S*687 Session 110 (1993-1994)
S*0687(Rat #0395, Act #0355) General Bill, By Bryan
Similar(H 4616)
A Bill to amend the Code of Laws of South Carolina, 1976 by adding Chapter 29
to Title 6 so as to provide for consolidation of existing planning enabling
legislation; to update existing legislative acts; to repeal Chapter 27 of
Title 4 relating to the County Planning Act; to repeal Chapter 23 of Title 5
relating to zoning and planning by municipalities; to repeal Sections 6-7-310
through 6-7-1110 relating to planning by local governments; and to repeal Act
129 of 1963 relating to the Greenville County Planning Commission.
04/14/93 Senate Introduced and read first time SJ-4
04/14/93 Senate Referred to Committee on Judiciary SJ-5
02/02/94 Senate Committee report: Favorable with amendment
Judiciary SJ-12
02/17/94 Senate Amended SJ-11
02/17/94 Senate Read second time SJ-35
02/17/94 Senate Ordered to third reading with notice of
amendments SJ-35
02/22/94 Senate Read third time and sent to House SJ-17
02/23/94 House Introduced, read first time, placed on calendar
without reference HJ-16
03/29/94 House Debate adjourned until Wednesday, March 30, 1994 HJ-19
03/30/94 House Amended HJ-57
03/30/94 House Debate adjourned HJ-58
04/05/94 House Read second time HJ-61
04/06/94 House Read third time and returned to Senate with
amendments HJ-9
04/07/94 Senate Concurred in House amendment and enrolled SJ-16
04/27/94 Ratified R 395
05/03/94 Signed By Governor
05/03/94 Effective date 05/03/94
05/23/94 Copies available
(A355, R395, S687)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING CHAPTER 29 TO TITLE 6 SO AS TO
PROVIDE FOR CONSOLIDATION OF EXISTING PLANNING
ENABLING LEGISLATION; TO UPDATE EXISTING LEGISLATIVE
ACTS; TO REPEAL CHAPTER 27 OF TITLE 4 RELATING TO THE
COUNTY PLANNING ACT; TO REPEAL CHAPTER 23 OF TITLE 5
RELATING TO ZONING AND PLANNING BY MUNICIPALITIES; TO
REPEAL SECTIONS 6-7-310 THROUGH 6-7-1110 RELATING TO
PLANNING BY LOCAL GOVERNMENTS; AND TO REPEAL ACT 129
OF 1963 RELATING TO THE GREENVILLE COUNTY PLANNING
COMMISSION.
Be it enacted by the General Assembly of the State of South Carolina:
South Carolina Local Government Comprehensive Planning
Enabling Act of 1994, enacted
SECTION 1. Title 6 of the 1976 Code is amended by adding:
"CHAPTER 29
South Carolina Local Government
Comprehensive Planning Enabling Act of 1994
Article 1
Creation of Local Planning Commission
Section 6-29-310. For purposes of this chapter, `local planning
commission' means a municipal planning commission, a county planning
commission, a joint city-county planning commission, or a consolidated
government planning commission.
Section 6-29-320. The city council of each municipality may create a
municipal planning commission. The county council of each county may
create a county planning commission. The governing body of a
consolidated government may create a planning commission. Any
combination of municipal councils and a county council or any
combination of municipal councils may create a joint planning
commission.
Section 6-29-330. (A) A municipality may exercise the powers granted
under the provisions of this chapter in the total area within its corporate
limits. A county may exercise the powers granted under the provisions of
this chapter in the total unincorporated area or specific parts of the
unincorporated area. Unincorporated areas of the county or counties
adjacent to incorporated municipalities may be added to and included in the
area under municipal jurisdiction for the purposes of this chapter provided
that the municipality and county councils involved adopt ordinances
establishing the boundaries of the additional areas, the limitations of the
authority to be exercised by the municipality, and representation on the
boards and commissions provided under this chapter. The agreement must
be formally approved and executed by the municipal council and the county
councils involved.
(B) The governing body of a municipality may designate by ordinance
the county planning commission as the official planning commission of the
municipality. In the event of the designation, and acceptance by the
county, the county planning commission may exercise the powers and
duties as provided in this chapter for municipal planning commissions as
are specified in the agreement reached by the governing authorities. The
agreement must specify the procedures for the exercise of powers granted
in the chapter and shall address the issue of equitable representation of the
municipality and the county on the boards and commissions authorized by
this chapter. This agreement must be formally stated in appropriate
ordinances by the governing authorities involved.
Section 6-29-340. (A) It is the function and duty of the local planning
commission, when created by an ordinance passed by the municipal council
or the county council, or both, to undertake a continuing planning program
for the physical, social, and economic growth, development, and
redevelopment of the area within its jurisdiction. The plans and programs
must be designed to promote public health, safety, morals, convenience,
prosperity, or the general welfare as well as the efficiency and economy of
its area of jurisdiction. Specific planning elements must be based upon
careful and comprehensive surveys and studies of existing conditions and
probable future development and include recommended means of
implementation. The local planning commission may make, publish, and
distribute maps, plans, and reports and recommendations relating to the
plans and programs and the development of its area of jurisdiction to public
officials and agencies, public utility companies, civic, educational,
professional, and other organizations and citizens. All public officials
shall, upon request, furnish to the planning commission, within a
reasonable time, such available information as it may require for its work.
The planning commission, its members and employees, in the performance
of its functions, may enter upon any land with consent of the property
owner or after ten days' written notification to the owner of record, make
examinations and surveys, and place and maintain necessary monuments
and marks on them, provided, however, that the planning commission shall
be liable for any injury or damage to property resulting therefrom. In
general, the planning commission has the powers as may be necessary to
enable it to perform its functions and promote the planning of its political
jurisdiction.
(B) In the discharge of its responsibilities, the local planning
commission has the power and duty to:
(1) prepare and revise periodically plans and programs for the
development and redevelopment of its area as provided in this chapter;
and
(2) prepare and recommend for adoption to the appropriate governing
authority or authorities as a means for implementing the plans and
programs in its area:
(a) zoning ordinances to include zoning district maps and
appropriate revisions thereof, as provided in this chapter;
(b) regulations for the subdivision or development of land and
appropriate revisions thereof, and to oversee the administration of the
regulations that may be adopted as provided in this chapter;
(c) an official map and appropriate revision on it showing the exact
location of existing or proposed public street, highway, and utility
rights-of-way, and public building sites, together with regulations to control
the erection of buildings or other structures or changes in land use within
the rights-of-way, building sites, or open spaces within its political
jurisdiction or a specified portion of it, as set forth in this chapter;
(d) a landscaping ordinance setting forth required planting, tree
preservation, and other aesthetic considerations for land and structures;
(e) a capital improvements program setting forth projects required to
implement plans which have been prepared and adopted, including an
annual listing of priority projects for consideration by the governmental
bodies responsible for implementation prior to preparation of their capital
budget; and
(f) policies or procedures to facilitate implementation of planning
elements.
Section 6-29-350. (A) A local planning commission serving not more
than two political jurisdictions may not have less than five nor more than
twelve members. A local planning commission serving three or more
political jurisdictions shall have a membership not greater than four times
the number of jurisdictions it serves. In the case of a joint city-county
planning commission the membership must be proportional to the
population inside and outside the corporate limits of municipalities.
(B) No member of a planning commission may hold an elected public
office in the municipality or county from which appointed. Members of the
commission first to serve must be appointed for staggered terms as
described in the agreement of organization and shall serve until their
successors are appointed and qualified. The compensation of the members,
if any, must be determined by the governing authority or authorities
creating the commission. A vacancy in the membership of a planning
commission must be filled for the unexpired term in the same manner as the
original appointment. The governing authority or authorities creating the
commission may remove any member of the commission for cause.
(C) In the appointment of planning commission members the appointing
authority shall consider their professional expertise, knowledge of the
community, and concern for the future welfare of the total community and
its citizens. Members shall represent a broad cross section of the interests
and concerns within the jurisdiction.
Section 6-29-360. (A) A local planning commission shall organize
itself electing one of its members as chairman and one as vice-chairman
whose terms must be for one year. It shall appoint a secretary who may be
an officer or an employee of the governing authority or of the planning
commission. The planning commission shall meet at the call of the
chairman and at such times as the chairman or commission may
determine.
(B) The commission shall adopt rules of organizational procedure and
shall keep a record of its resolutions, findings, and determinations, which
record must be a public record. The planning commission may purchase
equipment and supplies and may employ or contract for such staff and such
experts as it considers necessary and consistent with funds
appropriated.
Section 6-29-370. The governing authority may provide for the
reference of any matters or class of matters to the local planning
commission, with the provision that final action on it may not be taken until
the planning commission has submitted a report on it or has had a
reasonable period of time, as determined by the governing authority to
submit a report.
Section 6-29-380. A local planning commission may cooperate with,
contract with, or accept funds from federal government agencies, state
government agencies, local general purpose governments, school districts,
special purpose districts, including those of other states, public or
eleemosynary agencies, or private individuals or corporations; it may
expend the funds; and it may carry out such cooperative undertakings and
contracts as it considers necessary.
Article 3
Local Planning -- The Comprehensive Planning
Process
Section 6-29-510. (A) The local planning commission shall develop
and maintain a planning process which will result in the systematic
preparation and continual re-evaluation and updating of those elements
considered critical, necessary, and desirable to guide the development and
redevelopment of its area of jurisdiction.
(B) Surveys and studies on which planning elements are based must
include consideration of potential conflicts with adjacent jurisdictions and
regional plans or issues.
(C) The basic planning process for all planning elements must include,
but not be limited to:
(1) inventory of existing conditions;
(2) a statement of needs and goals; and
(3) implementation strategies with time frames.
(D) A local comprehensive plan must include, but not be limited to, the
following planning elements:
(1) a population element which considers historic trends and
projections, household numbers and sizes, educational levels, and income
characteristics;
(2) an economic development element which considers labor force
and labor force characteristics, employment by place of work and
residence, and analysis of the economic base;
(3) a natural resources element which considers coastal resources,
slope characteristics, prime agricultural and forest land, plant and animal
habitats, parks and recreation areas, scenic views and sites, wetlands, and
soil types. Where a separate board exists pursuant to this chapter, this
element is the responsibility of the existing board;
(4) a cultural resources element which considers historic buildings and
structures, commercial districts, residential districts, unique, natural, or
scenic resources, archaeological, and other cultural resources. Where a
separate board exists pursuant to this chapter, this element is the
responsibility of the existing board;
(5) a community facilities element which considers transportation
network; water supply, treatment, and distribution; sewage system and
wastewater treatment; solid waste collection and disposal, fire protection,
emergency medical services, and general government facilities; education
facilities; and libraries and other cultural facilities;
(6) a housing element which considers location, types, age and
condition of housing, owner and renter occupancy, and affordability of
housing; and
(7) a land use element which considers existing and future land use by
categories, including residential, commercial, industrial, agricultural,
forestry, mining, public and quasi-public, recreation, parks, open space, and
vacant or undeveloped.
(E) All planning elements must be an expression of the planning
commission recommendations to the appropriate governing bodies with
regard to the wise and efficient use of public funds, the future growth,
development, and redevelopment of its area of jurisdiction, and
consideration of the fiscal impact on property owners. The planning
elements whether done as a package or in separate increments together
comprise the comprehensive plan for the jurisdiction at any one point in
time. The local planning commission shall review the comprehensive plan
or elements of it as often as necessary, but not less than once every five
years, to determine whether changes in the amount, kind, or direction of
development of the area or other reasons make it desirable to make
additions or amendments to the plan. The comprehensive plan, including
all elements of it, must be updated at least every ten years.
Section 6-29-520. (A) In the preparation or periodic updating of any or
all planning elements for the jurisdiction, the planning commission may use
advisory committees with membership from both the planning commission
or other public involvement mechanisms and other resource people not
members of the planning commission. If the local government maintains a
list of groups that have registered an interest in being informed of
proceedings related to planning, notice of meetings must be mailed to these
groups.
(B) Recommendation of the plan or any element, amendment,
extension, or addition must be by resolution of the planning commission,
carried by the affirmative votes of at least a majority of the entire
membership. The resolution must refer expressly to maps and other
descriptive matter intended by the planning commission to form the whole
or element of the recommended plan and the action taken must be recorded
in its official minutes of the planning commission. A copy of the
recommended plan or element of it must be transmitted to the appropriate
governing authorities and to all other legislative and administrative
agencies affected by the plan.
(C) In satisfying the preparation and periodic updating of the required
planning elements, the planning commission shall review and consider, and
may recommend by reference, plans prepared by other agencies which the
planning commission considers to meet the requirements of this article.
Section 6-29-530. The local planning commission may recommend to
the appropriate governing body and the body may adopt the plan as a whole
by a single ordinance or elements of the plan by successive ordinances.
The elements shall correspond with the major geographical sections or
divisions of the planning area or with functional subdivisions of the subject
matter of the comprehensive plan, or both. Before adoption of an element
or a plan as a whole, the governing authority shall hold a public hearing on
it after not less than thirty days' notice of the time and place of the hearings
has been given in a newspaper having general circulation in the
jurisdiction.
Section 6-29-540. When the local planning commission has
recommended and local governing authority or authorities have adopted the
related comprehensive plan element set forth in this chapter, no new street,
structure, utility, square, park, or other public way, grounds, or open space
or public buildings for any use, whether publicly or privately owned, may
be constructed or authorized in the political jurisdiction of the governing
authority or authorities establishing the planning commission until the
location, character, and extent of it have been submitted to the planning
commission for review and comment as to the compatibility of the proposal
with the comprehensive plan of the community. In the event the planning
commission finds the proposal to be in conflict with the comprehensive
plan, the commission shall transmit its findings and the particulars of the
nonconformity to the entity proposing the facility. If the entity proposing
the facility determines to go forward with the project which conflicts with
the comprehensive plan, the governing or policy making body of the entity
shall publicly state its intention to proceed and the reasons for the action.
A copy of this finding must be sent to the local governing body, the local
planning commission, and published as a public notice in a newspaper of
general circulation in the community at least thirty days prior to awarding a
contract or beginning construction. Telephone, sewer and gas utilities, or
electric suppliers, utilities and providers, whether publicly or privately
owned, whose plans have been approved by the local governing body or a
state or federal regulatory agency, or electric suppliers, utilities and
providers who are acting in accordance with a legislatively delegated right
pursuant to Chapter 27 or 31 of Title 58 or Chapter 49 of Title 33 are
exempt from this provision. These utilities must submit construction
information to the appropriate local planning commission.
Article 5
Local Planning -- Zoning
Section 6-29-710. (A) Zoning ordinances must be for the general
purposes of guiding development in accordance with existing and future
needs and promoting the public health, safety, morals, convenience, order,
appearance, prosperity, and general welfare. To these ends, zoning
ordinances must be made with reasonable consideration of the following
purposes, where applicable:
(1) to provide for adequate light, air, and open space;
(2) to prevent the overcrowding of land, to avoid undue concentration
of population, and to lessen congestion in the streets;
(3) to facilitate the creation of a convenient, attractive, and
harmonious community;
(4) to protect and preserve scenic, historic, or ecologically sensitive
areas;
(5) to regulate the density and distribution of populations and the uses
of buildings, structures and land for trade, industry, residence, recreation,
agriculture, forestry, conservation, airports and approaches thereto, water
supply, sanitation, protection against floods, public activities, and other
purposes;
(6) to facilitate the adequate provision or availability of transportation,
police and fire protection, water, sewage, schools, parks, and other
recreational facilities, affordable housing, disaster evacuation, and other
public services and requirements. `Other public requirements' which the
local governing body intends to address by a particular ordinance or action
must be specified in the preamble or some other part of the ordinance or
action;
(7) to secure safety from fire, flood, and other dangers; and
(8) to further the public welfare in any other regard specified by a
local governing body.
Section 6-29-720. (A) When the local planning commission has
prepared and recommended and the governing body has adopted at least the
land use element of the comprehensive plan as set forth in this chapter, the
governing body of a municipality or county may adopt a zoning ordinance
to help implement the comprehensive plan. The zoning ordinance shall
create zoning districts of such number, shape, and size as the governing
authority determines to be best suited to carry out the purposes of this
chapter. Within each district the governing body may regulate:
(1) the use of buildings, structures, and land;
(2) the size, location, height, bulk, orientation, number of stories,
erection, construction, reconstruction, alteration, demolition, or removal in
whole or in part of buildings and other structures, including signage;
(3) the density of development, use, or occupancy of buildings,
structures, or land;
(4) the areas and dimensions of land, water, and air space to be
occupied by buildings and structures, and the size of yards, courts, and
other open spaces;
(5) the amount of off-street parking and loading that must be
provided, and restrictions or requirements related to the entry or use of
motor vehicles on the land;
(6) other aspects of the site plan including, but not limited to, tree
preservation, landscaping, buffers, lighting, and curb cuts; and
(7) other aspects of the development and use of land or structures
necessary to accomplish the purposes set forth throughout this chapter.
(B) The regulations must be made in accordance with the
comprehensive plan for the jurisdiction, and be made with a view to
promoting the purposes set forth throughout this chapter. Except as
provided in this chapter, all of these regulations must be uniform for each
class or kind of building, structure, or use throughout each district, but the
regulations in one district may differ from those in other districts.
(C) The zoning ordinance may utilize the following or any other zoning
and planning techniques for implementation of the goals specified above.
Failure to specify a particular technique does not cause use of that
technique to be viewed as beyond the power of the local government
choosing to use it:
(1) `cluster development' or the grouping of residential, commercial,
or industrial uses within a subdivision or development site, permitting a
reduction in the otherwise applicable lot size, while preserving substantial
open space on the remainder of the parcel;
(2) `floating zone' or a zone which is described in the text of a zoning
ordinance but is unmapped. A property owner may petition for the zone to
be applied to a particular parcel meeting the minimum zoning district area
requirements of the zoning ordinance through legislative action;
(3) `performance zoning' or zoning which specifies a minimum
requirement or maximum limit on the effects of a land use rather than, or in
addition to, specifying the use itself, simultaneously assuring compatibility
with surrounding development and increasing a developer's flexibility;
(4) `planned development district' or a development project comprised
of housing of different types and densities and of compatible commercial
uses, or shopping centers, office parks, and mixed-use developments. A
planned development district is established by rezoning prior to
development and is characterized by a unified site design for a mixed use
development;
(5) `overlay zone' or a zone which imposes a set of requirements or
relaxes a set of requirements imposed by the underlying zoning district
when there is a special public interest in a particular geographic area that
does not coincide with the underlying zone boundaries; and
(6) `conditional uses' or zoning ordinance provisions that impose
conditions, restrictions, or limitations on a permitted use that are in addition
to the restrictions applicable to all land in the zoning district. The
conditions, restrictions, or limitations must be set forth in the text of the
zoning ordinance.
Section 6-29-730. The regulations may provide that land, buildings, and
structures and the uses of them which are lawful at the time of the
enactment or amendment of zoning regulations may be continued although
not in conformity with the regulations or amendments, which is called a
nonconformity. The governing authority of a municipality or county may
provide in the zoning ordinance or resolution for the continuance,
restoration, reconstruction, extension, or substitution of nonconformities.
The governing authority also may provide for the termination of a
nonconformity by specifying the period or periods in which the
nonconformity is required to cease or be brought into conformance, or by
providing a formula where the compulsory termination of nonconformities
may be so fixed as to allow for the recovery or amortization of the
investment in the nonconformity.
Section 6-29-740. In order to achieve the objectives of the
comprehensive plan of the locality and to allow flexibility in development
that will result in improved design, character, and quality of new mixed use
developments and preserve natural and scenic features of open spaces, the
local governing authority may provide for the establishment of planned
development districts as amendments to a locally adopted zoning ordinance
and official zoning map. The adopted planned development map is the
zoning district map for the property. The planned development provisions
must encourage innovative site planning for residential, commercial,
institutional, and industrial developments within planned development
districts. Planned development districts may provide for variations from
other ordinances and the regulations of other established zoning districts
concerning use, setbacks, lot size, density, bulk, and other requirements to
accommodate flexibility in the arrangement of uses for the general purpose
of promoting and protecting the public health, safety, and general welfare.
Amendments to a planned development district may be authorized by
ordinance of the governing authority after recommendation from the
planning commission. These amendments constitute zoning ordinance
amendments and must follow prescribed procedures for the amendments.
The adopted plan may include a method for minor modifications to the site
plan or development provisions.
Section 6-29-750. In accordance with a special development district
parking facility plan and program, which includes guidelines for preferred
parking locations and indicates prohibited parking areas, the planning
commission may recommend and the local governing body may adopt
regulations which permit the reduction or waiver of parking requirements
within the district in return for cash contributions or dedications of land
earmarked for provision of public parking or public transit which may not
be used for any other purpose. The cash contributions or the value of the
land may not exceed the approximate cost to build the required spaces or
provide the public transit that would have incurred had not the reduction or
waiver been granted.
Section 6-29-760. (A) Before enacting or amending any zoning
regulations or maps, the governing authority or the planning commission, if
authorized by the governing authority, shall hold a public hearing on it,
which must be advertised and conducted according to lawfully prescribed
procedures. If no established procedures exist, then at least fifteen days'
notice of the time and place of the public hearing must be given in a
newspaper of general circulation in the municipality or county. In cases
involving rezoning, conspicuous notice shall be posted on or adjacent to the
property affected, with at least one such notice being visible from each
public thoroughfare that abuts the property. If the local government
maintains a list of groups that have expressed an interest in being informed
of zoning proceedings, notice of such meetings must be mailed to these
groups. No change in or departure from the text or maps as recommended
by the local planning commission may be made pursuant to the hearing
unless the change or departure be first submitted to the planning
commission for review and recommendation. The planning commission
shall have a time prescribed in the ordinance which may not be more than
thirty days within which to submit its report and recommendation on the
change to the governing authority. If the planning commission fails to
submit a report within the prescribed time period, it is deemed to have
approved the change or departure. When the required public hearing is
held by the planning commission, no public hearing by the governing
authority is required before amending the zoning ordinance text or
maps.
(B) If a landowner whose land is the subject of a proposed amendment
will be allowed to present oral or written comments to the planning
commission, at least ten days' notice and an opportunity to comment in the
same manner must be given to other interested members of the public,
including owners of adjoining property.
(C) An owner of adjoining land or his representative has standing to
bring an action contesting the ordinance or amendment; however, this
subsection does not create any new substantive right in any party.
(D) No challenge to the adequacy of notice or challenge to the validity
of a regulation or map, or amendment to it, whether enacted before or after
the effective date of this section, may be made sixty days after the decision
of the governing body if there has been substantial compliance with the
notice requirements of this section or with established procedures of the
governing authority or the planning commission.
Section 6-29-770. (A) Agencies, departments, and subdivisions of this
State that use real property, as owner or tenant, in any county or
municipality in this State are subject to the zoning ordinances.
(B) A county or agency, department or subdivision of it that uses any
real property, as owner or tenant, within the limits of any municipality in
this State is subject to the zoning ordinances of the municipality.
(C) A municipality or agency, department or subdivision of it, that uses
any real property, as owner or tenant, within the limits of any county in this
State but not within the limits of the municipality is subject to the zoning
ordinances of the county.
(D) The provisions of this section do not require a state agency,
department, or subdivision to move from facilities occupied on June 18,
1976, regardless of whether or not their location is in violation of municipal
or county zoning ordinances.
(E) The provisions of this section do not apply to a home serving nine
or fewer mentally or physically handicapped persons provided the home
provides care on a twenty-four hour basis and is approved or licensed by a
state agency or department or under contract with the agency or department
for that purpose. A home is construed to be a natural family or such similar
term as may be utilized by any county or municipal zoning ordinance to
refer to persons related by blood or marriage. Prior to locating the home
for the handicapped persons, the appropriate state agency or department or
the private entity operating the home under contract must first give prior
notice to the local governing body administering the pertinent zoning laws,
advising of the exact site of any proposed home. The notice must also
identify the individual representing the agency, department, or private
entity for site selection purposes. If the local governing body objects to the
selected site, the governing body must notify the site selection
representative of the entity seeking to establish the home within fifteen
days of receiving notice and must appoint a representative to assist the
entity in selection of a comparable alternate site or structure, or both. The
site selection representative of the entity seeking to establish the home and
the representative of the local governing body shall select a third mutually
agreeable person. The three persons have forty-five days to make a final
selection of the site by majority vote. This final selection is binding on the
entity and the governing body. In the event no selection has been made by
the end of the forty-five day period, the entity establishing the home shall
select the site without further proceedings. An application for variance or
special exception is not required. No person may intervene to prevent the
establishment of a community residence without reasonable
justification.
(F) Prospective residents of these homes must be screened by the
licensing agency to ensure that the placement is appropriate.
(G) The licensing agency shall conduct reviews of these homes no less
frequently than every six months for the purpose of promoting the
rehabilitative purposes of the homes and their continued compatibility with
their neighborhoods.
(H) The governing body of a county or municipality whose zoning
ordinances are violated by the provisions of this section may apply to a
court of competent jurisdiction for injunctive and such other relief as the
court may consider proper.
Section 6-29-780. (A) As a part of the administrative mechanism
designed to enforce the zoning ordinance, the zoning ordinance may
provide for the creation of a board to be known as the board of zoning
appeals. Local governing bodies with a joint planning commission and
adopting a common zoning ordinance may create a board to be known as
the joint board of appeals. All of these boards are referred to as the
board.
(B) The board consists of not less than three nor more than nine
members, a majority of which constitutes a quorum, appointed by the
governing authority or authorities of the area served. The members shall
serve for overlapping terms of not less than three nor more than five years
or after that time until their successors are appointed. A vacancy in the
membership must be filled for the unexpired term in the same manner as
the initial appointment. The governing authority or authorities creating the
board of zoning appeals may remove any member of the board for cause.
The appointing authorities shall determine the amount of compensation, if
any, to be paid to the members of a board of zoning appeals. None of the
members shall hold any other public office or position in the municipality
or county.
Section 6-29-790. The board shall elect one of its members chairman,
who shall serve for one year or until he is re-elected or his successor is
elected and qualified. The board shall appoint a secretary who may be an
officer of the governing authority or of the zoning board. The board shall
adopt rules of procedure in accordance with the provisions of an ordinance
adopted pursuant to this chapter. Meetings of the board must be held at the
call of the chairman and at such other times as the board may determine.
Public notice of all meetings of the board of appeals shall be provided by
publication in a newspaper of general circulation in the municipality or
county. In cases involving variances or special exceptions conspicuous
notice shall be posted on or adjacent to the property affected, with at least
one such notice being visible from each public thoroughfare that abuts the
property. The chairman or, in his or her absence, the acting chairman, may
administer oaths and compel the attendance of witnesses by subpoena. The
board shall keep minutes of its proceedings, showing the vote of each
member upon each question, or if absent or failing to vote, indicating that
fact, and shall keep records of its examinations and other official actions,
all of which must be immediately filed in the office of the board and must
be a public record.
Section 6-29-800. (A) The board of appeals has the following
powers:
(1) to hear and decide appeals where it is alleged there is error in an
order, requirement, decision, or determination made by an administrative
official in the enforcement of the zoning ordinance;
(2) to hear and decide appeals for variance from the requirements of
the zoning ordinance when strict application of the provisions of the
ordinance would result in unnecessary hardship. A variance may be
granted in an individual case of unnecessary hardship if the board makes
and explains in writing the following findings:
(a) there are extraordinary and exceptional conditions pertaining to
the particular piece of property;
(b) these conditions do not generally apply to other property in the
vicinity;
(c) because of these conditions, the application of the ordinance to
the particular piece of property would effectively prohibit or unreasonably
restrict the utilization of the property; and
(d) the authorization of a variance will not be of substantial
detriment to adjacent property or to the public good, and the character of
the district will not be harmed by the granting of the variance.
(i) The board may not grant a variance the effect of which would
be to allow the establishment of a use not otherwise permitted in a zoning
district, to extend physically a nonconforming use of land, or to change the
zoning district boundaries shown on the official zoning map. The fact that
property may be utilized more profitably, should a variance be granted,
may not be considered grounds for a variance. Other requirements may be
prescribed by the zoning ordinance.
A local governing body by ordinance may permit or preclude the
granting of a variance for a use of land, a building, or a structure that is
prohibited in a given district, and if it does permit such a variance, it may
require the affirmative vote of two-thirds of the local adjustment board
members present and voting. Notwithstanding any other provision of this
section, the local governing body may overrule the decision of the local
board of adjustment concerning a use variance.
(ii) In granting a variance, the board may attach to it such
conditions regarding the location, character, or other features of the
proposed building, structure, or use as the board may consider advisable to
protect established property values in the surrounding area, or to promote
the public health, safety, or general welfare;
(3) to permit uses by special exception subject to the terms and
conditions for the uses set forth for such uses in the zoning ordinance;
and
(4) appeals to the board may be taken by any person aggrieved or by
any officer, department, board, or bureau of the municipality or county.
The appeal must be taken within a reasonable time, as provided by the
zoning ordinance or rules of the board, or both, by filing with the officer
from whom the appeal is taken and with the board of appeals notice of
appeal specifying the grounds of it. If no time is provided, the appeals
must be taken within thirty days from the date the appealing party has
received actual notice of the action from which the appeal is taken. The
officer from whom the appeal is taken immediately shall transmit to the
board all the papers constituting the record upon which the action appealed
from was taken.
(B) An appeal stays all legal proceedings in furtherance of the action
appealed from, unless the officer from whom the appeal is taken certifies to
the board, after the notice of appeal has been filed with him, that by reason
of facts stated in the certificate a stay would, in his opinion, cause imminent
peril to life and property. In that case, proceedings may not be stayed
otherwise than by a restraining order which may be granted by the board or
by a court of record on application, on notice to the officer from whom the
appeal is taken, and on due cause shown.
(C) The board shall fix a reasonable time for the hearing of the appeal
or other matter referred to it, and give at least fifteen days' public notice of
it in a newspaper of general circulation in the community, as well as due
notice to the parties in interest, and decide the same within a reasonable
time. At the hearing any party may appear in person or by agent or by
attorney.
(D) In exercising the above power, the board of appeals may, in
conformity with the provisions of this chapter, reverse or affirm, wholly or
in part, or may modify the order, requirements, decision, or determination,
and to that end shall have all the powers of the officer from whom the
appeal is taken and may issue or direct the issuance of a permit. The board
in the execution of the duties specified in this chapter may subpoena
witnesses and in case of contempt may certify this fact to the circuit court
having jurisdiction.
(E) All final decisions and orders of the board must be in writing and be
permanently filed in the office of the board as a public record. All findings
of fact and conclusions of law must be separately stated in final decisions
or orders of the board which must be delivered to parties of interest by
certified mail.
Section 6-29-810. In case of contempt by a party, witness, or other
person before the board of appeals, the board may certify this fact to the
circuit court of the county in which the contempt occurs and the judge of
the court, in open court or in chambers, after hearing, may impose a penalty
as authorized by law.
Section 6-29-820. A person who may have a substantial interest in any
decision of the board of appeals or an officer or agent of the appropriate
governing authority may appeal from a decision of the board to the circuit
court in and for the county by filing with the clerk of the court a petition in
writing setting forth plainly, fully, and distinctly why the decision is
contrary to law. The appeal must be filed within thirty days after the
decision of the board is mailed.
Section 6-29-830. (A) Upon the filing of the appeal, the clerk of the
circuit court shall give immediate notice of it to the secretary of the board
and within thirty days from the time of the notice the board shall file with
the clerk a certified copy of the proceedings held before the board of
appeals, including a transcript of the evidence heard before it, if any, and
the decision of the board including its findings of fact and conclusions.
(B) The filing of an appeal in the circuit court from a decision of the
board shall not ipso facto act as a supersedeas, but the judge of the circuit
court may in his discretion grant a supersedeas upon such terms and
conditions as may seem reasonable and proper.
Section 6-29-840. At the next term of the circuit court or in chambers,
upon ten days' notice to the parties, the presiding judge of the circuit court
of the county shall proceed to hear and pass upon the appeal on the certified
record of the board proceedings. The findings of fact by the board of
appeals shall be treated in the same manner as a finding of fact by a jury,
and the court may not take additional evidence. In the event the judge
determines that the certified record is insufficient for review, the matter
may be remanded to the zoning board of appeals for rehearing. In
determining the questions presented by the appeal, the court shall determine
only whether the decision of the board is correct as a matter of law. In the
event that the decision of the board is reversed by the circuit court, the
board is charged with the costs, and the costs must be paid by the
governing authority which established the board of appeals.
Section 6-29-850. A party in interest who is aggrieved by the judgment
rendered by the circuit court upon the appeal may appeal in the same
manner as provided by law for appeals from other judgments of the circuit
court in law cases.
Section 6-29-860. The governing authority may appropriate such
monies, otherwise unappropriated, as it considers fit to finance the work of
the board of appeals and to generally provide for the enforcement of any
zoning regulations and restrictions authorized under this chapter which are
adopted and may accept and expend grants of money for those purposes
from either private or public sources, whether local, state, or federal.
Section 6-29-870. (A) A local government which enacts a zoning
ordinance which makes specific provision for the preservation and
protection of historic and architecturally valuable districts and
neighborhoods or significant or natural scenic areas, or protects or
provides, or both, for the unique, special, or desired character of a defined
district, corridor, or development area or any combination of it, by means
of restriction and conditions governing the right to erect, demolish, remove
in whole or in part, or alter the exterior appearance of all buildings or
structures within the areas, may provide for appointment of a board of
architectural review or similar body.
(B) The board shall consist of not more than ten members to be
appointed by the governing body of the municipality or the governing body
of the county which may restrict the membership on the board to those
professionally qualified persons as it may desire. The governing authority
or authorities creating the board may remove any member of the board
which it has appointed.
(C) The appointing authorities shall determine the amount of
compensation, if any, to be paid to the members of a board of architectural
review. None of the members may hold any other public office or position
in the municipality or county.
(D) The board shall elect one of its members chairman, who shall serve
for one year or until he is re-elected or his successor is elected and
qualified. The board shall appoint a secretary who may be an officer of the
governing authority or of the board of architectural review. The board shall
adopt rules of procedure in accordance with the provisions of any
ordinance adopted pursuant to this chapter. Meetings of the board must be
held at the call of the chairman and at such other times as the board may
determine. The chairman or, in his or her absence, the acting chairman,
may administer oaths and compel the attendance of witnesses by subpoena.
The board shall keep minutes of its proceedings, showing the vote of each
member upon each question, or if absent or failing to vote, indicating that
fact, and shall keep records of its examinations and other official actions,
all of which immediately must be filed in the office of the board and must
be a public record.
Section 6-29-880. The board of architectural review has those powers
involving the structures and neighborhoods as may be determined by the
zoning ordinance. Decisions of the zoning administrator or other
appropriate administrative official in matters under the purview of the
board of architectural review may be appealed to the board where there is
an alleged error in any order, requirement, determination, or decision.
Section 6-29-890. (A) Appeals to the board may be taken by any person
aggrieved or by any officer, department, board, or bureau of the
municipality or county. The appeal must be taken within a reasonable time,
as provided by the zoning ordinance or rules of the board, or both, by filing
with the officer from whom the appeal is taken and with the board of
architectural review notice of appeal specifying the grounds of it. The
officer from whom the appeal is taken immediately shall transmit to the
board all the papers constituting the record upon which the action appealed
from was taken.
(B) An appeal stays all legal proceedings in furtherance of the action
appealed from, unless the officer from whom the appeal is taken certifies to
the board, after the notice of appeal has been filed with him, that by reason
of facts stated in the certificate a stay would, in his opinion, cause imminent
peril to life and property. In that case, proceedings may not be stayed
otherwise than by a restraining order which may be granted by the board or
by a court of record on application, on notice to the officer from whom the
appeal is taken, and on due cause shown.
(C) The board shall fix a reasonable time for the hearing of the appeal
or other matter referred to it, and give public notice of it, as well as due
notice to the parties in interest, and decide the same within a reasonable
time. At the hearing any party may appear in person or by agent or by
attorney.
Section 6-29-900. A person who may have a substantial interest in any
decision of the board of architectural review or any officer, or agent of the
appropriate governing authority may appeal from any decision of the board
to the circuit court in and for the county by filing with the clerk of court a
petition in writing setting forth plainly, fully, and distinctly why the
decision is contrary to law. The appeal must be filed within thirty days
after the affected party receives actual notice of the decision of the board of
architectural review.
Section 6-29-910. In case of contempt by a party, witness, or other
person before the board of architectural review, the board may certify the
fact to the circuit court of the county in which the contempt occurs and the
judge of the court, in open court or in chambers, after hearing, may impose
a penalty as authorized by law.
Section 6-29-920. (A) Upon filing of the appeal, the clerk of the circuit
court shall give immediate notice of it to the secretary of the board and
within thirty days from the time of the notice the board shall file with the
clerk a duly certified copy of the proceedings had before the board of
architectural review, including a transcript of the evidence heard before it,
if any, and the decision of the board including its findings of fact and
conclusions.
(B) The filing of an appeal in the circuit court from any decision of the
board does not ipso facto act as a supersedeas, but the judge of the circuit
court may in his discretion grant a supersedeas upon such terms and
conditions as may seem reasonable and proper.
Section 6-29-930. At the next term of the circuit court or in chambers
upon ten days' notice to the parties, the resident presiding judge of the
circuit court of the county shall proceed to hear and pass upon the appeal
on the certified record of the board proceedings. The findings of fact by
the board of architectural review are final and conclusive on the hearing of
the appeal, and the court may not take additional evidence. In the event the
judge determines that the certified record is insufficient for review, the
matter must be remanded to the board of architectural review for rehearing.
In determining the questions presented by the appeal, the court shall
determine only whether the decision of the board is correct as a matter of
law. In the event that the decision of the board is reversed by the circuit
court, the board must be charged with the costs and they must be paid by
the governing authority which established the board of architectural
review.
Section 6-29-940. A party in interest who is aggrieved by the judgment
rendered by the circuit court upon the appeal may appeal in the same
manner as provided by law for appeals from other judgments of the circuit
court.
Section 6-29-950. (A) The governing authorities of municipalities or
counties may provide for the enforcement of any ordinance adopted
pursuant to the provisions of this chapter by means of the withholding of
building or zoning permits, or both, and the issuance of stop orders against
any work undertaken by an entity not having a proper building or zoning
permit, or both. It is unlawful to construct, reconstruct, alter, demolish,
change the use of or occupy any land, building, or other structure without
first obtaining the appropriate permit or permit approval. No permit may
be issued or approved unless the requirements of this chapter or any
ordinance adopted pursuant to it are complied with. It is unlawful for other
officials to issue any permit for the use of any land, building, or structure,
or the construction, conversion, demolition, enlargement, movement, or
structural alteration of a building or structure without the approval of the
zoning administrator. A violation of any ordinance adopted pursuant to the
provisions of this chapter is a misdemeanor. In case a building, structure,
or land is or is proposed to be used in violation of any ordinance adopted
pursuant to this chapter, the zoning administrator or other appropriate
administrative officer, municipal or county attorney, or other appropriate
authority of the municipality or county or an adjacent or neighboring
property owner who would be specially damaged by the violation may in
addition to other remedies, institute injunction, mandamus, or other
appropriate action or proceeding to prevent the unlawful erection,
construction, reconstruction, alteration, conversion, maintenance, or use, or
to correct or abate the violation, or to prevent the occupancy of the
building, structure, or land. Each day the unlawful erection, construction,
reconstruction, alteration, conversion, maintenance, or use continues is
considered a separate offense.
(B) In case a building, structure, or land is or is proposed to be used in
violation of an ordinance adopted pursuant to this chapter, the zoning
administrator or other designated administrative officer may in addition to
other remedies issue and serve upon a person pursuing the activity or
activities a stop order requiring that entity stop all activities in violation of
the zoning ordinance.
Section 6-29-960. When the regulations made under authority of this
chapter require a greater width or size of yards, courts, or other open
spaces, or require a lower height of building or smaller number of stories,
or require a greater percentage of lot to be left unoccupied, or impose other
more restrictive standards than are required in or under another statute, or
local ordinance or regulation, the regulations made under authority of this
chapter govern. When the provisions of another statute require more
restrictive standards than are required by the regulations made under
authority of this chapter, the provisions of that statute govern.
Article 7
Local Planning -- Land Development Regulation
Section 6-29-1110. As used in this article:
(1) `Land development' means the changing of land characteristics
through redevelopment, construction, subdivision into parcels,
condominium complexes, apartment complexes, commercial parks,
shopping centers, industrial parks, mobile home parks, and similar
developments for sale, lease, or any combination of owner and rental
characteristics.
(2) `Subdivision' means all divisions of a tract or parcel of land into two
or more lots, building sites, or other divisions for the purpose, whether
immediate or future, of sale, lease, or building development, and includes
all division of land involving a new street or change in existing streets, and
includes re-subdivision which would involve the further division or
relocation of lot lines of any lot or lots within a subdivision previously
made and approved or recorded according to law; or, the alteration of any
streets or the establishment of any new streets within any subdivision
previously made and approved or recorded according to law, and includes
combinations of lots of record; however, the following exceptions are
included within this definition only for the purpose of requiring that the
local planning agency be informed and have a record of the
subdivisions:
(a) the combination or recombination of portions of previously platted
lots where the total number of lots is not increased and the resultant lots are
equal to the standards of the governing authority;
(b) the division of land into parcels of five acres or more where no
new street is involved and plats of these exceptions must be received as
information by the planning agency which shall indicate that fact on the
plats; and
(c) the combination or recombination of entire lots of record where no
new street or change in existing streets is involved.
Section 6-29-1120. The public health, safety, economy, good order,
appearance, convenience, morals, and general welfare require the
harmonious, orderly, and progressive development of land within the
municipalities and counties of the State. In furtherance of this general
intent, the regulation of land development by municipalities, counties, or
consolidated political subdivisions is authorized for the following purposes,
among others:
(1) to encourage the development of economically sound and stable
municipalities and counties;
(2) to assure the timely provision of required streets, utilities, and
other facilities and services to new land developments;
(3) to assure the adequate provision of safe and convenient traffic
access and circulation, both vehicular and pedestrian, in and through new
land developments;
(4) to assure the provision of needed public open spaces and building
sites in new land developments through the dedication or reservation of
land for recreational, educational, transportation, and other public purposes;
and
(5) to assure, in general, the wise and timely development of new
areas, and redevelopment of previously developed areas in harmony with
the comprehensive plans of municipalities and counties.
Section 6-29-1130. (A) When at least the community facilities element
of the comprehensive plan as authorized by this chapter has been adopted
by the local planning commission and the local governing body or bodies,
the local planning commission may prepare and recommend to the
governing body or bodies for adoption regulations governing the
development of land within the jurisdiction. These regulations may provide
for the harmonious development of the municipality and the county; for
coordination of streets within subdivision and other types of land
developments with other existing or planned streets or official map streets;
for the size of blocks and lots; for the dedication or reservation of land for
streets, school sites, and recreation areas and of easements for utilities and
other public services and facilities; and for the distribution of population
and traffic which will tend to create conditions favorable to health, safety,
convenience, appearance, prosperity, or the general welfare. In particular,
the regulations shall prescribe that no land development plan, including
subdivision plats, will be approved unless all land intended for use as
building sites can be used safely for building purposes, without danger
from flood or other inundation or from other menaces to health, safety, or
public welfare.
(B) These regulations may include requirements as to the extent to
which and the manner in which streets must be graded, surfaced, and
improved, and water, sewers, septic tanks, and other utility mains, piping,
connections, or other facilities must be installed as a condition precedent to
the approval of the plan. The governing authority of the municipality and
the governing authority of the county are given the power to adopt and to
amend the land development regulations after a public hearing on it, giving
at least thirty days' notice of the time and place by publication in a
newspaper of general circulation in the municipality or county.
Section 6-29-1140. After the local governing authority has adopted
land development regulations, no subdivision plat or other land
development plan within the jurisdiction of the regulations may be filed or
recorded in the office of the county where deeds are required to be
recorded, and no building permit may be issued until the plat or plan bears
the stamp of approval and is properly signed by the designated authority.
The submission for filing or the recording of a subdivision plat or other
land development plan without proper approval as required by this chapter
is declared a misdemeanor and, upon conviction, is punishable as provided
by law.
Section 6-29-1150. (A) The land development regulations adopted by
the governing authority must include a specific procedure for the
submission and approval or disapproval by the planning commission or
designated staff. These procedures may include requirements for
submission of sketch plans, preliminary plans, and final plans for review
and approval or disapproval. Time limits, not to exceed sixty days, must be
set forth for action on plans or plats, or both, submitted for approval or
disapproval. Failure of the designated authority to act within sixty days of
the receipt of development plans or subdivision plats with all
documentation required by the land development regulations is deemed to
constitute approval and the developer must be issued a letter of approval
and authorization to proceed based on the plans or plats and supporting
documentation presented. The sixty-day time limit may be extended by
mutual agreement.
(B) A record of all actions on all land development plans and
subdivision plats with the grounds for approval or disapproval and any
conditions attached to the action must be maintained as a public record. In
addition, the developer must be notified in writing of the actions taken.
(C) Staff action, if authorized, to approve or disapprove a land
development plan may be appealed to the planning commission by any
party in interest. The planning commission shall act on the appeal within
sixty days and the action of the planning commission is final. An appeal
from the decision of the planning commission may be taken to circuit court
within thirty days after actual notice of the decision.
Section 6-29-1160. The county official whose duty it is to accept and
record real estate deeds and plats may not accept, file, or record a land
development plan or subdivision plat involving a land area subject to land
development regulations adopted pursuant to this chapter unless the
development plan or subdivision plat has been properly approved. If a
public official violates the provisions of this section, he is, in each instance,
subject to the penalty provided in this article and the affected governing
body, private individual, or corporation has rights and remedies as to
enforcement or collection as are provided, and may enjoin any violations of
them.
Section 6-29-1170. The approval of the land development plan or
subdivision plat may not be deemed to automatically constitute or effect an
acceptance by the municipality or the county or the public of the dedication
of any street, easement, or other ground shown upon the plat. Public
acceptance of the lands must be by action of the governing body customary
to these transactions.
Section 6-29-1180. In circumstances where the land development
regulations adopted pursuant to this chapter require the installation and
approval of site improvements prior to approval of the land development
plan or subdivision plat for recording in the office of the county official
whose duty it is to accept and record the instruments, the developer may be
permitted to post a surety bond, certified check, or other instrument readily
convertible to cash. The surety must be in an amount equal to at least one
hundred twenty-five percent of the cost of the improvement. This surety
must be in favor of the local government to ensure that, in the event of
default by the developer, funds will be used to install the required
improvements at the expense of the developer.
Section 6-29-1190. The owner or agent of the owner of any property
being developed within the municipality or county may not transfer title to
any lots or parts of the development unless the land development plan or
subdivision has been approved by the local planning commission or
designated authority and an approved plan or plat recorded in the office of
the county charged with the responsibility of recording deeds, plats, and
other property records. A transfer of title in violation of this provision is a
misdemeanor and, upon conviction, must be punished in the discretion of
the court. A description by metes and bounds in the instrument of transfer
or other document used in the process of transfer does not exempt the
transaction from these penalties. The municipality or county may enjoin
the transfer by appropriate action.
Section 6-29-1200. (A) A local planning commission created under the
provisions of this chapter shall, by proper certificate, approve and authorize
the name of a street or road laid out within the territory over which the
commission has jurisdiction. It is unlawful for a person in laying out a new
street or road to name the street or road on a plat, by a marking or in a deed
or instrument without first getting the approval of the planning commission.
Any person violating this provision is guilty of a misdemeanor and, upon
conviction, must be punished in the discretion of the court.
(B) A commission may, after reasonable notice through a newspaper
having general circulation in which the commission is created and exists,
change the name of a street or road within the boundary of its territorial
jurisdiction:
(1) when there is duplication of names or other conditions which tend
to confuse the traveling public or the delivery of mail, orders, or
messages;
(2) when it is found that a change may simplify marking or giving of
directions to persons seeking to locate addresses; or
(3) upon any other good and just reason that may appear to the
commission.
(C) On the name being changed, after reasonable opportunity for a
public hearing, the planning commission shall issue its certificate
designating the change, which must be recorded in the office of the register
of mesne conveyances or clerk of court, and the name changed and certified
is the legal name of the street or road."
Repeal
SECTION 2. Chapter 27 of Title 4, Chapter 23 of Title 5, Section 6-7-310
through Section 6-7-1110, and Act 129 of 1963 are repealed, effective five
years from the date of approval of this act by the Governor. At the end of
five years, all local planning programs must be in conformity with the
provisions of this act. During the intervening five years, this act is
cumulative and may be implemented at any time.
Time effective
SECTION 3. This act takes effect upon approval by the Governor.
Approved the 3rd day of May, 1994. |