respect only to the adequacy of traffic access, of circulation and parking, and of landscaping and screening and the preservation of adequate natural light. The planning commission shall act to approve or disapprove any site plan within sixty days after the date upon which it receives the proposed plan, and failure to so act within such period is deemed approval. The zoning regulations shall specify the maps, data and other information to be presented with applications for site plan approval.
(4)
Design control districts. -- Zoning regulations may contain provisions for the establishment of design control districts. Prior to the establishment of a district, the planning commission shall prepare a report describing the particular planning and design problems of the proposed district and setting forth a design plan for the areas which shall include recommended planning and design criteria to guide future development. The planning commission shall hold a public hearing, after public notice, on such report. After the hearing, the planning commission may recommend to the legislative body such design control district. A design control district can be created for any area containing sites or structures of historical, architectural or cultural merit and other areas in which there is a concentration of community interest and participation such as a central business district, civic center or a similar grouping or focus of activities. No structure may be erected, reconstructed, substantially altered, restored, moved, demolished or changed in use or type of occupancy within a designated design control district without approval of the plans by the planning commission. A design review board may be appointed by the legislative body of the municipality to advise the planning commission, which board shall have such term of office and procedural rules, as the legislative body determines.
(5)
Bonds to assure restoration of sites. -- Regulations governing the operation of sand and gravel excavations or soil removal may contain provisions requiring the submission of an acceptable plan for the rehabilitation of the site at the conclusion of the operations and a bond to assure the rehabilitation.
(6)
Flood plain areas, special control. -- Within any area designated by the army corp of engineers as subject to periodic flooding, the permitted uses, type of construction, and height of floor levels above ground may be regulated in order to lessen or avoid the hazards to persons and damage to property resulting from the accumulation of storm or flood waters.
(7)
Airport hazard area. -- Any governing body may adopt special zoning regulations governing the use of land, location and size of buildings and density of population within the distance of two miles from the boundaries of an airport under an approach zone and for a distance of one mile from the boundaries of such airport elsewhere. The designation of such area and the zoning regulations therein shall be approved by the West Virginia aeronautics commission.
(8)
Planned development. -- Any governing body may adopt zoning regulations providing for planned developments to encourage new communities, innovation in design and layout, and more efficient use of land. The modification of zoning regulations by the planning commission may be permitted simultaneously with the approval of a subdivision plat subject to the conditions set forth in this subsection. Any local zoning regulations containing provisions for planned development shall describe the standards and conditions by which a proposed planned development may be evaluated. The planning commission may prescribe from time to time, rules to supplement the standards and conditions set forth in the zoning regulations, provided the rules are not inconsistent with the zoning regulations. The planning commission shall hold a public hearing after public notice, prior to the establishment of any supplementary rules.
Permitted uses may include, and shall be limited to:
(i) Dwelling units in detached, or multistoried structures, or any combination thereof;
(ii) Any nonresidential use;
(iii) Public and private educational facilities; and
(iv) Industrial uses and buildings.
The zoning regulations may authorize the planning commission to allow for a greater density or intensity of residential land use within some sections of the development than others. The zoning regulations may require that the approval by the planning commission of greater density or intensity of residential land use for any section to be developed be offset by a lesser concentration in other sections or by an appropriate reservation of common open space on the remaining land by means of grant of easement or by covenant to the governmental unit.
(9)
Time-share projects. -- For purposes of this section a "time-share project" means a project involving real property containing an interest acquired by means of a time-share estate or a time-share license. A "time-share estate" is a right to occupy a unit or any of several units during separated time periods coupled with a freehold estate or an estate for years in a time-share property or a specified portion thereof. A "time-share license" means a right to occupy a unit or any of several units during separate time periods, including renewal options, not coupled with a freehold estate or an estate for years.
A governing body may vote to declare projects consisting of five or more time-share estates or licenses to be subject to this chapter, and by so doing is authorized to provide for such projects in the municipal plan and zoning regulations in the same manner as other uses.
(b) Any governing body of a municipality or a county commission, upon a vote of two thirds of its members, may declare a moratorium for up to six months on construction, pending the availability of proper infrastructure.
PART IX. SAME -- ZONING DISTRICTS.

§ 8 - 24 - 40. Zoning districts - - Generally.

The various kinds of districts created and designated as use, height, area, volume or bulk districts, as well as districts created for any other purpose necessary to carry out the purposes of section thirty-nine of this article, need not necessarily cover or include the same territory, and may overlap or coincide. The districts created shall also be subject to the following:

(1) Rules and regulations as to height, area, bulk and use of buildings and as to the area of all yards, courts and open spaces shall be uniform for each class of buildings throughout each district;
(2) For each district designated for the location of trades, callings, industries, commercial enterprises or buildings designated for specified uses, rules and regulations may be enforced specifying uses that shall be excluded or subjected to reasonable requirements of a special nature and designating the use for which buildings may not be erected, altered or used;
(3) The rules and regulations in one or more districts of the same kind or character may differ from those in other like districts but shall be uniform for each district; and
(4) Several parts of the municipality or county may be classified within a single district although not contiguous; and
(5) The boundaries of such zoning districts and the classifications designated therein shall be expressed in map form, copies of which shall be filed with the clerk of the applicable government unit and the planning commission.
§ 8 - 24 - 41. Zoning districts - - Preliminary study.

In establishing such districts and rules and regulations the governing body of a municipality or the county court commission shall give reasonable regard to existing conditions, the character of buildings erected in each district, the most desirable use for which the land in each district may be adapted and the conservation of property values throughout the municipality or county.

PART X. SAME -- SAME -- PROCEDURES.

§ 8 - 24 - 42. Procedures - - Tentative report; notice and hearings.

Recommendations as to the boundaries of districts and the rules and regulations and restrictions to be enforced therein shall be prepared by the planning commission. The commission may prepare the tentative report on its own initiative or the governing body of the municipality or the county court commission may require its preparation.

The commission shall hold public preliminary hearings and conferences, on such dates and at such times and places and upon such notice as it may determine to be necessary to inform and aid itself in the preparation of the tentative report.
In preparing a proposed zoning ordinance, the planning commission shall hold at least two public hearings, one of which shall be held during evening hours, upon proper public notice.
The tentative report, which shall include the proposed zoning ordinance with explanatory maps, shall be made to the governing body of the municipality or to the county court commission by the planning commission.
§ 8 - 24 - 43. Procedures - - Action by governing body or county commission on tentative report.

The governing body of the municipality or the county court commission shall consider the tentative report of the planning commission and shall return it, with any suggestions and recommendations, to the planning commission for its final report.

No zoning ordinance hereunder shall be adopted until after the final report of the planning commission has been received by the governing body of the municipality or by the county court commission.
§ 8 - 24 - 44. Procedures - - Final report; notice and hearing; action.

After the final report has been submitted by the planning commission, the governing body of the municipality or the county court commission shall afford all interested persons an opportunity to be heard with reference to it at public hearings, convenient for all persons affected, to be held on dates and at times and places to be specified in notices to be published, within fourteen consecutive days next preceding the date set for the hearings, as Class II legal advertisements in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the municipality or county, as the case may be. The notices shall state the dates, times and places of the hearings, that the report contains a comprehensive zoning ordinance for the municipality or county, that written objections to the final report filed with the recorder of the municipality or with the clerk of the county court commission at or before the hearings will be heard and that the hearings will be continued from time to time as may be found necessary. During the period between the date of the first publication of the notice and the date of the hearing, the final report shall be on file in the office of the planning commission for public examination. Upon completion of the public hearings, the governing body of the municipality or the county court commission shall proceed to the consideration of the ordinance.

PART XI. SAME -- AMENDING, SUPPLEMENTING OR CHANGING

ZONING ORDINANCE RULES AND REGULATIONS.

§ 8 - 24 - 45. Supplemental and amending ordinances.

The governing body of a municipality or the county court commission may, from time to time, amend, supplement or change the rules and regulations and districts fixed by ordinance hereunder.

§ 8-24-45a. Findings necessary for proposed map amendment.

Before any zoning map amendment is granted, the planning commission or the governing body must find that the map amendment is in agreement with the adopted comprehensive plan, or, in the absence of such a finding, that there have been major changes of an economic, physical or social nature within the area involved which were not anticipated in the adopted comprehensive plan and which have substantially altered the basic character of such area.

§ 8 - 24 - 46. Changes of zoning rules and regulations - - Petition for change.

Petitions, duly signed, may be presented to the recorder of the municipality or to the clerk of the county court commission requesting an amendment, supplement or change of the rules and regulations of the zoning ordinance by:

(1) The planning commission; or
(2) The owners of fifty percent or more of the real property area to which the petition relates.
§ 8 - 24 - 47. Changes of zoning rules and regulations - - Considered as amendments to comprehensive plan; notice and hearing.

Amendments, supplements or changes of the rules and regulations of the zoning ordinance shall be considered as amendments to the comprehensive plan. Any proposed ordinance for the amendment, supplement, change or repeal of the zoning ordinance not originating upon petition of the planning commission shall be referred to the planning commission for consideration and report before any final action is taken by the governing body of the municipality or the county court commission.

Prior to submission to the governing body of a municipality or to the county court commission of a planning commission petition or a report on a proposed ordinance referred to it for an amendment, supplement, change or repeal of the zoning ordinance, the planning commission shall give notice and hold a public hearing in the manner prescribed for adoption of a comprehensive plan in section eighteen of this article. except that publication of notice of the date, time and place of hearing upon a proposed amendment, supplement, change or repeal of the zoning ordinance need be made only fifteen or more days prior to the date set for such hearing.
The governing body shall likewise hold two public hearings prior to amending the zoning ordinance, one of which shall be held during evening hours, in the manner prescribed in section eighteen.
PART XII. SAME -- ELECTION ON ZONING ORDINANCE.

§ 8 - 24 - 48. Election on zoning ordinance; form of ballots or ballot labels; procedure.

If, within sixty days following adoption of the zoning ordinance by the governing body of the municipality or by the county court commission, a petition is filed with the recorder or the clerk of the county court commission praying for submission of such zoning ordinance for approval or rejection to the qualified voters residing in the area within the jurisdiction of the municipal or county planning commission, such ordinance shall not take effect until the same shall have been approved by a majority of the legal votes cast thereon at any regular primary or general election or special election called for that purpose. The petition may be in any number of counterparts but must be signed in their own handwriting by a number of qualified voters residing in the area affected by the proposed zoning equal, notwithstanding the provisions of subdivision (10), subsection (b), section two, article one of this chapter, to not less than fifteen percent of the total legal votes cast in the affected area for all candidates for governor at the last preceding general election at which a governor was elected. Only qualified voters residing in the area affected by the proposed ordinance shall be eligible to vote with respect thereto.

Upon the ballots, or ballot labels where voting machines are used, there shall be written or printed the following:

____
/___/ For Zoning
____
/___/ Against Zoning

If a majority of the legal votes cast upon the question be for zoning, the provisions of said zoning ordinance shall, upon the date the results of such an election are declared, be effective. If a majority of the legal votes cast upon the question be against zoning, said zoning ordinance shall not take effect, but the question may again be submitted to a vote at any regular primary or general election in the manner herein provided.
Subject to the provisions of the immediately preceding sentence, voting upon the question of zoning may be conducted at any regular primary or general election or special election, as the governing body of the municipality or the county court commission in its order submitting the same to a vote may designate.
Notice of all elections at which the question of zoning is to be voted upon shall be given by publication of the order calling for a vote on such question as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the area in which voting on the question of zoning is to be conducted.
Any election at which the question of zoning is voted upon shall be held at the voting precincts established for holding primary or general elections. All of the provisions of the general election laws of this state concerning primary, general or special elections, when not in conflict with the provisions of this article, shall apply to voting and elections hereunder, insofar as practicable.
PART XIII. SAME -- EXISTING ORDINANCES AND USES.

§ 8 - 24 - 49. Validation of existing ordinances.

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 court commission 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.

§ 8 - 24 - 50. Existing uses safeguarded.

(a) Such zoning ordinance or ordinances shall not prohibit the continuance of the use of any land, building or structure for the purpose for which such land, building or structure is used at the time such ordinance or ordinances take effect, but any alteration or addition to any land or any alteration, addition or replacement of or to any existing building or structure for the purpose of carrying on any use prohibited under the zoning rules and regulations applicable to the district may be prohibited: Provided, That no such prohibition shall apply to alterations or additions to or replacement of buildings or structures by any farm, industry or manufacturer, or to the use of land presently owned by any farm, industry or manufacturer prior to passage of the ordinance. but not used for agricultural, industrial or manufacturing purposes. or to the use or acquisition of additional land which may be required for the protection, continuing development or expansion of any agricultural, industrial or manufacturing operation or any present or future satellite agricultural, industrial or manufacturing use

(b) If a nonconforming use has been abandoned, any future use of such land, building or structure shall be in conformity with the provisions of the ordinance regulating the use in the district in which such land, building or structure may be located:
Provided, however, That abandonment of any particular agricultural, industrial or manufacturing process shall not be construed as abandonment of agricultural, industrial or manufacturing use.
Nothing contained in this article shall be deemed to authorize an ordinance, rule and regulation which would prevent, outside of urban areas and growth counties as defined in article twenty, chapter three of this code, the complete use and alienation of any timber and any and all minerals, including coal, oil and gas, by the owner or alienee thereof. For the purpose of this section, urban area shall include all lands or lots within the jurisdiction of a municipal planning commission as defined in this article.
PART XIV. SAME -- BOARD OF ZONING APPEALS --

ORGANIZATION AND FUNCTION.

§ 8 - 24 - 51. Board of zoning appeals - - Creation; membership; terms; vacancies.

As a part of the zoning ordinance, the governing body of the municipality or the county court commission shall create a board of zoning appeals consisting of five members to be appointed by the governing body of the municipality or by the county court commission, as the case may be.

The members of the board of zoning appeals shall be individuals who are freeholders and residents of the municipality or county, as the case may be, and at least three fifths of such members must have been residents of the municipality or county, as the case may be, for at least ten years preceding the time of their appointment. No member of the board of zoning appeals shall be a member of the planning commission nor shall any member hold other elective or appointive office in the municipal or county government. Members of the board shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their official duties.
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, as their terms expire, each new appointment shall be for a term of three years.
If a vacancy occurs, by resignation or otherwise, among the members of the board of zoning appeals, the governing body of the municipality or the county court commission, as the case may be, shall appoint a member for the unexpired term.
§ 8 - 24 - 52. Board of zoning appeals - - Officers; quorum; compensation of secretary and employees.

At its first meeting of each year, the board of zoning appeals shall elect a chairman and vice chairman from its membership. The vice chairman shall have the power and authority to act as chairman during the absence or disability of the chairman.

A majority of the members of a board of zoning appeals shall constitute a quorum. No action of a board shall be official, however, unless authorized by a majority of all of the members of the board.
The board of zoning appeals may appoint and fix the compensation of a secretary and such employees as are necessary for the discharge of its duties, all in conformity to and in compliance with the salaries and compensation theretofore fixed by the municipality or county court commission.
§ 8 - 24 - 53. Board of zoning appeals - - Offices; appropriation for expenses.

The governing body of the municipality in the case of a municipal board of zoning appeals and the county court commission in the case of a county board of zoning appeals shall provide the board with suitable offices for the holding of meetings and the preservation of plans, maps, documents and accounts, and shall provide by appropriation a sum sufficient to defray the reasonable expenses of the board.

PART XV. SAME -- SAME -- POWERS, AUTHORITY AND DUTIES.

§ 8 - 24 - 55. Board of zoning appeals - - Powers, authority and duties.

The board of zoning appeals shall:

(1) Hear and determine appeals from and review any order, requirement, decision or determination made by an administrative official or board charged with the enforcement of any ordinance or rule and regulation adopted pursuant to sections thirty-nine through forty-nine of this article; and
(2) Permit and authorize exceptions to the district rules and regulations only in the classes of cases or in particular situations, as specified in the ordinance;
(3) Hear and decide special exceptions to the terms of the ordinance upon which the board is required to act under the ordinance; and
(4) (2) Authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.
In exercising its powers and authority, the board of zoning appeals may reverse or affirm, in whole or in part, or may modify the order, requirement, decision or determination appealed from, as in its opinion ought to be done in the premises, and to this end shall have all the powers and authority of the official or board from whom or which the appeal is taken.
§ 8-24-55a. Same -- Granting of variances.

The board, when it shall deem the same necessary, may grant variances from the zoning regulations on the basis and in the manner hereinafter provided: To authorize in specific cases a variance from the specific terms of the regulations which will not be contrary to the public interest and where, due to special conditions, a literal enforcement of the provisions of the regulations, in an individual case, results in unnecessary hardship, and provided that the spirit of the regulations shall be observed, public safety and welfare secured, and substantial justice done. Such variance shall not permit any use not permitted by the zoning regulations in such district. A request for a variance may be granted in such case, upon a finding by the board that all of the following conditions have been met: (1) That the variance requested arises from such condition which is unique to the property in question and which is not ordinarily found in the same zone or district; and is not created by an action or actions of the property owner or the applicant; (2) that the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents; (3) that the strict application of the provisions of the zoning regulations from which the variance is requested will constitute unnecessary hardship upon the property owner represented in the application; (4) that the variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity or general welfare; and (5) that granting the variance desired will not be contrary to the general spirit and intent of the zoning regulations.

§ 8 - 24 - 68. Penalty.

Any person who violates any provision of this article shall be is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than ten dollars nor more than three hundred dollars.

PART XIX. CONSTRUCTION; SPECIAL PROVISIONS; REPEALER.

§ 8 - 24 - 69. Provisions supplemental; special provisions concerning state - supported institutions of higher education.

The planning and zoning provisions of this article 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 these powers and authority shall remain in full force and effect. The powers of supervision and regulation by such 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. If the county court commission of any county in which a state-supported institution of higher education is situate shall not create a county planning commission as contemplated herein, the county court commission of such county is hereby authorized to enact an ordinance for the zoning of any unincorporated territory in said county within one-half mile of the campus of any such state-supported institution of higher education, and with respect to the zoning of such territory, any such county court commission shall have the same power and authority as are conferred hereunder upon municipalities.

PART XX. FARMLAND PRESERVATION PROGRAMS.

§ 8-24-71. Unified comprehensive land development ordinance authorized.
A local government may choose to draft one unified land development ordinance that encompasses and combines all the provisions authorized in this article.
Such unified ordinances shall expedite and streamline the development review and permitting process and provide communities and developers with as much flexibility as possible in the design and development of projects. It is also to avoid the overlapping, conflicting or inconsistent provisions of ordinances which may be found in standard development and land use control systems, which consist of separate but often unrelated ordinances.
A single unified administrative structure and procedure will be established to implement the unified comprehensive land development ordinance. This would include a board of land development appeals, which would encompass the standard functions of the board of zoning appeals, but include all subject matters and standards encompassed in the unified ordinance.
The preparation and adoption of the unified ordinance must follow procedure set forth for a standard zoning ordinance and other related standards and procedures in this enabling legislation.



NOTE: This bill makes significant changes to the planning and zoning statutes. It makes numerous technical changes including changing references from the county court to the county commission. The freeholder requirement for membership on planning commissions is eliminated. Under the bill, the membership of planning commissions is reduced to nine and provisions are made to remove inactive members.

The bill allows a municipal or county governing body to develop a unified comprehensive zoning ordinance and it broadens contents of comprehensive plans including: (a) Goals, future development; (b) land use in general; (c) transportation; (d) community facilities; (e) housing; (f) economic development; and (g) other elements deemed necessary by planning commissions.

Planning commissions are required, to the extent feasible and affordable, to prepare comprehensive plans within three years with plan reviews at least every five years. Procedures are developed to ensure public participation in the planning process and for dissemination of proposals and alternatives to the public prior to hearings.

The bill provides for coordination of activities between municipal and county planning commissions and other state and local agencies. It modifies timelines for consideration of amendments and time required for public notice of proposed amendments. Under the bill, comments from all public agencies must be considered by planning commission prior to adoption of plan or amendment, unless agencies don't respond within forty-five days.

The bill requires that anyone planning to construct a public improvement, public facility or utility covered by the plan must submit its project to planning commission for review for consistency with plan. If the planning commission finds that project does not conform to plan, the commission submits a report to the governing body, which may override the commission's determination, thereby amending plan. If a planning commission finds that a project conforms to its plan, no further action required.

The bill provides for the adoption of regulations for residential, commercial and industrial subdivisions and mixed subdivision developments and it requires subdivision plats submitted for approval to include provisions for maintenance or homeowners' association and assurance that roads, utilities and other common areas in the subdivision are maintained. Violators of subdivision ordinances are subject to a fine and court costs.

A governing body may charge a "reasonable" fee for processing an improvement location permit under the bill and they are allowed to adopt additional zoning regulations for conditional uses, parking and loading facilities, site plan approval, design control districts, bonds to assure site restoration; special control for flood plains; airport hazard areas, planned unit developments and time-share projects. The bill requires planning commissions to hold at least two public hearings when considering a proposed zoning ordinance and it requires planning commission or governing body to find that a map amendment agrees with the adopted comprehensive plan before the amendment is granted.

The bill establishes a detailed procedure for granting variances from zoning regulations. It maintains the existing use exemption for agriculture industry and manufacturing operations for land owned as of date planning ordinance is passed. It eliminates exemption for newly acquired land, and for expansion of existing use on new land (such expansion would be subject to planning and zoning ordinances, if applicable) and it expands areas in which alienation of timber and minerals may be prevented from "urban areas" (current code) to "growth counties."

The bill eliminates the power of board of zoning appeals to authorize exceptions to district planning rules and regulations and to hear and decide special exceptions and it sets conditions (including unnecessary hardship) under which boards of zoning appeals may grant variances from zoning regulations.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§§8-24-16a, 17a, 27a, 28a, 29a, 33a, 37a, 39a, 45a and 55a are new and §§8-24-17, 18, 27 and 71 have been completely rewritten; therefore strike-throughs and underscoring have been omitted.
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