H 4707 Session 110 (1993-1994)
H 4707 General Bill, By Harrison
A Bill to amend Articles 5, 7, 9, and 11, as amended, Chapter 7, Title 6, Code
of Laws of South Carolina, 1976, relating to planning by local governments,
and to add Articles 15 and 17 to Chapter 7 of Title 6 so as to provide for
consolidation of existing planning enabling legislation for local governments;
to move the provisions of Chapter 31 of Title 6 and Chapter 23 of Title 5
under Chapter 7 of Title 6; 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 Act 129 of 1963 relating to the
Greenville County Planning Commission.
02/09/94 House Introduced and read first time HJ-29
02/09/94 House Referred to Committee on Judiciary HJ-30
A BILL
TO AMEND ARTICLES 5, 7, 9, AND 11, AS AMENDED, CHAPTER
7, TITLE 6, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO PLANNING BY LOCAL GOVERNMENTS, AND TO
ADD ARTICLES 15 AND 17 TO CHAPTER 7 OF TITLE 6 SO AS TO
PROVIDE FOR CONSOLIDATION OF EXISTING PLANNING
ENABLING LEGISLATION FOR LOCAL GOVERNMENTS; TO
MOVE THE PROVISIONS OF CHAPTER 31 OF TITLE 6 AND
CHAPTER 23 OF TITLE 5 UNDER CHAPTER 7 OF TITLE 6; 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 ACT 129 OF 1963 RELATING TO THE GREENVILLE
COUNTY PLANNING COMMISSION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly finds that certain laws governing
the planning by local governments need to be consolidated and updated.
SECTION 2. Articles 5, 7, 9, and 11 of Chapter 7, Title 6, of the 1976
Code are amended to read:
"Article 5
Local Planning - Commissions
Section 6-7-310. For purposes of this chapter,Local
`local planning commission' means a municipal
planning commission, a county planning commission, or a joint
city-county planning commission, or a consolidated government
planning commission.
Section 6-7-320. The governing authority of each municipality may
create a municipal planning commission. The governing authority of
each county may create a county planning commission. The
governing body of a consolidated political subdivision may create a
consolidated government planning commission. Any
combinations combination of municipal councils
and a county council municipalities or counties, may
jointly create a joint planning commission.
Section 6-7-330. (A) Any A municipality
may exercise the powers granted under the provisions of this chapter in
the total area within its corporate limits upon passage of an appropriate
ordinance to that effect by the municipal governing authority.
Any A county may exercise the powers granted under
the provisions of this chapter in the total unincorporated area or
specific parts thereof upon the passage of an appropriate
resolution ordinance, to that effect by the
county governing authority.
(B) 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. The agreement adding unincorporated areas to
municipal jurisdiction must be formally approved and executed by the
municipal and county councils involved. Approval and execution of an
agreement to add unincorporated areas to municipal jurisdiction exists
when provided that the governing authorities of the
municipality municipal and county councils
involved shall agree as to have adopted ordinances
establishing:
(1) the boundaries of such the additional
areas; described in terms of easily identifiable physical
features and landmarks and established political entities,
(2) procedures for the exercise of powers granted in
this chapter and the limitations of the authority to be exercised
by the municipality; and
(3) the manner of obtaining equitable representation
on the boards and commissions provided for under this chapter. The
agreement shall be formally stated in appropriate official action by the
governing authorities involved.
(C) The governing body of any a
municipality may designate by ordinance its
the county planning commission as the official planning
commission of such the municipality. In the event of
such the designation, and acceptance by the
county, planning commission and the governing authority
of the county, the county planning commission may exercise
such the powers and duties as provided in this chapter
for the designated municipal municipality
planning commissions as are specified in the agreement reached
by the governing authorities. Such The agreement
shall must specify the procedures for the exercise of
powers granted in this chapter and shall must
provide for the equitable address the issue of municipal and
county representation of the municipality and the county on
the boards and commissions required by authorized
under this chapter. This agreement shall must be
formally stated in appropriate official action adopted
ordinances by the governing authorities involved.
Section 6-7-340. (A) It shall be is the
function and duty of the local planning commission upon the
authorization of the governing authority or authorities to prepare the
comprehensive plan and program for the physical, social, and economic
growth, development and redevelopment of the
area within its jurisdiction in order. The plans
and program must be designed to promote the public health, safety,
morals, convenience, prosperity, or the general welfare as well as
the efficiency and economy in the development of its
jurisdiction. The comprehensive plan, and program,
and completed major parts of the plan shall must
include recommended means of implementation and shall
must be based upon careful and comprehensive surveys and
studies of existing conditions and probable future development.
(B) In the discharge of its responsibilities, the local planning
commission shall have has the power to:
(1) Prepare prepare and revise periodically
a comprehensive plan plans and program
programs for the development and redevelopment of
its area of jurisdiction as provided in this chapter.;
and
(2) Prepare prepare and recommend for adoption
to the appropriate governing authority or authorities as a means for
implementing the plan and program in its area of jurisdiction, the
following:
(a) Zoning zoning ordinances to include or
resolutions, and maps and appropriate revisions thereof
of them for its jurisdiction, as provided in this chapter;
(b) Regulations regulations for the subdivision
of land and appropriate revisions thereof of them within
its area of jurisdiction, and to administer the regulations that
may be adopted as provided in this chapter;
(c) An an official map and appropriate revision
thereof of 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 such
rights-of-way, building sites, or open spaces within its
political area of jurisdiction or a specified portion
thereof of it, as set forth in this chapter;
(d) A a capital program for its area of
jurisdiction based on the comprehensive plan and the capital
improvements necessary to implement the plan. Such a
The capital program shall must include an
annual capital budget based on estimates of the cost of proposed projects
and the means of financing them. The commission shall submit the
capital program, including the capital budget, to the governing authority
or authorities as directed.
Section 6-7-350. The local planning commission may make, publish,
and distribute maps, plans, and reports and recommendations
relating to the plan and program and the development of its
political 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, make
examinations and surveys, and place and maintain necessary monuments
and marks thereon, on them. provided, however
However, that the planning commission shall be
is liable for any injury or damage to property resulting
therefrom from them. In general, the planning
commission shall have has such powers as may be
necessary to enable it to perform its functions and promote the planning
of its political jurisdiction.
Section 6-7-360. (A) A local planning commission
serving not more than two political jurisdictions shall
may have not have less than five nor more than
nine members. A local planning commission serving three or more
political jurisdictions shall may not have a membership
greater than four times the number of jurisdictions it serves. Up to
fifty percent of the members must reside outside the limits of a
municipal corporation based on the percentage of population of the area
of the commission which lives without municipal corporation limits.
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, within the commission's area of
jurisdiction.
(B) No member of a planning commission may hold an
elected public office in the municipality or county from which he is
appointed. Members of the commission first to serve shall
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,
shall must be determined by the governing authority or
authorities creating the commission. Any A vacancy in
the membership of a planning commission shall 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 after
written notice and public hearing.
Section 6-7-370. (A) A local planning commission shall
organize itself electing one of its members as chairman and one as
vice-chairman whose terms shall 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 for the transaction
of business of organizational procedure and shall keep a
public record of its resolutions, transactions, findings, and
determinations, which record shall be a public record.
The planning commission may make expenditures for the purchase
of equipment and supplies, employ such staff and consult with and
retain such experts, and enter into contracts, as it deems
considers necessary and consistent with funds
available. It may make expenditures for salaries of any employees
and staff, contracts with consultants, and for the purchase of required
equipment and supplies. The expenditures of the planning
commission, exclusive of gifts to the commission or contract receipts,
shall must be within the amounts appropriated for the
purpose by the governing authority or authorities empowered to
may determine, agree upon, and appropriate funds for
the payment of the expenses of the planning commission or their
respective shares thereof.
Section 6-7-380. 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 thereon on
it shall may not be taken until the planning
commission has submitted a report thereon on it or has
had a reasonable period of time, as determined by the governing
authority to submit a report.
Section 6-7-390. The A local planning commission
may cooperate with, contract with, or accept funds from federal, state,
or local governments, including those of other states, public or
semipublic agencies, or private individuals or corporations; it
may expend such funds; and it may carry out such cooperative
undertakings and contracts as it deems considers
necessary.
Article 7
Local Planning - The Comprehensive Plan
Section 6-7-510. (A) It shall be is the
duty of a local planning commission to prepare the comprehensive plan
for the long-range development of its area of jurisdiction and
to perfect it from time to time. Among other things, such
The comprehensive plan, may show with
the accompanying maps, charts, and descriptive materials, shall show the
planning commission's recommendation for the development and
redevelopment of its area of jurisdiction and shall show the general
location, character, and extent of, but is not limited to, the
following: existing and proposed streets, highways, expressways,
bridges, tunnels, viaducts and approaches thereto; routes of railroads and
transit lines, terminals, ports, airports; parks, playgrounds, forests,
reservations, and other public open spaces; sites for public
buildings, and structures, and other public
property; districts for residence, business, industry, recreation,
agriculture, forestry; special districts for other purposes; limited
development districts for purposes of promoting conservation, adequate
water supply, sanitation, sewage treatment, drainage, protection against
floods, roadside appearance, and the like; areas for housing
developments; location of public utilities whether publicly or privately
owned including, but not limited to, sewerage and
water supply system; zoning districts, and other features.
(B) The comprehensive plan shall recommend
long-range development patterns and programs which shall
must be expressed in five-year increments. The comprehensive
plan shall must be based upon and include appropriate
studies of the location and extent of present and anticipated population,
social and economic resources, and problems, and other useful data.
(C) The local planning commission may adopt and
recommend major parts of the comprehensive plan to cover one or more
sections of the commission's area of jurisdiction or one or more of the
functional matters to be included in the plan. Such
The plan shall must be adopted, added to, and
changed from time to time, by a majority vote of the planning
commission. The local planning commission shall review the
comprehensive plan or parts thereof 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.
(D) The comprehensive plan and its parts
shall must be considered to be an expression of
the planning commission's recommendations to the appropriate
governing bodies with regard to the future growth, and
development and redevelopment of its area of jurisdiction and,
as such, shall must be a public record.
Section 6-7-520. In the preparation of such the
comprehensive plan, the local planning commission shall make,
or cause to be made, careful and comprehensive surveys and studies of
present conditions and trends of future growth in its planning
area of jurisdiction. The plan shall must be
made and used for the purpose of guiding and accomplishing the
coordinated, adjusted, and harmonious development or
redevelopment of the planning area which will, in accordance with
present and future needs, best promote the public health, safety, morals,
order, convenience, prosperity, and general welfare, as well as
efficiency and economy in the process of development or
redevelopment, including adequate provision for traffic, the promotion
of safety from fire or other dangers, adequate provision for light and air,
the promotion of the healthful and convenient distribution of population,
the promotion of good civic design, appearance, and
arrangement, wise and efficient expenditure of public funds,
and the adequate provision of public utilities and other public
requirements.
Section 6-7-530. Before the adoption or amendment
of the comprehensive plan or any part of it,
amendment, extension or addition, the planning commission
shall hold at least one a public hearing thereon
on it, after not less than fifteen days' notice of the time and
place of such the hearing shall have has
been given in a newspaper having general circulation in the planning
area commission's area of jurisdiction.
Section 6-7-540. The Adoption adoption of
the recommended comprehensive plan or of any part of
it, amendment, extension or addition shall
must be by resolution of the planning commission, and
carried by the affirmative votes of at least a majority of the entire
membership. The resolution shall must refer expressly
to maps and other descriptive matter intended by the planning
commission to form the whole or part of the recommended plan
and the action taken shall must be recorded in its
official minutes of the planning commission by the identifying signature
of the chairman and secretary of the commission. A copy of the
recommended plan or part thereof of it must be
transmitted as adopted shall be certified to the appropriate
governing authorities and to all other legislative and administrative
agencies affected by the plan.
Section 6-7-550. The local planning commission shall
may recommend to the appropriate governing body and the body
may adopt the comprehensive plan as a whole by a single
resolution ordinance or parts of the plan by successive
resolutions ordinances. Such The parts
shall must 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.
Section 6-7-560. The governing authority may formally approve
the comprehensive plan by appropriate official action either as a whole
or as parts are completed and adopted by the planning commission.
The local planning commission may promote public interest in an
understanding of the plan and may publish and distribute copies of the
plan or of any report, and employ other means of publicity and education
as the commission determines necessary.
Section 6-7-570. Whenever When the local
planning commission shall has recommended and the local
governing authority or authorities have adopted a comprehensive
plan, or one or more related parts, no new street, square, park
or other public way, grounds or open space, or public building,
structure or public utility, whether publicly or privately owned,
shall may be constructed or authorized in the political
jurisdiction of the governing authority or authorities establishing
said the planning commission until the location,
character, and extent thereof of it shall
have has been submitted to and approved by the
planning commission. In case of disapproval, the commission
shall communicate its reasons to the governing authority or authorities
it serves, which shall have has the power to overrule
such the disapproval by the recorded vote of not less
than two thirds of its entire membership. But if authorization or
financing of the proposed public way, ground, space, building,
structure, or utility within such the jurisdiction
does not, under the law, fall within the province of the local planning
commission's governing authority or authorities, then the governmental
entity having such the jurisdiction shall request
approval by the local planning commission. In case of the disapproval
by the local planning commission, it shall communicate its reasons to its
governing authority or authorities with recommended actions to be
taken. Failure of the planning commission to act within sixty days from
and after the date of official submission to it shall be is
deemed approval.
Article 9
Local Planning - Zoning
Section 6-7-710. (A)For the purposes of guiding
development in accordance with existing and future needs and in order
to protect, promote, and improve the public health,
safety, morals, convenience, order, appearance, prosperity, and general
welfare, the governing authorities of municipalities and counties may,
in accordance with the conditions and procedures specified in this
chapter, adopt zoning ordinances to regulate:
(1) the location, height, bulk, number of stories, and size
of buildings and other structures,;
(2) the percentage of lot which may be occupied, the sizes
of yards, courts, and other open spaces,;
(3) the density and distribution of populations,
and;
(4) the uses of buildings, structures, and land for trade,
industry, residence, recreation, agriculture, forestry, conservation,
airports and approaches to them,; and
(5) the water supply, sanitation, protection
against floods, public activities, and other purposes.
(B) The zoning ordinance regulations must be made
in accordance with the comprehensive plan for the area of
jurisdiction as described in this chapter and must be designed
to: lessen congestion in the streets;
(1) to secure safety from fire, panic, and other
dangers,;
(2) to promote the public health and the general
welfare,;
(3) to provide adequate light and air; to
prevent the overcrowding of land;, to avoid
undue concentration of population;
(4) to protect scenic areas; to include provisions
for landscaping and protection and regulation of trees in consideration
of their value from an environmental, agricultural, aesthetic, scenic, or
preservation standpoint, however, this authority does not include the
regulation of commercial timber operations, nor shall
does this authority restrict the ability of public utilities and
electric suppliers from maintaining safe clearance around utility lines;
and
(5) to facilitate the adequate provision of
transportation, water, sewerage, schools, parks, and other public
requirements.
(C) The South Carolina Forestry Commission, through its
urban forestry assistance program, may provide recommendations and
assistance to municipalities and counties for evaluation, care, and
preservation of trees covered by regulations under this chapter as part of
the comprehensive plan for the jurisdiction.
(D) These regulations must be made with reasonable
consideration, among other things, of the character of each area and its
peculiar suitability for particular uses, and with a view to promoting
desirable living conditions and the sustained stability of neighborhoods,
protecting property against blight and depreciation, securing economy
in governmental expenditures, conserving the value of land and
buildings, and encouraging the most appropriate use of land and
buildings and structures.
Section 6-7-720. (A) Upon the authorization of the
governing authority, the local planning commission may make and
certify to its governing authority or authorities the text of the
recommended zoning ordinance or resolution or both and the
zoning maps. Then the governing authority of the municipality or
county may exercise the powers granted in this chapter and, for the
purposes mentioned, shall create zoning districts of such number,
shape, and size as it may determine to be best suited to carry out
the purposes of this chapter.
(B) Within such zoning districts, the
governing authority may regulate the erection, construction,
reconstruction, alteration, and use of buildings and structures and the
uses of land in accordance with the first five-year increment of the
comprehensive plan. The governing authority may require off-street
parking and loading. All such of the regulations
shall must be uniform for each class or kind of
building, or use throughout each district, but the regulations in
one district may differ from those in other districts and they may be
amended from time to time.
(C) The regulations may provide that land,
buildings, and structures and the uses thereof of
them which are lawful at the time of the enactment or amendment
of zoning regulations may be continued although not in conformity with
such the regulations or amendments, hereinafter
which are called in this chapter a nonconformity. The
governing authority of any municipality or county may provide in the
zoning ordinance or resolution for the continuance, restoration,
reconstruction, extension, or substitution of nonconformities.
(D) Such The governing authority or
authorities may also provide for the termination of any
a nonconformity by specifying the period or periods in which
the nonconformity shall be is required to cease or
brought into conformance, or by providing a formula whereby
where the compulsory termination of nonconformities may be
so fixed as to allow for the recovery or amortization of the investment
in such the nonconformity.
Section 6-7-725. (A) The local governing
body after review by the local planning commission may adopt
conditions with respect to use, called conditional use regulations, for
planned residential, commercial, and community facility development
authorized pursuant to the zoning ordinance. The conditional use
permits are intended to encourage good community site planning for
large residential, commercial, and community facility developments that
are planned as a unit where district regulations may impose rigidities and
prevent achievement of a better site plan within overall zoning bulk and
density controls. Conditional use regulations authorized under the
provisions of this section may provide for variations from district
regulations concerning use, setbacks, lot size, density, bulk, and other
district requirements to accommodate flexibility in the arrangement of
dwellings, shops, vegetation, open spaces, covered malls, parking,
institutional facilities, and ancillary structures on the land for the general
purpose of promoting and protecting public health, safety, and general
welfare.
Section 6-7-730. (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 thereon on it, which shall 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 such the public hearing
shall must be given in a newspaper of general
circulation in the municipality or county. No change in or departure
from the text or maps as certified recommended by the
local planning commission shall may be made pursuant
to such the hearing unless such the
change or departure be is first submitted to the planning
commission for review and recommendation. The planning commission
shall have has thirty days within which to submit its
report and recommendation to the governing authority. If the
planning commission fails to submit a report within the thirty-day
period, it shall be 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
shall be is required before amending the zoning
ordinance or resolution or maps.
(B) No challenge to the adequacy of notice or challenge to
the validity of a regulation or map, or amendment thereto to
it, whether enacted before or after the effective date of this section
because of inadequacy of notice, shall may be made
more than two years after the public hearing, 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 6-7-740. (A) The zoning ordinance may
provide for the appropriate governing authority of the
municipality and the governing authority of the county may each
to create a board to be known as either the board of
zoning appeals or zoning board of adjustment or they
the jointly municipalities and counties with a joint
planning commission and adopting a common zoning ordinance
may create a board to be known as the joint board of zoning
appeals. or joint board of adjustment, all
All such of these boards hereinafter
are referred to in this chapter as the board.
(B) The board must consist 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 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. Members are removable for cause by
the appointing authority upon written charges and after a public hearing.
The appointing authorities shall determine the amount of compensation,
if any, to be paid to the members of a board of zoning appeals or
zoning board of adjustment. None of the members may hold any
other public office or position in the municipality or county.
(C) The board shall elect one of its members chairman, who
shall serve for one year or until he is reelected 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 planning commission. The
board shall adopt rules in accordance with the provisions of any
an ordinance or resolution adopted pursuant to this
chapter. Meetings of the board shall must be held at the
call of the chairman and at such other times as the board may determine.
The chairman or, in his 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
such the fact, and shall keep records of its examinations
and other official actions, all of which shall must be
immediately filed in the office of the board and shall
must be a public record.
(D) Appeals to the board may be taken
submitted by any person aggrieved or by any officer,
department, board, or bureau of the municipality or county.
Such The appeal shall must be
taken submitted 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 zoning appeals notice of appeal specifying the ground
thereof of it. If no time is provided, the appeals
must be filed 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 shall forthwith
transmit immediately to the board all the papers constituting the
record upon which the action appealed from was taken.
(E) 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 shall have
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 such that case, proceedings shall
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.
(F) The board shall fix a reasonable time for the hearing of
the appeal or other matter referred to it, and give public notice
thereof 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.
(G) The board of appeals or board of adjustment shall
have has the following powers:
(1) to hear and decide appeals where it is alleged there is error in
any order, requirement decision, or determination made by an
administrative official in the enforcement of any the
zoning ordinance or resolution adopted pursuant to this
chapter.;
(2) to authorize upon appeal in specific cases a variance from the
terms requirements of the zoning ordinance
or resolution as will not be contrary to the public interest where,
owing to special conditions, a literal enforcement of the provisions of
the ordinance or resolution will, in an individual case,
result in unnecessary hardship, so that the spirit of the ordinance or
resolution shall must be observed, public safety and
welfare secured, and substantial justice done. A governing body
may by ordinance require an affirmative vote of two-thirds of the board
members present and voting before a variance may be granted for a use
of land, a building, or a structure that is prohibited in a given district by
ordinance. Such A variance may be granted in
such an individual case of unnecessary hardship upon
a finding by the board of appeals that:
(a) there are extraordinary and exceptional conditions
pertaining to the particular piece of property in question because of its
size, shape, or topography,; and
(b) the application of the ordinance or resolution of this
to the particular piece of property would create an unnecessary
hardship,; and
(c) Such these conditions are peculiar to the
particular piece of property involved,; and
(d) relief, if granted, would will not cause
substantial detriment to the public good or impair the purposes and
intent of the ordinance or resolution or the comprehensive
plan,. provided, however, that
However, no variance may be granted for a use of land or
building or structure that is prohibited in a given district by ordinance
or resolution.
(3) to hear and decide special exceptions subject to the
terms of any the zoning ordinance upon which
such the board is required to pass under the terms of
such ordinance;, provided, that the however,
the governing authority may by ordinance designate itself or
another body as the proper body to hear and decide special
exceptions.; and
(4) In exercising the above powers, the board of appeals
or board of adjustment 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. Except as provided in
subsection (G)(2), the concurring vote of a majority of the board present
and voting is necessary to reverse any order, requirement, decision, or
determination of any administrative official or to decide in favor of the
applicant on any matter upon which it is required to pass under an
ordinance or to effect any variation in an ordinance. Either
The board in the execution of the duties specified in this
chapter for which appointed may subpoena witnesses and in case
of contempt may certify such fact to the circuit court having jurisdiction.
(H) All final decisions and orders of the board
shall must be in writing and be permanently filed in the
office of the board as a proper public record. All
findings of fact and conclusions of law shall must be
separately stated in final decisions or orders of the board.
Section 6-7-750. Any person who may have has a
substantial interest in any a decision of the board of
appeals or board of adjustment or any an officer,
or bureau agent of the appropriate governing authority
may appeal from any a decision of the board to the
circuit court in and for the county by filing with the clerk of such
the court a petition in writing setting forth plainly,
fully, and distinctly wherein why such
the decision is contrary to law. Such The
appeal shall must be filed within thirty days after the
decision of the board is rendered.
Section 6-7-760. (A) Upon the filing of such an
When the appeal is filed, the clerk of the circuit court
shall give immediate notice thereof of it to the secretary
of the board and within thirty days from the time of such
the notice, the board shall cause to be filed
file with the clerk a duly certified copy of the
proceedings had held before the board of appeals or
board of adjustment, including a transcript of the evidence heard
before it, if any, and the decision of the board.
(B) The filing of an appeal in the circuit court from
any a decision of the board shall 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 6-7-770. In case of contempt by any party, witness,
or other person before the board of appeals or board of
adjustment, such the board may certify
such this fact to the circuit court of the county
wherein in which such the contempt
occurs and the judge of the court, in open court or in chambers, after
hearing, may impose such a penalty as authorized by
law.
Section 6-7-780. 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. The findings of fact by the board of appeals shall be final and
conclusive on the hearing of such appeal. 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 When the decision of the board should be
is reversed by the circuit court, the board shall
must be charged with the costs, and they
the costs shall must be paid by the governing
authority which established the board of appeals or board of
adjustment.
Section 6-7-790. Any party at interest who is aggrieved by the
judgment rendered by the circuit court upon such 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 6-7-800. (A) The governing authorities of
municipalities or counties may provide for the enforcement of an
ordinance or resolution adopted pursuant to the provisions of this
chapter by withholding permits. The governing authority may establish
and fill the position of building official or other administrative officer.
Once the position has been established and filled pursuant to the
provisions of this chapter, it is unlawful to construct, reconstruct, alter,
change the use of, or occupy any land, building, or other structure
without first obtaining the appropriate permit from the building official.
The building official shall may not issue a permit unless
the requirements of this chapter and of any ordinance or resolution
adopted pursuant to it have been met. A person who violates an
ordinance or resolution adopted pursuant to the provisions of this
chapter is guilty of a misdemeanor and, upon conviction, must be fined
in the discretion of the court or imprisoned not more than three years, or
both.
(B) In case When a building or structure is
or is proposed to be erected, constructed, reconstructed, altered,
converted, or maintained, or a building, structure, or land is or is
proposed to be used in violation of an ordinance or resolution adopted
pursuant to this chapter, the building official 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 it is considered a separate offense.
Section 6-7-810. The governing authority may appropriate such
monies, otherwise unappropriated, as it deems considers
fit to finance the work of the board of appeals or board of
adjustment 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, local, state or federal.
Section 6-7-820. Whenever 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 any other another statute, or local
ordinance or regulation, the regulations made under authority of this
chapter shall govern. Whenever When the
provisions of any other another statute require more
restrictive standards than are required by the regulations made under
authority of this chapter, the provisions of such that
statute shall govern.
Section 6-7-830. (a)(A) All agencies,
departments, and subdivisions of this State that use real
property, as owner or tenant, in any county or municipality in this State
shall be are subject to the zoning ordinances
thereof of that county or municipality.
(B) Any A county or agency, department or
subdivision thereof of it that uses any real property, as
owner or tenant, within the limits of any municipality in this State
shall be is subject to the zoning ordinances of the
municipality.
(C) Any A municipality or agency,
department or subdivision thereof 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 such municipality shall be
is subject to the zoning ordinances of the county. (D) The provisions of this section shall do
not require any 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 act 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 such purpose.
Any such 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 Before locating the home for such 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 and/
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 shall have forty-five days to make a final selection
of the site by majority vote. Such final selection shall be 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 such a community residence without
reasonable justification.
(F) Prospective residents of such these
homes shall must be screened by the licensing agency
to insure ensure that such placement is appropriate.
(G) The licensing agency shall conduct reviews of
such the 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.
(b)(H) The governing body of any
a county or municipality whose zoning ordinances are
so violated by the provisions of this section may apply
to any a court of competent jurisdiction for injunctive
and such other relief as the court may deem consider
proper.
Section 6-7-840. In accordance with a central business
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 that would have incurred had not the
reduction or waiver been granted.
Article 11
Local Planning - Subdivision Regulations
Section 6-7-1010. (A) `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, legacy,
or building development, and includes all division of land involving a
new street or a change in existing streets, and includes resubdivision
and, where appropriate, to the process of subdividing or to the land or
area subdivided;. provided, however, that
However, the following exceptions are included within this
definition only for the purpose of requiring that the local planning
commission be informed and have record of such these
subdivisions:
(1) 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;
(2) the division of land into parcels of five acres or more where
no new street is involved.
(B) Plats of such these exceptions
shall must be received as information by the
local planning commission which shall indicate such
that fact on the plats.
Section 6-7-1020. 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 subdivision by municipal
municipalities and county counties,
governing authorities consolidated political
subdivisions is authorized for the following purposes, among others
to:
(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, 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 plan of municipalities and
counties local governing authorities.
Section 6-7-1030. (A) The local planning commission
shall may prepare and recommend to the local
governing authority of the city or the governing authority of the
county body or bodies for adoption, regulations
governing the subdivision of land within the municipality or
unincorporated portion of the county respectively commission's
area of jurisdiction. Such The subdivision
regulations may provide for the following:
(1) harmonious development of the municipality and the
county; (2) for the coordination of streets within
subdivisions with other existing or planned streets or official map
streets;
(3) for the size sizes of blocks and lots;
(4) 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
(5) for a distribution of population and traffic
which will tend to create conditions favorable to health, safety,
convenience, prosperity, or the general welfare.
(B) In particular, the subdivision regulations shall prescribe
that no subdivision plan 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.
(C) Such The subdivision regulations may
include requirements as to the extent to which and the manner in which
streets shall must be graded, surfaced, and
improved,; and the extent to which and the manner
in which water, sewers, septic tanks, and other utility mains, piping,
connections, or other facilities shall must be installed
as a condition precedent to the approval of the subdivision plan
or plat.
(D) Such The subdivision regulations may
provide that, in lieu of the completion of such the work
and installations previous to the final approval of a plat described in
subsection (C), the appropriate local governing authority
of the municipality or the governing authority of the county may
accept a bond, in an amount and with surety and conditions satisfactory
to it, providing for and securing to the municipality or county the actual
construction and installations of such the improvements
and utilities within a period specified by the local planning
commission and expressed in the bond;. and the
The municipality or county is hereby granted the power
to enforce such the bonds by all appropriate legal and
equitable remedies.
(E) The regulations may also provide, in lieu of the
completion of such the work previous to the final
approval of a subdivision plan or plat, for an assessment or
other method, including deposit of money by the subdivider in an
escrow account, whereby the local governing body
authority or its agent is put in an assured position to do the
work and make the installations and improvements at the expense of the
subdivider.
(F) The local governing authority of the
municipality and the governing authority of the county are hereby
given has the power to adopt and to amend such
the land subdivision regulations after a public hearing
thereon on it, giving at least fifteen days' notice
of the time and place of which shall have been published the
hearing by publication in a newspaper of general circulation in the
municipality or county.
(G) Upon authorization of the governing authority, the
local planning commission may make and certify to its governing
authority the text of the recommended regulations governing the
subdivision of land. The local governing body of the
county authority then may exercise the powers granted in
this chapter and, for the purposes mentioned, create subdivision districts
of such number, shape, and size as it may determine to be best suited to
carry out the purposes of this chapter. The local governing
body of the county authority may adopt the
recommended regulations for a specific subdivision district.
Section 6-8-1040. From and after After the time
the local planning commission shall have has
prepared and adopted a comprehensive plan or at least the major
street portion of such the comprehensive plan and
shall have has recommended to the local
governing authority of the municipality or the governing authority
of the county and the local governing authority has adopted
regulations for the subdivision of land within the municipality or
county, respectively, which regulations shall have been adopted by
the governing authority of the city or county, then no
subdivision plat of a subdivision within the
jurisdiction of the regulations may the municipality or within the
unincorporated portion of the county shall be filed or recorded in the
office of the county where deeds are required to be recorded until it
shall have has been submitted to and approved by the
planning commission and such the approval is
entered in writing on the plat, by the secretary of the planning
commission. The filing or recording of a subdivision plat of a
subdivision without the approval of the planning commission as required
by this chapter is hereby declared a misdemeanor and, upon
conviction, is punishable as provided by law.
Section 6-7-1050. After adoption of subdivision regulations by the
local governing authority, the local planning
commission is hereby given has the authority to give
tentative approval or disapproval to preliminary plats and to approve or
disapprove final plats. but in each case their action
shall Local planning commission approval or disapproval
must be taken within sixty days after the submission thereof;
otherwise, or such the plats shall be
are deemed to have been approved and a certificate to that
effect shall must be issued by the planning commission
on demand;. provided, however, that
However, the applicant party applying for
the approval by the local planning commission's
commission approval may waive this requirement and
consent to the extension of such the time period for
approval. The grounds of for disapproval of any
plat shall must be stated upon in the
records of the planning commission commission's
records. Any A plat submitted to the planning
commission shall must contain the name and address of
a person to whom notice of any hearing
hearings may be sent;. and no
No plat shall may be acted upon by the
planning commission without affording a hearing thereon,
on it and notice of the time and place of the
hearing must which shall be sent by registered or certified
mail to said the address given by the applicant
not less than five days before the date fixed therefor set for
the hearing.
Section 6-7-1060. The county official whose duty it is to accept and
record plats of real estate plats shall not accept,
file, or record any a subdivision plat involving
any an area subject to any land subdivision
regulations adopted pursuant to this chapter which plat
unless the subdivision plat or plan has not been
properly approved by the local planning commission
having jurisdiction. Should If any
a public official violate violates the provisions
of this section he shall is in each instance be
subject to the penalty provided in this article and the affected
local governing authority shall have such has
rights and remedies as to enforcement or collection as are
provided, and may enjoin any violations thereof of
them.
Section 6-7-1070. The approval of a subdivision plat by the
local planning commission shall may not be deemed to
constitute or effect an acceptance by the municipality or the
county local governing authority or the public of the
dedication of any street or other ground shown upon the
subdivision plat.
Section 6-7-1080. (A) It is unlawful for an owner of any
land to be subdivided within the municipality or county or his agent to
transfer, sell, agree to sell, or negotiate the sale of land by reference to,
exhibition of, or by other use of a plat of subdivision of such
the land before the plat has been approved by the planning
commission and recorded in the office of the clerk of the court.
(B) A person who violates the provisions of this section is
guilty of a misdemeanor and, upon conviction, must be fined in the
discretion of the court or imprisoned not more than three years, or both.
The description of metes and bounds in the instrument of transfer or
other document used in the process of selling or transfer does not
exempt the transaction from these penalties. The municipality or county
may enjoin the transfer, sale, or agreement by appropriate action.
Section 6-7-1090. From and after After the time
when the platting jurisdiction of a local planning commission
shall have has attached by virtue of the adoption by the
local planning commission of a major street plan and the
adoption by the governing authority of land subdivision regulations
recommended to them by the planning commission, the governing
authority or other public authority shall may not accept,
lay out, open, improve, grade, pave, or light any street or lay or
authorize the laying of any water mains, sewers, connections, or other
public facilities or utilities in any street unless such the
street shall have has been accepted or opened as, or
shall otherwise have has received the legal status of a
public street prior to the attachment of the local planning
commission's subdivision jurisdiction, or unless such
the street corresponds in its location and lines with a street
shown on a subdivision plat approved by the local planning
commission or on an official map made and adopted by the
local planning commission. The local governing
authority may locate and construct or may accept any other street
provided that the ordinance or resolution or other measure for such
approval be first submitted to the local planning commission for
its approval or disapproval as provided for in the procedure on plats and
upon approval, any such the street shall
have has the status of an approved street as fully as though
it had been originally shown on a subdivision plat approved or on an
official map adopted by the local planning
commission. or on an official map made and adopted by the
planning commission.
Section 6-7-1100. (A) From and after
After the time when the platting jurisdiction of the local
planning commission shall have has attached by virtue
of adoption by the local planning commission of a major street
plan and the adoption by the governing authority of land subdivision
regulations recommended to them by the local planning
commission, as provided in this chapter, no building permit shall
may be issued for and no building or other structure shall be
erected on any lot unless the street giving access to the lot upon which
the building is proposed to be placed either:
(a)(1) shall have has been
accepted or opened as, or shall have otherwise has
received the legal status of, a public street prior to that time; or
(b)(2) unless such the street
corresponds in its locations and lines with a street shown on a
subdivision plat approved by the local planning commission or
on an official map made and adopted by the local planning
commission and the local governing authority or with a street
located and accepted by the local governing authority of the
municipality or the governing authority of the county.
(B) Any building erected in violation of this section shall
be deemed is an unlawful structure, and the building
official or municipal or county attorney or other official designated by
the local governing authority of the municipality or the
governing authority of the county may bring appropriate action to
enjoin such erection or cause it to be vacated or removed.
Section 6-7-1110. (A) A local planning commission
created under the provisions of this chapter shall approve by proper
certificate and authorize the name of a street or road laid out after July
3, 1967, within its jurisdiction.
(B) The commission, after reasonable notice through a
newspaper having general circulation within its jurisdiction, may
recommend to the appropriate governing authority a change in the name
of a street or road within the boundary of its territorial jurisdiction if:
(1) there is duplication of names or other conditions which tend
to confuse the traveling public or the delivery of mail, orders, or
messages;
(2) it is found that a change may simplify marking or giving of
directions to persons seeking to locate addresses; or
(3) just reason appears to the commission.
(C) After reasonable opportunity for a public hearing, if the
governing authority decides to change the name, it shall issue a
certificate designating the change, which must be recorded in the office
of the register of mesne conveyances or clerk of court. The name as
changed and certified becomes the legal name of the street or road.
(D) It is unlawful for a person in laying out a new street or
road to name it on a plat by any marking, or in a deed or instrument
without first getting the approval of the local planning
commission. A person who violates this provision is guilty of a
misdemeanor and, upon conviction, must be imprisoned not more than
three years or fined in the discretion of the court.
Section 6-7-1120. (A) Subdivision
regulations may further provide for reservation and dedication of land
for parks, playgrounds, or other public recreational purposes or for
payment of cash contributions earmarked for such purposes in lieu of it,
but only after the adoption by the local governing body of a park and
recreation component of the comprehensive plan which includes
guidelines for preferred open-space reservation locations. In order to
avail itself of the powers conferred by this article, the local governing
body must adopt regulations in accordance with this section.
(B) The regulations must provide that a developer of land
dedicate land areas, sites, and locations for parks, playgrounds, other
public recreation purposes as are reasonably necessary to serve the
proposed subdivision and the future residents. The land required to be
dedicated must bear reasonable relationship to the impact on park,
playground, recreational needs posed by the anticipated number of
future developments in the area being subdivided. The regulations must
set forth the standards to be applied in determining the amount of land
that is required to be dedicated, which standards must be based upon the
number and type of dwelling units or structures to be included in each
subdivision and upon studies and surveys conducted by the local
governing body to determine the need, if any, for parks, playgrounds,
other public recreational purposes generated by the proposed future
subdivisions and residents.
(C) The local governing authority may also adopt, as part
of its subdivision regulations provisions requiring a subdivider in lieu of
the dedication, to pay to the local governing body a sum of money equal
to the value of land that would otherwise be required to be dedicated,
where the local governing body determines that it would not be in the
public interest to accept a dedication in connection with a particular
proposed subdivision. The regulations must set forth the standards to be
applied in determining when it is not in the public interest to accept a
dedication. The regulations must provide that the in lieu fee to be paid
by a subdivider be based upon the per acre value of the actual land
subdivided.
(D) The regulations must also provide for the manner
of making payment. The regulations may provide that the payment be
deferred or made in installments following approval of a subdivision
plat, and may require the posting of a good and sufficient surety bond
guaranteeing the payment. All funds received must be held by the local
governing body in a special account which must be applied and used
only for the purpose of acquiring and developing park, playground, and
recreational sites for the benefit of future residents of the subdivision for
which the payment was made.
(E) The regulations may also provide that the dedication
of land, or the payment of a fee in lieu of it, may be waived, partially or
entirely, where a subdivider provides private open space for park,
playground, and recreational purposes, which space is to be privately
owned and maintained by future residents of the development, where it
is found to be in the public interest to do so, based upon standards
adopted by the local governing body.
(F) The regulations must also provide that the local
governing body or an agency of it has the final decision in selecting the
location of land areas to be dedicated for park, playground, and
recreational purposes. In exercising this authority, the local governing
body shall take into consideration the variations, the relative desirability,
and the market value of the land that may be required to be dedicated
within the area of any particular proposed development, so as to lessen
any adverse impacts upon the development and the
subdivider."
SECTION 3. Chapter 7, Title 6 of the 1976 Code is amended by
adding:
"Article 15
Local Planning-Boards of Architectural Review
Section 6-7-1310. A local governing body which enacts a zoning
ordinance which makes specific provision for the preservation and
protection of historic and architecturally valuable districts and
neighborhoods by means of restrictions 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 designated areas, may
appoint a board of architectural review or similar body.
Section 6-7-1320. A board of architectural review shall consist of
not more than ten members to be appointed by the appropriate governing
body which may restrict the membership on the board to those
professionally qualified persons as it may desire.
Section 6-7-1330. The board of architectural review has those
powers involving the structures and neighborhoods as may be
determined by the local legislative body. The board has appellate
jurisdiction from rulings of the appropriate administrative officer in any
matters under the regulations adopted by the local governing body,
initially within the jurisdiction of the administrative officer.
Section 6-7-1340. (A) A person or an officer, department, or board
of a local governing body aggrieved by any final decision of the board
of architectural review, may present to a court of record having
competent jurisdiction a petition, duly verified, setting forth that the
decision of the board is illegal in whole, or in part, specifying the ground
of the illegality. The petition must be presented to the court within thirty
days after the decision of the board.
(B) Upon presentation of the petition, the court may allow a writ of
certiorari directed to the board of architectural review to review its
decision. The writ must give the time when its return must be made and
served upon the petitioner, or his attorney, which shall be not less than
ten days, but may be extended by the court. The allowance of the writ
shall not stay proceedings upon the decision appealed from, unless the
court on proper application grants a restraining order.
Article 17
Local Government Development Agreements
Section 6-7-1510. (A) This article may be cited as the `South
Carolina Local Government Development Agreement Act'.
(B) The General Assembly finds:
(1) The lack of certainty in the approval of development can
result in a waste of economic and land resources, can discourage sound
capital improvement planning and financing, can cause the cost of
housing and development to escalate, and can discourage commitment
to comprehensive planning.
(2) Assurance to a developer that upon receipt of its development
permits it may proceed in accordance with existing laws and policies,
subject to the conditions of a development agreement, strengthens the
public planning process, encourages sound capital improvement
planning and financing, assists in assuring there are adequate capital
facilities for the development, encourages private participation in
comprehensive planning, reduces the economic costs of development,
allows for the orderly planning of public facilities and services, and
allows for the equitable allocation of the cost of public services.
(3) Because the development approval process involves the
expenditure of considerable sums of money, predictability encourages
the maximum efficient utilization of resources at the least economic cost
to the public.
(4) Public benefits derived from development agreements may
include, but are not limited to, affordable housing, design standards, and
on and off-site infrastructure and other improvements. These public
benefits may be negotiated in return for the vesting of development
rights for a specific period.
(5) Land planning and development involve review and action by
multiple governmental agencies. The use of development agreements
may facilitate the cooperation and coordination of the requirements and
needs of the various governmental agencies having jurisdiction over
land development.
(6) Development agreements will encourage the vesting of
property rights by protecting such rights from the effect of subsequently
enacted local legislation or from the effects of changing policies and
procedures of local government agencies which may conflict with any
term or provision of the development agreement or in any way hinder,
restrict, or prevent the development of the project. Development
agreements will provide a reasonable certainty as to the lawful
requirements that must be met in protecting vested property rights, while
maintaining the authority and duty of government to enforce laws and
regulations which promote the public safety, health, and general welfare
of the citizens of our State.
(C) It is the intent of the General Assembly to encourage a stronger
commitment to comprehensive and capital facilities planning, ensure the
provision of adequate public facilities for development, encourage the
efficient use of resources, and reduce the economic cost of development.
(D) This intent is effected by authorizing the appropriate local
governments and agencies to enter into development agreements with
developers, subject to the procedures and requirements of this article.
(E) This article must be regarded as supplemental and additional to
the powers conferred upon local governments and other government
agencies by other laws and must not be regarded as in derogation of any
powers existing on the effective date of this chapter.
Section 6-7-1520. As used in this article:
(l) `Comprehensive plan' means the master plan adopted pursuant
to Sections 6-7-510, et seq., and the official map adopted pursuant to
Section 6-7-1210, et seq.
(2) `Developer' means a person, including a governmental agency,
who intends to undertake any development and who has a legal or
equitable interest in the property to be developed.
(3) `Development' means the planning for or carrying out of a
building activity or mining operation, the making of a material change
in the use or appearance of any structure or property, or the dividing of
land into three or more parcels. `Development', as designated in a law
or development permit, includes the planning for and all other activity
customarily associated with it unless otherwise specified. When
appropriate to the context, `development' refers to the planning for or the
act of developing or to the result of development. Reference to a
specific operation is not intended to mean that the operation or activity,
when part of other operations or activities, is not development.
Reference to particular operations is not intended to limit the generality
of this item.
(4) `Development permit' includes a building permit, zoning permit,
subdivision approval, rezoning certification, special exception, variance,
or any other official action of local government having the effect of
permitting the development of property.
(5) `Governing body' means the county council of a county, the city
council of a municipality, the governing body of a consolidated political
subdivision, or any other chief governing body of a unit of local
government, however designated.
(6) `Land development regulations' means ordinances and
regulations enacted by the appropriate governing body for the regulation
of any aspect of development and includes a local government zoning,
rezoning, subdivision, building construction, or sign regulations or any
other regulations controlling the development of property.
(7) `Laws' means all ordinances, resolutions, regulations,
comprehensive plans, land development regulations, policies and rules
adopted by a local government affecting the development of property
and includes laws governing permitted uses of the property, governing
density, and governing design, improvement, and construction standards
and specifications, except as provided in Section 6-7-1640 (A).
(8) `Property' means all real property subject to land use regulation
by a local government and includes the earth, water, and air, above,
below, or on the surface, and includes any improvements or structures
customarily regarded as a part of real property.
(9) `Local government' means any county, municipality, special
district, or governmental entity of the State, county, municipality, or
region established pursuant to law which exercises regulatory authority
over, and grants development permits for land development or which
provides public facilities.
(10) `Local planning commission' means any planning commission
established pursuant to Section 6-7-320.
(11) `Person' means an individual, corporation, business or land trust,
estate, trust, partnership, association, two or more persons having a joint
or common interest, state agency, or any legal entity. (12) `Public
facilities' means major capital improvements, including, but not limited
to, transportation, sanitary sewer, solid waste, drainage, potable water,
educational, parks and recreational, and health systems and facilities.
Section 6-7-1530. A local government may establish procedures and
requirements, as provided in this chapter, to consider and enter into
development agreements with developers. A development agreement
must be approved by the governing body of a county or municipality by
the adoption of an ordinance.
Section 6-7-1540. A local government may enter into a
development agreement with a developer for the development of
property as provided in this chapter provided the property contains
twenty-five acres or more of highland. Development agreements
involving property containing no more than two hundred fifty acres of
highland shall be for a term not to exceed five years. Development
agreements involving property containing one thousand acres or less of
highland but more than two hundred fifty acres of highland shall be for
a term not to exceed ten years. Development agreements involving
property containing two thousand acres or less of highland but more than
one thousand acres of highland shall be for a term not to exceed twenty
years. Development agreements involving property containing more
than two thousand acres may be for such term as the local government
and developer shall elect.
Section 6-7-1550. (A) Before entering into a development
agreement, a local government shall conduct at least two public
hearings. At the option of the governing body, the public hearing may
be held by the local planning commission.
(B)(1) Notice of intent to consider a development agreement must be
advertised in a newspaper of general circulation in the county where the
local government is located. If more than one hearing is to be held, the
day, time, and place at which the second public hearing will be held
must be announced at the first public hearing.
(2) The notice must specify the location of the property subject to
the development agreement, the development uses proposed on the
property, and must specify a place where a copy of the proposed
development agreement can be obtained.
(C) In the event that the development agreement provides that the
local government shall provide certain public facilities, the development
agreement shall provide that the delivery date of such public facilities
will be tied to defined completion percentages or other defined
performance standards to be met by the developer.
Section 6-7-1560. (A) A development agreement must include:
(1) a legal description of the property subject to the agreement
and the names of its legal and equitable property owners;
(2) the duration of the agreement. However, the parties are not
precluded from extending the termination date by mutual agreement or
from entering into subsequent development agreements;
(3) the development uses permitted on the property, including
population densities and building intensities and height;
(4) a description of public facilities that will service the
development, including who provides the facilities, the date any new
public facilities, if needed, will be constructed, and a schedule to assure
public facilities are available concurrent with the impacts of the
development;
(5) a description, where appropriate, of any reservation or
dedication of land for public purposes and any provisions to protect
environmentally sensitive property as may be required or permitted
pursuant to laws in effect at the time of entering into the development
agreement;
(6) a description of all local development permits approved or
needed to be approved for the development of the property together with
a statement indicating that the failure of the agreement to address a
particular permit, condition, term, or restriction does not relieve the
developer of the necessity of complying with the law governing the
permitting requirements, conditions, terms, or restrictions;
(7) a finding that the development permitted or proposed is
consistent with the local government's comprehensive plan and land
development regulations;
(8) a description of any conditions, terms, restrictions, or other
requirements determined to be necessary by the local government for the
public health, safety, or welfare of its citizens; and
(9) a description, where appropriate, of any provisions for the
preservation and restoration of historic structures.
(B) A development agreement may provide that the entire
development or any phase of it be commenced or completed within a
specified period of time. The development agreement must provide a
development schedule including commencement dates and interim
completion dates at no greater than five year intervals. However, the
failure to meet a commencement or completion date does not, in and of
itself, constitute a material breech of the development agreement
pursuant to Section 6-7-1590, but must be judged based upon the totality
of the circumstances. The development agreement may include other
defined performance standards to be met by the developer. If the
developer requests a modification in the dates as set forth in the
agreement and is able to demonstrate and establish that there is good
cause to modify those dates, those dates must be modified by the local
government. A major modification of the agreement may occur only
after public notice and a public hearing by the local government.
(C) If more than one local government is made party to an
agreement, the agreement must specify which local government is
responsible for the overall administration of the development agreement.
(D) The development agreement also may cover any other matter not
inconsistent with this article not prohibited by law.
Section 6-7-1570. A development agreement and authorized
development must be consistent with the local government's
comprehensive plan and land development regulations.
Section 6-7-1580. (A) Subject to the provisions of Section
6-7-1640 and unless otherwise provided by the development agreement,
the laws applicable to development of the property subject to a
development agreement, are those in force at the time of execution of the
agreement.
(B) Subject to the provisions of Section 6-7-1640, a local
government may apply subsequently adopted laws to a development that
is subject to a development agreement only if the local government has
held a public hearing and determined:
(1) the laws are not in conflict with the laws governing the
development agreement and do not prevent the development set forth in
the development agreement;
(2) they are essential to the public health, safety, or welfare and
the laws expressly state that they apply to a development that is subject
to a development agreement;
(3) the laws are specifically anticipated and provided for in the
development agreement;
(4) the local government demonstrates that substantial changes
have occurred in pertinent conditions existing at the time of approval of
the development agreement which changes, if not addressed by the local
government, would pose a serious threat to the public health, safety, or
welfare; or
(5) the development agreement is based on substantially and
materially inaccurate information supplied by the developer.
(C) This section does not abrogate any rights preserved by Section
6-7-1640 herein or that may vest pursuant to common law or otherwise
in the absence of a development agreement.
Section 6-7-1590. (A) Procedures established pursuant to Section
6-7-1540 must include a provision for requiring periodic review by the
zoning administrator, or, if the local government has no zoning
administrator, by an appropriate officer of the local government, at least
every twelve months, at which time the developer must be required to
demonstrate good faith compliance with the terms of the development
agreement.
(B) If, as a result of a periodic review, the local government finds
and determines that the developer has committed a material breach of
the terms or conditions of the agreement, the local government shall
serve notice in writing, within a reasonable time after the periodic
review, upon the developer setting forth with reasonable particularity the
nature of the breach and the evidence supporting the finding and
determination, and providing the developer a reasonable time in which
to cure the material breach.
(C) If the developer fails to cure the material breach within the time
given, then the local government unilaterally may terminate or modify
the development agreement; provided, that the local government has
first given the developer the opportunity:
(1) to rebut the finding and determination; or
(2) to consent to amend the development agreement to meet the
concerns of the local government with respect to the findings and
determinations.
Section 6-7-1600. A development agreement may be amended or
canceled by mutual consent of the parties to the agreement or by their
successors in interest.
Section 6-7-1610. (A) Except as otherwise provided in Section
6-7-1630 and subject to the provisions of Section 6-7-1640, if a
newly-incorporated municipality or newly-annexed area comprises
territory that was formerly unincorporated, any development agreement
entered into by a local government before the effective date of the
incorporation or annexation remains valid for the duration of the
agreement, or eight years from the effective date of the incorporation or
annexation, whichever is earlier. The parties to the development
agreement and the municipality may agree that the development
agreement remains valid for more than eight years; provided, that the
longer period may not exceed fifteen years from the effective date of the
incorporation or annexation. The parties to the development agreement
and the municipality have the same rights and obligations with respect
to each other regarding matters addressed in the development agreement
as if the property had remained in the unincorporated territory of the
county.
(B) After incorporation or annexation the municipality may modify
or suspend the provisions of the development agreement if the
municipality determines that the failure of the municipality to do so
would place the residents of the territory subject to the development
agreement, or the residents of the municipality, or both, in a condition
dangerous to their health or safety, or both.
(C) This section applies to any development agreement which meets
all of the following:
(l) the application for the development agreement is submitted to
the local government operating within the unincorporated territory
before the date that the first signature was affixed to the petition for
incorporation or annexation or the adoption of an annexation resolution
pursuant to Chapter 1 or 3 of Title 5; and
(2) the local government operating within the unincorporated
territory enters into the development agreement with the developer
before the date of the election on the question of incorporation or
annexation, or, in the case of an annexation without an election before
the date that the municipality orders the annexation.
Section 6-7-1620. Within fourteen days after a local government
enters into a development agreement, the developer shall record the
agreement with the register of mesne conveyance or clerk of court in the
county where the property is located. The burdens of the development
agreement are binding upon, and the benefits of the agreement shall
inure to, all successors in interest to the parties to the agreement.
Section 6-7-1630. If state or federal laws or regulations, enacted
after a development agreement has been entered into, prevent or
preclude compliance with one or more provisions of the development
agreement, the provisions of the agreement must be modified or
suspended as may be necessary to comply with the state or federal laws
or regulations.
Section 6-7-1640. (A) The provisions of this article are not
intended nor may they be construed in any way to alter or amend in any
way the rights, duties, and privileges of suppliers of electricity or natural
gas or of municipalities with reference to the provision of electricity or
gas service, including, but not limited to, the generation, transmission,
distribution, or provision of electricity at wholesale, retail, or
in any other capacity.
(B) This article is not intended to grant to local governments or
agencies any authority over property lying beyond their corporate limits.
Section 6-7-1645. If any of the obligations of the local government
in the development agreement constitute debt, the local government
shall comply at the time of the obligation to incur such debt becomes
enforceable against the local government with any applicable
constitutional and statutory procedures for the approval of this debt.
Section 6-7-1650. If Section 6-7-1640 or any provision in it or the
application of any provision in it is held invalid, the invalidity applies
to this chapter in its entirety, to any and all provisions of the chapter, and
the application of this chapter or any provisions of this chapter, and to
this end the provisions of Section 6-7-1640 of this chapter are not
severable.
Section 6-7-1660. Notwithstanding any other provision of law, a
development agreement adopted pursuant to this article must comply
with any building, housing, electrical, plumbing, and gas codes
subsequently adopted by the governing body of a municipality or county
as authorized by Chapter 9 of Title 6. The development agreement may
not include provisions which supersede or contravene the requirements
of any building, housing, electrical, plumbing, and gas codes adopted by
the governing body of a municipality or county."
SECTION 4. Chapter 27 of Title 4, Chapter 23 of Title 5, Chapter 31
of Title 6, 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.
SECTION 5. This act takes effect upon approval by the Governor.
-----XX----- |