May 2004

The Statehouse

By James Lawlor

West Virginia: New Enabling Law. The first major revision of the state's planning enabling law since its original enactment in 1959 goes into effect June 11. Chapter president Christopher Fletcher, AICP, said, "This is a historic piece of legislation that enables Mountain State counties and municipalities to employ more modern and permissive planning tools." He praised "the vision and leadership" of state senators Brooks McCabe, AICP, Edward Bowman, and Herbert Snyder, as well as their colleagues on the senate and house Committees on Government Organization, for shepherding the revision through the legislature.

The new law, Chapter 8A of Article 24 of the state code, authorizes, but does not require, counties and municipalities to create planning commissions and develop comprehensive plans. Governing bodies also may create multi-county planning commissions, regional planning commissions, and joint planning commissions.

Comprehensive plans may incorporate innovative land-use management techniques, including density bonuses, transfers of development rights, cluster developments, planned unit developments, conservation easements, infill, or any other technique that will promote the local government's development plans. If the local government decides to develop a comprehensive plan, the law sets out mandatory components, including a land-use element, housing, transportation, infrastructure, economic development, public services, and recreation elements. There is also a list of optional elements that the local government might wish to include.

The statute requires units of local government to consult and collaborate with each other whenever a planning commission prepares a new plan or amends an existing plan. It also provides that local governments may regulate subdivisions and land development by ordinance, but only after adopting a comprehensive plan. The law provides that an approved land development plan gives the landowner a vested property right to develop under the plan for five years after approval. Landowners also may gain vested rights if they rely in good faith on a "significant affirmative governmental act," allowing development of a project, and make substantial expenditures pursuing development.

The law provides for creation and amendment of zoning ordinances and permits approval or rejection of a proposed ordinance by the voters. There are special provisions for approval of factory-built homes and group homes. The latter are considered a permitted use in any residential zone. Finally, the law creates a voluntary farmland preservation program allowing counties to acquire development rights or buy property outright from willing landowners.

The process of updating West Virginia's planning enabling law has been a lengthy one, including intensive efforts by the chapter's legislative committee over the past two years, as well as extensive preparatory work in preceding years. Fletcher noted the revision likely would not have succeeded without the active collaboration of numerous interest groups, including the League of Women Voters, the state Chamber of Commerce, the state Development Office, the Farm Bureau, the Home Builders Association, the Manufactured Housing association, the Municipal League, and the Association of County Commissioners.

Florida: Veto Urged. The Florida chapter is urging Gov. Jeb Bush to veto a bill passed by the state legislature that, while purporting to allow agricultural areas surrounded by more intensive uses to convert to similar use, is likely, the chapter believes, to create more harm than good. SB 1712 defines an "agricultural enclave," as land used for bona fide agricultural purposes that is surrounded on at least 75 percent of its perimeter by industrial, commercial, or residential development. It provides that the owner of such an enclave may request the local government to amend its comprehensive plan to provide for land uses and intensities of use consistent with those of the surrounding areas.

The concerns of the chapter, and of 1000 Friends of Florida, which also opposes the bill, center on what it considers the vague language of the bill, the exemption of converted enclaves from the comprehensive planning process, and the incidental creation of a new cause of action for agricultural landowners aggrieved by downzoning of their property. A landowner who considers a change of an existing agricultural land use classification or reduction of the allowed residential density to be unduly burdensome could bring suit under the Bert Harris Act, which created a cause of action in favor of landowners who believe a regulations unreasonably burdens the use of their land. In its letter to the governor, the chapter pointed out the new cause of action is inconsistent with many provisions of the Bert Harris Act, and could discourage the use of cluster development and transfers of development rights.

Also, the letter says, exempting converted agricultural enclaves from the comprehensive planning process would undermine local governments' ability to plan for future growth and development and compromise state and local government attempts to encourage urban infill development, because large blocks of agricultural land would become available for development, presumably at lower cost and less hassle than is associated with infill projects. Rather than achieving its intended purpose of putting agricultural land surrounded by development to better use, the bill is likely to encourage premature conversion of huge amounts of agricultural land, thus promoting urban sprawl, the chapter contends.

Other planning-related legislation enacted in the session that wound up April 30 included a law that requires local governments to coordinate development plans with military installations in the jurisdiction and a bill that, among other provisions, authorizes local governments to adopt ordinances permitting accessory dwelling units in areas zoned for single-family residences, where there is a shortage of affordable rental units. The former bill, S.B. 1604, was signed by Gov. Bush May 25. The latter, S.B. 2188, has not been transmitted to the governor yet.

Momentum for the passage of S.B. 1604 came in large part from the U.S. Defense Department's new round of base realignments and enclosures. The cuts projected for 2005 are predicted to be the largest yet, possibly amounting to capacity reductions of 20 percent to 25 percent, the Senate staff analysis of the bill stated. The analysis pointed out that in Florida military installations once surrounded by nothing but trees and wetlands now find houses and highways immediately outside their perimeter fence. Development that encroaches on a military installation jeopardizes its mission, and a base whose military value has been reduced by development becomes a target for closure.

Part of the state's effort to retain military facilities and the economic benefits they bring is the provision in the new law for exchanging information on plan and development regulation changes that could affect the use of land in close proximity to a military base. The bill also permits base commanders to comment on the effect proposed changes might have on the base's military mission. A representative of the military installation will serve as a nonvoting member of the local government's land planning or zoning board. Local governments are required to include the compatibility of the uses on land near military bases as an element of their comprehensive plan. The bill also appropriates funds to support local infrastructure projects that would have a positive impact on military installations, such as alleviating encroachment, improving transportation, access, utilities, communications, housing, and security.

S.B. 2188 is something of a smorgasbord planning law, assembling a diverse group of land development-related provisions. The legislative findings concerning accessory dwelling units state that there is a critical shortage of affordable housing in many urban areas. Permitting accessory dwelling units in single-family zones has the potential to alleviate this problem to some extent, the legislature believes.

An accessory dwelling unit is defined as a secondary living unit having a separate kitchen, bathroom, and sleeping area, either within the same structure or on the same lot as the primary dwelling unit. After a local government makes a finding that there is a shortage of affordable rental units within its jurisdiction, it is authorized to adopt an ordinance allowing accessory dwelling units in areas zoned for single-family houses.

A person applying for a building permit for such a unit must provide an affidavit that it will be rented at a rate affordable to low- or moderate-income persons. The dwelling units constructed under the ordinance apply toward satisfying the affordable housing component of the local government's comprehensive plan. The state Department of Community Affairs is directed to evaluate the effectiveness of accessory dwelling units in alleviating the shortage of affordable housing and report to the legislature by January 1, 2007.