Senate Bill No. 453
(By Senators Burdette, Mr. President, and Boley)
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[Introduced February 21, 1994; referred to the Committee
on Government Organization.]
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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 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 unifiedcomprehensive 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 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 aplanning 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 herebyvalidated 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, colorand 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 governmentalcorporation; 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 ofJuly, 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 amunicipal 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 thecommission;
(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 thecommission 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 bedeposited 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 residingwithin 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. Thecomprehensive 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 ormunicipality 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 mayinclude 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 ofimplementing 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 itsconsideration, 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 andplace 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 shallbe 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 publicimprovement, 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 forplanned 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 theapplication, 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 andreplats 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 theplanning 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 deemedapproval.
(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 includerecommended 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 offloor 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 offive 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 andconferences, 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 ordinancehereunder.
§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 planningcommission 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 submissionof 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 takeeffect, 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 andchanges 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 futuresatellite 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 courtcommission, 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 grantvariances 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 samepower 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 forprocessing 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.