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Jefferson County WV Subdivision
Ordinance Draft 11/15/07
The draft Subdivision Ordinance below, accompanies the Plan B draft Zoning
Ordinance
They were originally written in April 2006
(Subdivision: http://groups.yahoo.com/group/listener/message/2130
)
and January 2005 (Zoning: http://groups.yahoo.com/group/listener/message/1714
)
Legal requirements are in Appendix A
1.
Landowners have a right to the land uses allowed by zoning,
including multiple uses on one lot, and need county permits only for
construction and subdividing, not for changes of use or multiple uses.
2.
Construction is controlled by the Improvement Location Permit
Ordinance and Building Codes, not by this Ordinance.
3.
Before
subdivision of land is commenced, subdivision plans and plats must be approved
by the planning commission, in accordance with the comprehensive plan;
as required by 8A-4-2(a)(10)
4.
Information provided must be current & accurate, and, where
applicable, in accordance with relevant professional standards. Application
with information which is inaccurate, outdated, or not meeting relevant
professional standards, will be considered not to meet the requirements of this
ordinance.
5.
The applicant may withdraw the application at any time
before recording of final plat, and start with a new pre-application. A new
pre-application may be filed no sooner than 90 days after any previous pre-application
on the same land. No more than one pre-application, application, or final plat
may cover the same land at the same time.
6.
Plats and deeds of lots created under this Ordinance shall include
the note, "Farms in the county have a right to operate with both
traditional and modern methods, which can involve smells, noises, and slow
traffic on public roads."
7.
Minor subdivisions include the following. Other subdividing of land will be considered
major.
a) The creation of lots with a
net increase of four or less lots every five years
b)
Changing
lines between lots in such a way as to move a total of 10,000 square feet or
less from one or more lots to one or more others, every five years
8.
Information…
9.
Public
notice…
10.
Hearing…
11.
Approval
or Denial…
12.
Typical schedule. Minus signs show days before formal application.
a) file
preapplication, post sign (Fri): -35 days
b) post on web
& send email (same Fri)-35 days
c) publish legal ad
for completeness hearing (Thurs) -29
d) file formal
application (Fri), 0
e) staff comments
on completeness (Tue), day 32
f) hearing on
completeness (Tue), day 39 (typically decision is made that day, but deadline
is day 45, which would delay remaining schedule)
g) legal ad (Thurs,
day 48) for hearing on whether it meets requirements
h) hearing on
whether it meets requirements (Tue), normally 6 weeks after completeness
hearing, on day 81, but 4 times per year there are an odd number of weeks between
PC meeting times, so hearing would be 5 weeks later on day 74.
i) deadline for
decision on whether it meets requirements, 14 days after hearing, unless held
for up to 45 more days for more information.
Calendar
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Mon
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Tue
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Wed
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Thu
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Fri
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Sat
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P
R E A P P L
I C A T I O N
35 days |
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-35
pre-application submitted & put on web
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-29
legal ad for hearing on completeness
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-28
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-21
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-14
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-7
public comments submitted by this date will be addressed in formal application
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0 formal
application submitted, put on web, sent to review agencies
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1
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C
O M P L E T E N E S S 39 days |
2
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3
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4
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5
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6
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7
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8
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9
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10
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11
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12
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14
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16
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17
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20
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21
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24
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25
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26
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27
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28
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29
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30
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31
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32
staff comment on completeness. Agencies may also advise if they have noted
anything missing.
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33
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34
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35
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36
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37
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38
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39 1st
hearing & PC decides completeness.
Start
new 45-day clock to decide if it meets requirements: ends day 84
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40
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41
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42
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43
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R
E Q U I R E M E N T S 35 or 42 days |
44
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45 end
first 45-day clock
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46
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47
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48
legal ad for hearing on meeting requirements
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49
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50
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51
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52
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53
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54
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55
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56
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57
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58
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59
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60
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61
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62
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63
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64
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65
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66
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67
staff & agency comments on whether it meets requirements
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68
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69
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70
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71
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72
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73
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74th
or 81st day (depending when PC meets)
2nd
hearing & PC decides if it meets requirements
This is
35 or 42 days after 1st PC decision, so it fits in the 45-day maximum
clock.
This is
26 or 33 days after legal ad, so it fits the
21-day minimum legal notice.
(cannot
decide earlier, since this hearing needs 21-day legal notice; earlier ad did
not need any particular timing)
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75
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76
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77
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78
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79
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80
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82
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83
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84 end
2nd 45-day clock; may be extended 45 more days for more information,
such as legal opinion or 14 days for deliberation
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13.
Applicant will reserve with staff a regular PC meeting date when
there is at most one other major subdivision planned for hearing.
14.
Applicant for Major subdivision will provide pre-application
information
a) to the Planning
Commission office on a Friday morning by 10am, 60 days before the hearing
(Tuesday, when completeness will be decided) and 35 days before formal
application is submitted.
b) in 10 paper
copies and 2 CDROMs, ready to be put on the county website, with an address
of jeffersoncountywv.org/pc/abcdefg where "abcdefg" is a short name arranged
with the PC staff, which will not change.
c) The CDROMs will
be in .pdf format and not exceed 10 megabytes, uncompressed [about 27 times the
size of the current zoning ordinance with all amendments through 4/05]
d) The hard copies
will be available, 5 for staff, PC and other government review, 5 for loan to
members of the public (e.g. at libraries).
e) On the day of
receipt, staff will email a notice of availability to all who have
provided their email addresses for that purpose, and will copy the CDROM to the
website. They will also send copies to review agencies and PC members which
wish paper copies.
f) The email list
will include all local governments and boards and commissions unless they
request to be removed from the list (in which case there will be an annual
letter asking if they wish to be reinstated).
g) The staff will
place a legal notice of the public hearing on completeness as soon as
possible after receipt of the pre-application
h) The applicant
will post signs (in format provided by PC) so they are readable from
each public road within 1000 feet of the property. Posting will be done on the
same day as pre-application is submitted
i) The email and
legal notices will include dates of hearings, web address of
application, planning office phone number, project name, location map showing
property boundaries and surrounding roads at 1"=1000' (so 200-acre square
area would be 3" square in ad) , applicant's address & phone; number
& type of housing units; square feet, height, & type of commercial
space, acres, % to be in each of the following categories: building footprints,
paved, grass, wooded, other natural (e.g. water, wetland, sinkhole).
15.
Appendix B lists the pre-application
information required:
MAJOR SUBDIVISIONS: APPLICATION
16.
The final application will be filed by 10am on the Friday
designated in the pre-application, will confirm which aspects of the pre-application
remain the same and which have changed (e.g. because of public comment).
Numbers may change by up to 10% without filing a new pre-application, and such
changes must be highlighted. 20 paper copies and a CDROM will be filed with the
office (as for the pre-application). Individual copies will also be mailed to
review agencies and planning commissioners, on paper or CDROM. Staff will
tell applicants the format for individual recipients. Review agencies and
planning commissioners who wish copies of pre-applications may request them
from staff. The CDROM will be suitable for the web as above. No urls on the
CDROM shall be the same as the pre-application, even when content is identical,
so the staff, public & commissioners can verify the content is identical in
case of doubt. The CDROM will not exceed 12 megabytes, except that including
the plats on the CDROM is optional, and if they are included, they may be any
size necessary.
17.
On the day of receipt, staff will email a notice of availability
to all who have provided their email addresses for that purpose, and will copy
the CDROM to the website.
18.
Final application will provide the pre-application
information, as revised, plus the information in Appendix C:
19.
Review agencies are:
a) Jefferson County
Schools
b) Public Service
District and/or other appropriate utility service agencies.
c) Jefferson County
Historic Landmarks Commission
d) Jefferson County
Sheriff
e) Appropriate fire
and rescue services providers
f) West Virginia
Department of Transportation
g) Jefferson County
Development Authority
h) Jefferson County
Health Department
i) incorporated
cities within 3 miles, including their departments and boards, such as
planning, historic landmarks, and parks
j) DPZE
k) Affordable Housing
Agency
MAJOR SUBDIVISIONS: COMPLETENESS REVIEW
20.
Staff and review agencies will provide advice on the
completeness of the applicant's information to the Planning Commission,
applicant and public 7 days (Tues) before the hearing.
21.
The planning commission will hold a public hearing on
completeness and decide if the application is complete, in accord with
state law 8A-5-6(b). If a quorum is lacking at the originally scheduled date,
another meeting will be scheduled within the 45 days after submission as
required by law. The purpose of the hearing is to consider completeness, but
testimony on whether it meets requirements may be also be given, to accommodate
members of the public who are coming forth to speak, and will be held and
considered at the later meeting on that subject.
22.
If the applicant requests an early declaration of completeness
under 8A-5-8(a), the PC shall schedule a special meeting to make the decision,
with proper notice, and shall not decide at a regular meeting, where notice may
not be sufficient.
23.
If the application is determined to be complete, the PC
will set the hearing on whether it meets requirements.
24.
If the application is determined to be incomplete, then no
later than the 2nd regular meeting after the decision, the PC shall
prepare written notice to the applicant identifying at least some of the
incompletenesses. If there are multiple incompletenesses, the PC will generally
not take time to find them all. If the applicant forced the PC to decide early
(as above), the PC may proceed with the hearing on completeness to further help
identify areas of incompleteness.
MAJOR SUBDIVISIONS: REVIEW ON WHETHER
APPLICATION MEETS REQUIREMENTS
25.
The staff will publish a legal notice of the public hearing
on whether it meets requirements at least 21 days before the hearing, and the
applicant will post a sign (provided by staff) on each public road close to the
property.
26.
Staff and review agencies will provide comments on whether
it meets requirements to the Planning Commission, applicant and public 7 days
(Tues) before the hearing.
27.
The planning commission will hold a public hearing on whether
it meets requirements and decide if the application meets requirements, in
accord with state law 8A-5-8(c). If a quorum is lacking at the originally
scheduled date, another meeting will be scheduled within the 45 days after
determination of completeness as required by law.
28.
If a decision is not made at the same meeting as the hearing, it
shall be made within 14 days after the hearing.
29.
If more information is needed to determine whether it meets
requirements, the application may be held for another 45 days while the PC
obtains the information.
30.
During hearings the chair shall not allow repetitious testimony.
Speakers, including the applicant may provide new information, but not repeat
information previously provided. However a speaker may also rise simply to say
(s)he agrees with a previous speaker. Commissioners may pose questions to
anyone present if they need clarification. The applicant must be present to
answer questions from the commissioners.
31.
No later than the 2nd regular meeting after the
decision, the PC shall prepare written notice to the applicant of the reasons
for any denial, and shall state any conditions of approval. If the
application fails to meet requirements in numerous ways, the PC may not take
time to find them all.
MAJOR SUBDIVISIONS: OTHER REQUIREMENTS
32.
8A-4-2(a)(5)
requires this ordinance to have standards for:
a)
setbacks: as stated in zoning ordinance
b)
lot sizes: sufficient to accommodate setbacks and health permits
c)
streets, curbs: performance standards as described in appendices
d)
sidewalks, walkways are left to market forces,
e)
parking is left to market forces
f)
easements, rights-of-way will be sufficient to ensure the approved design
lasts,
g)
drainage, gutters, storm water management: performance standards as
described in appendices
h)
utilities, infrastructure, water and wastewater facilities: as described in appendices
i)
street lights must aim entirely below horizontal, and meet boundary limits in zoning
ordinance
j)
fire hydrants, if piped water is provided, hydrants must be (1) designed to
standards of servicing fire company, and placed (2) within 20' of each subdivision
entrance, and (3) so that every building entrance is within 500' of two
hydrants.
33.
Open space, shall be provided in parks at a rate of one tenth acre per housing unit
34.
Buffers: as stated in the zoning ordinance
35.
Road ownership & maintenance (need alternatives to ubiquitous HOAs)…
36.
Plat wording & format…
37.
Cooperating and coordinating with other governmental agencies affected by the
subdivision and land development and use will be accomplished by (a) notifying
them of each application as required above, and (b) inviting them to meetings
with the planning commission, at least quarterly, with the chair rotating among
governmental agencies which are willing to assume the chair. (8A-4-2(a)(16)
38.
Bonding, inspections, bond releases, enforcement,
penalties…
39.
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; as
required by 8A-4-2(a)(11)
40.
Improvement location permits are required, as stated in the Ordinance of that
name. Starting a structure or development of land is prohibited without an
improvement location permit; as required by 8A-4-2(a)(14)
41.
Development
in the 1% or 100-year floodplain must follow the requirements in that
ordinance as required by 8A-4-2(a)(6)
42.
Development
must follow applicable state and national laws and regulations
43.
Definitions (most are in Plan B Zoning Ordinance)…
44.
Fees…
45.
Waivers…
VESTING
46.
Vested
property rights In accordance with §8A-5-12
and 8A-4-2(b)(4):
a) Right to pursue an approved plan and plat
(1)
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.
(2)
Failure to abide by the terms and conditions of the approved land development
plan and plat will result in forfeiture of the right.
(3)
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.
b) Further right to pursue a development and right to ignore later
zoning ordinance amendments
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; "significant"
excludes permits issued in the normal course of business by the state Division
of Highways, Department of Environmental Protection, Bureau of Health, or their
successors, and similar permits which are typical parts of the development
process in West Virginia, and which do not by themselves allow a development to
be built
(2)
Relies in good faith on the significant affirmative governmental act; "good
faith" excludes situations where the County Commission had publicly
started the process of zoning
amendments, such as asking for text from staff, contractors, the Planning
Commission or public, holding hearings, or voting in principle to proceed; it
also excludes obligations or expenses incurred merely to create vesting, and
beyond the reasonable work needed at that stage to pursue the project
(3)
Incurs extensive obligations or substantial expenses in diligent pursuit of the
specific project in reliance on the significant affirmative governmental act. "extensive
obligations" means legal obligations which cannot be avoided without
substantial cost;
"substantial" means more than 20% above the land cost.
c) Applicable to both types of vesting
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.
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Appendix A - Some of the Legal Requirements
( √ means item is
addressed in draft ordinance, attached; other items still need to be addressed)
§8A-4-2(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 and
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;
(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.
§8A-5-6.(b) √ Within forty-five days after
receipt of the application, the planning commission shall review the
application for completeness and either accept or deny it.
§8A-5-8.
(a) √ Upon written
request of the applicant for a determination, the planning commission must
determine by vote at the next regular meeting or at a special meeting,
whether or not the application is complete based upon a finding that the
application meets the requirements set forth in its governing body's
subdivision and land development ordinance.
(c) √ At a meeting
where the application is determined to be complete, the planning commission
must set a date, time and place for a public hearing and a meeting to follow
the public hearing to vote on the application. The public hearing must
be held within forty-five days, and the planning commission must notify the
applicant of the public hearing and meeting in writing unless notice is waived
in writing by the applicant. The planning commission must publish a public
notice of the public hearing and meeting in a local newspaper of general
circulation in the area at least twenty-one days prior to the public
hearing.
(d) √ At a meeting
at the conclusion of the public hearing or a meeting held within fourteen
days after the public hearing, the planning commission shall vote to approve,
deny or hold the application.
(e) √ The
application may be held for additional information necessary to make a
determination. An application may be held for up to forty-five days.
Some Legal
Options
8A-4-2(b) A subdivision
and land development ordinance may include the following provisions:
(1) [no] 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) [wording?] Requirements for
green space, common areas, public grounds, walking and cycling paths,
recreational trails, parks, playgrounds and recreational areas;
(3) [wording?] 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.
§8A-5-7. Contents of a major
subdivision or land development plan and plat.
(b) If a governing body does not have
a subdivision and land development ordinance or if a governing body's
subdivision and land development ordinance does not specify what may be included
in a subdivision or land development plan and plat, then the following may
be included, when applicable, in a subdivision or land development plan and
plat:
(1) √ Show that the subdivision or land
development conforms to the governing body's comprehensive plan;
(2) [wording?] A method of
payment to cover the cost of the water and sewer service infrastructure, which
can include, but is not limited to, bonds, impact fees, escrow fees and
proffers;
(3) [wording?] Coordination
among land development with adjoining land owners, including but not limited
to, facilities and streets;
(4) Distribution of population and
traffic in a manner tending to create conditions favorable to health, safety,
convenience and the harmonious development of the municipality or county;
(5) [wording?] Show that there
is a fair allocation of areas for different uses, including but not limited to,
streets, parks, schools, public and private buildings, utilities, businesses
and industry;
(6) √ Show that there is a water and sewer
supply;
(7) √ Setback and lot size measures were
used;
(8) √ The standards used for designating
land which is subject to flooding or subsidence, details for making it safe, or
information showing that such land will be set aside for use which will not
endanger life or property and will not further aggravate or increase the
existing menace;
(9) √ The control measures for drainage,
erosion and sediment;
(10) [wording?] The
coordination of streets, sidewalks and pedestrian pathways in and bordering the
land development; and
(11) √ The design, construction and
improvement measures to be used for the streets, sidewalks, easements,
rights-of-way, drainage, utilities, walkways, curbs, gutters, street lights,
fire hydrants, water and wastewater facilities, and other improvements
installed, including the width, grade and location for the purpose of
accommodating prospective traffic, customers and facilitating fire protection.
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Appendix B Information
Required in Pre-application
a) short name of
project
b) contents needed
for email & legal notice
c) date of PC
hearing on completeness, and tentative date of hearing on whether it meets
requirements (applicant will have asked office to reserve available dates; no
more than two applications exceeding 10 lots, per meeting)
d)
date application will be
filed (Friday 18 days before Tuesday hearing)
e) 8.5x11 location
map showing one quarter of the county, with outline location of this project
and all projects from pre-application stage through bond release
f) 11x17 map and
brief description of existing land uses. This and other maps listed below shall
extend 100' past site boundaries and far enough to include at least 50' of each
stream which drains site
g) 11x17 map of
proposed land uses, including buildings, parking, walks, roads, water,
significant plants
h) 11x17 map
showing existing 2' contours, sinkholes, rock outcroppings, voids within 10' of
surface
i) 11x17 map of lot
lines, easements & other lines which will be on final recorded plat
j) financial
analysis in constant dollars, showing how county's & fire companies' costs
will be covered (capital & operating), with 5% cushion over costs. Account
for lag in tax collections. 5% cushion must be available for each independent
budgeting organization (e.g. schools, health, PSD, etc.)
k) traffic
designs (required by 8A-4-2(a)(5),
"infrastructure") showing wait times will
be level of service B or better at intersections within 1/2 mile, and on direct
trips to nearest municipality and along most direct main road to closest of: Martinsburg,
Winchester, Hagerstown, Frederick, Leesburg. Traffic will be evaluated as of
time of final plat approval, based on state definitions of levels of service
and on the traffic expected if 80% of unbuilt lots with final plat approval up
to that time are built.
l) accident rates
on routes mentioned in previous step, showing they are below the state average
for those types of roads, consistent with standard expressed in Kaufman v.
Fairmont.
m) historic and
tourism analysis, showing chain of previous owners, and effects, positive &
negative, on historic sites and
tourism.
n) architectural
renderings as seen from properties on national or state register of historic
properties, and typical views which include historic property & project
o) stormwater
designs (required by 8A-4-2(a)(5))
with analysis showing no more than a 10% increase
over predevelopment water use:
water taken from ground
water returned to ground
water flowing offsite in each direction,
under 6
situations: average year, drought year (10th percentile of rain
distribution); 1yr-, 2yr-, 5yr-, 10yr-storms
p) flood analysis
showing project will not worsen 100-yr floods.
q)
analysis
showing avoidance of sinkholes and voids, that habitats of rare, threatened and
endangered species will not be disturbed (including underground), and that wetlands
and streambanks will not be disturbed.
r) analysis showing in what
ways the application is and is not in accordance with the comprehensive plan in
effect, as required by 8A-4-2(a)(10)
s) fraction of fire and ambulance
calls with arrival in 6 minutes after phone call rings at 911, in
"box" region(s) containing project, and if under 95%, how it will be
raised to 95% before construction starts.
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Appendix C - Additional Information Required in Application
a) copies of all
public comments received at least 3 days before application filing
b) responses to all
public comments received at least 7 days before filing. Applicant shall also
send this "responsiveness summary" to all commenters.
c) evidence that
drinking water, septic or sewer, and public school capacity will be available
within one year, after considering already-approved projects (required by 8A-4-2(a)(5)
"infrastructure")
d) calculations
showing that roads and intersections are wide and strong enough to convey all
sizes of fire engines, school buses, trash trucks, and concrete trucks in the
county, including buses' and trash trucks' repeated stops at the same spots for
5 years without patching (required by 8A-4-2(a)(5)
"infrastructure")
e) infrastructure
plat, including layout of drinking water, sewer, stormwater, contour lines at
2' intervals, non-residential structures, residential building envelopes,
vegetation.
f) lot lines plat
suitable for recording if approved
g) 11x17 reduced
copies of technical and recordable plats (for less costly copying & review
by public)
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