Senate Bill No. 540
(By Senators McCabe, Green and Barnes)
[Introduced February 8, 2012; referred to the Committee on Government Organization.]
A BILL to amend and reenact §8A-4-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §8A-5-12 of said code, all relating to subdivisions; extending the approval term of certain uses and permits associated with a subdivision plan or plat; and extending the vesting period for a subdivision or land development plan or plat.
Be it enacted by the Legislature of West Virginia:
That §8A-4-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §8A-5-12 of said code be amended and reenacted, all to read as follows:
ARTICLE 4. SUBDIVISION AND LAND DEVELOPMENT ORDINANCE.
§8A-4-2. Contents of subdivision and land development ordinance.
(a) A subdivision and land development ordinance shall include the following provisions:
(1) A minor subdivision or land development process, including criteria, requirements and a definition of minor subdivision;
(2) The authority of the planning commission and its staff to approve a minor subdivision or land development;
(3) A major subdivision or land development process, including criteria and requirements;
(4) The authority of the planning commission to approve a major subdivision or land development;
(5) The standards for setback requirements, lot sizes, streets, sidewalks, walkways, parking, easements, rights-of-way, drainage, utilities, infrastructure, curbs, gutters, street lights, fire hydrants, storm water management, water and wastewater facilities;
(6) Standards for flood-prone or subsidence areas;
(7) A review process for subdivision or land development plans and plats by the planning commission;
(8) An approval process for subdivision or land development plans and plats by the planning commission, including the authority to approve subdivision or land development plans and plats with conditions;
(9) A process to amend final approved subdivision or land development plans and plats;
(10) A requirement that before development of the land is commenced, subdivision and land development plans and plats must be approved by the applicable planning commission, in accordance with the comprehensive plan, if a comprehensive plan has been adopted;
(11) A requirement that after approval of the subdivision or land development plat by the planning commission and before the subdivision or development of the land is commenced, the subdivision and land development plat shall be recorded in the office of the clerk of the county commission where a majority of the land to be developed lies;
(12) A schedule of fees to be charged which are proportioned to the cost of checking and verifying proposed plats;
(13) The process for granting waivers from the minimum standards of the subdivision and land development ordinance;
(14) Improvement location permit process, including a requirement that a structure or development of land is prohibited without an improvement location permit;
(15) The acceptable methods of payment to cover the cost of the water and sewer service infrastructure, which can include, but are not limited to, bonds, impact fees, escrow fees and proffers;
(16) The process for cooperating and coordinating with other governmental agencies affected by the subdivision and land development and use; and
(17) Penalties for violating the subdivision and land development ordinance.
(b) A subdivision and land development ordinance may include the following provisions:
(1) Establishing a board of subdivision and land development appeals with the same powers, duties and appeals process as set out for the board of zoning appeals under the provisions of article eight of this chapter;
(2) Requirements for green space, common areas, public grounds, walking and cycling paths, recreational trails, parks, playgrounds and recreational areas;
(3) Encourage the use of renewable energy systems and energy-conserving building design;
(4) Vested property right, including requirements;
(5) Exemptions of certain types of land development from the subdivision and land development ordinance requirements, including, but not limited to, single-family residential structures and farm structures; and
(6) Any other provisions consistent with the comprehensive plan the governing body considers necessary.
(c) All requirements, for the vesting of property rights contained in an ordinance enacted pursuant to this section that require the performance of any action within a certain time period for any subdivision or land development plan or plat valid under West Virginia law and outstanding as of January 1, 2010, shall be extended until July 1, 2012 2015, or longer as agreed to by the municipality, county commission or planning commission. The provisions of this subsection also apply to any requirement that a use authorized pursuant to a special exception, special use permit, conditional use permit or other agreement or zoning action be terminated or ended by a certain date or within a certain number of years.
ARTICLE 5. SUBDIVISION OR LAND DEVELOPMENT PLAN AND PLAT.
§8A-5-12. Vested property right.
(a) A vested property right is a right to undertake and complete the land development. The right is established when the land development plan and plat is approved by the planning commission and is only applicable under the terms and conditions of the approved land development plan and plat.
(b) Failure to abide by the terms and conditions of the approved land development plan and plat will result in forfeiture of the right.
(c) Subject to section ten-a, article thirteen-e, chapter sixteen of this code, the vesting period for an approved land development plan and plat which creates the vested property right is five years from the approval of the land development plan and plat by the planning commission.
(d) Without limiting the time when rights might otherwise vest, a landowner's rights vest in a land use or development plan and cannot be affected by a subsequent amendment to a zoning ordinance or action by the planning commission when the landowner:
(1) Obtains or is the beneficiary of a significant affirmative governmental act which remains in effect allowing development of a specific project;
(2) Relies in good faith on the significant affirmative governmental act; and
(3) Incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative governmental act.
(e) A vested right is a property right, which cannot be taken without compensation. A court may award damages against the local government in favor of the landowner for monetary losses incurred by the landowner and court costs and attorneys' fees resulting from the local government's bad faith refusal to recognize that the landowner has obtained vested rights.
(f) Any subdivision or land development plan or plat, whether recorded or not yet recorded, valid under West Virginia law and outstanding as of January 1, 2010, shall remain valid until July 1, 2012 2015, or such later date provided for by the terms of the planning commission or county commission’s local ordinance or for a longer period as agreed to by the planning commission or county commission. Any other plan or permit associated with the subdivision or land development plan or plat shall also be extended for the same time period: Provided, That the land development plan or plat has received at least preliminary approval by the planning commission or county commission by March 1, 2010.
(NOTE: The purpose of this bill is to extend the approval term of certain uses and permits associated with a subdivision plan or plat and extending the vesting period for a subdivision or land development plan or plat from July 1, 2012 until July 1, 2015.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.)