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Introduced Version Senate Bill 256 History

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sb256 intr
Senate Bill No. 256

(By Senator Snyder)

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[Introduced February 16, 2009; 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 §8-6-1 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §8-6-7; to amend and reenact §8A-1-2 of said code; and to amend and reenact §8A-7-2 of said code, all relating to the annexation of land by a municipality in counties that have adopted a countywide zoning ordinance which includes urban growth boundaries; requiring the land to be contiguous to the municipality outside the urban growth boundaries; requiring that annexation take place in the county's designated urban growth boundaries; providing for annexation outside the urban growth boundary; providing for annexation of property in another municipality's urban growth boundary by intergovernmental agreement between the municipalities; defining "contiguous"; requiring a public hearing and signage for property annexation outside the urban growth boundary; and providing the authority to identify and establish urban growth boundaries within county zoning ordinances.

Be it enacted by the Legislature of West Virginia:
That §8-6-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §8-6-7; that §8A-1-2 of said code be amended and reenacted; and that §8A-7-2 of said code be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 6. ANNEXATION.
PART I. GENERAL.

§8-6-1. Annexation of unincorporated territory.
(a) Unincorporated territory may be annexed to and become part of a municipality contiguous thereto only in accordance with the provisions of this article.
(b) Any farmlands or operations as described in article nineteen, chapter nineteen of this code which may be annexed into a municipality shall be protected in the continuation of agricultural use after being annexed.
(c) Any new imposition of a tax or any increase in the rate of tax upon any business, occupation or privilege following annexation shall be applied in accordance with the provisions of section five, article thirteen, chapter eight of this code.
(d) Unincorporated territory outside an urban growth boundary may not be annexed without an election, or by minor boundary adjustment, in any county that has adopted a county wide zoning ordinance pursuant to the provisions of article seven, chapter eight-a of this code, and the zoning ordinance includes an "urban growth boundary", as that term is defined under the provisions of section two, article one, chapter eight-a of this code, on its recorded zoning map for the municipality, unless the requirements of section seven, of this article are met.
§8-6-7. Annexation in any county that has adopted a county wide zoning ordinance that includes urban growth boundaries.

A petition for annexation, without an election or by minor boundary adjustment, may not be recorded or become effective in any county where a county-wide zoning ordinance has been adopted pursuant to the provisions of article seven, chapter eight-a of this code and the zoning ordinance includes and incorporates an "urban growth boundary" as defined in section two
, article one, chapter eight-a, of this code without first meeting the requirements of this article and meeting the following additional requirements and conditions:
(1) Property that is proposed for annexation outside the urban growth boundary shall be contiguous to the municipality and the main territory where the municipal seat of government is located. For the purposes of this section "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, river or other natural topography are not to be used to determine lots, parcels, municipal boundaries or county boundaries as contiguous: Provided, That the width of a street, highway, road or other traffic or utility easement, stream, river or other natural topography
, but not the length thereof, may be used to determine lots, parcels, municipal boundaries or county boundaries as contiguous . The common practice known as "pipe stem annexation" may not be used to make a property contiguous in determining that the territory containing the municipal seat is contiguous outside the urban growth boundary. Property proposed for annexation entirely within the municipality's urban growth boundary does not have to be contiguous. In absence of such an urban growth boundary shown on the county zoning map, this section of the code may not apply.
(2) County commission approval is not required for annexation without an election or by minor boundary adjustment within a municipality's own urban growth boundary. Any territory proposed to be annexed without county commission approval shall be completely within the municipality's urban growth boundary and established and shown on the county's recorded zoning map. If the municipality is satisfied that the petition is sufficient in every respect, including the finding that the property is located within its urban growth boundary, the governing body of the municipality shall enter that fact upon its journal and forward a certificate to that effect to the county commission of the county wherein the municipality or the major portion of that territory, including the additional territory, is located. The county commission shall thereupon enter an order as described in section three of this article. After the date of the order, the corporate limits of the municipality shall be as set forth therein. Annexation of property by a municipality in another municipality's designated urban growth boundary is only permitted if the two municipalities have executed an intergovernmental agreement regarding the annexation of the subject property. In the absence of such an urban growth boundary shown on a county zoning map, this section may not apply.
(3) Prior to the recordation of any annexation without election pursuant to this section, the petition or municipality seeking the annexation shall provide to the county commission both metes and bounds description of the property to be annexed and a survey map of the property drawn by a professional licensed to perform this work.
(4) The county commission shall hold an appropriately noticed public hearing and place appropriate public notice signage on the subject property, which signage shall be the same that would be required for property that is to be rezoned, before considering any petition for annexation of property outside the urban growth boundary of any municipality. At least fifteen days prior to the date set for the public hearing, the county commission shall publish a notice of the date, time and place of the public hearing as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code.
(5) The county commission shall verify that the conditions of this article and section have been met before entering an order pursuant to section three of this article for any petition for annexation without an election or by minor boundary adjustment for property located outside the urban growth boundary. A finding of fact stating any deficiencies must be placed in the county commission's record along with the petition for annexation. The county commission may not deny or refuse the recordation of an order described in section three of this article for which the total property to be annexed is inside the municipality's designated urban growth boundary shown on the county's recorded zoning map for that municipality or an intergovernmental agreement has been executed between two municipalities concerning the annexation of property in another municipality's urban growth boundary.
(6) The county commission may approve and order to be recorded any petition, without an election or annexation by minor boundary adjustment, that does not meet the requirements and conditions of this section, if the county commission finds after a public hearing and on-site signage notice that the proposed annexation is for the good of the county as a whole.
CHAPTER 8A. LAND USE PLANNING.

ARTICLE 1. GENERAL PROVISIONS.
§8A-1-2. Definitions.
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" 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) "Urban growth boundary" means a site-specific line, delineated on a zoning map or written description in a zoning ordinance identifying an area around and outside the corporate limits of a municipality within which there is sufficient supply of developable land within the boundary for at least a prospective twenty-year period of municipal growth based on demographic forecasts and the time reasonably required to effectively provide municipal services to the identified area. The urban growth boundary may be called by any name chosen by the county commission, but the word "boundary" shall be used in the name of the boundary. The boundary shall be established by the county commission in consultation with each individual municipality regarding that municipality's boundary. If the county commission and municipality cannot agree upon the location or size of the boundary, either party may file for declaratory judgment relief in the circuit court which shall submit the dispute to mediation or arbitration prior to final resolution by the circuit court. Once a county has adopted an urban growth boundary by its designation on an adopted county zoning map, the gross area inside the boundary may not be reduced without written consent of the municipality. The county commission shall review each urban growth boundary at a period not to exceed ten years or upon request of the individual municipality.
(ff) (gg) "Utility" means a public or private distribution service to the public that is regulated by the Public Service Commission.
(gg) (hh)"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.
(hh) (ii)"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-7-2. Contents of zoning ordinance.
(a) The following must be considered when enacting a zoning ordinance:
(1) Promoting general public welfare, health, safety, comfort and morals;
(2) A plan so that adequate light, air, convenience of access, and safety from fire, flood and other danger is secured;
(3) Ensuring attractiveness and convenience is promoted;
(4) Lessening congestion;
(5) Preserving historic landmarks, sites, districts and buildings;
(6) Preserving agricultural land; and
(7) Promoting the orderly development of land.
(b) A zoning ordinance may include the following:
(1) Regulating the use of land and designating or prohibiting specific land uses;
(2) Authorizing flexible planning standards to create, redevelop, reuse, protect, and enhance the physical qualities of the community;
(3) Designating historic districts and regulating the uses of land and the design of buildings within the historic district;
(4) Establishing corridor overlay districts to achieve land design goals and regulating the uses of land within the corridor overlay districts;
(5) Establishing design standards and site plan approval procedures;
(6) Dividing the land of the governing body into different zone classifications regulating the use of land, establishing performance standards for various land uses when dividing is not desired, or any combination of both;
(7) Authorizing overlay districts and special design districts within which specific additional development standards for each permitted, accessory and conditional use shall apply;
(8) Regulating the height, area, bulk, use and architectural features of buildings, including reasonable exterior architectural features and reasonable aesthetic standards for factory-built homes;
(9) Authorizing a process and standards for factory-built homes: Provided, That a governing body is prohibited from establishing a process and standards for regulating factory-built homes that is more restrictive than a process and standards for site-built homes;
(10) Preserving green spaces and requiring new green spaces, landscaping, screening and the preservation of adequate natural light;
(11) Regulating traffic flow and access, pedestrian flow and access, parking and loading;
(12) Identifying flood-prone areas subject to periodic flooding, and regulating with specific control the permitted use, type of construction and height of floor levels above base flood elevation permitted in the area so as to lessen or avoid the hazards to persons and damage to property resulting from the accumulation of storm or flood waters;
(13) Designating an airport area and establishing land-use regulations within a specific distance from the boundaries of the airport; and
(14) Authorizing planned unit developments to achieve more efficient use of land and setting standards and regulations for the developments; and
(15) Identifying and establishing urban growth boundaries as defined and provided in section two, article one of this chapter
.
(c) A zoning ordinance shall:
(1) Create a board of zoning appeals;
(2) Specify certification requirements for zoning district maps that are consistent with the governing body's comprehensive plan;
(3) Adopt procedures and requirements for nonconforming land uses;
(4) Adopt procedures and requirements for variances; and
(5) Adopt procedures and requirements for conditional use permits.



NOTE: The purpose of this bill is to provide additional requirements and conditions on annexation without an election or by minor boundary adjustment in counties that have adopted a county-wide zoning ordinance and have designated urban growth boundaries around the municipalities within that county. It requires that property to be annexed outside the municipality's urban growth boundary must be contiguous. Property outside the urban growth boundary requires county commission approval for annexation. Property within the municipality's designated urban growth boundary does not require county commission approval for annexation and does not have to be contiguous. It also requires a public hearing and signage notice and review by the county commission for land being annexed outside the designated urban growth boundary. The power to establish and a definition for Urban Growth Boundary has been added to the WV Land Use Code.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§8-6-7 is new; therefore strike-throughs and underscoring have been omitted.
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