Senate Bill No. 700
(By Senator Bowman)
____________
[Introduced February 18, 2002; referred to the Committee
on Government Organization; and then to the Committee on the
Judiciary.]
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A BILL to amend and reenact sections three, five, six, seven,
eight, eleven, twelve, fifteen, sixteen, seventeen, eighteen,
twenty-seven, thirty, thirty-one, thirty-six, thirty-seven,
thirty-nine, forty, forty-six, fifty, fifty-b, fifty-one,
fifty-two, fifty-four, fifty-five, fifty-five-a, fifty-seven,
fifty-eight, fifty-nine, sixty-seven and sixty-eight, 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 six new sections,
designated sections seventeen-a, twenty-seven-a,
twenty-nine-a, thirty-three-a, thirty-seven-a and
thirty-nine-a, all relating generally to planning and zoning;
definitions; increasing and diversifying commission
membership; adding advisory members; including historic, recreational and heritage tourism sites in the plan; requiring
a comprehensive plan; promoting conservation of natural
resources; requiring a time frame for a comprehensive plan;
seeking public participation in developing the plan; giving
public notice of hearing on adoption of a new plan; providing
a timely copy of a proposed plan to contiguous counties and
municipalities; providing compatible development with the
municipality and the county; obtaining approval of the plan;
issuing building permits in conformance with development
objectives; obtaining zoning ordinances to require land use
conformance with the plan; requiring boundaries of zoning
districts to be put in map form; changing the form of zoning
appeals; and requiring the appeals board to keep records of
official actions.
Be it enacted by the Legislature of West Virginia:
That sections three, five, six, seven, eight, eleven, twelve,
fifteen, sixteen, seventeen, eighteen, twenty-seven, thirty,
thirty-one, thirty-six, thirty-seven, thirty-nine, forty,
forty-six, fifty, fifty-b, fifty-one, fifty-two, fifty-four,
fifty-five, fifty-five-a, fifty-seven, fifty-eight, fifty-nine,
sixty-seven and sixty-eight, 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 six new sections, designated sections seventeen-a, twenty-seven-a, twenty-nine-a, thirty-three-a,
thirty-seven-a and thirty-nine-a, all to read as follows:
ARTICLE 24. PLANNING AND ZONING.
PART I. URBAN AND RURAL PLANNING - PLANNING COMMISSIONS
AUTHORIZED; OBJECTIVE; DEFINITIONS.
§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 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 regulations as are deemed necessary and their
enforcement the adopted official statement of the governing body of
a municipality or county that sets forth (in text, maps,
illustrations and/or tables) goals, policies and guidelines
intended to direct the present and future physical, social and
economic development that occurs within its planning jurisdiction.
The comprehensive plan may include individual elements such as
proposed land use, transportation and infrastructure, community services, housing, historic preservation, economic development, and
other related matters which together provide for a unified physical
design for public and private development;
(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) "Factory-built home" includes modular homes and
manufactured homes;
(d) (e) "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) (f) "Historic landmark" is a site, building, structure or
object designated as a "Landmark" either on a national, state or
local register;
(f) (g) "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;
(h) "Manufactured home" means housing build in a factory
according to the federal manufactured home construction and safety
standards which went into effect on the fifteenth day of June, one
thousand nine hundred seventy-six;
(i) "Modular home" means housing built in a factory that meets
state or local building codes where the homes will be sited:
(g) (j) "Public place" includes any tracts owned by the state
or its subdivisions;
(h) (k) "Streets" includes streets, avenues, boulevards,
highways, roads, lanes, alleys and all public ways;
(l) "Subdivision" means the division of a parcel of land into
two or more lots or parcels for the purpose of transfer of
ownership or building development whether residential, commercial
or industrial in nature.
(i) (m) "Unit of government" means any federal, state,
regional, county or municipal government or governmental
corporation; and
(j) (n) "Utility" means any facility used in
rendering service
which the public has a right to demand providing direct local
distribution service to the public in accordance with the
provisions of chapter twenty-four of this code. "Utility" does not
include interstate natural gas pipelines and related pipeline facilities under the jurisdiction of the federal energy regulatory
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, real estate,
historic preservation, education, health and environmental matters
and other areas of community development deemed important by the
local governing body and who shall be nominated by the
administrative authority and confirmed by the governing body of the
municipality or appointed by the governing body where the
administrative authority and governing body are the same:
Provided, That in the case of commissions with greater than nine
members on the last of July, two thousand two, such vacancies
thereafter created by the expiration of the terms of members, but
not including ex officio members shall not be filled until the
number of members shall be reduced to not more than nine. At least
three fifths of all of the members must have been residents of the
municipality for at least one year prior to nomination and
confirmation or appointment. One member of the commission shall also be a member of the governing body of the municipality and one
member shall also be a member of the administrative department of
the municipality, the term of these two members to be coextensive
with the term of office to which they have been elected or
appointed, unless the governing body and administrative authority
of the municipality at the first regular meeting of the commission
each year designate others to serve as the municipality's
representatives. The remaining members of the commission first
selected shall serve respectively for terms of one year, two years
and three years, divided equally or as nearly equally as possible
between these terms. Thereafter, members shall be selected for
terms of three years each. A planning commission shall establish
procedures for the removal of any inactive. Vacancies shall be
filled for the unexpired term only, in the same manner as original
selections are made. Members of the commission shall serve without
compensation, but shall be reimbursed for all reasonable and
necessary expenses actually incurred in the performance of their
official duties.
§8-24-6. County planning commission generally.
A county planning commission shall consist of not less than
five nor more than fifteen individuals, the exact number to be
specified in the ordinance creating such commission, all of whom
shall be freeholders and residents of the county, who shall be
qualified by knowledge and experience in matters pertaining to the development of the county, who shall include representatives of
business, industry, labor and farming, real estate, historic
preservation, education, health and environmental matters and other
areas of community development deemed important by the local
governing body and who shall be appointed by the county commission.
At least three fifths of all of the members must have been
residents of the county for at least one year prior to appointment.
One member of the commission shall also be a member of the county
commission, the term of such member to be coextensive with the term
of office to which he has been elected, unless the county
commission at the first regular meeting of the commission each year
appoints another member to serve as its representative. The
remaining members of the commission first appointed shall serve
respectively for terms of one year, two years and three years,
divided equally or as nearly equally as possible between these
terms. Thereafter, members shall be appointed for terms of three
years each. A planning commission shall establish procedures for
the removal of any inactive member. Vacancies shall be filled by
appointment by the county commission for the unexpired term only.
Members of the commission shall serve without compensation, but
shall be reimbursed for all reasonable and necessary expenses
actually incurred in the performance of their official duties. An
individual may at the same time serve as a member of a municipal
planning commission and as a member of a county planning commission.
§8-24-7. Advisory members.
In the event a municipality which has or shall establish a
planning commission is located within or partly within a county
which has or shall have a county planning commission, a designated
representative of the county planning commission shall may be an
advisory member of the municipal planning commission. A designated
representative of a municipal planning commission of a municipality
located within or partly within a county which has or shall have a
county planning commission shall may
be an advisory member of the
county planning commission. A member of a municipal or county
historic landmark commission may also serve as an advisory member
to a planning commission. All such advisory members shall have all
the privileges of membership except the right to vote.
§8-24-8. Regular and special meetings.
The commission shall fix the time for holding regular
meetings, but it shall meet at least once in the months of January,
April, July and October. Special meetings of the commission may be
called by the president chair
or by at least two members upon written request to the secretary. Whether called by the president
chair
or by two or more members, the secretary shall send to all of
the members, at least two days in advance of a special meeting, a
written notice fixing the date, time and place of the meeting, but
written notice of a special meeting is not required if the date,
time and place of the special meeting have been fixed in a regular
meeting. or if all of the members are present at the special
meeting
§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 vice-chair shall have 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 of such
municipalities or counties All such appointments shall be approved or rejected by the governing body of the municipality or county.
A commission may make contracts for special or temporary
services and any professional counsel. The prosecuting attorney of
a county, upon request, shall, without additional compensation,
render legal assistance and service to the county planning
commission.
§8-24-15. Appropriations; expenditures; disposition of gifts;
participation in public 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 shall appropriate funds to carry
out the duties of the commission.
The planning commission shall have the power and authority to
expend, under regular municipal or county procedure as provided by
law, all sums appropriated to it for the purposes and activities
authorized under this article.
A municipality or county may accept gifts and donations for
planning commission purposes. Any moneys so accepted shall be
deposited with the municipality or county in a special nonreverting
planning commission fund to be available for expenditures by the
planning commission for the purpose designated by the donor. The
disbursing officer of a municipality or county shall draw warrants
against such special nonreverting fund only upon vouchers signed by
the president chair
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 compatible 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
municipalities to the extent to which, in the commission's
judgment, they are related to the planning of the unincorporated
territory of the county as a whole: Provided, That the plan shall
not be considered as a comprehensive plan for any towns or villages
municipalities
without the consent of any planning commission and the governing body of such towns or villages
municipalities.
The
county plan shall be coordinated with the plans of the state road
commission, insofar as it relates to highways or thoroughfares
under the jurisdiction of that commission. A county planning
commission may prepare, and the county court commission is
empowered and authorized to adopt, a comprehensive plan and zoning
ordinance for either the entire county, or for any part or parts
thereof which constitute an effective region or regions for
planning and zoning purposes without the necessity of adopting a
plan and ordinance for any other part. In determining what
constitutes an effective region or regions for planning and zoning
purposes, due consideration shall be given to such factors as
population density, health, general welfare, water and sanitation
requirements, and future potential for residential, commercial,
industrial or public use. The procedure for the preparation and
adoption of a comprehensive plan and zoning ordinance for a part of
such county shall be the same as the procedure for the preparation
and adoption of a plan and ordinance for the entire county, except
that the election provided for in section forty-eight of this
article shall be restricted to the qualified electors residing
within the part or parts affected.
The comprehensive plan, with the accompanying maps, plats,
charts and descriptive and explanatory matter, shall show
recommendations for the development of the territory covered by the plan and may include, among other things, the general location,
character and extent of streets, viaducts, bridges, waterways and
waterfront developments, historic districts or sites, parkways,
playgrounds recreational facilities, forests, reservations, parks,
open space preservation areas, viewsheds, 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, heritage tourism sites, historic sites or
districts, 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 wastewater 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 residential, commercial, industrial,
recreation, historic preservation, 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, governmental services and functions, and probable future changes of such conditions, governmental
services and functions 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
compatible development of the area which will, in accordance with
present and future needs, governmental services and functions, 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,
residential, commercial, industrial, recreation, tourism,
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, and, historic resources;
and
(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 To reduce
the destruction or demolition of historic sites and other resources; and
(4) To promote the efficient and sustainable utilization,
conservation and supply of natural resources; and
(5) To promote cost-effective development of community
facilities and services within the jurisdiction's ability to pay
for such.
§8-24-17. Same. -- Contents.
A comprehensive plan may include the following or a study of
the following shall include, but not be limited to, the following
related basic elements:
(a) Careful and comprehensive surveys and studies of existing
conditions and the probable future growth of the municipality and
its environs or of the county A statement of goals and objectives
of the county or municipality concerning its present and future
development, including, but not limited to, the location and
character of development;
(b) Maps, plats, charts and descriptive material presenting
basic information, locations, extent and character of any of the
following:
(1) History, population and physical site conditions;
(2) Land use, including the height, area, bulk, location and
use of private and public structures and premises A land use
element which designates the proposed general distribution;
location, intensity, extent and timing of such uses of land including residential, commercial, industrial, agricultural,
recreational, educational, community facilities, open space,
transportation, historic preservation and categories of private and
public uses of land as may be appropriate to the community; such
element shall include identification and analysis of important
natural, cultural and historic preservation resource areas and
physical constraints to development, including flood hazard areas,
in order to identify prime development areas and environmentally-
sensitive areas;
(3) Population densities; A housing element consisting of
plans and programs to meet the housing needs of all household types
and income levels in the community, including preservation of sound
housing, rehabilitation of existing housing, construction of new
housing, elimination of blight, and community redevelopment
initiatives;
(4) Community centers and neighborhood units; A
transportation element consisting of the general location and
extent of existing and proposed roadways, parking facilities,
transit systems, pedestrian and bikeway systems, air travel
facilities, port facilities, railroad facilities and all other
modes of transportation that may be appropriate, all correlated
with the land use element of the plan;
(5) Blighted and slum areas; A community facilities and
services element consisting of general plans for water, wastewater, solid waste disposal, stormwater management, utilities, police and
fire protection, hospitals, emergency medical services, disaster
relief and civil defense, libraries and cultural facilities, public
and private education, parks and recreation, historic sites,
heritage tourism areas and other similar facilities, services and
uses;
(6) Streets, including bridges, viaducts, subways, parkways
and other public ways and places; An economic development element
comprised of appropriate studies and an economic development plan
consisting of identification of economic development sites and
sectors appropriate for future development and expansion, as well
as areas which should be preserved and nurtured as heritage tourism
sites;
(7) Sewers, sanitation and drainage, including handling,
treatment and disposal of excess drainage waters, sewage, garbage,
refuse, wastes, ashes, trash and other similar matters;
(8) Stream pollution;
(9) Flood control and prevention;
(10) Public and private utilities, including water, light,
heat, communication and other services;
(11) Transportation, including rail, bus, truck, air and water
transport and their terminal facilities;
(12) Local mass transportation, including motor and trolley busses; street, elevated or underground railways and taxicabs;
(13) Parks and recreation, including parks, playgrounds,
reservations, forests, wildlife refuges and other public grounds,
spaces and facilities of a recreational nature;
(14) Public buildings and institutions, including governmental
administration and service buildings, hospitals, infirmaries,
clinics, penal and correctional institutions and other civic and
social service buildings;
(15) Education, including location and extent of schools,
colleges and universities;
(16) Land utilization, including residence, industry,
agriculture, forests and other uses;
(17) Conservation of water, soil, agricultural and mineral
resources; and
(18) Any other factors which are a part of the physical,
economic or social situation within the municipality or county;
(c) Reports, maps, charts and recommendations setting forth
plans for the development, redevelopment, improvement, extension
and revision of the subjects and physical situations of the
municipality or county set out in subdivision (b) of this section
so as to substantially accomplish the objective set forth in
section one of this article An action plan of short and long range
implementation strategies which may include a variety of plans,
programs and other appropriate actions;
(d) A long-range development capital improvement program of
public works projects, based on the recommended plans of the
commission, for the purpose of eliminating unplanned, unsightly,
untimely and extravagant projects and with a view to stabilizing
industry and employment, and the keeping of such program up to date
by yearly revisions; and
(e) A long-range financial program of governmental
expenditures in order that such development program may be carried
out, and the keeping of such program up to date, for all separate
taxing units within the municipality or county, respectively, for
the purpose of assuring efficient and economic use of public funds
A statement describing the initiatives to be undertaken to further
regional planning with adjacent municipalities and counties,
including a review of available planning and related documents for
coordination with the plans or surrounding units of government; and
(f) Any other such elements that the planning commission may
deem appropriate for the community.
§8-24-17a. Same. -- Time frame for preparation, adoption and
updating of comprehensive plan.
A planning commission shall, to the greatest extent feasible
and affordable, prepare and recommend for adoption to the local
governing body a comprehensive plan for the development of the
territory under its jurisdiction that meets the requirements of
this article within five years of the date of appointment of the initial commission members for newly created planning commissions
or no later than the last day of July, two thousand seven, for
existing planning commissions. Failure to comply with the above
requirements shall not constitute grounds for dissolution of or
withdrawal of funding for a duly constituted planning commission by
the local governing body.
A planning commission shall review its comprehensive plan no
less frequently than every five years and shall thoroughly revise
and update, to the greatest extent feasible and affordable, its
comprehensive plan no less frequently than every ten years. Any
substantial change or amendment to any comprehensive plan after the
first day of July, two thousand two, shall conform to the
requirements of this article.
§8-24-18. Same. -- Public participation in the planning process.
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, the
commission 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.
It is the intent of the Legislature that the public
participate in the comprehensive planning process to the fullest
extent possible. Towards this end, local planning commissions and
local governmental units are directed to adopt procedures designed
to provide effective process, including identification of
development problems, concerns and needs; formulation of goals,
objectives, policies and alternatives; and formulation of
implementing ordinances and programs. The provisions and
procedures required in this article are set out as the minimum
requirements towards this end.
With respect to a proposed or amendments thereto, the
governing body of the municipality or the county commission shall
adopt procedures for broad dissemination of the proposals and
alternatives, opportunity for written commends, public hearings as
provided herein, open discussions, communications programs,
information services and consideration of and response to public
comments.
Prior to considering the adoption of a new comprehensive plan
or an amendment to an existing comprehensive plan, a local planning
commission shall give notice, as specified in this section, and
shall hold a public hearing on the plan and any proposed ordinances
for its implementation. At least thirty days prior to the date set
for hearing, the local planning commission shall publish notice of
the date, time and place of the hearing as a Class I legal advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication for such
notice shall be the municipality or county, as the case may be.
§8-24-27. Same. -- Intergovernmental review and coordination of
plan.
In the exercise of the powers and authority granted by this
article, the planning commission of any municipality or county may
cooperate with the planning commissions or governing and
administrative bodies and officials of other municipalities within
or without such county and of other counties, with a view to
coordinating and integrating the planning and zoning of such
municipality or county with the plans of such other municipalities
and of such other counties, and may appoint such committee or
committees and may adopt such rules and regulations as may be
thought proper to effect such cooperation. Such planning
commissions and governing and administrative bodies and officials
of other municipalities and counties are hereby authorized to
cooperate with such municipal or county planning commissions for
the purposes of such coordination and integration. Similarly, such
municipal or county planning commissions may cooperate with the
division of environmental protection of this state and make use of
advice and information furnished by such division and by other
appropriate state and federal officials, departments and agencies,
and all state departments and agencies having information, maps and data pertinent to the planning and zoning of such municipality or
county may make such available for the use of such planning
commissions.
Upon preparation of a proposed comprehensive plan or plan
amendment and at least thirty days prior to the public hearing
required in section eighteen of this article, the commission shall
forward a copy of the proposed plan or amendment to the planning
commissions of all contiguous municipalities and counties for their
review and comment with respect to coordination with their
existing plans. Where no such planning commission exists, a copy
of the same shall be forwarded to the governing body of the
municipality or the county commission. In addition, a copy of the
plan or amendment shall be forwarded to the local county board of
education, the appropriate regional planning and development
council, West Virginia public service commission, the West Virginia
state historic preservation office, the West Virginia department of
transportation and to the West Virginia development office for
review and comment with respect to coordination with their plans
and policies.
The comments of these entities shall be considered by the
commissioner prior to the adoption of the comprehensive plan or
amendment, but, if these units fail to respond within thirty-five
days, the commission may proceed without their comments.
§8-24-27a. Same. -- Consideration of planned construction; report of findings.
(a) When the commission has adopted and certified the
comprehensive plan, all local governmental entities operating
within the geographic jurisdiction of the commission who plan to
undertake the construction or acquisition of a new public facility
or the expansion or extension of an existing public facility of a
type embraced within the comprehensive plan shall submit a copy of
such plans to the commission prior to initiating construction.
Maintenance, repair and renovation of existing public facilities
shall be exempt from this requirement. The commission shall review
such plans for consistency with the comprehensive plan and report
its findings in writing as to their consistency, inconsistency and
any other problems pertaining thereto to the applicant jurisdiction
and the local governing body within thirty days of the receipt of
such plans. If the commission fails to report its findings within
this time period, this requirement shall be deemed to have been
met.
(b) For purposes of this section:
(1) "Local government entity" means agencies, departments,
boards, commissions and authorizes of county and municipal
government, including, but not limited to, water and sewer boards,
solid waste authorities and school boards; and
(2) "Public facility" means land, buildings and structures,
operated and maintained by a local government entity that are embraced within the recommendations of the comprehensive plan.
PART V. SAME. -- SUBDIVISION CONTROL.
§8-24-29a. Same. -- Maintenance or homeowners' associations
required in subdivisions outside the corporate
limits of a municipality; maintenance of the
streets, roads, common areas, water, wastewater
and storm sewer systems of the subdivision by the
association.
Every subdivision situated outside the cooperate limits of a
municipality and comprised of five or more lots and/or requiring
capital improvements, the plat of which is submitted for approval
on or after the first day of July, two thousand two, shall include
plans for the establishment of a maintenance or homeowners'
association, including provisions for the maintenance by the
association of all subdivision improvements not dedicated to and
accepted by a public body or utility including streets, roads,
common areas, water, wastewater and storm sewer systems within the
bounds or along the perimeter of the subdivision. The provisions
of this section shall also apply to the 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.
In determining whether an application for approval shall be granted, the commission shall determine if the plat provides for:
(1) Coordination and connection of subdivision streets with
existing and planned streets located outside the boundaries of the
proposed subdivision and including those located in adjacent
municipalities and counties which abut the proposed subdivision
boundary;
(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 compatible 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.
As a condition of approval of a plat the commission may
specify:
(1) The manner in which streets, sidewalks and pedestrian
pathways shall be laid out, graded and improved;
(2) Provisions for water, sewage wastewater and other utility
services;
(3) Provision for schools;
(4) Provision for essential municipal governmental services;
and
(5) Provision for recreational facilities and open spaces;
(6) Provision for drainage, erosion and sediment control; and
(7) Requirements for the estimated costs of the entire public
works, municipal services and functions to be obligated in any way
by or for a local unit of government as a result of the proposed
development.
§8-24-31. Same. -- Effect of approval or disapproval.
After hearing and within a reasonable time after the filing of
an application for approval of the plat, the commission shall
approve or disapprove it. If the commission approves the
application, it shall affix the commission's seal upon the plat,
require the applicant to present the approved plat to the clerk of
the county within sixty days, and the clerk of the county shall
record the plat in a timely manner. If it the commission
disapproves the application, it shall set forth its reasons in its
own records and provide the applicant with a copy thereof.
§8-24-33a. Same. -- Enforcement remedies.
Any person violating the provisions of any subdivision
ordinance enacted under this article or prior enabling laws is
subject to a fine of not more than five hundred dollars or less
than one hundred dollars plus court costs and reasonable attorney
fees incurred by the governing body as a result thereof. Each day that the violation exists shall constitute a separate violation.
§8-24-34. Same. -- Conditional approval; bonds.
The commission may approve a plat for a subdivision in which
the improvements and installations have not been completed as
required by the ordinance for the approval of plats if the
applicant provides a bond which shall:
(1) Run to the municipality or county which established the
commission;
(2) Be in an amount determined by the commission to be
sufficient to complete the improvements and installations in
compliance with the ordinance;
(3) Be with surety satisfactory to the commission; and
(4) Specify the time for the completion of the improvements
and installations.
Any funds received from any such bonds shall be used by the
legally constituted body charged with making public improvements
for the municipality or county only for completion of the
improvements and installations for which such bonds were provided,
and without prior appropriation, and for a reasonable
administrative cost incurred by the municipality or county
authorized to make such improvements. The municipality or county
is hereby authorized to make these improvements and installations.
PART VI. SAME -- BUILDING PERMITS.
§8-24-36. Building 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 a
building permit for a structure on platted or unplatted lands shall
not be issued unless the structure and its location
conform to are
consistent with the community development objectives of the
municipality's comprehensive plan and ordinance. A structure shall
not be located and
an improvement location a building 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 are consistent with the community
development objectives of the county's comprehensive plan and
ordinance.
§8-24-37. Same. -- Authority to issue and control.
The ordinance may designate the official or employee of the
municipality or county who shall have authority to issue and
control improvement location building permits within the
jurisdiction of the commission and in conformity which are
consistent with the community development objectives of with the
comprehensive plan and ordinance.
§8-24-37a. Same. -- Fee for processing building permit.
The governing body of any county or municipality may prescribe
and charge a reasonable fee, not to exceed the estimated actual
cost of review, for processing a building permit application.
PART VIII. URBAN AND RURAL ZONING -- ZONING GENERALLY.
§8-24-39. Zoning authority generally.
After a comprehensive plan, or at the very least a land use
plan element, has been adopted by the governing body of a
municipality or county commission, a zoning ordinance may be
prepared and adopted pursuant to this article.As an integral
part of the planning of areas so that adequate light, air,
convenience of access, and safety from fire, flood and other danger
may be secured; that congestion in the public streets may be
lessened or avoided; that the public health, safety, comfort,
morals, convenience and general public welfare may be promoted;
that the preservation of historic landmarks, sites, districts and
buildings be promoted; and that the objective set forth in section
one of this article may be further accomplished, the governing body
of a municipality or a county commission shall have the following
powers:
(a) To classify, regulate and limit the height, area, bulk and
use of buildings hereafter to be erected;
(b) To regulate the height, area, bulk, exterior architectural
features and use of buildings hereafter to be erected within designated historic districts,
and within corridor overlay
districts established to achieve urban design goals for said
corridors as set forth in the comprehensive plan;
(c) To regulate the alteration of exterior architectural
features of buildings within historic districts and to regulate the
alteration of historic landmarks and sites,
and within corridor
overlay districts established to achieve urban design goals for
said corridors as set forth in the comprehensive plan;
(d) To regulate and determine the area of front, rear and side
yards, courts and other open spaces about such buildings;
(e) To regulate and determine the use and intensity of use of
land and lot areas;
(f) To classify, regulate and restrict the location of trades,
callings, industries, commercial enterprises commercial and
industrial land uses and the location of buildings designed for
specified uses;
(g) To regulate and control, or prohibit in certain areas,
junk yards, salvage yards, used parts yards, dumps or automobile
or appliance graveyards, or the maintenance and operation of
secondhand stores or outlets in residential areas;
(h) To classify and designate the rural lands among
agricultural, industrial, commercial, residential and other uses
and purposes; and
(i) To divide the municipality or county into districts of such kind, character, number, shape and area as may be deemed
necessary to carry out the purposes of this section recommended in
the adopted comprehensive plan or adopted land use plan element of
the municipality or county.
§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:
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:
(a) The capacity of existing or planned community facilities;
(b) The character of the area affected;
(c) Traffic on roads and highways in the vicinity; or
(d) Utilization of renewable energy resources.
Such specific standards may include requirements with respect
to:
(a) Minimum lot size;
(b) Distance from adjacent or nearby uses;
(c) Minimum off-street parking and loading facilities, landscaping and screening;
(d) Any other factors the zoning regulations may include.
In granting such conditional use, the commission may attach
such additional reasonable conditions and safeguards as it may deem
necessary to implement the purpose of this chapter and the zoning
regulations. The commission shall act to approve or disapprove any
requested conditional use within sixty days after the date of the
final public hearing held under this section, and failure to so act
within such period is deemed approval.
(2) Parking and loading facilities. -- Provisions setting
forth standards for permitted and required facilities for
off-street parking and loading which may vary by district and by
uses within each district. The regulations may also include
provisions covering the location, size and design, access,
landscaping and screening of the facilities.
(3) Site plan approval. -- As prerequisite to the approval of
any use other than one and two-family dwellings, the approval of
site plans by the commission may be required. Upon recommendation
by the commission, any governing body of a municipality or a county
commission may adopt zoning regulations setting forth objective
standards for the adequacy of traffic access, vehicle circulation
and parking, drainage and of landscaping and screening and the
preservation of adequate natural light. The commission may deny a
site plan for any use other than one and two-family dwellings if the site plan fails to meet the zoning standards established by the
governing body of a municipality or county commission for traffic
access, vehicle circulation and parking, drainage and landscaping
and screening and the preservation of natural light.
(4) Design control districts. -- Zoning regulations may contain
provisions for the establishment of design control districts.
Prior to the establishment of such district, the commission shall
prepare a report describing the particular planning and design
issues of the proposed district and setting forth a design plan for
the areas which shall include recommended planning and design
criteria to guide future development. The commission shall hold a
public hearing, after public notice, on such report. After the
hearing, the commission may recommend to the governing body such
design control district. A design control district can be created
for any area containing sites or structures of historical,
architectural or cultural merit and other areas in which there is
a concentration of community interest and participation such as a
central business district, civic center or similar grouping or
focus of activities. No structure may be erected, reconstructed,
substantially altered, restored, moved, demolished or changed in
use or type of occupancy within a designated design control
district without approval of the plans by the planning commission.
A design review board may be appointed by the governing body of the
municipality or county to advise the commission, which board shall have such term of office and procedural rules, as the governing
body determines.
(5) Flood plan areas, special control. -- Within any area
designated by the U. S. Army Corps of Engineers as subject to
periodic flooding, the permitted use, type of construction and
height of floor levels above ground may be regulated in order to
lessen or avoid the hazards to persons and damage to property
resulting form the accumulation of storm or flood waters.
(6) Airport hazard area. -- Any governing body may adopt
special zoning regulations governing the use of land, location and
size of buildings and density of population within the distance of
two miles from the boundaries of an airport under an approach zone
and for a distance of one mile from the boundaries of such airport
elsewhere. The designation of such area and the zoning regulations
therein shall be approved by the West Virginia Aeronautics
Commission.
(7) Planned unit developments. -- Any governing body may adopt
zoning regulations providing for planned unit developments to
encourage new and/or mixed use communities, innovation in design
and layout and more efficient use of land. The modification of
zoning regulations by the 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 developments shall describe the standards and conditions by which a proposed
planned development may be evaluated. The 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 commission shall
hold a public hearing after public notice, prior to the
establishment of any supplementary rules. The zoning regulations
may authorize the commission to allow for a greater density or
intensity of residential land use within some sections of the
development. The zoning regulations may require that the approval
by the commission of greater density or intensity of residential
land use for any section to be developed be offset by a lesser
concentration in other sections or by an appropriate reservation of
common open space on the remaining land by means of grant of
easement or by covenant to the governmental unit.
(8) Exterior architectural features. -- A governing body of a
municipality or a county commission may establish by ordinance,
reasonable exterior architectural features applicable to
residential and commercial structures within its jurisdiction. A
governing body of a municipality or a county commission may not
subject an applicant to locate or install a factor-built housing
unit on a lot or parcel zoned or regulated for single-family
residential dwelling, to any administrative permit, planning or
development process, regulation or requirement, which is not identical to the administrative permit, planning or development
process, regulation or requirement which would be imposed on a
site-built single family residential dwelling on the same lot or
parcel. Factory-built housing shall be considered a permitted use
in all residential districts and shall be accepted at the permitted
density for the district. A governing body of a municipality or a
county may establish reasonable aesthetic standards for
factory-built housing within its jurisdiction, including foundation
requirements, building setbacks, subdivision control, architectural
landscaping, square footage and other local site requirements
applicable to single-family dwellings. However, these standards
and the process for applying them shall be no more restrictive for
factory-built housing than for housing units constructed on site.
A governing body of a municipality or a county may also establish
reasonable standards for manufactured housing for unique public
safety requirements such as wind, snow and roof loads in accordance
with 24 CFR ch. XX §3280.305. Nothing in this section shall be
construed to pre-empt or supersede valid restrictive covenants
running with the land.
PART IX. SAME -- ZONING DISTRICTS.
§8-24-40. Zoning districts. -- Generally.
The various kinds of districts created and designated as use,
height, area, volume or bulk districts, as well as districts
created for any other purpose necessary to carry out the purposes of section thirty-nine of this article, need not necessarily cover
or include the same territory, and may overlap or coincide. The
districts created shall also be subject to the following:
(1) Rules and regulations as to height, area, bulk and use of
buildings and as to the area of all yards, courts and open spaces
shall be uniform for each class of buildings throughout each
district;
(2) For each district designated for the location of
trades,
callings, industries, commercial enterprises commercial and
industrial land uses or buildings designated for specified uses,
rules and regulations may be enforced specifying uses that shall be
excluded or subjected to reasonable requirements of a special
nature and designating the use for which buildings may not be
erected, altered or used;
(3) The rules and regulations in one or more districts of the
same kind or character may differ from those in other like
districts but shall be uniform for each district; and
(4) Several parts of the municipality or county may be
classified within a single district although not contiguous;
and
(5) The boundaries of such zoning districts and the
classifications designated therein shall be expressed in map form,
copies of which shall be filed with the clerk of the applicable
government unit and the planning commission.
§8-24-41. Zoning districts. -- Preliminary study.
In establishing such districts and rules and regulations the
governing body of a municipality or the county court commission
shall give reasonable regard to existing conditions, the character
of buildings erected in each district, the most desirable use for
which the land in each district may be adapted and the conservation
of property values throughout the municipality or county as
described within the adopted comprehensive plan or land use plan
element adopted by the municipality or county.
§8-24-45a. Findings necessary for proposed map amendment.
Before any zoning map amendment is granted the planning
commission or the governing body must find that the map amendment
is consistent with the community development objectives of the
adopted comprehensive plan, or, in the absence of such a finding,
that there have been major
§8-24-46. Changes of zoning rules and regulations. -- Petition for
change.
Petitions, duly signed, may be presented to the planning
commission, 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.
§8-24-50. 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 to the use of land presently 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 considered
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 a lienee 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 zoning and shall be
a permitted use in all zones or districts where single family
dwelling units are permitted. 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
where single family dwelling units are permitted 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 multi-family 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 of health or the department 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 of
health or the commissioner of the department of human services
shall give written notice 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 of health or
the department of human services. Upon the filing of such
objections or hearing request, the director of the department of
health or the commissioner of the department of human services
shall hold a hearing. The state board of health shall promulgate
regulations 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 of health or the
department 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, or, in the case of a county where
only a part or region within the county is zoned, are residents of the zoned area. 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.
A board of zoning
appeals shall establish procedures for removal of any inactive
member.
If a vacancy occurs, by resignation or otherwise, among the
members of the board of zoning appeals, the governing body of the
municipality or the county
court, commission as the case may be,
shall appoint a member for the unexpired term.
The governing body of a municipality or a county commission
may appoint at least one but no more than three residents of the municipality or county, or, in the of a county where only a part or
region within the county is zoned, residents of the zoned area, to
serve as alternate members of the board. The term of office of an
alternate member shall be three years. When seated pursuant to the
provisions of this article, an alternate shall be entitled to
participate in all proceedings and discussions of the board to the
same and full extent as provided by law for board members,
including specifically the right to cast a vote as a voting member
during the proceedings, and shall have all the powers and duties
set forth in this article and as otherwise provided by law.
Alternates shall hold no other appointed or elective office in the
municipality or county, including membership on the planning
commission. Any alternate may participate in any proceeding or
discussion of the board but shall not be entitled to vote as a
member of the board nor be compensated unless as a voting alternate
member pursuant to this article.
§8-24-52. Same. -- Officers; quorum; compensation of secretary and
employees.
At its first meeting of each year, the board of zoning appeals
shall elect a
chairman chair and vice
chairman chair from its
membership. The vice
chairman chair shall have the power and
authority to act as
chairman chair during the absence or disability
of the
chairman chair.
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.
If, by reason or disqualification or recusal of a board
member, a quorum is not reached, the chair of the board shall
designate as many alternate members to sit on the board as may be
needed to provide a quorum. any alternate member of the board
shall continue to serve on the board in all proceedings involving
the matter or case for which the alternate was initially appointed
until the board has made a final determination of the matter or
case. Designation of an alternate pursuant to this article shall
be made on a case-by-case basis in rotation according to declining
seniority among all alternates.
§8-24-54. Same. -- Rules and procedures; minutes and records.
The board of zoning appeals shall adopt such rules and
regulations concerning the filing of appeals, applications for
variances and exceptions, the giving of notice and the conduct of
hearings as shall be necessary to carry out its duties under the
terms of this article. The board shall keep minutes of its proceedings, keep records of all official actions and shall record
the vote on all actions taken. Parties involved in the hearings
shall have the right to be represented by counsel and shall be
afforded the opportunity to respond and present evidence and
argument and cross-examine adverse witnesses on all relevant
issues. Formal rules of evidence shall not apply, but irrelevant,
immaterial or unduly repetitious evidence may be excluded. All
minutes and records shall be filed in the office of the board and
shall be public records.
The board shall render written findings on the application,
including a written decision, within forty-five days after making
a decision at the hearing. Each decision shall be accompanied by
findings of fact and conclusions based thereon together with the
reasons therefor. A copy of the final findings, including the
board's decision, shall be provided to the applicant within a
timely manner after the issuance of the board's decision.
The board shall keep minutes of its proceedings, keep records
of all official actions and shall record the vote on all actions
taken. All minutes and records shall be filed in the office of the
board and shall be public records.
PART XV. SAME -- SAME -- POWERS, AUTHORITY AND DUTIES.
§8-24-55. Same. -- 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 fifty of this article;
(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) Authorize upon appeal in specific cases such
minimum
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 consider 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 provision of the
regulations, in an individual case, results in unnecessary
hardship, excluding financial 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.
The board of zoning appeals shall fix a reasonable time for
the hearing of a variance. Public notice of the hearing shall be
given in the manner specified in section eighteen of this article,
with the exception that only fifteen or more days notice shall be
provided prior to the date set for such hearing, and due notice
shall be given additionally to the interested parties. The board
of zoning appeals may require the party requesting the variance to
assume the cost of public notice and due notice to interested
parties. At the hearing, any party may appear in person, by agent
or by an attorney-at-law admitted to practice in this state.
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 provision of the zoning
regulations from which the variance is requested will constitute
unnecessary hardship, excluding financial hardship, upon the
property owner represented in the application; (4) that the
variance desired will not adversely affect the public health,
safety, morals, order, convenience, prosperity or general welfare;
and (5) that granting the variance desired will not be contrary to
the general spirit and intent of the zoning regulations; and (6)
that the requested variance represents the minimal variance
necessary to afford relief to the owner or applicant.
§8-24-57. Hearing of appeal.
The board of zoning appeals shall fix a reasonable time for
the hearing of an appeal. Public notice of the hearing shall be
given in the manner specified in section eighteen of this article,
with the exception that only fifteen or more days notice shall be
provided prior to the date set for such hearing, and due notice
shall be given additionally to the interested parties.
The board of zoning appeals may require the party taking the
appeal to assume the cost of public notice and due notice to interested parties.
At the hearing, any party may appear in person, by agent or by
an attorney at law admitted to practice in this state.
§8-24-58. Staying of work on premises when appeal taken;
exception.
When an appeal has been taken and filed with the board of
zoning appeals, all proceedings and work on the premises in
question shall be stayed unless the official or board from whom or
which the appeal was taken shall certify to the board of zoning
appeals that by reason of facts stated in the certificate a stay
would cause imminent peril to life or property permitted to
continue at the developer's or owner's own risk. If such
certificate be filed, Proceedings or work on the premises shall
not be stayed except by a restraining order which may be granted by
the circuit court of the county in which the premises affected are
located, upon application therefor, on notice to the official or
board from whom or which the appeal is taken and the owner of the
premises affected and on due cause shown.
PART XVII. SAME -- SAME -- JUDICIAL REVIEW.
§8-24-59. Petition for writ of certiorari from decision or order.
Every decision or order of the board of zoning appeals shall
be subject to review by certiorari.
Any person or persons jointly or severally aggrieved by any
decision or order of the board of zoning appeals may present to the circuit court of the county in which the premises affected are
located a petition duly verified, setting forth that such decision
or order is illegal in whole or in part, and specifying the grounds
of the alleged illegality. The petition must be presented to the
court within thirty days after the date
of the decision or the
order of the board of zoning appeals complained of on which the
board issued its written findings and decision in the matter.
§8-24-67. Injunction.
The planning commission, the board of zoning appeals or any
designated enforcement official may seek an injunction in the
circuit court of the county to restrain a person or unit of
government from violating the provisions of this article or of any
ordinance or rule and regulation adopted pursuant hereto. The
planning commission, the board of zoning appeals or any designated
enforcement official may also seek a mandatory injunction in the
circuit court directing a person or unit of government to remove a
structure erected in violation of the provisions of this article or
of any ordinance or rule and regulation adopted pursuant hereto.
If the planning commission, the board of zoning appeals or the
designated enforcement official is successful in any such suit, the
respondent shall bear the costs of the action, including reasonable
attorney fees.
§8-24-68. Penalty.
Any person who violates any provision of this article shall be guilty of a misdemeanor and, upon conviction, shall be fined not
less than ten one hundred dollars nor more than three five hundred
dollars plus court costs and reasonable attorney fees incurred by
the governing body as a result thereof. Each day that the
violation exists shall constitute a separate violation.
NOTE: The purpose of this bill is to update and conform county
and municipal planning and zoning commissions; legislating
commission membership requirements, number of members and
diversifying the membership; preparing and producing a
comprehensive plan, including historic and other sites; and
formalizing appeal procedures.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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