H. B. 2166
(By Delegate Doyle)
[Introduced January 12, 2011; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §8A-1-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §8A-7-7 and §8A-7-13 of said code, all relating to land use planning; zoning; process to replace a noneuclidean zoning ordinance; and providing that the term “zoning ordinance” means either “euclidean zoning ordinance” or “noneuclidean zoning ordinance”.
Be it enacted by the Legislature of West Virginia:
That §8A-1-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §8A-7-7 and §8A-7-13 of said code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS.
As used in this chapter, the following words and terms have the following meanings, unless the context clearly indicates otherwise:
(a) “Abandonment” means the relinquishment of property or a cessation of the use of the property by the owner or lessee without any intention of transferring rights to the property to another owner or resuming the nonconforming use of the property for a period of one year.
(b) “Aggrieved” or “aggrieved person” means a person who:
(1) Is denied by the planning commission, board of subdivision and land development appeals, or the board of zoning appeals, in whole or in part, the relief sought in any application or appeal; or
(2) Has demonstrated that he or she will suffer a peculiar injury, prejudice or inconvenience beyond that which other residents of the county or municipality may suffer.
(c) “Comprehensive plan” means a plan for physical development, including land use, adopted by a governing body, setting forth guidelines, goals and objectives for all activities that affect growth and development in the governing body’s jurisdiction.
(d) “Conditional use” means a use which because of special requirements or characteristics may be permitted in a particular zoning district only after review by the board of zoning appeals and upon issuance of a conditional use permit, and subject to the limitations and conditions specified in the zoning ordinance.
(e) ”Contiguous” means lots, parcels, municipal boundaries or county boundaries that are next to, abutting and having a boundary, or portion thereof, that is coterminous. Streets, highways, roads or other traffic or utility easements, streams, rivers, and other natural topography are not to be used to determine lots, parcels, municipal boundaries or county boundaries as contiguous.
(f) “Essential utilities and equipment” means underground or overhead electrical, gas, communications not regulated by the federal communications commission, water and sewage systems, including pole structures, towers, wires, lines, mains, drains, sewers, conduits, cables, fire alarm boxes, public telephone structures, police call boxes, traffic signals, hydrants, regulating and measuring devices and the structures in which they are housed, and other similar equipment accessories in connection therewith. Essential utility equipment is recognized in three categories:
(1) Local serving;
(2) Nonlocal or transmission through the county or municipality; and
(3) Water and sewer systems, the activities of which are regulated, in whole or in part, by one or more of the following state agencies:
(A) Public Service Commission;
(B) Department of Environmental Protection; or
(C) The Department of Health and Human Resources.
(g) “Existing use” means use of land, buildings or activity permitted or in existence prior to the adoption of a zoning map or ordinances by the county or municipality. If the use is nonconforming to local ordinance and lawfully existed prior to the adoption of the ordinance, the use may continue to exist as a nonconforming use until abandoned for a period of one year: Provided, That in the case of natural resources, the absence of natural resources extraction or harvesting is not abandonment of the use.
(h) “Exterior architectural features” means the architectural character and general composition of the exterior of a structure, including, but not limited to, the kind, color and texture of the building material, and the type, design and character of all windows, doors, massing and rhythm, light fixtures, signs, other appurtenant elements and natural features when they are integral to the significance of the site, all of which are subject to public view from a public street, way or place.
(i) “Factory-built homes” means modular and manufactured homes.
(j) “Flood-prone area” means any land area susceptible to repeated inundation by water from any source.
(k) “Governing body” means the body that governs a municipality or county.
(l) “Historic district” means a geographically definable area, designated as historic on a national, state or local register, possessing a significant concentration, linkage or continuity of sites, buildings, structures or objects united historically or aesthetically by plan or physical development.
(m) “Historic landmark” means a site, building, structure or object designated as historic on a national, state or local register.
(n) “Historic site” means the location of a significant event, a prehistoric or historic occupation or activity, or a building or structure whether standing, ruined or vanished, where the location itself possesses historical, cultural or archaeological value regardless of the value of any existing structure and designated as historic on a national, state or local register.
(o) “Improvement location permit” means a permit issued by a municipality or county, in accordance with its subdivision and land development ordinance, for the construction, erection, installation, placement, rehabilitation or renovation of a structure or development of land, and for the purpose of regulating development within flood-prone areas.
(p) “Infill development” means to fill in vacant or underused land in existing communities with new development that blends in with its surroundings.
(q) “Land development” means the development of one or more lots, tracts or parcels of land by any means and for any purpose, but does not include easements, rights-of-way or construction of private roads for extraction, harvesting or transporting of natural resources.
(r) “Manufactured home” means housing built in a factory according to the federal manufactured home construction and safety standards effective June 15, 1976.
(s) “Modular home” means housing built in a factory that meets state or local building codes where the homes will be sited.
(t) “Nontraditional zoning ordinance” “Noneuclidean zoning ordinance” means an ordinance that sets forth development standards and approval processes for land uses within the jurisdiction, but does not necessarily divide the jurisdiction into distinct zoning classifications or districts requiring strict separation of different uses, and does not require a zoning map amendment.
(u) “Permitted use” means any use allowed within a zoning district, subject to the restrictions applicable to that zoning district and is not a conditional use.
(v) “Plan” means a written description for the development of land.
(w) “Planning commission” means a municipal planning commission, a county planning commission, a multicounty planning commission, a regional planning commission or a joint planning commission.
(x) “Plat” means a map of the land development.
(y) “Preferred development area” means a geographically defined area where incentives may be used to encourage development, infill development or redevelopment in order to promote well designed and coordinated communities.
(z) “Public place” means any lots, tracts or parcels of land, structures, buildings or parts thereof owned or leased by a governing body or unit of government.
(aa) “Sprawl” means poorly planned or uncontrolled growth, usually of a low-density nature, within previously rural areas, that is land consumptive, auto-dependent, designed without respect to its surroundings, and some distance from existing development and infrastructure.
(bb) “Streets” means streets, avenues, boulevards, highways, roads, lanes, alleys and all public ways.
(cc) “Subdivision or partition” means the division of a lot, tract or parcel of land into two or more lots, tracts or parcels of land, or the recombination of existing lots, tracts or parcels.
(dd) “Unit of government” means any federal, state, regional, county or municipal government or governmental agency.
(ee) “Urban area” means all lands or lots within the jurisdiction of a municipal planning commission.
(ff) “Utility” means a public or private distribution service to the public that is regulated by the Public Service Commission.
(gg) “Zoning” means the division of a municipality or county into districts or zones which specify permitted and conditional uses and development standards for real property within the districts or zones and may be either euclidean or noneuclidean zoning.
(hh) “Zoning map” means a map that geographically illustrates all zoning district boundaries within a municipality or county, as described within the zoning ordinance, and which is certified as the official zoning map for the municipality or county.
ARTICLE 7. ZONING ORDINANCE.
§8A-7-7. Election on a zoning ordinance.
(a) The governing body of a municipality or a county may submit a proposed euclidian zoning ordinance or noneuclidean zoning ordinance, for approval or rejection at any primary election, general election or special election, to the qualified voters residing:
(1) Within the entire jurisdiction of the governing body, if the proposed zoning ordinance is for the entire jurisdiction; or
(2) In the specific area to be zoned by the proposed zoning ordinance, if the proposed zoning ordinance only applies to part of the governing body’s jurisdiction. All registered voters of a municipality may be qualified to vote on a county zoning ordinance if the municipality is located entirely within that county.
(b) The election laws of this state apply to any election on a proposed zoning ordinance.
(c) If a petition for an election on a zoning ordinance is filed with the clerk of a governing body within ninety days after the enactment of a zoning ordinance by a governing body without an election, then a zoning ordinance does not take effect until an election is held and a majority of the voters approves it. At least ten percent of the total eligible voters in the area to be affected by the proposed zoning ordinance must sign, in their own handwriting, the petition for an election on a zoning ordinance.
(d) Notice for an election on a proposed zoning ordinance must be published in a local newspaper of general circulation in the area affected by the proposed zoning ordinance, as a Class II-0 legal advertisement, in accordance with the provisions of article three, chapter fifty-nine of this code.
(e) The ballots for an election on a zoning ordinance shall have the following:
/ / For Zoning
/ / Against Zoning
(f) The zoning ordinance is adopted if it is approved by a majority of the voters and is effective on the date the results of an election are declared. If a zoning ordinance is rejected, the zoning ordinance does not take effect. The governing body may submit the zoning ordinance to the voters again at the next primary or general election.
§8A-7-13. Process to replace nontraditional noneuclidean zoning ordinance.
(a) A governing body that has adopted or enacted a nontraditional noneuclidean zoning ordinance may replace the nontraditional noneuclidean zoning ordinance with a euclidean zoning ordinance. A nontraditional noneuclidean zoning ordinance may be replaced with a euclidean zoning ordinance by:
(1) The governing body; or
(2) A petition by the voters in the affected area. If the voters petition to replace the nontraditional noneuclidean zoning ordinance with a euclidean zoning ordinance, then the provisions of this section and this chapter shall be followed.
(b) At least ten percent of the total eligible voters in the affected area may petition the governing body to replace the nontraditional noneuclidean zoning ordinance with a euclidean zoning ordinance. The petition must include:
(1) The governing body’s name to which the petition is addressed;
(2) The reason for the petition, including:
(A) Replacing the nontraditional noneuclidean zoning ordinance with a euclidean zoning ordinance; and
(B) That the question of replacing the nontraditional noneuclidean zoning ordinance with a new euclidean zoning ordinance be put to the voters of the affected area; and
(3) Signatures in ink or permanent marker.
(c) Each person signing the petition must be a registered voter in the affected area and in the governing body’s jurisdiction. The petition must be delivered to the clerk of the affected governing body. There are no time constraints on the petition.
(d) Upon receipt of the petition with the required number of qualifying signatures, the governing body shall place the question on the next special, primary or general election ballot.
Notice for an election on replacing a zoning ordinance must be published in a local newspaper of general circulation in the area affected by the nontraditional noneuclidean zoning ordinance, as a Class II-0 legal advertisement, in accordance with the provisions of article three, chapter fifty-nine of this code.
(e) The ballots for an election on replacing a noneuclidean zoning ordinance shall have the following:
“Shall __________ (name of governing body) replace _________ (name of commonly known nontraditional noneuclidean zoning ordinance) with a euclidean zoning ordinance?
___ Yes ___ No”
(f) Upon a majority vote of the voters voting in favor of replacing a nontraditional noneuclidean zoning ordinance with a euclidean zoning ordinance, the governing body shall immediately begin the process of adopting and enacting a euclidean zoning ordinance, in accordance with the provisions of chapter eight-a of this code. The governing body has a maximum of three years from the date of the election to adopt a euclidean zoning ordinance.
(g) The governing body may amend its nontraditional noneuclidean zoning ordinance during the process of adopting and enacting a euclidean zoning ordinance.
(h) If a majority of the voters reject replacing the nontraditional noneuclidean zoning ordinance with a euclidean zoning ordinance, the affected voters may not petition for a vote on the issue for at least two years from the date of the election.
(i) Nothing in this section shall prevents a governing body from amending its zoning ordinance in accordance with this chapter.
(j) If a governing body of a county chooses to replace a nontraditional noneuclidean zoning ordinance with a traditional euclidean zoning ordinance without holding an election, a petition, signed by at least ten percent of the eligible voters who reside in the area affected by the zoning ordinance, for an election on the question of adopting a traditional euclidean zoning ordinance may be filed with the governing body of the county within ninety days after the enactment of the traditional euclidean zoning ordinance by the governing body of the county. If a petition is timely filed, then the traditional euclidean zoning ordinance does not take effect until:
(1) Notice of the election and the zoning ordinance is published in a local newspaper of general circulation in the area affected by the zoning ordinance, as a Class II-0 legal advertisement, in accordance with the provisions of article three, chapter fifty-nine of this code;
(2) An election is held; and
(3) A majority of the voters approve it.
NOTE: The purpose of this bill is to provide that the term “zoning ordinance” means either “euclidean zoning ordinance” or “noneuclidean zoning ordinance”. It also deals with the process of a governing body replacing a noneuclidean zoning ordinance.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.