H. B. 3241
(By Delegate Overington (By Request))
[Introduced February 23, 2007; referred to the
Committee on Government Organization.]
A BILL to amend and reenact §8A-1-1 and §8A-1-2 of the Code of West
Virginia, 1931, as amended; and to amend and reenact §8A-2-10
of said code; to amend and reenact §8A-3-3, §8A-3-5 and §8A-3-
8 of said code; to amend and reenact §8A-4-1, §8A-4-2 and §8A-
4-6 of said code; to amend and reenact §8A-5-1, §8A-5-2, §8A-
5-4, §8A-5-6, §8A-5-7, §8A-5-10 and §8A-5-12 of said code; to
amend and reenact §8A-6-1 and §8A-6-2 of said code; to amend
and reenact §8A-7-1 and §8A-7-3 of said code; to amend §8A-10-
1 of said code, all relating to the powers of the planning
commission, enforcement of the code and clarifying the duties
of the planning commission.
Be it enacted by the Legislature of West Virginia:
That §8A-1-1 and §8A-1-2 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; that §8A-2-10 of said code be
amended and reenacted; that §8A-3-3, §8A-3-5 and §8A-3-8 of said code be amended and reenacted; that §8A-4-1, §8A-4-2 and §8A-4-6 of
said code be amended and reenacted; that §8A-5-1, §8A-5-2 and §8A-
5-4 of said code be amended and reenacted; that §8A-5-6, §8A-5-7,
§8A-5-10, and §8A-5-12 of said code be amended and reenacted; that
§8A-6-1 and §8A-6-2 of said code be amended and reenacted; that
§8A-7-1 and §8A-7-3 of said code be amended and reenacted; and that
§8A-10-1 of said code be amended and reenacted, all to read as
follows:
ARTICLE 1. GENERAL PROVISIONS.
§8A-1-1. Legislative findings.
(a) The Legislature finds, as the object of this chapter, the
following:
(1) That planning land development and land use is vitally
important to a community;
(2) A planning commission is helpful to a community to plan
for land development, land use and the future;
(3) A plan and a vision for the future is important when
deciding uses for and development of land;
(4) That sprawl is not advantageous to a community;
(5) A comprehensive plan is a guide to a community's goals and
objectives and a way to meet those goals and objectives;
(6) That the needs of agriculture, residential areas, industry
and business be recognized in future growth;
(7) That the growth of the community is commensurate with and promotive of the efficient and economical use of public funds;
(8) Promoting growth that is economically sound,
environmentally friendly and supportive of community livability to
enhance quality of life is a good objective for a governing body;
and
(9) Governing bodies of municipalities and counties need
flexibility when authorizing land development and use.
(b) Therefore, the Legislature encourages and recommends the
following:
(1) The goal of a governing body should be to have a plan and
a vision for the future, and an agency to oversee it;
(2) A governing body should have a planning commission, to
serve in an advisory capacity to the governing body, and promote
the
orderly sustainable development of its community;
(3) A comprehensive plan should be the basis for land
development and use, and be reviewed and updated on a regular
basis;
(4) A goal of a governing body should be to reduce sprawl;
(5) That planning commissions prepare a comprehensive plan and
governing bodies adopt the comprehensive plans;
(6) Governing bodies, units of government and planning
commissions work together to provide for a better community;
(7) Governing bodies may have certain regulatory powers over
developments affecting the public welfare; and
(8) Based upon a comprehensive plan, governing bodies may:
(A) Enact a subdivision and land development ordinance;
(B) Require plans and plats for land development;
(C) Issue improvement location permits for construction; and
(D) Enact a zoning ordinance.
§8A-1-2. Definitions.
As used in this chapter, the following words and terms have
the following meanings, unless the context clearly indicates
otherwise:
(a) "Abandonment" means the relinquishment of property or a
cessation of the use of the property by the owner or lessee without
any intention of transferring rights to the property to another
owner or resuming the nonconforming use of the property for a
period of one year.
(b) "Aggrieved" or "aggrieved person" means a person who:
(1) Is denied by the planning commission, board of subdivision
and land development appeals, or the board of zoning appeals, in
whole or in part, the relief sought in any application or appeal;
or
(2) Has demonstrated that he or she will suffer a peculiar
injury, prejudice or inconvenience beyond that which other
residents of the county or municipality may suffer.
(c) "Comprehensive plan" means a plan for physical
development, including land use, adopted by a governing body, setting forth guidelines, goals and objectives for all activities
that affect growth and development in the governing body's
jurisdiction.
(d) "Conditional use" means a use which because of special
requirements or characteristics may be permitted in a particular
zoning district only after review by the board of zoning appeals
and upon issuance of a conditional use permit, and subject to the
limitations and conditions specified in the zoning ordinance.
(e) "Contiguous" means lots, parcels, municipal boundaries or
county boundaries that are next to, abutting and having a boundary,
or portion thereof, that is coterminous. Streets, highways, roads
or other traffic or utility easements, streams, rivers and other
natural topography are not to be used to determine lots, parcels,
municipal boundaries or county boundaries as contiguous.
(f) "Essential utilities and equipment" means underground or
overhead electrical, gas, communications not regulated by the
federal communications commission, water and sewage systems,
including pole structures, towers, wires, lines, mains, drains,
sewers, conduits, cables, fire alarm boxes, public telephone
structures, police call boxes, traffic signals, hydrants,
regulating and measuring devices and the structures in which they
are housed, and other similar equipment accessories in connection
therewith. Essential utility equipment is recognized in three
categories:
(1) Local serving;
(2) Nonlocal or transmission through the county or
municipality; and
(3) Water and sewer systems, the activities of which are
regulated, in whole or in part, by one or more of the following
state agencies:
(A) Public Service Commission;
(B) Department of Environmental Protection; or
(C) The Department of Health and Human Resources.
(g) "Existing use" means use of land, buildings or activity
permitted or in existence prior to the adoption of a zoning map or
ordinances by the county or municipality. If the use is
nonconforming to local ordinance and lawfully existed prior to the
adoption of the ordinance, the use may continue to exist as a
nonconforming use until abandoned for a period of one year:
Provided, That in the case of natural resources, the absence of
natural resources extraction or harvesting is not abandonment of
the use.
(h) "Exterior architectural features" means the architectural
character and general composition of the exterior of a structure,
including, but not limited to, the kind, color and texture of the
building material, and the type, design and character of all
windows, doors, massing and rhythm, light fixtures, signs, other
appurtenant elements and natural features when they are integral to the significance of the site, all of which are subject to public
view from a public street, way or place.
(i) "Factory-built homes" means modular and manufactured
homes.
(j) "Flood-prone area" means any land area susceptible to
repeated inundation by water from any source.
(k)
"Governing body" means the body that governs a
municipality or county.
(l) "Historic district" means a geographically definable area,
designated as historic on a national, state or local register,
possessing a significant concentration, linkage or continuity of
sites, buildings, structures or objects united historically or
aesthetically by plan or physical development.
(m) "Historic landmark" means a site, building, structure or
object designated as historic on a national, state or local
register.
(n) "Historic site" means the location of a significant event,
a prehistoric or historic occupation or activity, or a building or
structure whether standing, ruined or vanished, where the location
itself possesses historical, cultural or archaeological value
regardless of the value of any existing structure and designated as
historic on a national, state or local register.
(o) "Improvement location permit" means a permit issued by a
municipality or county, in accordance with its subdivision and land development ordinance, for the construction, erection,
installation, placement, rehabilitation or renovation of a
structure or development of land, and for the purpose of regulating
development within flood-prone areas.
(p) "Infill development" means to fill in vacant or underused
land in existing communities with new development that blends in
with its surroundings.
(q) "Land development" means the development of one or more
lots, tracts or parcels of land by any means and for any purpose,
but does not include easements, rights-of-way or construction of
private roads for extraction, harvesting or transporting of natural
resources.
(r) "Manufactured home" means housing built in a factory
according to the federal manufactured home construction and safety
standards effective the fifteenth day of June, one thousand nine
hundred seventy-six.
(s) "Modular home" means housing built in a factory that meets
state or local building codes where the homes will be sited.
(t) "Non traditional zoning ordinance" means an ordinance that
sets forth development standards and approval processes for land
uses within the jurisdiction, but does not necessarily divide the
jurisdiction into distinct zoning classifications or districts
requiring strict separation of different uses, and does not require
a zoning map amendment.
(u) "Permitted use" means any use allowed within a zoning
district, subject to the restrictions applicable to that zoning
district and is not a conditional use.
(v) "Plan" means a written description for the development of
land.
(w) "Planning commission" means a municipal planning
commission, a county planning commission, a multicounty planning
commission, a regional planning commission or a joint planning
commission.
(x) "Plat" means a map of the land development.
(y) "Preferred development area" means a geographically
defined area where incentives may be used to encourage development,
infill development or redevelopment in order to promote well
designed and coordinated communities.
(z) "Public place" means any lots, tracts or parcels of land,
structures, buildings or parts thereof owned or leased by a
governing body or unit of government.
(aa) "Sprawl" means poorly planned or uncontrolled growth,
usually of a low-density nature, within previously rural areas,
that is land consumptive, auto-dependent, designed without respect
to its surroundings, and some distance from existing development
and infrastructure.
(bb) "Streets" means streets, avenues, boulevards, highways,
roads, lanes, alleys and all public ways.
(cc) "Subdivision or partition" means the division of a lot,
tract or parcel of land into two or more lots, tracts or parcels of
land, or the recombination of existing lots, tracts, or parcels.
(dd) "Sustainable growth" means balancing the economic,
social, and environmental needs of the present without compromising
the ability of future generations to balance their own needs.
(dd) (ee) "Unit of government" means any federal, state,
regional, county or municipal government or governmental agency.
(ee) (ff) "Urban area" means all lands or lots within the
jurisdiction of a municipal planning commission.
(ff) (gg) "Utility" means a public or private distribution
service to the public that is regulated by the Public Service
Commission.
(gg) (hh) ("Zoning" means the division of a municipality or
county into districts or zones which specify permitted and
conditional uses and development standards for real property within
the districts or zones.
(hh) (ii) "Zoning map" means a map that geographically
illustrates all zoning district boundaries within a municipality or
county, as described within the zoning ordinance, and which is
certified as the official zoning map for the municipality or
county.
ARTICLE 2. PLANNING COMMISSIONS.
§8A-2-10. Governing body's duties.
(a) The county commission in the case of a county planning
commission, and the governing body of the municipality in the case
of a municipal planning commission, shall provide the planning
commission with:
(1) Suitable offices for the holding of meetings and the
preservation of plans, maps, documents and accounts; and
(2) Appropriate money to defray the reasonable expenses of the
planning commission.
(b) In the ordinance creating a multicounty planning
commission, a regional planning commission or a joint planning
commission, the governing bodies shall designate office space and
will each equally appropriate money sufficient to defray the
reasonable expenses of the planning commission.
(c) Planning commissions are
not authorized to accept gifts,
funds and donations.
which will be deposited with the appropriate
governing body in a special nonreverting planning commission fund
to be available for expenditures by the planning commission for the
purpose designated by the donor.
ARTICLE 3. COMPREHENSIVE PLAN.
§8A-3-3. Authority for planning commission.
(a) A planning commission shall prepare a comprehensive plan
for the development of land within its jurisdiction. A planning
commission shall then recommend the comprehensive plan to the
appropriate governing body for adoption.
(b) A county, multicounty, regional or joint comprehensive
plan may include the planning of towns, villages or municipalities
to the extent to which, in the planning commission's judgment, they
are related to the planning of the unincorporated territory of the
county as a whole:
Provided, That the comprehensive plan shall not
be considered a comprehensive plan for any town, village or
municipality without the consent of the planning commission and/or
the governing body of the town, village or municipality.
(c)
The planning commission shall adhere to the A
comprehensive plan
should be to coordinate coordinated with the
plans of the
Department of Highways recommendations
department of
transportation, insofar as it
relates to impacts local traffic
patterns on highways, thoroughfares, trails,
and pedestrian, and
bicycle ways under the jurisdiction of that planning commission.
(d) A county planning commission may prepare a comprehensive
plan for either the entire county or a part of the county.
(e) A multicounty, regional or joint planning commission may
prepare a comprehensive plan for land within its jurisdiction.
§8A-3-5. Other components of a comprehensive plan.
The comprehensive plan
may shall have, but is not limited to,
the following components:
(1)
History. -- An analysis of the history of the area to
better provide for the future.
(2)
Environmental. -- Recommend programs where appropriate to appropriate regulatory agencies to protect the area from all types
of pollution and promote a healthy environment. (This has not been
done.)
(3)
Tourism. -- Recommend programs to promote tourism and
cultural and heritage development in the area.
(4)
Conservation. -- Recommend programs to conserve and
protect wildlife, natural habitats, sensitive natural areas, green
spaces and direct access to sunlight. (Natural habitats have been
destroyed in favor of development.)
(5)
Safety. -- Recommend public safety programs to educate and
protect the public from disasters, both natural and man-made.
(6)
Natural resources use. -- Identify areas for natural
resources use in an urban area.
§8A-3-8. Adoption of comprehensive plan by governing body.
(a) Within the latter of ninety days or three scheduled
meetings after the submission of the recommended comprehensive plan
to the governing body, the governing body must act by either
adopting, rejecting or amending the comprehensive plan.
(b) If the comprehensive plan is adopted by the governing
body, then the governing body
may shall adopt the comprehensive
plan as an ordinance
or designate what other effect the
comprehensive plan may have.
(c) If the comprehensive plan is adopted by the governing body
and an ordinance is published, the comprehensive plan
may shall be incorporated by reference in the ordinance and the full text of the
comprehensive plan does not have to be published.
ARTICLE 4. SUBDIVISION AND LAND DEVELOPMENT ORDINANCE.
§8A-4-1. Subdivision and land development ordinances authorized.
(a) The governing body of a municipality or a county
may
shall regulate subdivisions and land development within its
jurisdiction by:
(1) Adopting a comprehensive plan; and
(2) Enacting a subdivision and land development ordinance.
(b) A municipality may adopt, by reference, the subdivision
and land development ordinance of the county in which it is
located.
(c) With the prior approval of the county planning commission,
a municipality may, by ordinance, designate the county planning
commission as the planning commission for the municipality to
review and approve subdivision or land development plans and plats.
§8A-4-2. Contents of subdivision and land development ordinance.
(a) A subdivision and land development ordinance shall include
the following provisions:
(1) A minor subdivision or land development process, including
criteria, requirements and a definition of minor subdivision;
(2) The authority of the planning commission and its staff to
approve a minor subdivision or land development;
(3) A major subdivision or land development process, including
criteria and requirements;
(4) The authority of the planning commission to approve a
major subdivision or land development;
(5) The standards for setback requirements, lot sizes,
streets, sidewalks, walkways, parking, easements, rights-of-way,
drainage, utilities, infrastructure, curbs, gutters, street lights,
fire hydrants, storm water management and water and wastewater
facilities;
(6) Standards for flood-prone or subsidence areas;
(7) A review process for subdivision or land development plans
and plats by the planning commission;
(8) An approval process for subdivision or land development
plans and plats by the planning commission, including the authority
to approve subdivision or land development plans and plats with
conditions;
(9) A process to amend final approved subdivision or land
development plans and plats;
(10) A requirement that before development of the land is
commenced, subdivision and land development plans and plats must be
approved by the applicable planning commission, in accordance with
the comprehensive plan;
(11) A requirement that after approval of the subdivision or
land development plat by the planning commission and before the subdivision or development of the land is commenced, the
subdivision and land development plat shall be recorded in the
office of the clerk of the county commission where a majority of
the land to be developed lies;
(12) A schedule of fees to be charged which are proportioned
to the cost of checking and verifying proposed plats;
(13) The process for granting waivers from the minimum
standards of the subdivision and land development ordinance;
(14) Improvement location permit process, including a
requirement that a structure or development of land is prohibited
without an improvement location permit;
(15) The acceptable methods of payment to cover the cost of
the water and sewer service infrastructure, which
can shall
include, but are not limited to, bonds, impact fees, escrow fees
and proffers;
(16) The process for cooperating and coordinating with other
governmental agencies affected by the subdivision and land
development and use; and
17) Penalties for violating the subdivision and land
development ordinance.
(b) A subdivision and land development ordinance may shall
include the following provisions:
(1) Establishing a board of subdivision and land development
appeals with the same powers, duties and appeals process as set out for the board of zoning appeals under the provisions of article
eight of this chapter.
(2) Requirements for green space, common areas, public
grounds, walking and cycling paths, recreational trails, parks,
playgrounds and recreational areas;
(3) Encourage the use of renewable energy systems and energy-
conserving building design;
(4) Vested property right, including requirements;
(5) Exemptions of certain types of land development from the
subdivision and land development ordinance requirements, including,
but not limited to, single-family residential structures and farm
structures; and
(6) Any other provisions consistent with the comprehensive
plan the governing body considers necessary.
§8A-4-6. Effect of adopted subdivision and land development
ordinance
.
After enactment of a subdivision and land development
ordinance by the governing body, all subsequent subdivisions and
land development must be done in accordance with the provisions of
the comprehensive plan and the subdivision and land development
ordinance.
ARTICLE 5. SUBDIVISION OR LAND DEVELOPMENT PLAN AND PLAT.
§8A-5-1. Jurisdiction of planning commissions.
(a) A planning commission has the authority to:
(1) Approve, disapprove, or table a vote to receive additional
information on a minor subdivision or land development application
within its jurisdiction;
(2) Exempt an application, stating the basis for the
exemption, for a minor subdivision, major subdivision, or land
development within its jurisdiction; and
(3) Approve, disapprove, or table a vote to receive additional
information on a major subdivision or land development application
within its jurisdiction.
(b) The staff of a planning commission has the authority to
approve a minor subdivision or land development application within
its jurisdiction, if granted such authority by the governing body
in the subdivision and land development ordinance. The authority
to act on an application shall be that of the planning commission
of the jurisdiction and said authority shall not be assignable.
(c) If a subdivision or land development plan and plat cannot
be approved through the minor subdivision or land development
process, then an applicant must use the major subdivision or land
development approval process.
PART I. MINOR SUBDIVISION OR LAND DEVELOPMENT PROCESS.
§8A-5-2. Requirements for a minor subdivision or land development.
(a) An application for approval of a subdivision or land
development plan and plat may shall be considered a minor
subdivision or land development if it meets the following requirements:
(1) Only creates the maximum number of lots specifically
permitted by the subdivision and land development ordinance for a
minor subdivision or land development ;
(2) Will not require the development of new or the extension
of existing off-tract infrastructure; and
(3) Such other requirements as determined by the governing
body to ensure that required improvements are installed and not
avoided by a series of minor subdivisions or land developments.
(b) The following can be considered a minor subdivision or
land development if approved by the planning commission:
(1) Merger or consolidation of parcels of land;
(2) Land transfers between immediate family members; and
(3) Minor boundary line adjustments.
§8A-5-4. Approval of minor subdivision or land development plans
and plats.
(a) Within ten days after a plat has been classified a minor
subdivision, major subdivision or land development, then the
planning commission or staff, if the authority has been given by
the governing body, shall approve or deny the plat.
(b) If the planning commission approves the plat, then the
planning commission shall affix its seal on the plat.
(c) If the planning commission approves the plat with
conditions, then the planning commission must state the conditions.
(d) If the planning commission denies the plat, then the
planning commission shall notify the applicant in writing of the
reasons for the denial.
PART II. MAJOR SUBDIVISION OR LAND DEVELOPMENT PROCESS.
§8A-5-6. Application for major subdivision or land development.
(a) An applicant for approval of a major subdivision or land
development plan and plat shall submit written application, a copy
of the proposed land development plan and plat, and the fees to the
planning commission having jurisdiction over the land.
(b) Within forty-five days after receipt of the application,
the planning commission shall review the application for
completeness and either accept or deny it.
(c) If the application is not complete, then the planning
commission may shall deny the application and must notify the
applicant in writing stating the reasons for the denial.
§8A-5-7. Contents of a major subdivision or land development plan
and plat.
(a) A land development plan and plat must include everything
required by the governing body's subdivision and land development
ordinance.
(b) If a governing body does not have a subdivision and land
development ordinance or if a governing body's subdivision and land
development ordinance does not specify what may shall be included
in a subdivision or land development plan and plat, then the following may shall be included, when applicable, in a subdivision
or land development plan and plat:
(1) Show that the subdivision or land development conforms to
the governing body's
comprehensive plan;
(2) A method of payment to cover the cost of the water and
sewer service infrastructure, which can include, but is not limited
to, bonds, impact fees, and escrow fees and proffers;
(3) Coordination among land development with adjoining land
owners, including but not limited to, facilities and streets;
(4) Distribution of population and traffic in a manner tending
to create conditions favorable to health, safety, convenience and
the harmonious development of the municipality or county;
(5) Show that there is a fair allocation of areas for
different uses, including, but not limited to, streets, parks,
schools, public and private buildings, utilities, businesses and
industry;
(6) Show that there is a water and sewer supply;
(7) Setback and lot size measures were used;
(8) The standards used for designating land which is subject
to flooding or subsidence, details for making it safe, or
information showing that such land will be set aside for use which
will not endanger life or property and will not further aggravate
or increase the existing menace;
(9) The control measures for drainage, erosion and sediment;
(10) The coordination of streets, sidewalks and pedestrian
pathways in and bordering the land development; and
(11) The design, construction and improvement measures to be
used for the streets, sidewalks, easements, rights-of-way,
drainage, utilities, walkways, curbs, gutters, street lights, fire
hydrants, water and wastewater facilities, and other improvements
installed, including the width, grade and location for the purpose
of accommodating prospective traffic, customers and facilitating
fire protection.
§8A-5-10. Appeal process.
(a) An appeal may be made by an aggrieved person from any
decision or ruling of the planning commission to:
(1) The circuit court, pursuant to the provisions of article
nine of this chapter; or
(2) A board of subdivision and land development appeals, if
which the governing body has established a board of subdivision and
land development appeals by ordinance.
(b) Within thirty days after the date of the denial or
approval, the petition, specifying the grounds of the appeal in
writing, must be filed with:
(1) The circuit court of the county in which the affected land
or the major portion of the affected land is located; or
(2) The board of subdivision and land development appeals that
has jurisdiction over the affected land.
§8A-5-12. Vested property right.
(a) A vested property right is a right to undertake and
complete the land development. The right is established when the
land development plan and plat is approved by the planning
commission and is only applicable under the terms and conditions of
the approved land development plan and plat. Vested property right
is transferable only upon the death of the landowner and only for
the period defined in (c) below.
(b) Failure to abide by the terms and conditions of the
approved land development plan and plat will result in forfeiture
of the right.
(c) The vesting period for an approved land development plan
and plat which creates the vested property right is five two years
from the approval of the land development plan and plat by the
planning commission.
(d) Without limiting the time when rights might otherwise
vest, a landowner's rights vest in a land use or development plan
and cannot be affected by a subsequent amendment to a zoning
ordinance or action by the planning commission when the landowner:
(1) Obtains or is the beneficiary of a significant affirmative
governmental act which remains in effect allowing development of a
specific project;
(2) Relies in good faith on the significant affirmative
governmental act; and or
(3) Incurs extensive obligations or substantial expenses in
diligent pursuit of the specific project in reliance on the
significant affirmative governmental act.
(e) A vested right is a property right, which cannot be taken
without compensation. A court may award damages against the local
government in favor of the landowner for monetary losses incurred
by the landowner and court costs and attorneys' fees, resulting
from the local government's bad faith refusal to recognize that the
landowner has obtained vested rights.
ARTICLE 6. METHODS OF SECURITY.
§8A-6-1. Bond requirements.
(a) If a bond is used as an acceptable method of security for
infrastructure construction, then it shall meet the following
requirements:
(1) Be in an amount to cover the infrastructure construction,
as determined by the governing body;
(2) Be payable to the governing body;
(3) Have adequate surety and be satisfactory to the governing
body;
(4) Specify the time for the completion of the infrastructure
construction not to exceed two years from the time of preliminary
plat approval from the planning commission; and
(5) Specify the date and/or condition for when the bond will
be released.
(b) The money from the bond shall only be used by the
governing body to which the bond is payable, for the completion of
the infrastructure construction, when the infrastructure
construction is not completed as approved at the issuance of the
bond.
§8A-6-2. Conditions as part of final plat approval.
(a) A subdivision and land development ordinance may shall
provide for imposing impact fees for capital improvement the
voluntary proffering by a landowner as a requirement of final plat
approval for a development project.
(b) For purposes of this section, a "voluntary proffer" is a
written offer by a landowner to a governing body whereby the
landowner offers to satisfy certain reasonable conditions as a
requirement of the final plat approval for a development project.
A voluntary proffer made to a governing body shall be in lieu of
payment of an impact fee as authorized by section four, article
twenty, chapter seven of this code: Provided, That no proffer may
be accepted by a governing body in lieu of an impact fee that would
otherwise go to schools without the approval of the county board of
education.
(c) For purposes of this section, a condition contained in a
voluntary proffer is considered reasonable if:
(1) The development project results in the need for the
conditions;
(2) The conditions have a reasonable relation to the
development project; and
(3) All conditions are in conformity with the comprehensive
plan adopted pursuant to this chapter.
(d) No proffer may be accepted by a governing body unless it
has approved a list detailing any proposed capital improvements
from all areas within the jurisdiction of the governing body to
which the proffer is made, which list contains descriptions of any
proposed capital improvements, cost estimates, projected time
frames for constructing the improvements and proposed or
anticipated funding sources: Provided, That the approval of the
list does not limit the governing body from accepting proffers
relating to items not contained on the list.
(e) (b) For purposes of this section, "capital improvement"
has the same definition as found in section three, article twenty,
chapter seven of this code.
(f) If a voluntary proffer includes the dedication of real
property or the payment of cash, the proffer shall provide for the
alternate disposition of the property or cash payment in the event
the property or cash payment is not to be used for the purpose for
which it was proffered.
(g) Notwithstanding any provision of this code to the
contrary, a municipality may transfer the portion of the proceeds
of a voluntary proffer intended by the terms of the proffer to be used by the board of education of a county in which the
municipality is located upon the condition that the portion so
transferred may only be used by the board for capital improvements.
ARTICLE 7. ZONING ORDINANCE.
§8A-7-1. Authority for zoning ordinance.
(a) The governing body of a municipality or a county may shall
regulate land use within its jurisdiction by:
(1) Adopting a comprehensive plan and adopting subdivision
ordinances; or
(2) Working with the planning commission and the public to
develop a zoning ordinance; and
(3) Enacting a zoning ordinance.
(b) A zoning ordinance may cover a county's entire
jurisdiction or parts of its jurisdiction.
(c) A zoning ordinance shall cover a municipality's entire
jurisdiction.
(d) A municipality may adopt, by reference, the zoning
ordinance of the county in which it is located.
§8A-7-3. Zoning -- Generally.
(a) A zoning ordinance may shall cover a county's entire
jurisdiction or parts of its jurisdiction.
(b) The different zones created in a zoning ordinance by a
governing body do not have to cover or include the same territory,
and may overlap.
(c) Overlay districts and special design districts may have
specific additional development standards for each permitted,
accessory and conditional use.
(d) Each zone will be subject to the same rules, regulations,
standards and designations throughout the zone, unless specific
provisions are made by the governing body in the zoning ordinance.
(e) Essential utilities and equipment are a permitted use in
any zoning district.
(f) Several areas of a municipality or county may be
classified in a zone even though the areas are not contiguous.
(g) The boundaries of each zone and the designated
classifications must be shown on a zoning district map. The
boundaries may only be changed after appropriate public hearing and
zoning district map changes are adopted by the governing body.
(h) A governing body shall certify the original zoning
district map. Subsequent versions of the zoning district map shall
be certified and clearly identified with an effective date.
(i) All certified zoning district maps must be filed with the
clerk of the applicable governing body, the applicable planning
commission and the office of the clerk of the applicable county
commission.
ARTICLE 10. ENFORCEMENT PROVISIONS.
§8A-10-1. Enforcement.
The governing body of a municipality or county may shall:
(1) Enforce penalties, set out in section two of this article,
for failure to comply with the provisions of any ordinance or rule
and regulation adopted pursuant to the provisions of this chapter;
and
(2) Declare that any buildings erected, raised or converted,
or land or premises used in violation of any provision of any
ordinance or rule and regulation adopted under the authority of
this chapter shall be a common nuisance and the owner of the
building, land or premises shall be liable for maintaining a common
nuisance.
NOTE: The purpose of this bill is to enhance the powers of
the planning commission, enforcement of the code and clarifying the
duties of the planning commission.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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