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. . . updated 12/12/03
WV Law on Planning & Zoning
Full text of law follows this brief list of key provisions:
8-24-1 Legislative intent
8-24-7 Non-voting representatives between city & county planning commissions
8-24-16 Comprehensive Plan
8-24-23 & 8-24-47 Amendment of Plan & ordinance
8-24-30 Powers over Subdividing
8-24-38 & 8-24-59 Court reviews
8-24-39 Powers over Zoning
8-24-50 Exemption of existing & expanding farm, industry, manufacturer,
timber, minerals
8-24-51 Zoning Appeals
8-24-72 through 85 Farmland Preservation. After all the other sections is a cross reference to important definitions in 20-12-3. Revisions in sections 74a and 81 were posted 1/2004
8-24-86 Proffers (see comments)
CHAPTER 8, ARTICLE 24. PLANNING AND ZONING.
PART I. URBAN AND RURAL PLANNING -- PLANNING COMMISSIONS AUTHORIZED; OBJECTIVE; DEFINITIONS.
§8-24-1. Planning commissions authorized; statement of objective.
The governing body of every municipality and the county court of every county may by ordinance create a planning commission in order to promote the orderly development of its governmental units and its environs. It is the object of this article to encourage local units of government to improve the present health, safety, convenience and welfare of their citizens and to plan for the future development of their communities to the end that highway systems be carefully planned; that new community centers grow only with adequate highway, utility, health, educational and recreational facilities; that the needs of agriculture, industry and business be recognized in future growth; that residential areas provide healthy surroundings for family life; and that the growth of the community is commensurate with and promotive of the efficient and economical use of public funds.
In accomplishing this objective, it is intended that the planning commission shall serve in an advisory capacity to the governing body of a municipality or a county court, that certain regulatory powers be created over developments affecting the public welfare and not now otherwise controlled, and that additional powers and authority be granted to the governing bodies of municipalities and to counties to carry out the objective and overall purposes of this article.
§8-24-2. Continuation of planning commissions heretofore established.
Any planning commission heretofore established shall continue to operate as though established under the terms of this article. All actions lawfully taken under prior acts are hereby validated and continued in effect until amended or repealed by action taken under the authority of this article.
The membership of existing commissions shall continue unchanged until the first regular meeting of the governing body of a municipality or the county court in January of the year following enactment of this article. At that time, any appointments or changes necessary shall be made to bring the membership of the commissions into conformity with the provisions of this article.
§8-24-3. Definitions.
As used in this article:
(a) "Commission or planning commission" shall mean a municipal planning commission or a county planning commission, as the case may be;
(b) "Comprehensive plan" shall mean a complete comprehensive plan or any of its parts such as a comprehensive plan of land use and zoning, of thoroughfares, of sanitation, of recreation and other related matters, and including such ordinance or ordinances as may be deemed necessary to implement such complete comprehensive plan or parts thereof by legislative approval and provision for such rules and regulations as are deemed necessary and their enforcement;
(c) "Exterior architectural features" includes 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, 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;
(d) "Historic district" is a geographically definable area possessing a significant concentration, linkage or continuity of sites, buildings, structures or objects united historically or aesthetically by plan or physical development;
(e) "Historic landmark" is a site, building, structure or object designated as a "Landmark" either on a national, state or local register;
(f) "Historic site" is 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;
(g) "Public place" includes any tracts owned by the state or its subdivisions;
(h) "Streets" includes streets, avenues, boulevards, highways, roads, lanes, alleys and all public ways;
(i) "Unit of government" means any federal, state, regional, county or municipal government or governmental corporation; and
(j) "Utility" means any facility used in rendering service which the public has a right to demand.
PART II. SAME -- EXERCISE OF POWERS AND AUTHORITY; ORGANIZATIONS AND FUNCTION OF COMMISSIONS.
§8-24-4. How powers and authority exercised.
Where power and authority are conferred herein, singly or disjunctively, on the governing body or administrative authority of a municipality, that power and authority may be exercised only in relation to a municipal planning commission. Where power and authority are conferred herein, singly or disjunctively, on a county court, that power may be exercised only in relation to a county planning commission.
§8-24-5. Municipal planning commission generally.
A municipal planning commission shall consist of not less than five nor more than fifteen individuals, the exact number to be specified in the ordinance creating such commission, all of whom shall be freeholders and residents of the municipality, who shall be qualified by knowledge and experience in matters pertaining to the development of the municipality, who shall include representatives of business, industry and labor, and who shall be nominated by the administrative authority and confirmed by the governing body of the municipality or appointed by the governing body where the administrative authority and governing body are the same. At least three fifths of all of the members must have been residents of the municipality for at least one year prior to nomination and confirmation or appointment. One member of the commission shall also be a member of the governing body of the municipality and one member shall also be a member of the administrative department of the municipality, the term of these two members to be coextensive with the term of office to which they have been elected or appointed, unless the governing body and administrative authority of the municipality at the first regular meeting of the commission each year designate others to serve as the municipality's representatives. The remaining members of the commission first selected shall serve respectively for terms of one year, two years and three years, divided equally or as nearly equally as possible between these terms. Thereafter, members shall be selected for terms of three years each. Vacancies shall be filled for the unexpired term only, in the same manner as original selections are made. Members of the commission shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their official duties.
§8-24-6. County planning commission generally.
A county planning commission shall consist of not less than five nor more than fifteen individuals, the exact number to be specified in the ordinance creating such commission, all of whom shall be freeholders and residents of the county, who shall be qualified by knowledge and experience in matters pertaining to the development of the county, who shall include representatives of business, industry, labor and farming, and who shall be appointed by the county commission. At least three fifths of all of the members must have been residents of the county for at least one year prior to appointment. One member of the commission shall also be a member of the county commission, the term of such member to be coextensive with the term of office to which he has been elected, unless the county commission at the first regular meeting of the commission each year appoints another member to serve as its representative. The remaining members of the commission first appointed shall serve respectively for terms of one year, two years and three years, divided equally or as nearly equally as possible between these terms. Thereafter, members shall be appointed for terms of three years each. Vacancies shall be filled by appointment by the county commission for the unexpired term only. Members of the commission shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their official duties. An individual may at the same time serve as a member of a municipal planning commission and as a member of a county planning commission.
§8-24-7. Advisory members.
In the event a municipality which has or shall establish a planning commission is located within or partly within a county which has or shall have a county planning commission, a designated representative of the county planning commission shall be an advisory member of the municipal planning commission. A designated representative of a municipal planning commission of a municipality located within or partly within a county which has or shall have a county planning commission shall be an advisory member of the county planning commission. All such advisory members shall have all the privileges of membership except the right to vote.
§8-24-8. Regular and special meetings.
The commission shall fix the time for holding regular meetings, but it shall meet at least once in the months of January, April, July and October.
Special meetings of the commission may be called by the president or by at least two members upon written request to the secretary. Whether called by the president or by two or more members, the secretary shall send to all of the members, at least two days in advance of a special meeting, a written notice fixing the date, time and place of the meeting, but written notice of a special meeting is not required if the date, time and place of the special meeting have been fixed in a regular meeting, or if all of the members are present at the special meeting.
§8-24-9. Quorum.
In order to conduct a commission meeting, a quorum of the members must be present. A majority of the members of a commission shall constitute a quorum. No action of a commission shall be official unless authorized by a majority of the members present at a regular or properly called special meeting.
§8-24-10. Offices; appropriation for expenses.
The county court in the case of a county planning commission, and the governing body of the municipality in the case of a municipal planning commission, shall provide the commission with suitable offices for the holding of meetings and the preservation of plans, maps, documents and accounts, and shall provide by appropriation a sum sufficient to defray the reasonable expenses of the commission.
§8-24-11. Election of officers.
At its first regular meeting in each year the commission shall elect from its members a president and vice president. The vice president shall have the power and authority to act as president of the commission during the absence or disability of the president.
§8-24-12. Appointment, duties and compensation of secretary and employees; special and temporary services; legal assistance.
Any commission may appoint and prescribe the duties and fix the compensation of a secretary and such employees as are necessary for the discharge of the duties and responsibilities of the commission. All such compensation, however, shall be in conformity to and in compliance with the salaries and compensation theretofore fixed by the governing body or county court of such municipalities or counties.
A commission may make contracts for special or temporary services and any professional counsel. The prosecuting attorney of a county, upon request, shall, without additional compensation, render legal assistance and service to the county planning commission.
§8-24-13. Municipal-county commission; powers and authority; expenses.
The governing body of any municipality located within a county having an established planning commission may, by ordinance, designate such county planning commission as the municipal planning commission. The county court of any county within which a municipality having an established planning commission is located may, by ordinance, designate such municipal planning commission as the county planning commission. In the event any such municipality is located partly within one county and partly within another county or counties, the foregoing provisions of this section shall apply only to the county within which the major portion of the territory of the municipality is located.
A county planning commission designated as a municipal planning commission shall have for that municipality all the powers, authority and duties granted under this article to a municipal planning commission. A municipal planning commission designated as a county planning commission shall have for that county all the powers, authority and duties granted under this article to a county planning commission.
Any municipality designating a county planning commission as its municipal planning commission may contract annually to pay to the county a proportionate part of the expenses which is properly chargeable to the planning service rendered to such municipality, and any such payments received by the county shall be appropriated by the county to the county planning commission in addition to any funds budgeted for planning purposes, although the county court may, if it so elects, agree to pay the total cost. Any county designating a municipal planning commission as its county planning commission may contract annually to pay to the municipality a proportionate part of the expenses which is properly chargeable to the planning service rendered to such county, and any such payments received by the municipality shall be appropriated by the municipality to the municipal planning commission in addition to any funds budgeted for planning purposes.
PART III. SAME -- POWERS, AUTHORITY AND DUTIES.
§8-24-14. Administrative powers and authority.
To effectuate the purposes of this article, a commission shall have the power, authority and duty to:
(1) Exercise general supervision of and make rules and regulations for the administration of the affairs of the commission;
(2) Prescribe uniform rules and regulations pertaining to its investigations and hearings;
(3) Supervise the fiscal affairs and responsibilities of the commission;
(4) Prescribe the qualifications of, appoint, remove and fix the compensation of, the employees of the commission, such compensation to be in conformity to and in compliance with the salaries and compensation theretofore fixed by the governing body or county court of such municipalities or counties;
(5) Delegate to employees authority to perform ministerial acts in all cases except where final action of the commission is necessary;
(6) Keep an accurate and complete record of all departmental proceedings, and record and file all bonds and contracts and assume responsibility for the custody and preservation of all papers and documents of the commission;
(7) Make recommendations and an annual report to the governing body of the municipality or to the county court concerning the operation of the commission and the status of planning within its jurisdiction;
(8) Prepare, publish and distribute reports, ordinances and other material relating to the activities authorized under this article;
(9) Adopt a seal, and certify all official acts;
(10) Invoke any legal, equitable or special remedy for the enforcement of the provisions of this article or any ordinance, rule and regulation or any action taken thereunder;
(11) Prepare and submit an annual budget in the same manner as other departments of municipal and county government and the commission shall be limited in all expenditures to the provisions made therefor by the governing body of such municipality or by the county court of such county;
(12) If deemed advisable, establish an advisory committee or committees; and
(13) Delegate to a committee composed of one or more members of the commission the power to hold any public hearings or conferences required or permitted under this article to be held by the commission. If the hearing or conference is held by a committee, a written record of the substance of the hearing or conference shall be made and preserved with the records of the commission for not less than five years. The committee shall have authority only to conduct the hearing and report to the commission.
§8-24-15. Appropriations; expenditures; disposition of gifts; participation in federal planning assistance programs.
After the governing body of a municipality or a county court has adopted an ordinance creating a planning commission, the governing body or county court shall appropriate funds to carry out the duties of the commission.
The planning commission shall have the power and authority to expend, under regular municipal or county procedure as provided by law, all sums appropriated to it for the purposes and activities authorized under this article.
A municipality or county may accept gifts and donations for planning commission purposes. Any moneys so accepted shall be deposited with the municipality or county in a special nonreverting planning commission fund to be available for expenditures by the planning commission for the purpose designated by the donor. The disbursing officer of a municipality or county shall draw warrants against such special nonreverting fund only upon vouchers signed by the president and secretary of the planning commission.
A municipal or county planning commission is empowered and authorized to spend funds made available for the purposes of this article, and to accept and use funds provided for the purposes of this article by the government of the United States and any other agency or group whose interests are in harmony with such purposes, in accordance with federal requirements and subject to such conditions or limitations as the constitution or law of the state may provide. In this connection a municipal or county planning commission is hereby expressly authorized to participate in the federal planning assistance programs as set forth in the "Federal Housing Act of 1954," as amended, and any subsequent acts.
PART IV. SAME -- COMPREHENSIVE PLAN.
§8-24-16. Comprehensive plan for physical development of territory -- Generally.
A planning commission shall make and recommend for adoption to the governing body of the municipality or to the county court, as the case may be, a comprehensive plan for the physical development of the territory within its jurisdiction. Any county plan may include the planning of towns or villages to the extent to which, in the commission's judgment, they are related to the planning of the unincorporated territory of the county as a whole: Provided, That the plan shall not be considered as a comprehensive plan for any town or village without the consent of any planning commission and the governing body of such town or village. The county plan shall be coordinated with the plans of the state road commission, insofar as it relates to highways or thoroughfares under the jurisdiction of that commission. A county planning commission may prepare, and the county court is empowered and authorized to adopt, a comprehensive plan and zoning ordinance for either the entire county, or for any part or parts thereof which constitute an effective region or regions for planning and zoning purposes without the necessity of adopting a plan and ordinance for any other part. In determining what constitutes an effective region or regions for planning and zoning purposes, due consideration shall be given to such factors as population density, health, general welfare, water and sanitation requirements, and future potential for residential, commercial, industrial or public use. The procedure for the preparation and adoption of a comprehensive plan and zoning ordinance for a part of such county shall be the same as the procedure for the preparation and adoption of a plan and ordinance for the entire county, except that the election provided for in section forty-eight of this article shall be restricted to the qualified electors residing within the part or parts affected.
The comprehensive plan, with the accompanying maps, plats, charts and descriptive and explanatory matter, shall show recommendations for the development of the territory covered by the plan and may include, among other things, the general location, character and extent of streets, viaducts, bridges, waterways and waterfront developments, parkways, playgrounds, forests, reservations, parks, airports and other public ways, grounds, places and spaces; the general location and extent of publicly owned utilities and terminals, and other purposes; the acceptance, widening, removal, extension, relocation, narrowing, vacation, abandonment or change of use of any of the foregoing public ways, grounds, places, spaces, buildings, properties, utilities or terminals; the general character, location and extent of community centers, municipal sites or housing development; the general location and extent of forests, agricultural areas and open-development areas for the purposes of conservation, food and water supply, sanitary drainage facilities or the protection of urban development; a land classification and utilization program; the distribution of population, and the uses of land for trade, industry, habitation, recreation, agriculture, forestry, soil and water conservation and other purposes.
In the preparation of a comprehensive plan, a planning commission shall make careful and comprehensive surveys and studies of the existing conditions and probable future changes of such conditions within the territory under its jurisdiction. The comprehensive plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the area which will, in accordance with present and future needs and resources, best promote the health, safety, morals, order, convenience, prosperity or general welfare of the inhabitants, as well as efficiency and economy in the process of development, including, among other things, such distribution of population and of the uses of land for urbanization, trade, industry, habitation, recreation, agriculture, forestry and other purposes as will tend:
(1) To create conditions favorable to health, safety, transportation, prosperity, civic activities and recreational, educational and cultural opportunities;
(2) To reduce the wastes of physical, financial or human resources which result from either excessive congestion or excessive scattering of population; and
(3) Toward the efficient and economic utilization, conservation and production of the supply of food and water and of drainage, sanitary and other facilities and resources.
§8-24-17. Comprehensive plan for physical development of territory -- Contents.
A comprehensive plan may include the following or a study of the following:
(a) Careful and comprehensive surveys and studies of existing conditions and the probable future growth of the municipality and its environs or of the county;
(b) Maps, plats, charts and descriptive material presenting basic information, locations, extent and character of any of the following:
(1) History, population and physical site conditions;
(2) Land use, including the height, area, bulk, location and use of private and public structures and premises;
(3) Population densities;
(4) Community centers and neighborhood units;
(5) Blighted and slum areas;
(6) Streets, including bridges, viaducts, subways, parkways and other public ways and places;
(7) Sewers, sanitation and drainage, including handling, treatment and disposal of excess drainage waters, sewage, garbage, refuse, wastes, ashes, trash and other similar matters;
(8) Stream pollution;
(9) Flood control and prevention;
(10) Public and private utilities, including water, light, heat, communication and other services;
(11) Transportation, including rail, bus, truck, air and water transport and their terminal facilities;
(12) Local mass transportation, including motor and trolley busses; street, elevated or underground railways and taxicabs;
(13) Parks and recreation, including parks, playgrounds, reservations, forests, wildlife refuges and other public grounds, spaces and facilities of a recreational nature;
(14) Public buildings and institutions, including governmental administration and service buildings, hospitals, infirmaries, clinics, penal and correctional institutions and other civic and social service buildings;
(15) Education, including location and extent of schools, colleges and universities;
(16) Land utilization, including residence, industry, agriculture, forests and other uses;
(17) Conservation of water, soil, agricultural and mineral resources; and
(18) Any other factors which are a part of the physical, economic or social situation within the municipality or county;
(c) Reports, maps, charts and recommendations setting forth plans for the development, redevelopment, improvement, extension and revision of the subjects and physical situations of the municipality or county set out in subdivision (b) of this section so as to substantially accomplish the objective set forth in section one of this article;
(d) A long-range development program of public works projects, based on the recommended plans of the commission, for the purpose of eliminating unplanned, unsightly, untimely and extravagant projects and with a view to stabilizing industry and employment, and the keeping of such program up to date by yearly revisions; and
(e) A long-range financial program of governmental expenditures in order that such development program may be carried out, and the keeping of such program up to date, for all separate taxing units within the municipality or county, respectively, for the purpose of assuring efficient and economic use of public funds.
§8-24-18. Comprehensive plan for physical development of territory -- Notice and public hearing.
Prior to the adoption of a comprehensive plan, a commission shall give notice, as hereinafter in this section specified, and hold a public hearing on the plan and the proposed ordinance for its enforcement.
At least thirty days prior to the date set for hearing, the commission shall publish a notice of the date, time and place of the hearing as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the municipality or county, as the case may be.
§8-24-19. Comprehensive plan for physical development of territory -- Adoption by commission.
After a public hearing has been held, the commission may by resolution adopt the comprehensive plan and recommend the ordinance to the governing body of the municipality or to the county court.
§8-24-20. Comprehensive plan for physical development of territory -- Certification and presentment to governing body or county court.
Upon adoption of the comprehensive plan and recommendation of the ordinance, the secretary shall certify a copy of the plan to the governing body of the city or to the county court.
At the first meeting of the governing body of the municipality or of the county court after adoption of the plan, the secretary or a member of the commission shall present the plan and ordinance to the governing body or to the county court.
§8-24-21. Comprehensive plan for physical development of territory -- Consideration of plan and ordinance by governing body or county court; publication.
After certification of the plan and ordinance to the governing body of the municipality or to the county court, the governing body of the municipality or the county court shall proceed to a consideration of the plan and ordinance and shall either adopt, reject or amend the same. If the ordinance adopting the comprehensive plan is published, the plan may be incorporated by reference in the ordinance and the full text of said plan not published.
§8-24-22. Comprehensive plan for physical development of territory -- Rejection or amendment by governing body or county court; consideration and report by commission.
If the governing body of the municipality or the county court rejects the plan and ordinance or amends it, then it shall be returned to the commission for its consideration, with a written statement of the reasons for its rejection or amendment.
The commission shall have forty-five days in which to consider the rejection or amendment and report thereon to the governing body of the municipality or to the county court. If the commission approves the amendment, the ordinance shall stand as adopted by the governing body of the municipality or the county court as of the date of the filing of the commission's report with the governing body of the municipality or with the county court. If the commission disapproves the rejection or amendment, it shall state its reasons in the report, and the governing body of the municipality or the county court shall again consider said plan and ordinance, and its action in rejecting or amending said plan and ordinance, after such consideration, shall be final.
In case the commission does not file a report with the governing body of the municipality or with the county court within forty-five days, the action in rejecting or amending the ordinance shall be final.
§8-24-23. Comprehensive plan for physical development of territory -- Amendment of plan and ordinance after adoption.
After the adoption of a comprehensive plan and ordinance, all amendments to it shall be adopted according to the procedures set forth in sections eighteen through twenty-two of this article, except that publication of notice of the date, time and place of hearing upon amendment of the zoning ordinance need be only fifteen or more days prior to the date set for such hearing, and except that, if the governing body of the municipality or the county court desires an amendment, it may direct the planning commission to prepare an amendment and submit it to public hearing within sixty days after formal written request by the governing body of the municipality or by the county court.
§8-24-24. Comprehensive plan for physical development of territory -- Validation of prior action.
The adoption of a comprehensive plan or any general development plans by a planning commission under the authority of prior acts is hereby validated and shall continue in effect until amended under the authority of this article.
§8-24-25. Comprehensive plan for physical development of territory -- Intergovernmental cooperation.
Whenever the commission undertakes the preparation of a comprehensive plan, the departments and officials of the state and of municipal, county and separate taxing units operating within lands under the jurisdiction of the commission shall make available, upon the request of the commission, such information, documents and plans as have been prepared, or upon the request of the commission shall provide such information as relates to the commission's activity.
§8-24-26. Comprehensive plan for physical development of territory -- Jurisdiction of municipal planning commission.
A municipal planning commission shall adopt a comprehensive plan for the development of the municipality, but the authority of such municipal planning commission shall not extend beyond the corporate limits of the municipality.
§8-24-27. Cooperation between planning commissions; cooperation between commissions and governing and administrative bodies and officials.
In the exercise of the powers and authority granted by this article, the planning commission of any municipality or county may cooperate with the planning commissions or governing and administrative bodies and officials of other municipalities within or without such county and of other counties, with a view to coordinating and integrating the planning and zoning of such municipality or county with the plans of such other municipalities and of such other counties, and may appoint such committee or committees and may adopt such rules and regulations as may be thought proper to effect such cooperation. Such planning commissions and governing and administrative bodies and officials of other municipalities and counties are hereby authorized to cooperate with such municipal or county planning commissions for the purposes of such coordination and integration. Similarly, such municipal or county planning commissions may cooperate with the division of environmental protection of this state and make use of advice and information furnished by such division and by other appropriate state and federal officials, departments and agencies, and all state departments and agencies having information, maps and data pertinent to the planning and zoning of such municipality or county may make such available for the use of such planning commissions.
PART V. SAME -- SUBDIVISION CONTROL.
§8-24-28. Subdivision plats -- Approval required prior to recordation.
After a comprehensive plan and an ordinance containing provisions for subdivision control and the approval of plats and replats have been adopted by the governing body of the municipality or by the county court and a certified copy of the ordinance has been filed with the clerk of the county court (being in the case of a municipal plan and ordinance the county court of the county in which the municipality is located), a plat of a subdivision shall not be recorded by the clerk of such county court unless it has first been approved by the planning commission having jurisdiction over the area. If in the case of a municipal plan and ordinance, the municipality is located in more than one county, a certified copy of the ordinance shall be filed with the clerk of the county court of each such county.
§8-24-29. Subdivision plats -- Application for approval; notice and hearing.
A person desiring the approval of a plat shall submit a written application for approval, together with a copy of the proposed plat, to the planning commission having jurisdiction.
Upon receipt of the application, the commission, if it tentatively approves the application, shall set a date, time and place for a hearing, notify the applicant in writing, and notify by publication in the manner specified in section eighteen of this article or otherwise any person or governmental unit having a probable interest in the proposed plat.
§8-24-30. Subdivision plats -- Basis for commission's action upon application for approval.
In determining whether an application for approval shall be granted, the commission shall determine if the plat provides for:
(1) Coordination of subdivision streets with existing and planned streets;
(2) Coordination with and extension of facilities included in the comprehensive plan;
(3) Establishment of minimum width, depth and area of lots within the projected subdivision;
(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; and
(5) Fair allocations of areas for streets, parks, schools, public and semipublic buildings, homes, utilities, business and industry.
As a condition of approval of a plat the commission may specify:
(1) The manner in which streets shall be laid out, graded and improved;
(2) Provisions for water, sewage and other utility services;
(3) Provision for schools;
(4) Provision for essential municipal services; and
(5) Provision for recreational facilities.
§8-24-31. Subdivision plats -- Effect of approval or disapproval.
After hearing and within a reasonable time after the filing of an application for approval of the plat, the commission shall approve or disapprove it. If the commission approves the application, it shall affix the commission's seal upon the plat. If it disapproves the application, it shall set forth its reasons in its own records and provide the applicant with a copy thereof.
§8-24-32. Subdivision plats -- Application fees.
The commission may establish a uniform schedule of fees proportioned to the cost of checking and verifying proposed plats. An applicant shall pay the specified fee at the time of filing his application.
§8-24-33. Subdivision plats -- Plats filed without approval.
After a comprehensive plan and an ordinance containing provisions for subdivision control and the approval of plats and replats have been adopted and a certified copy of the ordinance has been filed with the clerk of the county court as aforesaid, the filing and recording of a plat involving the subdivision of lands covered by such comprehensive plan and ordinance shall be without legal effect unless approved by the commission: Provided, That failure to comply with this section shall not invalidate or affect the title to any land within the area of such plat: Provided, however, That if such plat shall bear the seal of the commission it shall be presumed to have been approved thereby.
§8-24-34. Subdivision plats -- Conditional approval; bonds.
The commission may approve a plat for a subdivision in which the improvements and installations have not been completed as required by the ordinance for the approval of plats if the applicant provides a bond which shall:
(1) Run to the municipality or county which established the commission;
(2) Be in an amount determined by the commission to be sufficient to complete the improvements and installations in compliance with the ordinance;
(3) Be with surety satisfactory to the commission; and
(4) Specify the time for the completion of the improvements and installations.
Any funds received from any such bonds shall be used by the legally constituted body charged with making public improvements for the municipality or county only for completion of the improvements and installations for which such bonds were provided, and without prior appropriation. The municipality or county is hereby authorized to make these improvements and installations.
§8-24-35. Same -- Jurisdiction and control; inconsistent provisions for platting control repealed.
After a comprehensive plan and an ordinance containing provisions for subdivision control and the approval of plats and replats have been adopted and a certified copy of the ordinance has been filed with the clerk of the county court as aforesaid, the municipal planning commission, in the case of a municipal plan and ordinance, shall have exclusive control over the approval of all plats involving land covered by such municipal plan and ordinance and located within the corporate limits of such municipality, and the county planning commission, in the case of a county plan and ordinance, shall have exclusive control over the approval of plats involving unincorporated lands covered by such county plan and ordinance and located within its jurisdiction.
All control over plats granted by other statutes, so far as such statutes are in harmony with the provisions of this article, shall be transferred to the commission having jurisdiction over the lands involved. Existing provisions for platting control, so far as they are inconsistent with the provisions of this article, are hereby repealed to the extent of such inconsistency.
PART VI. SAME -- IMPROVEMENT LOCATION PERMITS.
§8-24-36. Improvement location permits -- Conformity of structure to comprehensive plan and ordinance.
After a comprehensive plan and an ordinance containing provisions for subdivision control and the approval of plats and replats have been adopted and a certified copy of the ordinance has been filed with the clerk of the county court as aforesaid, within the corporate limits of the municipality, a structure shall not be located and an improvement location permit for a structure on platted or unplatted lands shall not be issued unless the structure and its location conform to the municipality's comprehensive plan and ordinance. A structure shall not be located and an improvement location permit shall not be issued for a structure on unincorporated lands within the jurisdiction of the county planning commission unless the structure and its location conform to the county's comprehensive plan and ordinance.
§8-24-37. Improvement location permits -- Authority to issue and control.
The ordinance may designate the official or employee of the municipality or county who shall have authority to issue and control improvement location permits within the jurisdiction of the commission and in conformity with the comprehensive plan and ordinance.
PART VII. JUDICIAL REVIEW OF COMMISSION DECISIONS.
§8-24-38. Review of decisions of commission by certiorari.
A decision of a commission may be reviewed by certiorari procedure the same as that provided for the appeal of zoning cases from the decision or order of a board of zoning appeals, as hereinafter in this article provided.
A petition for certiorari shall specify the grounds upon which it is alleged that the commission's action is illegal. Such petition must be filed in the circuit court of the county in which the affected land or the major portion thereof is located within thirty days after the date of such decision.
PART VIII. URBAN AND RURAL ZONING -- ZONING GENERALLY.
§8-24-39. Zoning authority generally.
As an integral part of the planning of areas so that adequate light, air, convenience of access, and safety from fire, flood and other danger may be secured; that congestion in the public streets may be lessened or avoided; that the public health, safety, comfort, morals, convenience and general public welfare may be promoted; that the preservation of historic landmarks, sites, districts and buildings be promoted; and that the objective set forth in section one of this article may be further accomplished, the governing body of a municipality or a county commission shall have the following powers:
(a) To classify, regulate and limit the height, area, bulk and use of buildings hereafter to be erected;
(b) To regulate the height, area, bulk, exterior architectural features and use of buildings hereafter to be erected within designated historic districts;
(c) To regulate the alteration of exterior architectural features of buildings within historic districts and to regulate the alteration of historic landmarks and sites;
(d) To regulate and determine the area of front, rear and side yards, courts and other open spaces about such buildings;
(e) To regulate and determine the use and intensity of use of land and lot areas;
(f) To classify, regulate and restrict the location of trades, callings, industries, commercial enterprises and the location of buildings designed for specified uses;
(g) To regulate and control, or prohibit in certain areas, junk yards, salvage yards, used parts yards, dumps or automobile or appliance graveyards, or the maintenance and operation of secondhand stores or outlets in residential areas;
(h) To classify and designate the rural lands among agricultural, industrial, commercial, residential and other uses and purposes; and
(i) To divide the municipality or county into districts of such kind, character, number, shape and area as may be deemed necessary to carry out the purposes of this section.
PART IX. SAME -- ZONING DISTRICTS.
§8-24-40. Zoning districts -- Generally.
The various kinds of districts created and designated as use, height, area, volume or bulk districts, as well as districts created for any other purpose necessary to carry out the purposes of section thirty-nine of this article, need not necessarily cover or include the same territory, and may overlap or coincide. The districts created shall also be subject to the following:
(1) Rules and regulations as to height, area, bulk and use of buildings and as to the area of all yards, courts and open spaces shall be uniform for each class of buildings throughout each district;
(2) For each district designated for the location of trades, callings, industries, commercial enterprises or buildings designated for specified uses, rules and regulations may be enforced specifying uses that shall be excluded or subjected to reasonable requirements of a special nature and designating the use for which buildings may not be erected, altered or used;
(3) The rules and regulations in one or more districts of the same kind or character may differ from those in other like districts but shall be uniform for each district; and
(4) Several parts of the municipality or county may be classified within a single district although not contiguous.
§8-24-41. Zoning districts -- Preliminary study.
In establishing such districts and rules and regulations the governing body of a municipality or the county court shall give reasonable regard to existing conditions, the character of buildings erected in each district, the most desirable use for which the land in each district may be adapted and the conservation of property values throughout the municipality or county.
PART X. SAME -- SAME -- PROCEDURES.
§8-24-42. Procedures -- Tentative report; notice and hearings.
Recommendations as to the boundaries of districts and the rules and regulations and restrictions to be enforced therein shall be prepared by the planning commission. The commission may prepare the tentative report on its own initiative or the governing body of the municipality or the county court may require its preparation.
The commission shall hold public preliminary hearings and conferences, on such dates and at such times and places and upon such notice as it may determine to be necessary to inform and aid itself in the preparation of the tentative report.
The tentative report, which shall include the proposed zoning ordinance with explanatory maps, shall be made to the governing body of the municipality or to the county court by the planning commission.
§8-24-43. Procedures -- Action by governing body or county court on tentative report.
The governing body of the municipality or the county court shall consider the tentative report of the planning commission and shall return it, with any suggestions and recommendations, to the planning commission for its final report.
No zoning ordinance hereunder shall be adopted until after the final report of the planning commission has been received by the governing body of the municipality or by the county court.
§8-24-44. Procedures -- Final report; notice and hearing; action.
After the final report has been submitted by the planning commission, the governing body of the municipality or the county court shall afford all interested persons an opportunity to be heard with reference to it at public hearings, convenient for all persons affected, to be held on dates and at times and places to be specified in notices to be published, within fourteen consecutive days next preceding the date set for the hearings, as Class II legal advertisements in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the municipality or county, as the case may be. The notices shall state the dates, times and places of the hearings, that the report contains a comprehensive zoning ordinance for the municipality or county, that written objections to the final report filed with the recorder of the municipality or with the clerk of the county court at or before the hearings will be heard and that the hearings will be continued from time to time as may be found necessary. During the period between the date of the first publication of the notice and the date of the hearing, the final report shall be on file in the office of the planning commission for public examination. Upon completion of the public hearings, the governing body of the municipality or the county court shall proceed to the consideration of the ordinance.
PART XI. SAME -- AMENDING, SUPPLEMENTING OR CHANGING ZONING ORDINANCE RULES AND REGULATIONS.
§8-24-45. Supplemental and amending ordinances.
The governing body of a municipality or the county court may, from time to time, amend, supplement or change the rules and regulations and districts fixed by ordinance hereunder.
§8-24-46. Changes of zoning rules and regulations -- Petition for change.
Petitions, duly signed, may be presented to the recorder of the municipality or to the clerk of the county court requesting an amendment, supplement or change of the rules and regulations of the zoning ordinance by:
(1) The planning commission; or
(2) The owners of fifty percent or more of the real property area to which the petition relates.
§8-24-47. Changes of zoning rules and regulations -- Considered as amendments to comprehensive plan; notice and hearing. Amendments, supplements or changes of the rules and regulations of the zoning ordinance shall be considered as amendments to the comprehensive plan. Any proposed ordinance for the amendment, supplement, change or repeal of the zoning ordinance not originating upon petition of the planning commission shall be referred to the planning commission for consideration and report before any final action is taken by the governing body of the municipality or the county court.
Prior to submission to the governing body of a municipality or to the county court of a planning commission petition or a report on a proposed ordinance referred to it for an amendment, supplement, change or repeal of the zoning ordinance, the planning commission shall give notice and hold a public hearing in the manner prescribed for adoption of a comprehensive plan in section eighteen of this article, except that publication of notice of the date, time and place of hearing upon a proposed amendment, supplement, change or repeal of the zoning ordinance need be made only fifteen or more days prior to the date set for such hearing.
PART XII. SAME -- ELECTION ON ZONING ORDINANCE.
§8-24-48. Election on zoning ordinance; form of ballots or ballot labels; procedure.
If, within sixty days following adoption of the zoning ordinance by the governing body of the municipality or by the county court, a petition is filed with the recorder or the clerk of the county court praying for submission of such zoning ordinance for approval or rejection to the qualified voters residing in the area within the jurisdiction of the municipal or county planning commission, such ordinance shall not take effect until the same shall have been approved by a majority of the legal votes cast thereon at any regular primary or general election or special election called for that purpose. The petition may be in any number of counterparts but must be signed in their own handwriting by a number of qualified voters residing in the area affected by the proposed zoning equal, notwithstanding the provisions of subdivision (10), subsection (b), section two, article one of this chapter, to not less than fifteen percent of the total legal votes cast in the affected area for all candidates for governor at the last preceding general election at which a governor was elected. Only qualified voters residing in the area affected by the proposed ordinance shall be eligible to vote with respect thereto.
Upon the ballots, or ballot labels where voting machines are used, there shall be written or printed the following:
/ / For Zoning
/ / Against Zoning
If a majority of the legal votes cast upon the question be for zoning, the provisions of said zoning ordinance shall, upon the date the results of such an election are declared, be effective. If a majority of the legal votes cast upon the question be against zoning, said zoning ordinance shall not take effect, but the question may again be submitted to a vote at any regular primary or general election in the manner herein provided.
Subject to the provisions of the immediately preceding sentence, voting upon the question of zoning may be conducted at any regular primary or general election or special election, as the governing body of the municipality or the county court in its order submitting the same to a vote may designate.
Notice of all elections at which the question of zoning is to be voted upon shall be given by publication of the order calling for a vote on such question as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the area in which voting on the question of zoning is to be conducted.
Any election at which the question of zoning is voted upon shall be held at the voting precincts established for holding primary or general elections. All of the provisions of the general election laws of this state concerning primary, general or special elections, when not in conflict with the provisions of this article, shall apply to voting and elections hereunder, insofar as practicable.
PART XIII. SAME -- EXISTING ORDINANCES AND USES.
§8-24-49. Validation of existing ordinances.
All zoning ordinances, and all amendments, supplements and changes thereto, legally adopted under any prior enabling acts, and all actions taken under the authority of any such ordinances, are hereby validated and continued in effect until amended or repealed by action of the governing body of the municipality or the county court taken under authority of this article. These ordinances shall have the same effect as though previously adopted as a comprehensive plan of land use or parts thereof.
§8-24-50. Existing uses safeguarded.
Such zoning ordinance or ordinances shall not prohibit the continuance of the use of any land, building or structure for the purpose for which such land, building or structure is used at the time such ordinance or ordinances take effect, but any alteration or addition to any land or any alteration, addition or replacement of or to any existing building or structure for the purpose of carrying on any use prohibited under the zoning rules and regulations applicable to the district may be prohibited: Provided, That no such prohibition shall apply to alterations or additions to or replacement of buildings or structures by any farm, industry or manufacturer, or to the use of land presently owned by any farm, industry or manufacturer but not used for agricultural, industrial or manufacturing purposes, or to the use or acquisition of additional land which may be required for the protection, continuing development or expansion of any agricultural, industrial or manufacturing operation or any present or future satellite agricultural, industrial or manufacturing use. If a nonconforming use has been abandoned, any future use of such land, building or structure shall be in conformity with the provisions of the ordinance regulating the use in the district in which such land, building or structure may be located: Provided, however, That abandonment of any particular agricultural, industrial or manufacturing process shall not be construed as abandonment of agricultural, industrial or manufacturing use.
Nothing contained in this article shall be deemed to authorize an ordinance, rule and regulation which would prevent, outside of urban areas, the complete use and alienation of any timber and any and all minerals, including coal, oil and gas, by the owner or alienee thereof. For the purpose of this section, urban area shall include all lands or lots within the jurisdiction of a municipal planning commission as defined in this article.
PART XIII-A. SAME -- ADOPTION OF STANDARDS OF FEDERAL DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT.
§8-24-50a. Standards of federal department of housing and urban development for factory-built housing, components, etc., adopted.
Notwithstanding any existing provisions of law, municipal or county ordinance, or local building code, but excluding any such provisions relating to zoning or land use control, the standards for factory-built housing, housing prototypes, subsystems, materials and components certified as acceptable by the federal department of housing and urban development are hereby deemed acceptable and approved for use in housing construction in this state. A certificate from the state director of the federal housing administration of the department of housing and urban development shall constitute prima facie evidence that the products or materials listed therein are acceptable and such certificates shall be furnished by the building contractor to any local building inspector or other local housing authority upon request.
§8-24-50b. Permitted use for group residential facility.
(a) A group residential facility as defined in article seventeen, chapter twenty-seven of this code, shall be a permitted residential use of property for the purposes of zoning and shall be a permitted use in all zones or districts. No county commission, governing board of a municipality or planning commission, shall require a group residential facility, its owner or operator, to obtain a conditional use permit, special use permit, special exception or variance for location of such facility in any zone or district or discriminate in regard to housing in any other regard: Provided, That a county commission, governing board of a municipality or planning commission may require a group residential facility, its owner or operator, to obtain a conditional use permit, special use permit, special exception or variance if the home is to be in a zone or district restricted to single-family residences and is to be occupied by more than six individuals who are developmentally disabled and three supervisors, or is to be occupied by the behaviorally disabled within a zoning district or zone restricted solely to single-family residences with no allowance for duplexes, apartments or other multi-family use of a single parcel of property.
(b) When an application to operate such a group residential facility in a district or zone limited to single-family residences is submitted to the department of health or the department of human services for the issuance of a license, as required by the provisions of said article seventeen, chapter twenty-seven, upon receipt of said application, the director of the department of health or the commissioner of the department of human services shall give written notice of such application to the county commission, governing board of a municipality or planning commission within whose jurisdiction the proposed facility lies. The county commission, governing board of a municipality or planning commission shall have thirty days in which to file objections or request a hearing with the department of health or the department of human services. Upon the filing of such objections or hearing request, the director of the department of health or the commissioner of the department of human services shall hold a hearing. The state board of health shall promulgate regulations governing the conduct of such hearings and applicable standards pursuant to chapter twenty-nine-a of this code: Provided, That the owner or operator of such group residential facility shall, in all cases of such facilities located within zoning districts or zones, submit an application for any required zoning or occupancy permit allowed under provisions of this section to the appropriate zoning permit agency on or before the date of submission of the application to the department of health or the department of human services.
(c) The provisions of this section shall not exempt any such residence from the structural requirements of any bona fide historic preservation district.
PART XIV. SAME -- BOARD OF ZONING APPEALS --
ORGANIZATION AND FUNCTION.
§8-24-51. Board of zoning appeals -- Creation; membership; terms; vacancies.
As a part of the zoning ordinance, the governing body of the municipality or the county court shall create a board of zoning appeals consisting of five members to be appointed by the governing body of the municipality or by the county court, as the case may be.
The members of the board of zoning appeals shall be individuals who are freeholders and residents of the municipality or county, as the case may be, and at least three fifths of such members must have been residents of the municipality or county, as the case may be, for at least ten years preceding the time of their appointment. No member of the board of zoning appeals shall be a member of the planning commission nor shall any member hold other elective or appointive office in the municipal or county government. Members of the board shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their official duties.
Upon the creation of a board of zoning appeals, the members shall be appointed for the following terms: One for a term of one year; two for a term of two years; and two for a term of three years. The terms shall expire on the first day of January of the first, second and third year, respectively, following their appointment. Thereafter, as their terms expire, each new appointment shall be for a term of three years.
If a vacancy occurs, by resignation or otherwise, among the members of the board of zoning appeals, the governing body of the municipality or the county court, as the case may be, shall appoint a member for the unexpired term.
§8-24-52. Board of zoning appeals -- Officers; quorum;
compensation of secretary and employees.
At its first meeting of each year, the board of zoning appeals shall elect a chairman and vice chairman from its membership. The vice chairman shall have the power and authority to act as chairman during the absence or disability of the chairman.
A majority of the members of a board of zoning appeals shall constitute a quorum. No action of a board shall be official, however, unless authorized by a majority of all of the members of the board.
The board of zoning appeals may appoint and fix the compensation of a secretary and such employees as are necessary for the discharge of its duties, all in conformity to and in compliance with the salaries and compensation theretofore fixed by the municipality or county court.
§8-24-53. Board of zoning appeals -- Offices; appropriation for expenses.
The governing body of the municipality in the case of a municipal board of zoning appeals and the county court in the case of a county board of zoning appeals shall provide the board with suitable offices for the holding of meetings and the preservation of plans, maps, documents and accounts, and shall provide by appropriation a sum sufficient to defray the reasonable expenses of the board.
§8-24-54. Board of zoning appeals -- Rules and regulations and procedures; minutes and records.
The board of zoning appeals shall adopt such rules and regulations concerning the filing of appeals, applications for variances and exceptions, the giving of notice and the conduct of hearings as shall be necessary to carry out its duties under the terms of this article.
The board shall keep minutes of its proceedings, keep records of all official actions and shall record the vote on all actions taken. All minutes and records shall be filed in the office of the board and shall be public records.
PART XV. SAME -- SAME -- POWERS, AUTHORITY AND DUTIES.
§8-24-55. Board of zoning appeals -- Powers, authority and duties.
The board of zoning appeals shall:
(1) Hear and determine appeals from and review any order, requirement, decision or determination made by an administrative official or board charged with the enforcement of any ordinance or rule and regulation adopted pursuant to sections thirty-nine through forty-nine of this article;
(2) Permit and authorize exceptions to the district rules and regulations only in the classes of cases or in particular situations, as specified in the ordinance;
(3) Hear and decide special exceptions to the terms of the ordinance upon which the board is required to act under the ordinance; and
(4) Authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.
In exercising its powers and authority, the board of zoning appeals may reverse or affirm, in whole or in part, or may modify the order, requirement, decision or determination appealed from, as in its opinion ought to be done in the premises, and to this end shall have all the powers and authority of the official or board from whom or which the appeal is taken.
PART XVI. SAME -- SAME -- PERFECTING APPEAL AND HEARING THEREON.
§8-24-56. Appeal from decision of administrative official or board.
An appeal taken from any order, requirement, decision or determination made by an administrative official or board charged with the enforcement of any ordinance or rule and regulation adopted pursuant to sections thirty-nine through forty-nine of this article shall be filed with the board of zoning appeals.
The appeal shall specify the grounds thereof and shall be filed within such time and in such form as may be prescribed by the board by general rule and regulation.
The administrative official or board from whom or which the appeal is taken shall, upon request of the board of zoning appeals, transmit to it all documents, plans and papers constituting the record of the action from which an appeal was taken.
§8-24-57. Hearing of appeal.
The board of zoning appeals shall fix a reasonable time for the hearing of an appeal. Public notice of the hearing shall be given in the manner specified in section eighteen of this article, and due notice shall be given additionally to the interested parties.
The board of zoning appeals may require the party taking the appeal to assume the cost of public notice and due notice to interested parties.
At the hearing, any party may appear in person, by agent or by an attorney at law admitted to practice in this state.
§8-24-58. Staying of work on premises when appeal taken; exception.
When an appeal has been taken and filed with the board of zoning appeals, all proceedings and work on the premises in question shall be stayed unless the official or board from whom or which the appeal was taken shall certify to the board of zoning appeals that by reason of facts stated in the certificate a stay would cause imminent peril to life or property. If such certificate be filed, proceedings or work on the premises shall not be stayed except by a restraining order which may be granted by the circuit court of the county in which the premises affected are located, upon application therefor, on notice to the official or board from whom or which the appeal is taken and the owner of the premises affected and on due cause shown.
PART XVII. SAME -- SAME -- JUDICIAL REVIEW.
§8-24-59. Petition for writ of certiorari from decision or order.
Every decision or order of the board of zoning appeals shall be subject to review by certiorari.
Any person or persons jointly or severally aggrieved by any decision or order of the board of zoning appeals may present to the circuit court of the county in which the premises affected are located a petition duly verified, setting forth that such decision or order is illegal in whole or in part, and specifying the grounds of the alleged illegality. The petition must be presented to the court within thirty days after the date of the decision or the order of the board of zoning appeals complained of.
§8-24-60. Notice to adverse parties.
(a) Upon filing a petition for a writ of certiorari with the clerk of the circuit court of the county in which the premises affected are located, the petitioner shall cause a notice to be issued and served by the sheriff of the county upon the adverse party or parties, if any, as shown by the record of the appeal in the office of the board of zoning appeals and upon the chairman or secretary of the board of zoning appeals.
The adverse party or parties shall be any property owner whom or which the record of the board of zoning appeals shows to have appeared at the hearing before the board in opposition to the petitioner. If the record shows a written remonstrance or other document opposing the request of petitioner containing the names of more than three property owners, the petitioner shall be required to cause notice to be issued and served upon the three property owners whose names first appear upon the remonstrance or document. Notice to the other parties named in the remonstrance or document shall not be required.
The notice shall state that a petition for a writ of certiorari has been filed in the circuit court of the county asking for a review of the decision or order of the board of zoning appeals, shall designate the premises affected and shall specify the date of the decision or order complained of.
Service of the notice by the sheriff on the chairman or secretary of the board of zoning appeals shall constitute notice to the board and to the municipality or county and to any official or board thereof charged with the enforcement of the zoning ordinance and no further summons or notice with reference to the filing of such petition shall be necessary.
(b) As an alternative to the requirements for notice prescribed in subsection (a) of this section, notice shall be sufficient upon a showing that the chairman or secretary of the board of zoning appeals and all adjacent landowners to the subject property have received personal service of process of the notice containing information as required by said subsection. As to all other interested parties, notice shall be sufficient if, by Class III-0 legal advertisement, notice containing information as required by said subsection is published in the county or counties wherein the subject property is located.
§8-24-61. Action of court or judge on petition.
Upon presentation of a petition for a writ of certiorari, the circuit court of the county in which the premises affected are located, or a judge thereof in vacation, shall direct the board of zoning appeals to show cause within twenty days from the date of such citation why a writ of certiorari should not issue. If such board fails to show to the satisfaction of the court or judge that a writ should not issue then the court or judge may allow a writ of certiorari directed to the board of zoning appeals. The writ shall prescribe the time in which a return shall be made to it. This time shall not be less than ten days from the date of issuance of the writ and may be extended by the court or judge thereof.
§8-24-62. Stay of work on allowance of writ.
The allowance of the writ of certiorari shall not stay proceedings or work on the premises affected by the decision or order to be brought up for review. The court or judge may, however, upon application and on notice to all parties to the decision or order and on due cause shown grant such relief as the circumstances of the case may require, including an order staying the proceedings or work until final determination of the case by the court or judge thereof.
Such staying order may be issued by the court or judge without requiring the petitioner to enter into a written undertaking with the adverse party or parties affected thereby for the payment of damages by reason of such staying order.
§8-24-63. Return to writ by board of zoning appeals.
The return to the writ of certiorari by the board of zoning appeals must concisely set forth such facts and data as may be pertinent and present material to show the grounds of the decision or order appealed from. The return must be verified by the secretary of the board.
The board shall not be required to return the original papers acted upon by it. It shall be sufficient to return certified copies of all or such portion of the papers as may be called for by the writ.
§8-24-64. Action by circuit court or judge thereof.
The court or judge may consider and determine the sufficiency of the allegations of illegality contained in the petition without further pleadings and may make a determination and render a judgment with reference to the legality of the decision or order of the board of zoning appeals on the facts set out in the petition and return to the writ of certiorari.
If it shall appear to the court or judge that testimony is necessary for the proper disposition of the matter, the court or judge may take evidence to supplement the evidence and facts disclosed by the petition and return to the writ of certiorari, but no such review shall be by trial de novo.
In passing upon the legality of the decision or order of the board of zoning appeals, the court or judge may reverse or affirm, in whole or in part, or may modify such decision or order.
§8-24-65. Appeal from final judgment of circuit court or judge thereof.
An appeal may be taken to the supreme court of appeals of this state from the final judgment of the court or judge reversing, affirming or modifying the decision or order of the board of zoning appeals within the same time, in the same manner, and upon the same terms, conditions and limitations as appeals in other civil cases.
PART XVIII. ENFORCEMENT PROVISIONS.
§8-24-66. Enforcement.
The governing body of a municipality or the county court may provide penalties, as set out in section sixty-eight of this article, for failure to comply with the provisions of any ordinance or rule and regulation adopted pursuant to the provisions of this article and may declare that any buildings erected, raised or converted or land or premises used in violation of any provision of any ordinance or rule and regulation adopted under the authority of sections thirty-nine through sixty-five of this article shall be common nuisances and the owner of the building, land or premises shall be liable for maintaining a common nuisance.
§8-24-67. Injunction.
The planning commission, the board of zoning appeals or any designated enforcement official may seek an injunction in the circuit court of the county to restrain a person or unit of government from violating the provisions of this article or of any ordinance or rule and regulation adopted pursuant hereto. The planning commission, the board of zoning appeals or any designated enforcement official may also seek a mandatory injunction in the circuit court directing a person or unit of government to remove a structure erected in violation of the provisions of this article or of any ordinance or rule and regulation adopted pursuant hereto. If the planning commission, the board of zoning appeals or the designated enforcement official is successful in any such suit, the respondent shall bear the costs of the action.
§8-24-68. Penalty.
Any person who violates any provision of this article shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than ten dollars nor more than three hundred dollars.
PART XIX. CONSTRUCTION; SPECIAL PROVISIONS; REPEALER.
§8-24-69. Provisions supplemental; special provisions concerning state-supported institutions of higher education.
The planning and zoning provisions of this article are supplemental to and do not abrogate the powers and authority extended to agencies, bureaus, departments, commissions, divisions and officials of the state government by other state statute and these powers and authority shall remain in full force and effect. The powers of supervision and regulation by such divisions of the state government over municipal, county and other local governmental units and persons are also not abrogated and shall continue in full force and effect. If the county court of any county in which a state-supported institution of higher education is situate shall not create a county planning commission as contemplated herein, the county court of such county is hereby authorized to enact an ordinance for the zoning of any unincorporated territory in said county within one-half mile of the campus of any such state-supported institution of higher education, and with respect to the zoning of such territory, any such county court shall have the same power and authority as are conferred hereunder upon municipalities.
§8-24-70. Conflict with other laws, etc.
Whenever any ordinance or rule and regulation adopted under the authority of this article requires a greater width or size of yards, courts or other open spaces, or requires a lower height of building or less number of stories, or requires a greater percentage of lot to be left unoccupied, or imposes other higher standards than are required in any other statute, including a special legislative charter, or local ordinance or rule and regulation, the provisions of the ordinance or rule and regulation adopted under the authority of this article shall govern. Whenever any other statute, including a special legislative charter, or local ordinance or rule and regulation requires a greater width of size of yards, courts or other open spaces, or requires a lower height of building or a less number of stories, or requires a greater percentage of lot to be left unoccupied, or imposes other higher standards than are required by any ordinance or rule and regulation adopted under the authority of this article, the provisions of such other statute, including a special legislative charter, or such other local ordinance or rule and regulation shall govern.
§8-24-71. General repealer; planning and zoning outside corporate limits exercised under prior acts.
All acts or parts of acts, including special legislative charters, inconsistent with the provisions of this article are hereby repealed to the extent of their inconsistency, except as provided in section seventy of this article.
In amplification of the provisions of sections two, twenty-four and forty-nine of this article, and notwithstanding any other provision of this article to the contrary, any comprehensive plan and any zoning ordinance or rule and regulation adopted by any municipality affecting land located beyond the corporate limits of such municipality under any prior planning and zoning act of the Legislature granting such extraterritorial jurisdiction to such municipality shall remain valid and enforceable, and any such municipality which adopted or enacted any such plan or ordinance or rule and regulation under such prior act may continue to exercise planning and zoning control and authority, under the provisions of this article, over any territory located beyond the corporate limits thereof which is covered under the plan or ordinance or rule and regulation adopted or enacted under any such prior act, and under no circumstances whatever shall a municipality which has not heretofore exercised extraterritorial jurisdiction under any such prior act hereafter have any power or authority, notwithstanding any provision of this chapter to the contrary, to exercise any such extraterritorial jurisdiction.
PART XX. VOLUNTARY FARMLAND PROTECTION PROGRAMS.
§8-24-72. Legislative findings and purpose.
The Legislature hereby finds and declares that agriculture is a unique "life support" industry and that a need exists to assist those agricultural areas of the state which are experiencing the irreversible loss of agricultural land. It is the intent of the Legislature to provide persons and other entities an opportunity to voluntarily protect agricultural land and woodland in order to: (1) Assist in sustaining the farming community; (2) provide sources of agricultural products within the state for the citizens of the state; (3) control the urban expansion which is consuming the agricultural land, topsoil and woodland of the state; (4) curb the spread of urban blight and deterioration; (5) protect agricultural land and woodland as open-space land; (6) enhance tourism; and (7) protect worthwhile community values, institutions and landscapes which are inseparably associated with traditional farming.
Further, it is the intent of the Legislature to establish a West Virginia agricultural land protection authority, hereinafter "authority", to assist persons, other entities and counties to obtain funding from any source available to accomplish the purposes of the voluntary farmland protection programs.
§8-24-73. County farmland protection programs and farmland protection boards authorized; authority of county commission to approve purchase of farmland easements; expense reimbursement of actual expenses for the board members.
The county commission of each county may adopt and implement a farmland protection program within the county. The county commission of each county which decides to adopt and implement a farmland protection program shall appoint a farmland protection board. The farmland protection board shall administer on behalf of the county commission all matters concerning farmland protection. The county commission has final approval authority for any and all purchases of easements for the farmland protection program by the board.
The farmland protection board shall adopt bylaws prescribing the board.s officers, meeting dates, record-keeping procedures, meeting attendance requirements and other internal operational procedures. The member of the farmland protection board who is a county commissioner shall serve as temporary chairman of the board until the board.s bylaws are adopted and until the board.s officers are selected as prescribed by those bylaws. The farmland protection board shall prepare a document proposing a farmland protection program which is consistent with the Legislature.s intent.
Each member of the board shall receive expense reimbursement for actual expenses incurred while engaged in the discharge of official duties, the actual expenses not to exceed the amount paid to members of the Legislature.
§8-24-73a. Content and requirements of farmland protection programs.
An adopted farmland protection program shall include only those qualifying properties which are voluntarily offered into the program by the landowners of the properties.
An adopted farmland protection program shall meet the following minimum requirements:
(a) The program shall be developed by the county farmland protection board and approved by the county commission. The county farmland protection board, in consultation with the local soil conservation district, shall administer the farmland protection program;
(b) The board shall establish uniform standards and guidelines for the eligibility of properties for the program. The standards and guidelines shall take into consideration the following: Current and past uses of the property, existing property improvements, property tract size and shape, location of the property tract in relation to other potential agricultural property tracts, impending threat of conversion of the property to nonagricultural uses, property ownership and existing deed covenants and restrictions with respect to the property;
(c) The guidelines established by the board shall outline the various methods of farmland protection which are available to prospective participating property owners and the procedures to be followed in applying for program consideration.
§8-24-73b. Farmland protection boards--appointment, composition, terms.
(a) Composition. -- A farmland protection board shall be composed of seven members, each serving without compensation. Membership on the farmland protection board shall consist of the following: One county commissioner; the executive director of the county development authority; one farmer who is a county resident and a member of the county farm bureau; one farmer who is a county resident and a member of a soil conservation district; one farmer who is a county resident; and two county residents who are not members of any of the foregoing organizations. All members of the farmland protection board shall be voting members, except the county commissioner who shall serve in an advisory capacity as a nonvoting member.
(b) Terms. -- Each member of a farmland protection board shall be appointed for a term of office of four years except the initial appointment of two voting board members shall be for a term of two years:
(1) No member may serve for more than two consecutive full terms; and
(2) An appointment to fill a vacancy shall be for the remainder of the unexpired term.
§8-24-73c. Farmland protection boards--powers.
A farmland protection board has the following general powers:
(a) Power to sue. -- To sue and be sued in contractual matters in its own name;
(b) Power to contract. -- To enter into contracts generally and to execute all instruments necessary or appropriate to carry out its purposes;
(c) Power to restrict use of land. -- To acquire or cohold, by gift, purchase, devise, bequest or grant, easements in gross, fee or other rights to restrict the use of agricultural land and woodland as may be designated to maintain the character of the land as agricultural land or woodland: Provided, That the county commission has final approval authority for any and all purchases of easements for the farmland protection program by the board;
(d) Power to implement rules. -- To implement rules necessary to achieve the purposes of the voluntary farmland protection programs;
(e) Power to disseminate information. -- To promote the dissemination of information throughout the county concerning the activities of the farmland protection board; and
(f) Power to seek funding. -- To pursue and apply for any and all county, state, federal and private funding available, consistent with the purpose of the voluntary farmland protection programs.
§8-24-73d. Farmland protection board duties.
The duties of each farmland protection board are as follows:
(a) To report to the county commission with respect to the acquisition of easements by the farmland protection board within the county and to obtain final approval authority for any and all purchases of easements for the farmland protection program by the board;
(b) To advise the authority concerning county priorities for agricultural protection;
(c) To promote protection of agriculture within the county by offering information and assistance to landowners with respect to the acquisition of easements;
(d) To seek and apply for all available funds from federal, state, county and private sources to accomplish the purposes of the voluntary farmland protection programs; and
(e) To perform any other duties assigned by the county commission.
§8-24-74. West Virginia agricultural land protection authority--established.
A West Virginia agricultural land protection authority is established within the department of agriculture. The authority has the powers and duties provided in this article.
§8-24-74a. West Virginia agricultural land protection authority--board of trustees.
(a) Composition; chairman; quorum; qualifications. -- The authority, which shall be established by the first day of July, two thousand two, shall be governed and administered by a board of trustees composed of the state treasurer, the auditor and the commissioner of agriculture, who shall serve as ex officio members, and nine members to be appointed by the governor, by and with the advice and consent of the Senate, at least five of whom shall be representative of farmers from different areas of the state. The state treasurer, auditor and the commissioner of agriculture may appoint designees to serve on the board of trustees. One of the appointed members who is not a representative of farmers shall be a representative of the division of natural resources; one of the appointed members who is not a representative of farmers shall be a representative of the soil conservation district; and one of the appointed members who is not a representative of farmers shall be a representative of an I.R.C. 501(c)(3) qualified land trust. Three of the five representatives of farmers shall be appointed as follows:
(1) Two from a list of five nominees submitted by the West Virginia department of agriculture; and
(2) One from a list of three nominees submitted by the West Virginia farm bureau.
The governor shall appoint the chairman of the board, from among the nine appointed members. A majority of the members of the board serving at any one time constitutes a quorum for the transaction of business.
Notwithstanding any provision of law to the contrary, a person may be appointed to and serve on the board as an appointed member even if prior to the appointment the person conveyed an easement on the person's land to the authority.
(b) Terms. -- (1) The governor, with the advice and consent of the Senate, shall appoint the nine members for the following terms:
(A) Three for a term of four years;
(B) Three for a term of three years; and
(C) Three for a term of two years.
(2) Successors to appointed members whose terms expire shall be appointed for terms of four years. Vacancies shall be filled for the unexpired term. An appointed member may not serve more than two successive terms. Appointment to fill a vacancy may not be considered as one of two terms.
(c) Oath. -- Appointed members shall take the oath of office as prescribed by law.
(d) Compensation and expenses. -- Members shall not receive compensation. Each member of the board shall receive expense reimbursement for actual expenses incurred while engaged in the discharge of official duties, the actual expenses not to exceed the amount paid to members of the Legislature.
§8-24-74b. West Virginia agricultural land protection authority--powers.
The authority has the following general powers:
(a) Power to sue. -- To sue and be sued in contractual matters in its own name;
(b) Power to contract. -- To enter into contracts generally and to execute all instruments necessary or appropriate to carry out its purposes;
(c) Power to restrict use of land. -- To acquire or cohold, by gift, purchase, devise, bequest or grant, easements in gross, fee or other rights to restrict the use of agricultural land and woodland as may be designated to maintain the character of the land as agricultural land or woodland;
(d) Power to disseminate information. -- To promote the dissemination of information throughout the state concerning the activities of the farmland protection board; and
(e) Power to seek funding. -- To pursue and apply for any and all state, federal and private funding available consistent with the purpose of the voluntary farmland protection programs.
§8-24-74c. West Virginia agricultural land protection authority--duties.
The authority shall:
(a) Disseminate information regarding agricultural land protection and promote the protection of agricultural land;
(b) Assist county farmland protection boards in applying for and obtaining all state and federal funding available consistent with the purposes of the farmland protection programs;
(c) Upon request of a farmland protection board, provide technical and legal services necessary to procure, acquire, draft, file and record conservation and preservation easements;
(d) Prepare and file with the governor's office and with the Legislature by the thirty-first day of August of each year a report including, but not limited to, the following information:
(1) The cost per easement obtained;
(2) The identity of all applicants for conservation and preservation easements; and
(3) The identity of all applicants from whom conservation and preservation easements have been acquired;
(e) Seek and apply for all available funds from federal, state and private sources to accomplish the purposes of the farmland protection programs.
§8-24-75. Definitions.
For purposes of the voluntary farmland protection programs, the following terms have the meanings set forth in this section.
(a) Acquisition of easement. -- The holding or coholding of land-use restrictions as defined in this article, whether obtained through purchase, gift, devise, bequest, grant or contract to cohold with another holder.
(b) Conservation easement. .- This article incorporates the definition of a conservation easement found in section three, article twelve, chapter twenty of this code except that a conservation easement created under this article must be held or coheld by at least one "holder" as defined in that section in perpetuity. [[see end of this document]]
(c) Farm, farmland or agricultural land. -- A tract, or contiguous tracts of land, of any size, used or useable for agriculture, horticulture or grazing and includes all real property designated as wetlands that are part of a property used or useable as farmland.
(d) Preservation easement. -- This article incorporates the definition of a preservation easement found in section three, article twelve, chapter twenty of this code except that a preservation easement created under this article must be held or coheld by at least one "holder" as defined in that section and must be perpetual in its duration. [[see end of this document]]
(e) Woodland. -- Woodland shall be considered land of a farm only if it is part of or appurtenant to a tract of land which is a farm, or held by common ownership of a person or entity owning a farm, but in no event may woodland include land used primarily in commercial forestry or the growing of timber for commercial purposes or any other use inconsistent with farm use.
(f) Opt-out provision. .- A provision which may be inserted into any conservation or preservation easement agreement entered into pursuant to this article which would act as a mechanism to place the easement selling price into an escrow fund for the purpose of allowing the owner or owners up to five years to rescind the decision to enter into the farmland protection program.
§8-24-76. Methods of farmland protection.
(a) The authority or a county farmland protection board may negotiate with and compensate eligible property owners to ensure the protection of farmland within the county or state. Methods of protecting farmland may include, but are not limited to, the following:
(1) Acquisition of conservation easement or preservation easement. -- With the consent of a property owner, the county farmland protection board or the authority may acquire and place on record a conservation or preservation easement. Acquired easements apply only to those properties which qualify for consideration under the terms established by an adopted farmland protection program;
(2) Acquisition of land and disposition. -- With the consent of a property owner, the county farmland protection board or the authority may acquire any property which qualifies for agricultural protection under terms established by an adopted farmland protection program. The county farmland protection board or the authority may lease, as lessor, acquired property for agricultural uses or may restrict the property to agricultural uses and sell the property at fair market value for use as a farm. Any property acquired by a county farmland protection board or the authority and then sold shall be sold subject to a conservation or preservation easement. If the property is leased, the lessee shall pay to the county commission, in addition to rent, an annual fee set by the county commission. The amount of this annual fee shall be commensurate with the amount of property taxes which would be assessed in accordance with the provisions of this code upon the property if the property were held by a private landowner.
(b) Revenues from the sale of properties restricted to agricultural uses shall be used to recover the original purchase costs of the properties and shall be returned to the applicable funds which were used by the county farmland protection board or the authority to purchase the property. Any profits resulting from the sale of property restricted to agricultural uses shall be deposited in a farmland protection fund.
§8-24-77. Offer of conservation or preservation easements.
(a) Owner may offer to sell or donate a conservation or preservation easement. -- An owner of farmland may offer by written application to sell or donate a conservation or preservation easement on all or any portion of the farm to a county farmland board or the authority.
(b) Requirements for application to sell or donate. -- In order to be considered by a county farmland protection board or the authority, an application to sell or donate shall:
(1) Include an asking price, if any, at which the owner is willing to sell a conservation or preservation easement and shall specify the terms under which the offer is made; and
(2) Include a complete description of the land, including, but not limited to, an itemization of all debts secured by the land and the identity and amount of all liens.
§8-24-78. Value of conservation or preservation easement.
(a) Maximum value. -- The maximum value of any conservation or preservation easement acquired by the county farmland protection board or the authority is the asking price or the difference between the fair market value of the land and the agricultural value of the land, whichever is lower.
(b) Fair market value. -- The fair market value of the land is the price as of the valuation date for the highest and best use of the property which a vendor, willing but not obligated to sell, would accept for the property, and which a purchaser, willing but not obligated to buy, would pay for the property if the property was not subject to any restriction imposed under this article.
(c) Agricultural value. -- The agricultural value of land is the price as of the valuation date which a vendor, willing but not obligated to sell, would accept for the property, and which a purchaser, willing but not obligated to buy, would pay for the property subject to the restrictions placed upon it by the conservation or preservation easement.
(d) Determination of values. -- The value of the easement is determined at the time the county farmland protection board or the authority is requested in writing to acquire the easement.
The fair market value is determined by the county farmland protection board or the authority based on one or more appraisals obtained by the county farmland protection board or the authority, and appraisals, if any, of the landowner.
(e) Arbitration. -- If the landowner and the county farmland protection board or the authority do not agree on the value of the easement as determined by the state, the landowner, the county farmland protection board or the authority may request that the matter be referred to a mutually agreed upon mediator for arbitration as to the value of the easement. The arbitration shall be conducted in accordance with the rules promulgated by the American arbitration association. The value determined at arbitration is binding upon the owner and the county farmland protection board or the authority in a purchase of the easement made subsequent to the arbitration for a period of two years, unless the landowner and the county farmland protection board or the authority agree upon a lesser value or the landowner, the county farmland protection board or the authority appeals the results of the arbitration to the circuit court.
§8-24-79. Criteria for acquisition of conservation and preservation easements by county farmland protection boards and the authority.
The authority and county farmland protection boards, in ranking applications for conservation and preservation easements, shall consider the following factors as priorities:
(a) The imminence of residential, commercial or industrial development;
(b) The total acreage offered for conservation or preservation easement;
(c) The presence of prime farmland, unique farmland, farmland of statewide importance, other locally significant farmlands and the productive capacity of the acreage;
(d) Whether the property offered is contiguous or appurtenant to working farms;
(e) The ratio of the asking price, if any, of the easement to the fair market value of the easement;
(f) The historical, architectural, archaeological, cultural, recreational, natural, scenic, source water protection or unique value of the easement: Provided, That determinations of the authority or a county farmland protection board are not a substitute for and do not have the effect of other procedures under state or federal law for granting protected status to land, including, but not limited to, procedures under the National Historic Preservation Act of 1966, as amended, or rules of the director of the historic preservation section of the division of culture and history authorized in section eight, article one, chapter twenty-nine of this code, or procedures under the authority of the tourism commissioner or the parks and recreation section of the division of natural resources;
(g) The existence and amount of secured debt upon the property, as determined by a title search, and whether the total exceeds the agricultural value of the land as determined by the appraisal as required in subsection (d), section seventy-eight of this article; and
(h) The length of the protective easement.
§8-24-80. Use of land for which conservation or preservation easement acquired.
(a) Provisions to be included in conservation or preservation easement and county farmland protection board rules, or the authority rules. -- Farmland upon which a conservation or preservation easement has been recorded may be used for the following:
(1) Farm use;
(2) Businesses directly related to the retail sale of farm products;
(3) Any activity performed for religious, charitable or educational purposes or to foster tourism; and
(4) Any home-based business that does not require a division of environmental protection permit to operate.
Notwithstanding any of the exceptions in this subsection, any use of land under preservation or conservation easement must be consistent with the purpose of the farmland protection programs.
(b) Use for commercial, industrial or residential purposes. -- Excepting existing and future uses described in subsections (c), (d) and (e) of this section, a landowner whose land is subject to a conservation or preservation easement may not develop the land for any commercial, industrial, residential or other nonfarm purpose. Nonresidential, noncommercial, nonindustrial farm support buildings or structures are permitted.
(c) Exclusion for single residential dwelling. -. On request to a county farmland protection board or the authority, an owner may exclude two acres per each single residential dwelling, which existed at the time of the sale of the easement, from the easement prohibitions on residential development. A land survey and recordation identifying each single residential dwelling shall be provided at the expense of the owner. However, before any exclusion is granted, an owner shall agree with the county farmland protection board or the authority not to subdivide further for residential purposes any acreage allowed to be excluded. This agreement shall be recorded among the land records where the land is located and shall bind all future owners.
(d) Exclusion for certain existing and future uses. -- This article neither abrogates nor creates any pre-existing rights in the land owned by any person not joining as a grantor of a conservation or preservation easement. Neither the creation nor the existence of a conservation or preservation easement shall prevent existing or future use of the land based on a preexisting right, or prevent any existing or future use consistent with state law with respect to transmission and telecommunications facilities. rights-of-way, easements and licenses.
(e) Condemnation of private property for public use. -- This article neither abrogates nor creates any rights inconsistent with state or federal law respecting the power of condemnation of private property for public use. Any person or entity exercising the power of eminent domain must pay compensation at not less than the fair market value of the land to the court having jurisdiction of the proceeding or as directed by the court. The term .fair market value. as used in this subdivision shall be determined without regard to the existence of the conservation or preservation easement. Neither the creation nor the existence of a conservation or preservation easement shall prevent acquisition of real property, or any right or interest in the property, for public use.
§8-24-81. Funding of farmland protection programs.
(a) County funds.
(1) Creation of county funds. -- Once having created a county farmland protection program, a county commission may authorize the county farmland protection board to create and maintain a farmland protection fund and hire staff as it considers appropriate.
(2) Sources. -- A county farmland protection fund is comprised of:
(A) Any moneys not specifically limited to other uses and dedicated to the fund by a county commission;
(B) Any moneys collected pursuant to section eighty-five of this article;
(C) Any money made available to the fund by grants or transfers from governmental or private sources; and
(D) Any money realized by investments, interest, dividends or distributions.
(b) State fund.
(1) Created and continued. -- The West Virginia farmland protection fund is created for the purposes specified in this article.
(2) Sources. -- The West Virginia farmland protection fund is comprised of:
(A) Any money made available to the fund by general or special fund appropriations;
(B) Any money made available to the fund by grants or transfers from governmental or private sources;
(C) Any money realized by investments, interest, dividends or distributions; and
(D) Any money appropriated by the Legislature for the West Virginia farmland protection fund.
(3) Disbursements. -- The treasurer may not disburse any money from the fund other than:
(A) For costs associated with the staffing, administration, and technical and legal duties of the authority;
(B) For reasonable expenses incurred by the members of the board of trustees of the authority in the performance of official duties; and
(C) For consideration in the purchase of farmland conservation and preservation easements.
(4) Money remaining at end of fiscal year. -- Any money remaining in the fund at the end of a fiscal year shall not revert to the general revenue fund of the state, but shall remain in the West Virginia farmland protection fund to be used for the purposes specified in this chapter.
(5) Budget. -- The estimated budget of the authority for the next fiscal year shall be included with the budget of the West Virginia department of agriculture.
(6) Audit. -- The fund shall be audited annually.
§8-24-82. Disbursements by the authority to county farmland protection boards.
(a) Applications; amount. -- If a county has established a county farmland protection program, the authority shall distribute within sixty days after the end of its fiscal year at least eighty percent of that fiscal year's remaining funds to county farmland protection boards who have certified to the authority that there is then pending an application for one or more conservation or preservation easements. Each certification shall include:
(1) The name of each applicant for an easement and the date of each application for an easement during the fiscal year;
(2) A description of the property upon which an easement is offered; and
(3) An appraisal of the value of the conservation or preservation easement as provided for in section seventy-eight of this article.
(b) Disbursement formula. -- Disbursement of authority funds to qualifying counties shall be based on the ratio of each county farmland protection board's appraisal value of conservation and preservation easement applications, including those applications to donate easements, received during the fiscal year to the total of the appraisal value of all applications for conservation and preservation easements for the fiscal year received by the authority from county farmland protection boards. Applications for easement donations may only be counted if the county farmland protection board holds or coholds the easement.
§8-24-83. Classification of land subject to conservation or preservation easement.
Notwithstanding any statute or rule to the contrary, any property held or coheld by a holder under a conservation or preservation easement as defined in this article, regardless of ownership, shall be taxed as "agricultural lands" for ad valorem property tax purposes without further requirement, restriction or disqualification. For ad valorem property tax purposes, any property held or coheld by a holder under a perpetual conservation or preservation easement as defined by this article, regardless of ownership, shall be taxed as "agricultural lands" without further requirement, restriction or disqualification.
§8-24-84. Authorization for commissioner of agriculture to promulgate proposed rules.
The commissioner of agriculture may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article.
§8-24-85. Tax on privilege of transferring real property.
(a) Notwithstanding the provisions of section two, article twenty-two, chapter eleven, and effective on the effective date of the amendments of this section enacted during the two thousand three regular session of the Legislature and thereafter, in addition to the tax imposed pursuant to article twenty-two, chapter eleven of this code, any county commission that has created a farmland protection program may impose an additional county excise tax for the privilege of transferring title to real estate at the rate of no more than one dollar and ten cents for each five hundred dollars' value or fraction thereof, as represented by any document as defined in section one, article twenty-two, chapter eleven of this code, payable at the time of delivery, acceptance or presentation for recording of the document.
(b) The tax imposed pursuant to this section is to be administered and collected as the tax on the privilege of transferring title to real estate imposed pursuant to the provisions of article twenty-two, chapter eleven of this code.
(c) The tax imposed pursuant to this section is to be used exclusively for the purpose of funding farmland preservation.
§8-24-86. Conditions as part of final plat approval.
(a) A zoning ordinance may provide for the voluntary proffering by a landowner as a requirement of final plat approval for a development project.
(b) For purposes of this article, a "voluntary proffer" is a written offer by a landowner to the planning commission whereby the landowner offers to satisfy certain reasonable conditions as a requirement of the final plat approval for a development project. A voluntary proffer made to a county shall be in lieu of payment of an impact fee as authorized by section four, article twenty, chapter seven of this code.
(c) For purposes of this section, a condition contained in a voluntary proffer is considered reasonable if: (1) The development project results in the need for the conditions; (2) the conditions have a reasonable relation to the development project; and (3) all conditions are in conformity with the comprehensive plan adopted pursuant to this article.
(d) No proffer may be accepted by a county or municipality unless it has approved a list detailing any proposed capital improvements from all areas within the county or municipality, to which the proffer is made, and containing descriptions of any proposed capital improvements, cost estimates, projected time frames for constructing the improvements and proposed or anticipated funding sources: Provided, That the approval of the list does not limit the county or municipality from accepting proffers relating to items not contained on the list. For purposes of this subsection, "capital improvement" has the same definition as found in section three, article twenty, chapter seven of this code.
(e) If a voluntary proffer includes the dedication of real property or the payment of cash, the proffer shall provide for the alternate disposition of the property or cash payment in the event the property or cash payment is not to be used for the purpose for which it was proffered.
(f) Notwithstanding any provision of this code to the contrary, a municipality may transfer the portion of the proceeds of a voluntary proffer intended by the terms of the proffer to be used by the board of education of a county in which the municipality is located upon the condition that the portion so transferred may only be used by the board for capital improvements.
§8-24-87. Enforcement and guarantees.
(a) The planning commission is vested with all the necessary authority to administer and enforce conditions attached to the final plat approved for a development project, including, but not limited to, the authority to: (1) Order in writing the remedy for any noncompliance with the conditions; (2) bring legal action to insure compliance with the conditions, including injunction, abatement, or other appropriate action or proceeding; and (3) require a guarantee satisfactory to the planning commission in an amount sufficient for and conditioned upon the construction of any physical improvements required by the conditions, or a contract for the construction of the improvements and the contractor's guarantee, in like amount and so conditioned, which guarantee shall be reduced or released by the planning commission upon the submission of satisfactory evidence that construction of the improvements has been completed in whole or in part.
(b) Failure to meet all conditions attached to the final plat approved for a development project shall constitute cause to deny the issuance of any of the required use, occupancy, or building permits, as may be appropriate.
[[The following definitions from 20-12-3 are used above in 8-24-75b and 8-24-75d]]
(a) "Conservation easement" means a nonpossessory interest of a holder in real property, whether appurtenant or in gross, imposing limitations or affirmative obligations, the purposes of which include, but are not limited to, retaining or protecting for the public benefit the natural, scenic or open-space values of real property; assuring its availability for agricultural, forest, recreational or open-space use; protecting natural resources and wildlife; maintaining or enhancing land, air or water quality; or preserving the historical, architectural, archaeological or cultural aspects of real property.
(b) "Holder" means:
(1) A governmental body empowered to hold an interest in real property under the laws of this state or the United States.
(2) A charitable corporation, charitable association or charitable trust registered with the secretary of state and exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. Section 501(c)(3), or other federal or state statutes or rules, the purposes or powers of which include retaining or protecting the natural, scenic, agricultural or open-space values of real property; assuring the availability of real property for agricultural, forest, recreational or open-space use; protecting natural resources and wildlife; maintaining or enhancing land, air or water quality; or preserving the historical, architectural, archaeological or cultural aspects of real property.
(c) "Preservation easement" means a nonpossessory interest in an historical building.