H 4616 Session 110 (1993-1994)
H 4616 General Bill, By J.H. Hodges and Wilkins
Similar(S 687)
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.
01/26/94 House Introduced and read first time HJ-6
01/26/94 House Referred to Committee on Judiciary HJ-6
02/17/94 House Committee report: Favorable with amendment
Judiciary HJ-6
03/24/94 House Debate adjourned until Tuesday, March 29, 1994 HJ-26
03/29/94 House Debate adjourned until Tuesday, April 5, 1994 HJ-16
04/05/94 House Debate adjourned HJ-60
04/05/94 House Reconsidered HJ-61
04/05/94 House Recommitted to Committee on Judiciary HJ-62
COMMITTEE REPORT
February 17, 1994
H. 4616
Introduced by REPS. Hodges and Wilkins
S. Printed 2/17/94--H.
Read the first time January 26, 1994.
THE COMMITTEE ON JUDICIARY
To whom was referred a Bill (H. 4616), 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, etc.,
respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting
words and inserting:
/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
waste water 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 and political
subdivisions. 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 it 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."
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.
SECTION 3. This act takes effect upon approval by the Governor./
Amend title to conform.
JAMES H. HODGES, for Committee.
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.
Be it enacted by the General Assembly of the State of South Carolina:
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, economy, appearance, and livability 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. 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 which they have appointed.
(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 and consideration of the fiscal impact on
property owners.
(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 forestland, 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
waste water 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. 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 have 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 it 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 which they have appointed. 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 only 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 at 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, 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 at 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 at 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.
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."
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.
SECTION 3. This act takes effect upon approval by the Governor.
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