ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 616
(By Senators Anderson, Ball, Ross, Sharpe, Dittmar, Love,
Helmick, Bailey, Schoonover, Snyder, McKenzie, Kimble, Kessler,
Buckalew, Bowman, Fanning, Walker, Chafin, Oliverio, Sprouse,
Tomblin, Mr. President and Hunter)
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[Originating in the Committee on Government Organization;
reported February 26, 1998.]
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A BILL to amend and reenact section two, chapter one hundred
seventy-six, acts of the Legislature, regular session, one
thousand nine hundred eighty-five, as last amended and
reenacted by chapter one hundred thirty-six, acts of the
Legislature, regular session, one thousand nine hundred
eighty-eight; and to amend and reenact section two-a,
chapter one hundred thirty-six, acts of the Legislature,
regular session, one thousand nine hundred eighty-eight, all
relating to the new river parkway authority; requiring a
development certification process for issuance of certifications of compliance with the authority's plan or
plans; providing an appeal process; providing injunctive
relief to force compliance with the authority's plans; and
redefining the territory included in the parkway.
Be it enacted by the Legislature of West Virginia:
That section two, chapter one hundred seventy-six, acts of
the Legislature, regular session, one thousand nine hundred
eighty-five, as last amended and reenacted by chapter one hundred
thirty-six, acts of the Legislature, regular session, one
thousand nine hundred eighty-eight, be amended and reenacted; and
that section two-a, chapter one hundred thirty-six, acts of the
Legislature, regular session, one thousand nine hundred eighty- eight, be amended and reenacted, all to read as follows:
NEW RIVER PARKWAY AUTHORITY.
§2. Members; appointment; powers and duties generally; officers;
bylaws; rules; compensation.
(a) The authority consists of nine voting members and four
to six ex officio nonvoting members.
(b) Three voting members shall be appointed by the Mercer
County commission. Three voting members shall be appointed by
the Raleigh County commission. Three voting members shall be
appointed by the Summers County commission. No more than two of
the three voting members appointed by a county commission may be members of the same political party, which said members shall not
be elected to, appointed to or hold any other public office
during their tenure as members of said the authority. The
regular term of a voting member shall be is three years, provided
that the terms of the voting members initially appointed by a
county commission are as follows: One member shall be appointed
for a term of one year, one member shall be appointed for a term
of two years and one member shall be appointed for a term of
three years. Should a vacancy occur, the person appointed to
fill the vacancy shall serve only for the unexpired portion
thereof. All voting members are eligible for reappointment. Any
voting member may be removed for cause by the appointing county
commission.
(c) The ex officio nonvoting members are the commissioner
of the division of highways or his or her designee, the director
of the division of natural resources or his or her designee, the
commissioner of agriculture or his or her designee, the
commissioner of commerce or his or her designee, and, if they
choose to serve, the district engineer of the Huntington district
of the United States army corps of engineers or his or her
designee and the superintendent of the new river gorge national
river or his or her designee. Any designee serving as a
nonvoting member may be removed at the will and pleasure of the officer designating the member.
(d) Each voting member of the authority may be compensated
monthly by the county commission which appointed such member in
an amount to be fixed by said county commission.
(e) There shall be an annual meeting of the authority on
the second Monday in July in each year and a monthly meeting on
a day and at such time as the authority may designate in its
bylaws. A special meeting may be called by the president, the
secretary or any three voting members of the authority and may be
held only after all voting and nonvoting members are given notice
thereof in writing. Five voting members constitute a quorum for
all meetings. At each annual meeting of the authority, it shall
elect a president, vice president, secretary and treasurer. The
authority shall adopt such bylaws and rules regulations that are
necessary for its own operation and management.
(f) The authority has all but only those powers necessary,
incidental, convenient and advisable for to accomplish the
following purposes:
(1) The preparation of a plan or plans for the new river
parkway and the new river parkway corridor;
(2) To create and administer a development certification
process for issuance by the authority, where appropriate, of
certifications of compliance with the authority's plan or plans;
(3) To hear and decide appeals from initial decisions made
upon requests for certification of compliance with the
authority's plan or plans;
(2) (4) Advocating actions consistent with that the plan or
its provisions plans, to or before any governmental entity or any
private person or entity; and
(3) (5) Otherwise acting in an advisory capacity with
regard to any aspect of the new river parkway and new river
parkway corridor upon or without request to any governmental
entity or private person or entity. The authority shall not own
or hold any real estate or real property and shall not operate or
maintain the parkway.
§2a. Setting of standards and a development certification
process for the regulation of use of property within
the parkway corridor; definition of corridor;
presentation of standards to governmental entities;
requirement that governmental entities adopt and
enforce standards; process of appeals and injunctive
relief.
(a) The authority may develop and set for land-use
regulations minimum performance standards which are necessary to
implement the authority's plan or plans and which are consistent
with the purpose of this chapter. Such The standards shall apply to the new river parkway corridor. New development within the
parkway corridor requires certification by the authority that all
requirements of its plan or plans have been complied with and
that a certificate of compliance has been issued for the new
development. The certification process shall be included in the
authority's plan or plans and shall include the right of appeal
by any person adversely affected by the process. For purposes of
this chapter, "New River Parkway Corridor" or "corridor" means
that area within five hundred feet of either side of the roadway
the parkway centerline, from interstate 64 to the Hinton new
river bridge, as delineated on an official parkway corridor map.
Areas which the standards may address include:
(1) Buffer areas between the roadway and paved parking
areas;
(2) Landscaping or vegetation requirements, or both;
(3) Land coverage, frontage, setback, design and building
height for new structures;
(4) Siting of new structures to enhance the scenic qualities
of the parkway and avoid visual intrusions;
(5) Design and placement of on-site advertising signs along
the parkway;
(6) The dumping or storing of refuse to prevent
deterioration of the natural or traditional parkway scene: Provided, That such the standards shall not discourage
constructive development and uses of such the property which are
consistent with the purpose of this chapter; and
(7) Any other area, if regulation over such area is
consistent with the purpose of this chapter. Standards which are
developed by the authority shall not apply to structures on
property owned in the corridor existing in the corridor prior to
the effective date of this section.
(b) Upon the development of standards and a development
certification process, the authority shall present such the
standards and certification process to relevant governmental
entities within the corridor. Such The presentation shall
include relevant findings as to whether the plans of development
which relate to counties or municipalities within the corridor
local plans and ordinances conform with the authority's
performance standards as well as specifications of each, if any,
deviation and certification process and this presentation shall
specify deviations, if any, from the performance standards and
certification process.
(c) Within thirty ninety days of the presentation of the
authority's minimum performance standards and development
certification process, the relevant governmental entities shall
adopt and enforce such the standards and certification process in the parkway corridor.
(d) The development certification process included in the
authority's plan or plans and adopted by the relevant
governmental entities shall include an appeals process. The
appeals process shall include an informal administrative appeal
by which an adversely affected person may appeal the initial
decision regarding a request for issuance of certification for
proposed new development within the parkway corridor. If the
appeal of the initial decision regarding certification is
affirmed, the adversely affected person has the right to judicial
review in the circuit court of the county where the relevant
portion of the parkway corridor is located. The review is de
novo. The burden is on the adversely affected person to prove
the initial decision of the authority is contrary to the
requirements of the authority's plan or plans as adopted by the
relevant governmental entity.
(e) The circuit court of the county where the relevant
portion of the parkway corridor is located has the power to and
shall grant injunctive relief to compel compliance by any person
with the plan or plans of the authority adopted by the relevant
governmental entity.