Adopted by House 3-13-2010
SB41 HFIN AM 3-10McO
The Committee on Finance moves to amend the bill on page two,
following the enacting clause, by striking out the remainder of the
bill and inserting in lieu thereof the following:
"That §8A-5-12 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §16-13E-2 and §16-13E-4 of said code
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §16-13E-10a, all to read as
CHAPTER 8A. LAND USE PLANNING.
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
(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, 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.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13E. COMMUNITY ENHANCEMENT ACT.
For purposes of this article:
(a) "Assessment bonds" means special obligation bonds or notes
issued by a community enhancement district which are payable from
the proceeds of assessments.
(b) "Assessment" means the fee, including interest, paid by
the owner of real property located within a community enhancement
district to pay for the cost of a project or projects constructed
upon or benefitting or protecting such property and administrative
expenses related thereto, which fee is in addition to all taxes and
other fees levied on the property.
(c) "Board" means a Community Enhancement Board created
pursuant to this article.
(d) "Code" means the Code of West Virginia, 1931, as amended.
(e) (d) "Community enhancement district" or "district" means a community enhancement district created pursuant to this article.
(f) (e) "Cost" means the cost of:
(1) Construction, reconstruction, renovation and acquisition
of all lands, structures, real or personal property, rights,
rights-of-way, franchises, easements and interests acquired or to
be acquired by the district;
(2) All machinery and equipment, including machinery and
equipment needed to expand or enhance county or city services to
(3) Financing charges and interest prior to and during
construction and, if deemed advisable by the district or governing
body, for a limited period after completion of the construction;
(4) Interest and reserves for principal and interest,
including costs of municipal bond insurance and any other type of
(5) Costs of issuance in connection with the issuance of
(6) The design of extensions, enlargements, additions and
improvements to the facilities of any district;
(7) Architectural, engineering, financial and legal services;
(8) Plans, specifications, studies, surveys and estimates of
costs and revenues;
(9) Administrative expenses necessary or incident to
determining to proceed with any project; and
(10) Other expenses as may be necessary or incident to the
construction, acquisition and financing of a project.
(g) "County commission" means the governing body of a county
as defined in section one, article one, chapter seven of this code.(f) "Development concept" means the following items, to the
extent set forth or specified in the subject subdivision or land
development plan and plat:
(1) The maximum aggregate number of lots or parcels into which
the subject land is to be subdivided.
(2) The size and boundaries of the individual lots or parcels
into which the subject land is to be subdivided.
(3) The density of the land development.
(4) Designation of use of the individual lots or parcels.
(5) The location of roads, streets, parking lots, sidewalks
and other paved areas.
(6) The location of ingress and egress for the land
(7) Setback lines and distances and buildable areas.
(8) The finished layout and grade of the land.
(g) "Development concept vesting period" means the period
commencing upon approval of the subject land development plan and
plat by the planning commission and terminating on the maturity
date of the subject assessment bonds or tax increment financing
obligation. The development concept vesting period pertains only to the vested property right in a development concept that is
established upon approval by the planning commission of a land
development plan and plat in which a development concept is set
forth or specified.
(h) "Five-year vesting period" means the five-year vesting
period for an approved land development plan and plat provided
under subsection (c), section twelve, article five, chapter eight-a
of this code.
(h) (i) "Governing body" means, in the case of a county, the
county commission and in the case of a municipality, the mayor and
council together, the council or the board of directors as charged
with the responsibility of enacting ordinances and determining the
public policy of such municipality.
(i) (j) "Governmental agency" means the state government or
any agency, department, division or unit thereof; counties;
municipalities; any watershed enhancement districts, soil
conservation districts, sanitary districts, public service
districts, drainage districts, school districts, urban renewal
authorities or regional governmental authorities established
pursuant to this code.
(j) "Municipality" means a municipality as defined in section
two, article one, chapter eight of this code.
(k) "Person" means an individual, firm, partnership,
corporation, voluntary association or any other type of entity.
(l) "Project" means the design, construction, reconstruction,
establishment, acquisition, improvement, renovation, extension,
enlargement, equipping, maintenance, repair (including
replacements) and start-up operation of water source of supply,
treatment, transmission and distribution facilities, sewage
treatment, collection and transmission facilities, stormwater
systems, police stations, fire stations, libraries, museums,
schools, other public buildings, hospitals, piers, docks,
terminals, drainage systems, culverts, streets, roads, bridges
(including approaches, causeways, viaducts, underpasses and
connecting roadways), motor vehicle parking facilities (including
parking lots, buildings, ramps, curb-line parking, meters and other
facilities deemed necessary, appropriate, useful, convenient or
incidental to the regulation, control and parking of motor
vehicles), public transportation, public recreation centers, public
recreation parks, swimming pools, tennis courts, golf courses,
equine facilities, motor vehicle competition and recreational
facilities, flood protection or relief projects, or the grading,
regrading, paving, repaving, surfacing, resurfacing, curbing,
recurbing, widening, lighting or otherwise improving any street,
avenue, road, highway, alley or way, or the building or renewing of
sidewalks and flood protection; and the terms shall mean and
include any project as a whole, and all integral parts thereof,
including all necessary, appropriate, useful, convenient or incidental appurtenances and equipment in connection with any one
or more of the above.
§16-13E-4. Petition for creation or expansion of community
enhancement district; petition requirements.
(a) The owners of at least sixty-one percent of the real
property, determined by acreage, located within the boundaries of
the area described in the petition, by metes and bounds or
otherwise in a manner sufficient to describe the area, may petition
a governing body to create or expand a community enhancement
(b) The petition for the creation or expansion of a community
enhancement district shall include, where applicable, the
(1) The proposed name and proposed boundaries of such district
and a list of the names and addresses of all owners of real
property within the proposed district;
(2) A detailed project description;
(3) A map showing the proposed project, including all proposed
(4) A list of estimated project costs and the preliminary
plans and specifications for such improvements, if available;
(5) A list of nonproject costs and how they will be financed;
(6) A consultant study outlining the projected assessments,
setting forth the methodology for determining the assessments and the methodology for allocating portions of an initial assessment
against a parcel expected to be subdivided in the future to the
various lots into which the parcel will be subdivided and
demonstrating that such assessments will adequately cover any debt
service on bonds issued to finance the project and ongoing
(7) A development schedule;
(8) A list of recommended members for the board;
(9) If the project includes water, wastewater or sewer
improvements, written evidence from the utility or utilities that
will provide service to the district, if any, that said utility or
(A) Currently has adequate capacity to provide service without
significant upgrades or modifications to its treatment, storage or
source of supply facilities, except facilities which the community
enhancement district will provide as described in the petition;
(B) Will review and approve all plans and specifications for
the improvements to determine that the improvements conform to the
utility's reasonable requirements and, if the improvement consists
of water transmission or distribution facilities, that the
improvements provide for adequate fire protection for the district;
(C) If built in conformance with said plans and
specifications, will accept the improvements following their completion, unless such projects are to be owned by the district;
(10) If the project includes improvements other than as set
forth in subdivision (9) of this subsection that will be
transferred to another governmental agency, written evidence that
such agency will accept such transfer, unless such projects are to
be owned by the district;
(11) The benefits that can be expected from the creation of
the district and the project; and
(12) A certification from each owner of real property within
the proposed district who joins in the petition that he or she is
granting an assessment against his or her property in such an
amount as to pay for the costs of the project and granting a lien
for said amount upon said property enforceable in accordance with
the provisions of this article.
(c) After reviewing the petition presented pursuant to this
section, the governing body may by order or ordinance determine the
necessity and economic feasibility of creating a community
enhancement district and developing, constructing, acquiring,
improving or extending a project therein. If the governing body
determines that the creation of a community enhancement district
and construction of the project is necessary and economically
feasible, it shall set a date for the public meeting required under
section five of this article and shall cause the petition to be
filed with the clerk of the county commission or the clerk or recorder of the municipality, as the case may be, and be made
available for inspection by interested persons before the meeting.
(d) Notwithstanding any other contrary provision of this
to the contrary nothing in this article shall modify:
(1) The jurisdiction of the Public Service Commission to
determine the convenience and necessity of the construction of
utility facilities, to resolve disputes between utilities relating
to which utility should provide service to a district or otherwise
to regulate the orderly development of utility infrastructure in
the state; or
(2) The authority of the Infrastructure and Jobs Development
Council as to the funding of utility facilities to the extent that
loans, loan guarantees, grants or other funding assistance from a
state infrastructure agency are involved.
§16-13E-10a. Extension of vesting period for land development
plans and plats; approval of phases.
(a) The five-year vesting period is extended to the
development concept vesting period with respect to the development
concept if: (i) The land development will be wholly contained
within a community enhancement district; and (ii) either:
(A) Such community enhancement district has been created and
is in existence, and such facts have been communicated to the
planning commission, at the time the planning commission approves
the subject land development plan and plat (whether such plan and plat is denominated final, preliminary, phased preliminary, concept
or otherwise); or
(B) Such community enhancement district is created after the
initial approval of the subject land development plan and plat and
the planning commission subsequently ratifies the approval of such
plan and plat with the knowledge of the existence of the community
enhancement district; and (iii) assessment bonds or tax increment
financing obligations payable from or secured by, in whole, or in
part, assessments against real property located within the district
are issued within the five-year vesting period.
(b) Nothing herein shall be deemed to extend or otherwise
modify the five-year vesting period with respect to items other
than those included in the development concept.
(c) When a land development will be wholly contained within a
community enhancement district, a land development plan and plat
that otherwise pertains to and seeks approval of only a portion or
phase of the land development may also contain the development
concept for a greater portion, multiple phases or the entirety of
the land development if the plan and plat expressly so provides.
Approval of a land development plan and plat by the planning
commission constitutes approval of, and the establishment of a
vested property right in, the entire development concept contained
in the land development plan and plat.
(d) This section shall apply to all community enhancement districts, regardless of whether created prior or subsequent to
enactment of this section."