Senate Bill No. 119
(By Senator Burdette, Mr. President, By Request)
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[Introduced February 24, 1993; 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-three, thirty-five, thirty-six, forty-one,
forty-two, forty-three, forty-four, forty-five, forty-six,
forty-seven, forty-eight, forty-nine, fifty, fifty-b,
fifty-one, fifty-two, fifty-three, fifty-five, sixty-six,
sixty-eight and sixty-nine, 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 nineteen 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, fifty-five-a, seventy-nine,
eighty, eighty-one, eighty-two, eighty-three, eighty-four,
eighty-five, eighty-six, eighty-seven and eighty-eight, 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 planningcommission rather than the board of zoning appeals approves
conditional uses; providing development of a unified
comprehensive development ordinance; changing county court
to county commission; and providing civil and criminal
penalties.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four, five, six, ten, eleven,
twelve, thirteen, fourteen, fifteen, sixteen, seventeen,
eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three,
twenty-seven, twenty-eight, thirty, thirty-three, thirty-five,
thirty-six, forty-one, forty-two, forty-three, forty-four, forty-
five, forty-six, forty-seven, forty-eight, forty-nine, fifty,
fifty-b, fifty-one, fifty-two, fifty-three, fifty-five,
sixty-six, sixty-eight and sixty-nine, article twenty-four,
chapter eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and
that said article be further amended by adding thereto nineteen
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, fifty-five-a, seventy-nine, eighty,
eighty-one, eighty-two, eighty-three, eighty-four, eighty-five,
eighty-six, eighty-seven and eighty-eight, all to read as
follows:
ARTICLE 24. PLANNING AND ZONING.
PART I. URBAN AND RURAL PLANNING -- PLANNING COMMISSIONS
AUTHORIZED; OBJECTIVE; DEFINITIONS.
§8-24-1. Planning commissions authorized; statement of
objective.
The governing body of every municipality and the county
court commission of every county may by ordinance create a
planning commission in order to promote the orderly development
of its governmental units and its environs. It is the object of
this article to encourage local units of government to improve
the present health, safety, convenience and welfare of their
citizens and to plan for the future development of their
communities to the end that highway systems be carefully planned;
that new community centers grow only with adequate highway,
utility, health, educational and recreational facilities; that
the needs of agriculture, industry and business be recognized in
future growth; that residential areas provide healthy
surroundings for family life; and that the growth of the
community is commensurate with and promotive of the efficient and
economical use of public funds.
In accomplishing this objective, it is intended that the
planning commission shall serve in an advisory capacity to the
governing body of a municipality or a county
court commission,
that certain regulatory powers be created over developments
affecting the public welfare and not now otherwise controlled,
and that additional powers and authority be granted to the
governing bodies of municipalities and to counties to carry out
the objective and overall purposes of this article.
§8-24-2. Continuation of planning commissions heretofore
established.
Any planning commission heretofore established shall
continue to operate as though established under the terms of this
article. All actions lawfully taken under prior acts are hereby
validated and continued in effect until amended or repealed by
action taken under the authority of this article.
The membership of existing commissions shall continue
unchanged until the first regular meeting of the governing body
of a municipality or the county
court commission in January of
the year following enactment of this article. At that time, any
appointments or changes necessary shall be made to bring the
membership of the commissions into conformity with the provisions
of this article.
§8-24-3. Definitions.
As used in this article:
(a) "Commission or planning commission" shall mean a
municipal planning commission or a county planning commission, as
the case may be;
(b) "Comprehensive plan" shall mean a complete comprehensive
plan or any of its parts such as a comprehensive plan of land use
and zoning, of
thoroughfares, of sanitation, of recreation
transportation, community facilities and utilities of
environmental conservation 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
and regulationsas are deemed necessary and their enforcement;
(c) "Exterior architectural features" includes the
architectural character and general composition of the exterior
of a structure, including, but not limited to, the kind, color
and texture of the building material, and the type, design and
character of all windows, doors, light fixtures, signs, other
appurtenant elements and natural features when they are integral
to the significance of the site, all of which are subject to
public view from a public street, way or place;
(d) "Historic district" is a geographically definable area
possessing a significant concentration, linkage or continuity of
sites, buildings, structures or objects united historically or
aesthetically by plan or physical development;
(e) "Historic landmark" is a site, building, structure or
object designated as a "Landmark" either on a national, state or
local register;
(f) "Historic site" is the location of a significant event,
a prehistoric or historic occupation or activity, or a building
or structure whether standing, ruined or vanished, where the
location itself possesses historical, cultural or archaeological
value regardless of the value of any existing structure;
(g) "Public place" includes any tracts owned by the state or
its subdivisions;
(h) "Streets" includes streets, avenues, boulevards,
highways, roads, lanes, alleys and all public ways;
(i) "Unit of government" means any federal, state, regional,county or municipal government or governmental corporation; and
(j) "Utility" means any facility used in rendering 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. At least three fifths of all of the
members must have been residents of the municipality for at leastone 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 recommended 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 tothe 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 recommended removal of any inactive member. Vacancies shall
be filled by appointment by the county commission for the
unexpired term only. Members of the commission shall serve
without compensation, but shall be reimbursed for all reasonable
and necessary expenses actually incurred in the performance of
their official duties. An individual may at the same time serve
as a member of a municipal planning commission and as a member of
a county planning commission.
§8-24-10. Offices; appropriation for expenses.
The county
court commission in the case of a county planning
commission, and the governing body of the municipality in thecase 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 countyplanning commission.
§8-24-13. Municipal-county commission; powers and authority;
expenses.
The governing body of any municipality located within a
county having an established planning commission may, by
ordinance, designate such county planning commission as the
municipal planning commission. The county
court commission of
any county within which a municipality having an established
planning commission is located may, by ordinance, designate such
municipal planning commission as the county planning commission.
In the event any such municipality is located partly within one
county and partly within another county or counties, the
foregoing provisions of this section shall apply only to the
county within which the major portion of the territory of the
municipality is located.
A county planning commission designated as a municipal
planning commission shall have for that municipality all the
powers, authority and duties granted under this article to a
municipal planning commission. A municipal planning commission
designated as a county planning commission shall have for that
county all the powers, authority and duties granted under this
article to a county planning commission.
Any municipality designating a county planning commission as
its municipal planning commission may contract annually to pay to
the county a proportionate part of the expenses which is properly
chargeable to the planning service rendered to such municipality,and any such payments received by the county shall be
appropriated by the county to the county planning commission in
addition to any funds budgeted for planning purposes, although
the county
court commission may, if it so elects, agree to pay
the total cost. Any county designating a municipal planning
commission as its county planning commission may contract
annually to pay to the municipality a proportionate part of the
expenses which is properly chargeable to the planning service
rendered to such county, and any such payments received by the
municipality shall be appropriated by the municipality to the
municipal planning commission in addition to any funds budgeted
for planning purposes.
PART III. SAME -- POWERS, AUTHORITY AND DUTIES.
§8-24-14. Administrative powers and authority.
To effectuate the purposes of this article, a commission
shall have has the power, authority and duty to:
(1) Exercise general supervision of and make rules
and
regulations for the administration of the affairs of the
commission;
(2) Prescribe uniform rules
and regulations pertaining to
its investigations and hearings;
(3) Supervise the fiscal affairs and responsibilities of the
commission;
(4) Prescribe the qualifications of, appoint, remove and fix
the compensation of, the employees of the commission, such
compensation to be in conformity to and in compliance with thesalaries 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
and regulations or any action taken thereunder;
(11) Prepare and submit an annual budget in the same manner
as other departments of municipal and county government and the
commission shall be limited in all expenditures to the provisions
made therefor by the governing body of such municipality or by
the county
court commission of such county;
(12) If deemed advisable, establish an advisory committee orcommittees; and
(13) Delegate to a committee composed of one or more members
of the commission the power to hold any public hearings or
conferences required or permitted under this article to be held
by the commission. If the hearing or conference is held by a
committee, a written record of the substance of the hearing or
conference shall be made and preserved with the records of the
commission for not less than five years. The committee shall
have authority only to conduct the hearing and report to the
commission.
§8-24-15. Appropriations; expenditures; disposition of gifts;
participation in federal planning assistance programs.
After the governing body of a municipality or a county
court
commission has adopted an ordinance creating a planning
commission, the governing body or county
court commission shall
appropriate funds to carry out the duties of the commission.
The planning commission shall have the power and authority
to expend, under regular municipal or county procedure as
provided by law, all sums appropriated to it for the purposes and
activities authorized under this article.
A municipality or county may accept gifts and donations for
planning commission purposes. Any moneys so accepted shall be
deposited with the municipality or county in a special
nonreverting planning commission fund to be available for
expenditures by the planning commission for the purpose
designated by the donor. The disbursing officer of amunicipality 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 beconsidered as a comprehensive plan for any town or village
without the consent of any planning commission and the governing
body of such town or village. The county plan shall be
coordinated with the plans of the state road commission, insofar
as it relates to highways or thoroughfares under the jurisdiction
of that commission. A county planning commission may prepare,
and the county
court commission is empowered and authorized to
adopt, a comprehensive plan and zoning ordinance for either the
entire county, or for any part or parts thereof which constitute
an effective region or regions for planning and zoning purposes
without the necessity of adopting a plan and ordinance for any
other part. In determining what constitutes an effective region
or regions for planning and zoning purposes, due consideration
shall be given to such factors as population density, health,
general welfare, water and sanitation requirements, and future
potential for residential, commercial, industrial or public use.
The procedure for the preparation and adoption of a
comprehensive plan and zoning ordinance for a part of such county
shall be the same as the procedure for the preparation and
adoption of a plan and ordinance for the entire county, except
that the election provided for in section forty-eight of this
article shall be restricted to the qualified electors residing
within the part or parts affected.
The comprehensive plan, with the accompanying maps, plats,
charts and descriptive and explanatory matter, shall show
recommendations for the development of the territory covered bythe plan and may include, among other things, the general
location, character and extent of streets, viaducts, bridges,
waterways and waterfront developments, parkways, playgrounds,
forests, reservations, parks, airports and other public ways,
grounds, places and spaces; the general location and extent of
publicly owned utilities and terminals, and other purposes; the
acceptance, widening, removal, extension, relocation, narrowing,
vacation, abandonment or change of use of any of the foregoing
public ways, grounds, places, spaces, buildings, properties,
utilities or terminals; the general character, location and
extent of community centers, municipal sites or housing
development; the general location and extent of forests,
agricultural areas and open-development areas for the purposes of
conservation, food and water supply, sanitary drainage facilities
or the protection of urban development; a land classification and
utilization program; the distribution of population, and the uses
of land for trade, industry, habitation, recreation, agriculture,
forestry, soil and water conservation and other purposes.
In the preparation of a comprehensive plan, a planning
commission shall make careful and comprehensive surveys and
studies of the existing conditions and probable future changes of
such conditions within the territory under its jurisdiction. The
comprehensive plan shall be made with the general purpose of
guiding and accomplishing a coordinated, adjusted and harmonious
development of the area which will, in accordance with present
and future needs and resources, best promote the health, safety,morals, order, convenience, prosperity or general welfare of the
inhabitants, as well as efficiency and economy in the process of
development, including, among other things, such distribution of
population and of the uses of land for urbanization, trade,
industry, habitation, recreation, agriculture, forestry and other
purposes as will tend:
(1) To create conditions favorable to health, safety,
transportation, prosperity, civic activities and recreational,
educational and cultural opportunities;
(2) To reduce the wastes of physical, financial or human
resources which result from either excessive congestion or
excessive scattering of population; and
(3) Toward the efficient and economic utilization,
conservation and production of the supply of food and water and
of drainage, sanitary and other facilities and resources.
§8-24-17. Same -- Contents.
A comprehensive plan, with accompanying maps, plats, charts
and descriptive and explanatory matter shall show the planning
commissions recommendations for the development of the area
covered by the plan and shall include, among other things:
(a) A statement of goals and objectives of the county or
municipality concerning its future development, including, but
not limited to, the location, character and timing of future
development;
(b) A land use element which designates the proposed general
distribution, location, intensity, extent and timing of such usesof land for 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;
(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) An environmental element for the protection,
conservation, development and utilization of natural resources,
including forests, soils, rivers and other waters, fisheries,
wildlife, minerals and other natural resources. The element may
also address the reclamation of land, flood control, the
prevention of pollution of streams and other waters, regulation
for the use of land on hillsides, stream channels and other
environmentally sensitive areas, the prevention, control and
correction of erosion of soils, the protection of watersheds and
wetlands, and the mapping of known geological hazards;
(e) A community facilities and other utilities element
showing general plans for water, sewage, waste disposal,
drainage, local utilities, utility corridors, 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, utilities, services and uses;
(f) A housing element consisting of plans and programs to
meet the housing needs of the community which may include
conservation of presently sound housing, rehabilitation, new
housing, elimination of blight and community redevelopment;
(g) An economic element 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;
(h) A statement of interrelationships among the various plan
components, which may include an estimate of the environmental,
energy conservation, fiscal, economic and social consequences of
the plan on the county or municipality;
(i) 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;
(j) A statement indicating the relationship of existing and
proposed development of the county or municipality to the
existing and proposed development and plans of municipalities
within the county or to the county to which a municipality is a
part. A statement indicating the relationship of existing andproposed development of the county or municipality to the
existing and proposed development and plans of contiguous
counties and municipalities; and
(k) Any other such elements that the planning commission may
feel appropriate for the community.
§8-24-17a. Same -- Time frame for preparation, adoption and
updating of comprehensive plan.
Any planning commission created after the effective date of
this article shall 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. Any planning commission created
prior to the effective date of this article that has not prepared
and recommended for adoption to the local governing body a
comprehensive plan shall prepare and recommend a plan that meets
the requirements of this article within three years of the
effective date of this article. The above requirements shall not
constitute grounds for dissolution of, or withdrawal of financing
support for, a duly constituted planning commission by, the local
governing body.
A planning commission shall periodically review its
comprehensive plan every five years and it shall thoroughly
revise or update its comprehensive plan every ten years.
Following the enacting of this article a planning commission
shall have up to three years to comply with this updatingrequirement. Any update or amendment to any comprehensive plan
after the effective date of this article 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 agencies and
local governmental units are directed to adopt procedures
designed to provide effective process, including identification
of development problems, concerns and needs, formulation of
goals, objectives, policies and alternatives, and formulation of
implementing ordinances and programs. The provisions and
procedures required in this article are set out as the minimum
requirements towards this end.
During consideration of the proposed plan or amendments
thereto by the local planning agency or by the local governing
body, the procedures shall provide for broad dissemination of the
proposals and alternatives, opportunity for written comments,
public hearings as provided herein, provisions for open
discussions, communications programs, information services and
consideration of and response to public comments.
Prior to the adoption of a comprehensive plan, a commission
shall give notice, as hereinafter in this section specified, and
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, thecommission shall publish a 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
courtcommission, the governing body of the municipality or the county
court commission shall proceed to a consideration of the plan and
ordinance and shall either adopt, reject or amend the same. If
the ordinance adopting the comprehensive plan is published, the
plan may be incorporated by reference in the ordinance and the
full text of said plan not published.
§8-24-22. Same -- Rejection or amendment by governing body or
county commission; consideration and report by commission.
If the governing body of the municipality or the county
court commission rejects the plan and ordinance or amends it,
then it shall be returned to the commission for its
consideration, with a written statement of the reasons for its
rejection or amendment.
The commission shall have
forty-five sixty days in which to
consider the rejection or amendment and report thereon to the
governing body of the municipality or to the county
court
commission. If the commission approves the amendment, the
ordinance shall stand as adopted by the governing body of the
municipality or the county
court commission as of the date of the
filing of the commission's report with the governing body of the
municipality or with the county
court commission. If the
commission disapproves the rejection or amendment, it shall state
its reasons in the report, and the governing body of the
municipality or the county
court commission shall again consider
said plan and ordinance, and its action in rejecting or amending
said plan and ordinance, after such consideration, shall befinal.
In case the commission does not file a report with the
governing body of the municipality or with the county
court
commission within
forty-five sixty days, the action in rejecting
or amending the ordinance shall be final.
§8-24-23. Same -- Amendment of plan and ordinance after
adoption.
After the adoption of a comprehensive plan and ordinance,
all amendments to it shall be adopted according to the procedures
set forth in sections eighteen through twenty-two of this
article,
except that publication of notice of the date, time and
place of hearing upon amendment of the zoning ordinance need be
only fifteen or more days prior to the date set for such hearing,
and except that, if the governing body of the municipality or the
county
court commission desires an amendment, it may direct the
planning commission to prepare an amendment and submit it to
public hearing within sixty days after formal written request by
the governing body of the municipality or by the county
court
commission.
§8-24-27. Same -- Intergovernmental review and coordination of
plans.
Upon preparation of a proposed comprehensive plan or plan
amendment and at least forty-five days prior to the public
hearing required in section eighteen, article two of this
chapter, the planning commission shall forward a copy of the
proposed plan or amendment to the planning commission of allcontiguous municipalities and counties for review and comment
with respect to coordination with existing plans. Where no such
planning commission exists, a copy of the same shall be forwarded
to the local governing body for review and comment. 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, and to the state planning office for review
and comment with respect to coordination with existing state
plans and policies.
The transportation element of the comprehensive plan shall
be forwarded to the state department of transportation for its
review and comments.
The comments of these jurisdictions shall be considered by
the planning commission prior to the adoption of the
comprehensive plan or amendment, however, 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 -- Compliance with the comprehensive plan.
When the planning commission has adopted and certified the
comprehensive plan for one or more major sections or functional
subdivisions thereof, no public improvement, public facility or
public utility of a type embraced within the recommendations of
the comprehensive plan or portion thereof may be constructed
without first being submitted to and being approved by theplanning commission as being in conformity with the plan. If the
planning commission does not make a report within sixty days, the
project is deemed to have been approved by the planning
commission. If the planning commission finds that any such
proposed public improvement, facility or utility does not conform
to the plan, the commission shall submit, in writing to the
governing body, 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, and
the plan for the area concerned is deemed to have been amended.
When the planning commission has reviewed a capital
improvement program and found that a specific public improvement,
public facility or public utility of a type embraced within the
recommendations of the comprehensive plan or portion thereof are
in conformity with such plan, no further approval by the planning
commission is 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 themunicipality 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.
Different subdivision regulations are hereby authorized for
residential, commercial and industrial subdivisions or a mixture
thereof. Special subdivision regulations are also authorized for
planned developments (or planned unit developments) as may be
authorized, in part, under the zoning ordinances adopted by the
local governing bodies.
§8-24-29a. Same -- 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 effective date of this section, shall include plans
for the establishment of a homeowners' association which shall
include provisions for the maintenance by the association of the
streets, roads, common areas, water, sanitary and storm seweragesystems within the bounds or along the perimeter of the
subdivision.
As an alternative to the formation of a homeowners'
association, a street or road maintenance agreement may be
substituted which clearly outlines road maintenance
responsibilities. The road maintenance agreement may be used
where public water, sewer (sanitary and storm) and other
infrastructure are already being provided.
The provisions of this section 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 harmonious 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;
(6) Provision for drainage, erosion and sediment control;
and
(7) Any other provisions that the planning commission deems
appropriate to serve the public health, safety and welfare.
§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 shallbear 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 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 constitutes a separate violation.
§8-24-35. Same -- Jurisdiction and control; inconsistent
provisions for platting control repealed.
After a comprehensive plan and an ordinance containing
provisions for subdivision control and the approval of plats and
replats have been adopted and a certified copy of the ordinance
has been filed with the clerk of the county
court commission as
aforesaid, the municipal planning commission, in the case of a
municipal plan and ordinance, shall have exclusive control over
the approval of all plats involving land covered by such
municipal plan and ordinance and located within the corporate
limits of such municipality, and the county planning commission,
in the case of a county plan and ordinance, shall have exclusive
control over the approval of plats involving unincorporated lands
covered by such county plan and ordinance and located within its
jurisdiction.
All control over plats granted by other statutes, so far as
such statutes are in harmony with the provisions of this article,shall be transferred to the commission having jurisdiction over
the lands involved. Existing provisions for platting control, so
far as they are inconsistent with the provisions of this article,
are hereby repealed to the extent of such inconsistency.
PART VI. SAME -- IMPROVEMENT LOCATION PERMITS.
§8-24-36. Improvement location permits -- Conformity of
structure to comprehensive plan and ordinance.
After a comprehensive plan and an ordinance containing
provisions for subdivision control and the approval of plats and
replats have been adopted and a certified copy of the ordinance
has been filed with the clerk of the county
court commission as
aforesaid, within the corporate limits of the municipality, a
structure shall not be located and an improvement location permit
for a structure on platted or unplatted lands shall not be issued
unless the structure and its location conform to the
municipality's comprehensive plan and ordinance. A structure
shall not be located and an improvement location permit shall not
be issued for a structure on unincorporated lands within the
jurisdiction of the county planning commission unless the
structure and its location conform to the county's comprehensive
plan and ordinance.
§8-24-37a. Same -- Fee for processing improvement location
permit.
The governing body of any county or municipality may
prescribe and charge a reasonable fee not exceeding one hundred
fifty dollars for processing an improvement location permit.
§8-24-39a. Same -- Additional powers.
Any governing body of a municipality or a county commission
may adopt zoning regulations including any of the following
provisions:
(a)
Agricultural and rural residential, forest and
recreational districts. -- Where it is deemed necessary to
safeguard certain areas from urban or suburban development and to
encourage such development in other areas of the municipality or
region, the following districts may be created:
Agricultural and rural residential districts, permitting all
types of agricultural uses, and prohibiting all other land
development except for residential lots of a minimum acreage to
be determined by the planning commission;
Forest districts, permitting commercial forestry and related
uses and prohibiting all other land development; and
Recreational districts, permitting camps, ski areas and
related recreational facilities including lodging for transients
and seasonal residents and prohibiting all other land development
except for construction of residences for occupancy by caretakers
and their families.
(b)
Conditional uses. -- In any district, certain uses may
be permitted only by approval of the planning commission if
general and specific standards to which each permitted use must
conform are prescribed in the zoning regulations and if the
planning commission after public notice and public hearing
determines that the proposed use will conform to such standards. Such general standards shall require that the proposed
conditional use may not adversely affect:
The capacity of existing or planned community facilities;
The character of the area affected;
Traffic on roads and highways in the vicinity;
Bylaws then in effect; or
Utilization of renewable energy resources.
The specific standards may include requirements with respect
to:
Minimum lot size;
Distance from adjacent or nearby uses;
Performance standards, as under subdivision (f) of this
section;
Minimum off-street parking and loading facilities;
Landscaping and fencing;
Design and location of structures and service areas;
Size, location and design of signs; and
Any other factors the zoning regulations may include.
In granting such conditional use, the board may attach such
additional reasonable conditions and safeguards as it may deem
necessary to implement the purposes of this chapter and the
zoning regulations. The planning commission shall act to approve
or disapprove any requested conditional use within sixty days
after the date of the final public hearing held under this
section, and failure to so act within such period is deemed
approval.
(c)
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.
(d)
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 to protecting the utilization of
renewable energy resources. 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.
(e)
Design control districts. -- Zoning regulations may
contain provisions for the establishment of design control
districts. Prior to the establishment of a district, the
planning commission shall prepare a report describing the
particular planning and design problems of the proposed district
and setting forth a design plan for the areas which shall include
recommended planning and design criteria to guide futuredevelopment. 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 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. The areas may include townscape areas
which resemble in important aspects the earliest permanent
settlements, including a concentrated urban settlement with
striking vistas, views extending across open fields and up to the
forest edge, a central focal point and town green, and buildings
of high architectural quality including styles of the early
nineteenth century. 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.
(f)
Performance standards. -- As an alternative or
supplement to the listing of specific uses permitted in districts
specifically in, but not limited to, manufacturing or industrial
districts, zoning regulations may specify acceptable standards orlevels of performance which will be required in connection with
any use. The regulations shall specifically describe the levels
of operation which are acceptable and not likely to affect
adversely the use of the surrounding area by the emission of such
dangerous or objectionable elements as noise, vibration, smoke,
dust, odor, or other form of air pollution, heat, cold, dampness,
electromagnetic or other disturbance, glare, liquid or solid
refuse or wastes; or create any dangerous, injurious, noxious,
fire, explosive or other hazard. The land planning policies and
development regulations manual shall contain recommended forms of
alternative performance standards, and the assistance of the
agency of development and community affairs shall be available to
any municipality which requests aid in the adoption or
enforcement of such regulations.
(g)
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. However, this provision does not apply to mining
or quarrying.
(h)
Flood plan areas, special control. -- Within any area
designated by the army corp of engineers as subject to periodic
flooding, the permitted uses, type of construction and height of
floor levels above ground may be regulated in order to lessen or
avoid the hazards to persons and damage to property resultingfrom the accumulation of storm or flood waters.
(i)
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 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.
(j)
Planned unit development. -- Any governing body may
adopt zoning regulations providing for planned unit 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 unit development
shall describe the standards and conditions by which a proposed
planned unit 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 belimited to:
Dwelling units in detached, or multistoried structures, or
any combination thereof;
Any nonresidential use;
Public and private educational facilities; and
Industrial uses and buildings.
The zoning regulations may authorize the planning commission
to allow for a greater concentration of density, of intensity of
residential land use, within some sections of the development
than upon others. The zoning regulations may require that the
approval by the planning commission of a greater concentration of
density or intensity by residential land use for any section to
be developed by offset by a lesser concentration in any other
section or by an appropriate reservation of common open space on
the remaining land by a grant of easement or by covenant to the
municipality.
(k)
Time-share projects. -- For purposes of this section a
"time-share project" means a project involving real property
containing an interest acquired by means of a time-share estate
or a time-share license. A "time-share estate" is a right to
occupy a unit or any of several units during separated time
periods coupled with a freehold estate or an estate for years in
a time-share property or a specified portion thereof. A "time-
share license" means a right to occupy a unit or any of several
units during separate time periods, including renewal options,
not coupled with a freehold estate or an estate for years.
A governing body may vote to declare projects consisting of
five or more time-share estates or licenses to be subject to this
chapter, and by so doing is authorized to provide for such
projects in the municipal plan and zoning regulations in the same
manner as other uses.
§8-24-41. Zoning districts -- Preliminary study.
In establishing such districts and rules
and regulations the
governing body of a municipality or the county
court commission
shall give reasonable regard to existing conditions, the
character of buildings erected in each district, the most
desirable use for which the land in each district may be adapted
and the conservation of property values throughout the
municipality or county.
PART X. SAME -- SAME -- PROCEDURES.
§8-24-42. Procedures -- Tentative report; notice and hearings.
Recommendations as to the boundaries of districts and the
rules and regulations and restrictions to be enforced therein
shall be prepared by the planning commission. The commission may
prepare the tentative report on its own initiative or the
governing body of the municipality or the county
court commission
may require its preparation.
The commission shall hold public preliminary hearings and
conferences, on such dates and at such times and places and upon
such notice as it may determine to be necessary to inform and aid
itself in the preparation of the tentative report.
In planning a proposed zoning ordinance, the planningcommission should hold at least one public hearing pursuant to
public notice and may hold additional public meetings upon such
notice as it determines advisable.
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 forthe 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.
§8-24-45. Supplemental and amending ordinances.
The governing body of a municipality or the county
court
commission may, from time to time, amend, supplement or change
the rules
and regulations and districts fixed by ordinance
hereunder.
§8-24-45a. Findings necessary for proposed map amendment.
Before any zoning map amendment is granted, the planningcommission 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 -- 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 -- Considered as amendments
to comprehensive plan; notice and hearing.
Amendments, supplements or changes of the rules
and
regulations of the zoning ordinance shall be considered as
amendments to the comprehensive plan. Any proposed ordinance for
the amendment, supplement, change or repeal of the zoning
ordinance not originating upon petition of the planning
commission shall be referred to the planning commission for
consideration and report before any final action is taken by the
governing body of the municipality or the county
court
commission.
Prior to submission to the governing body of a municipality
or to the county
court commission of a planning commission
petition or a report on a proposed ordinance referred to it for
an amendment, supplement, change or repeal of the zoning
ordinance, the planning commission shall give notice and hold a
public hearing in the manner prescribed for adoption of a
comprehensive plan in section eighteen of this article, except
that publication of notice of the date, time and place of hearing
upon a proposed amendment, supplement, change or repeal of the
zoning ordinance need be made only
fifteen thirty or more days
prior to the date set for such hearing.
The governing body shall likewise hold a public hearing
prior to amending the zoning ordinance or map in the manner
prescribed in section eighteen.
In case the proposed amendment, supplement or change is
disapproved by the commission, or a protest be duly signed and
acknowledged by the owners of twenty percent or more of the
frontage proposed to be altered, or by the owners of twenty
percent of the frontage immediately in the rear thereof, or by
the owners of twenty percent of the frontage directly opposite
the frontage proposed to be altered, such amendment, supplement
or change shall not be passed except by an affirmative vote of at
least two thirds of the members of the governing body.
PART XII. SAME -- ELECTION ON ZONING ORDINANCE.
§8-24-48. Election on zoning ordinance; form of ballots or
ballot labels; procedure.
If, within sixty days following adoption of the zoning
ordinance by the governing body of the municipality or by the
county
court commission, a petition is filed with the recorder or
the clerk of the county
court commission praying for submission
of such zoning ordinance for approval or rejection to the
qualified voters residing in the area within the jurisdiction of
the municipal or county planning commission, such ordinance shall
not take effect until the same shall have been approved by a
majority of the legal votes cast thereon at any regular primary
or general election or special election called for that purpose.
The petition may be in any number of counterparts but must be
signed in their own handwriting by a number of qualified voters
residing in the area affected by the proposed zoning equal,
notwithstanding the provisions of subdivision (10), subsection
(b), section two, article one of this chapter, to not less than
fifteen percent of the total legal votes cast in the affected
area for all candidates for governor at the last preceding
general election at which a governor was elected. Only qualified
voters residing in the area affected by the proposed ordinance
shall be eligible to vote with respect thereto.
Upon the ballots, or ballot labels where voting machines are
used, there shall be written or printed the following:
/ / For Zoning
/ / Against Zoning
If a majority of the legal votes cast upon the question be
for zoning, the provisions of said zoning ordinance shall, uponthe date the results of such an election are declared, be
effective. If a majority of the legal votes cast upon the
question be against zoning, said zoning ordinance shall not take
effect, but the question may again be submitted to a vote at any
regular primary or general election in the manner herein
provided.
Subject to the provisions of the immediately preceding
sentence, voting upon the question of zoning may be conducted at
any regular primary or general election or special election, as
the governing body of the municipality or the county
court
commission in its order submitting the same to a vote may
designate.
Notice of all elections at which the question of zoning is
to be voted upon shall be given by publication of the order
calling for a vote on such question as a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication shall be the area in which voting on the
question of zoning is to be conducted.
Any election at which the question of zoning is voted upon
shall be held at the voting precincts established for holding
primary or general elections. All of the provisions of the
general election laws of this state concerning primary, general
or special elections, when not in conflict with the provisions of
this article, shall apply to voting and elections hereunder,
insofar as practicable.
PART XIII. SAME -- EXISTING ORDINANCES AND USES.
§8-24-49. Validation of existing ordinances.
All zoning ordinances, and all amendments, supplements and
changes thereto, legally adopted under any prior enabling acts,
and all actions taken under the authority of any such ordinances,
are hereby validated and continued in effect until amended or
repealed by action of the governing body of the municipality or
the county
court commission taken under authority of this
article. These ordinances shall have the same effect as though
previously adopted as a comprehensive plan of land use or parts
thereof.
§8-24-50. Existing uses safeguarded.
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 and, with the exception of
land within urban areas as well as high density development in
incorporated areas of the county as defined by the planning
commission, this prohibition shall not apply to the use of landpresently owned by any farm, industry or manufacturer but not
used for agricultural, industrial or manufacturing purposes, or
to the use or acquisition of additional land which may be
required for the protection, continuing development or expansion
of any agricultural, industrial or manufacturing operation or any
present or future satellite agricultural, industrial or
manufacturing use. 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, 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.
§8-24-50b. Permitted use for group residential facility.
(a) A group residential facility as defined in article
seventeen, chapter twenty-seven of this code, shall be a
permitted residential use of property for the purposes of zoningand shall be a permitted use in all zones or districts. No
county commission, governing board of a municipality or planning
commission, shall require a group residential facility, its owner
or operator, to obtain a conditional use permit, special use
permit, special exception or variance for location of such
facility in any zone or district or discriminate in regard to
housing in any other regard:
Provided, That a county commission,
governing board of a municipality or planning commission may
require a group residential facility, its owner or operator, to
obtain a conditional use permit, special use permit, special
exception or variance if the home is to be in a zone or district
restricted to single-family residences and is to be occupied by
more than six individuals who are developmentally disabled and
three supervisors, or is to be occupied by the behaviorally
disabled within a zoning district or zone restricted solely to
single-family residences with no allowance for duplexes,
apartments or other multifamily use of a single parcel of
property.
(b) When an application to operate such a group residential
facility, in a district or zone limited to single-family
residences, is submitted to the
department division of health or
the
department division of human services for the issuance of a
license, as required by the provisions of said article seventeen,
chapter twenty-seven, upon receipt of said application, the
director of the
department division of health or the commissioner
of the
department division of human services shall give writtennotice of such application to the county commission, governing
board of a municipality or planning commission within whose
jurisdiction the proposed facility lies. The county commission,
governing board of a municipality or planning commission shall
have thirty days in which to file objections or request a hearing
with the
department division of health or the
department division
of human services. Upon the filing of such objections or hearing
request, the director of the
department division of health or the
commissioner of the
department division of human services shall
hold a hearing. The state board of health shall promulgate
regulations rules governing the conduct of such hearings and
applicable standards pursuant to chapter twenty-nine-a of this
code:
Provided, That the owner or operator of such group
residential facility shall, in all cases of such facilities
located within zoning districts or zones, submit an application
for any required zoning or occupancy permit allowed under
provisions of this section to the appropriate zoning permit
agency on or before the date of submission of the application to
the
department division of health or the
department division of
human services.
(c) The provisions of this section shall not exempt any such
residence from the structural requirements of any bona fide
historic preservation district.
PART XIV. SAME -- BOARD OF ZONING APPEALS --
ORGANIZATION AND FUNCTION.
§8-24-51. Board of zoning appeals -- Creation; membership;
terms; vacancies.
As a part of the zoning ordinance, the governing body of the
municipality or the county
court commission shall create a board
of zoning appeals consisting of five members to be appointed by
the governing body of the municipality or by the county
court
commission, as the case may be.
The members of the board of zoning appeals shall be
individuals who are
freeholders and residents of the municipality
or county, as the case may be, and at least three fifths of such
members must have been residents of the municipality or county,
as the case may be, for at least ten years preceding the time of
their appointment. No member of the board of zoning appeals
shall be a member of the planning commission nor shall any member
hold other elective or appointive office in the municipal or
county government. Members of the board shall serve without
compensation, but shall be reimbursed for all reasonable and
necessary expenses actually incurred in the performance of their
official duties.
Upon the creation of a board of zoning appeals, the members
shall be appointed for the following terms: One for a term of
one year; two for a term of two years; and two for a term of
three years. The terms shall expire on the first day of January
of the first, second and third year, respectively, following
their appointment. Thereafter, as their terms expire, each new
appointment shall be for a term of three years.
If a vacancy occurs, by resignation or otherwise, among themembers 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 shallprovide by appropriation a sum sufficient to defray the
reasonable expenses of the board.
PART XV. SAME -- SAME -- POWERS, AUTHORITY AND DUTIES.
§8-24-55. Board of zoning appeals -- Powers, authority and
duties.
The board of zoning appeals shall:
(1) Hear and determine appeals from and review any order,
requirement, decision or determination made by an administrative
official or board charged with the enforcement of any ordinance
or rule
and regulation adopted pursuant to sections thirty-nine
through forty-nine of this article;
and
(2) Permit and authorize exceptions to the district rules
and regulations only in the classes of cases or in particular
situations, as specified in the ordinance;
(3) Hear and decide special exceptions to the terms of the
ordinance upon which the board is required to act under the
ordinance; and
(4) (2) Authorize upon appeal in specific cases such
variance from the terms of the ordinance as will not be contrary
to the public interest, where, owing to special conditions, a
literal enforcement of the provisions of the ordinance will
result in unnecessary hardship, and so that the spirit of the
ordinance shall be observed and substantial justice done.
In exercising its powers and authority, the board of zoning
appeals may reverse or affirm, in whole or in part, or may modify
the order, requirement, decision or determination appealed from,as in its opinion ought to be done in the premises, and to this
end shall have all the powers and authority of the official or
board from whom or which the appeal is taken.
§8-24-55a. Same -- Granting of variances.
The board, when it shall deem the same necessary, may grant
variances from the zoning regulations on the basis and in the
manner hereinafter provided: To authorize in specific cases a
variance from the specific terms of the regulations which will
not be contrary to the public interest and where, due to special
conditions, a literal enforcement of the provisions of the
regulations, in an individual case, results in unnecessary
hardship, and provided that the spirit of the regulations shall
be observed, public safety and welfare secured, and substantial
justice done. Such variance shall not permit any use not
permitted by the zoning regulations in such district. A request
for a variance may be granted in such case, upon a finding by the
board that all of the following conditions have been met: (1)
That the variance requested arises from such condition which is
unique to the property in question and which is not ordinarily
found in the same zone or district; and is not created by an
action or actions of the property owner or the applicant; (2)
that the granting of the permit for the variance will not
adversely affect the rights of adjacent property owners or
residents; (3) that the strict application of the provisions of
the zoning regulations of which variance is requested will
constitute unnecessary hardship upon the property ownerrepresented 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.
PART XVIII. ENFORCEMENT PROVISIONS.
§8-24-66. Enforcement.
The governing body of a municipality or the county
court
commission may provide penalties, as set out in section sixty-
eight of this article, for failure to comply with the provisions
of any ordinance or rule
and regulation adopted pursuant to the
provisions of this article and may 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 sections thirty-nine
through sixty-five of this article shall be common nuisances and
the owner of the building, land or premises shall be liable for
maintaining a common nuisance.
§8-24-68. Penalty.
Any person who violates any provision of this article
shall
be is guilty of a misdemeanor, and, upon conviction
thereof,
shall be fined not less than ten dollars nor more than three
hundred dollars.
PART XIX. CONSTRUCTION; SPECIAL PROVISIONS; REPEALER.
§8-24-69. Provisions supplemental; special provisions
concerning state-supported institutions of higher education.
The planning and zoning provisions of this article are
supplemental to and do not abrogate the powers and authority
extended to agencies, bureaus, departments, commissions,
divisions and officials of the state government by other state
statute and these powers and authority shall remain in full force
and effect. The powers of supervision and regulation by such
divisions of the state government over municipal, county and
other local governmental units and persons are also not abrogated
and shall continue in full force and effect. If the county
court
commission of any county in which a state-supported institution
of higher education is situate shall not create a county planning
commission as contemplated herein, the county
court commission of
such county is hereby authorized to enact an ordinance for the
zoning of any unincorporated territory in said county within one-
half mile of the campus of any such state-supported institution
of higher education, and with respect to the zoning of such
territory, any such county
court commission shall have the same
power and authority as are conferred hereunder upon
municipalities.
§8-24-79. Official map.
Any county commission or the governing body of any
municipality is hereby empowered, after receiving the advice of
their respective planning commission, to adopt an official map of
the county or municipality showing the public highways, streets
and roads (hereinafter referred to as waterways); public parks,
parkways, school sites, playgrounds, sites for public buildingsor public works including subsurface facilities and utilities
(hereinafter referred to as public areas) in which the
acquisition, financing, or construction of which the municipal,
county or state government has participated or may be called upon
to participate.
§8-24-80. Preparation of official map.
The planning commission of a county or a municipality may
make, or cause to be made, an official map showing the locations
of:
(a) Legally established public streets, waterways and public
areas of the county or municipality; and
(b) Future or proposed public streets, waterways and public
areas.
The placing of any street, or future or proposed street,
line upon the official map is not deemed to constitute the
opening or establishment of any street, nor the taking or
acceptance of any land for street purposes, nor may it obligate
the county or the municipality either to improve or maintain any
such street. Nor may the inclusion of proposed waterways or
public areas be deemed a taking or acceptance of any land for
public purpose.
No future or proposed street or street line, waterway, or
the metes and bounds of such public area, have been fixed or
determined in relation to known, fixed and permanent monuments by
a physical survey or serial photographic survey thereof. County
and municipal planning commissions are hereby empowered to makeor cause to be made the surveys required under the provisions of
this section.
The responsibility of coordinating the municipal official
maps and the county official maps shall lie with the county
planning commission. The responsibility for coordinating the
official maps of adjacent counties shall lie with the regional
planning and development councils.
§8-24-81. Adoption of official map.
After the map has been prepared by the local planning
commission, it shall be certified by the planning commission to
the governing body of the county or municipality. The governing
body may then approve and adopt the same by a majority vote of
the membership thereof and publish it as the official map of the
county or municipality. No official map may be adopted by the
governing body or have any effect until approved by ordinance
duly passed by the governing body of the county or municipality
after a public hearing, preceded by public notice, to be
published at least thirty days prior to the public hearing as a
Class I publication.
Within thirty days after adoption of the official map, the
governing body shall cause it to be filed in the office of the
clerk of the county commission.
§8-24-82. Notice to other municipalities.
(a) When any county has adopted an official map in
accordance with the terms of this article, a certified copy of
the map and the ordinances adopting it shall be sent to everymunicipality within said county. All amendments shall be sent to
the aforementioned municipalities. The powers of the governing
bodies of counties to adopt, amend and repeal official maps are
limited to land and watercourses in those municipalities wholly
or partly within the county which have no official map in effect
at the time an official map is introduced before the governing
body of the county, and until the municipal official map is in
effect. The adoption of an official map by any municipality,
other than a county, whose land or watercourses are subject to
county official mapping, constitutes a repeal provision of the
county official map within the municipality adopting such
ordinance.
(b) When a municipality proposes to adopt an official map,
or any amendment thereto, a copy of the map and the proposed
ordinance adopting it, or any amendment thereto, shall be
forwarded for review to the county planning commission, or if no
such commission exists to the governing body of the county at the
same time, it is submitted for review to the municipal planning
commission. The comments of the county planning commission shall
be made to the governing body of the municipality within forty-
five days, and the proposed action shall not be taken until such
comments are received. If, however, the adjacent municipality
fails to act within forty-five days, the governing body may
proceed without its comments.
(c) If any municipality proposes to adopt an official map,
or amendment thereto, that shows any street or public landsintended to lead into any adjacent municipality, a copy of the
official map or amendment shall be forwarded to such adjacent
municipality for review and comment by the governing body and
planning commission of the adjacent municipality. The comments
of the adjacent community shall be made to the governing body of
the municipality proposing the adoption within forty-five days
and the proposed action shall not be taken until such comments
are received. If, however, the adjacent municipality fails to
act within forty-five days, the governing body of the proposing
municipality may proceed without its comments.
§8-24-83. Additions and modifications.
After adoption of the official map, all streets, waterways
and public areas on subsequently recorded plats of subdivisions
are deemed additions or modifications of the official map and
shall be placed thereon. No public hearing needs to be held or
notice given in this instance.
The governing body may, by ordinance, make, from time to
time, other additions to or modifications of the official map by
placing thereon the location of proposed streets, street widening
or street vacations, waterways and public areas in accordance
with the following procedures:
(a) Prior to making any such additions or modifications to
the official map, the governing body shall refer the same to
their local planning commission for its consideration. The
planning commission shall take action on such proposed additions
or modifications within sixty days and report its recommendationsto the governing body.
(b) Upon the receipt of the report of the planning
commission, the governing body shall hold a public hearing on the
proposed addition or modification to the official map and shall
give public notice at least fifteen days prior to such hearing.
All such reports of the planning commission, when delivered to
the governing body, shall be available for public inspection.
(c) The planning commission may propose additions or
modifications to the official map by initiating recommendations
to the governing body. If the governing body agrees with the
need for the additions or modifications recommended by the
planning commission, the procedures stated in subsection (b) of
this section shall be followed.
(d) Any ordinance embodying additions to or modifications of
the official map shall be adopted by at least the vote required
for original adoption of the official map. After the public
hearing and the final passage of such ordinance, the additions or
modifications shall become a part of the official map of the
county or municipality. All changes, additions or modifications
of the official map shall be filed with the clerk of the county
commission.
§8-24-84. Periodic review and readoption.
During the preparation of an official map, the local
planning commission shall consult with the state division of
highways as to any streets under the jurisdiction of the division
of highways, and prior to recommendations to the division ofhighways, not incorporated in the official map, shall be
forwarded to the governing body when the map is recommended by
the local planning commission. When any county or municipality
has adopted an official map in accordance with this article, a
certified copy of the map and ordinance adopting it shall be sent
to the commissioner of the state division of highways.
§8-24-85. Permits.
Any person desiring to construct, alter or rebuild any
structure in the area marked upon the official map as an existing
or proposed street, waterway or public area must apply for a
permit to the local planning commission and disclose the specific
information required by that commission. Unless the application
is made and the permit granted or not denied within thirty days,
that person shall not be entitled to compensation for damage to
such structure in the course of construction of any street,
waterway or public area. The local planning commission in
considering the application for a permit for a structure
intruding into an area marked on the official map as an existing
or proposed public improvement, may grant such a permit if the
public proposed structure will as little as practical increase
the cost of the public improvement or tend to cause a change of
such official map, and the planning commission may impose
reasonable requirements as a condition of granting such permit.
§8-24-86. Time limitations on reservations for future taking.
The governing body may fix the time for which streets,
watercourses and public grounds on the official map shall bedeemed reserved for future taking or acquisition for public use.
However, the reservation for public grounds shall lapse and
become void one year after an owner of such property has
submitted a written notice to the governing body announcing his
intentions to build, subdivide or otherwise develop the land
covered by the reservation, or has made formal application for an
official permit to build a structure for private use, unless the
governing body has acquired the property or begun condemnation
proceedings to acquire the property before the end of the year.
§8-24-87. Appeal.
If the improvement location permit is denied, the applicant
may appeal the denial of the local governing body or its
designated appellant agency. Any decision of the appellant
agency is subject to review upon petition to the circuit court of
the county wherein the proposed improvement is located.
§8-24-88. 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 commonly found in separate codes and ordinances
dealing with the development of real estate. This can range from
zoning and subdivision regulations, to sign control, screening,
landscaping, drainage, flood control, sedimentation and erosion
control, parking, recreation facilities and open space. Within
such unified ordinances, the development enforcement officer may
be given greater discretion in administration, and the localgovernment may require more detailed analysis of development
including site plan review. Such ordinances may also include a
variety of different procedures and techniques to manage land
development, including those specifically listed in other parts
of this law, but not limited to them. Examples of techniques not
listed include flexible zoning, impact and development timing,
and plan-based administrative review procedure.
Such unified ordinances are to 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 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 zoning board of 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 in the planning
and zoning laws for urban and rural planning.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§8-24-17a, 27a, 28a, 29a, 33a, 37a, 39a, 45a, 55a, 79
through 88 are new; therefore, strike-throughs and underscoring
have been omitted.
§§8-24-17, 18 and 27 have been completely rewritten;
therefore, strike-throughs and underscoring have been omitted.
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