From Paul Burke;

The proposed state planning law, SB 454, has so many problems,
substantive and administrative, that it needs to be defeated. It cannot
be fixed in the few days left of this session. Following are some
examples. The full law is at http://listeners.homestead.com/files/wvzon4.htm
Remember you can reach any legislator toll-free at
877-565-3447.


BIGGEST PROBLEMS

8A-1-1 "encourages and recommends" all 55 counties to decide goals for
land use and have a plan. This is not the state's business, and in most
counties, people think it is not the county's business.

8A-1-1 removes the idea that there should be enough schools, fire
service, roads and other facilities to serve new growth.

8A-5 gives no grounds or criteria by which a city or county planning
commission can reject a completed application for a subdivision. It
repeals the criteria in 8-24-30. This seems to mean they must approve all
completed applications, regardless of lack of fire service, roads, etc.

8A-5-4 requires approval of minor subdivisions within 10 days. If the
planning commission doesn't delegate this to staff (and most places are
too small to have good staff) the planning commission would have to meet
every week, and have as little as 3 days to prepare the agenda and read
the application.

8A-5-12 protects projects from changes in ordinances as soon as they get
any "significant affirmative government act," rely on it & spend
"extensive obligations or substantial expenses." This is so broad and
undefined that it covers a sewer capacity letter, DEP wasteload
application or review for contaminated soils, etc. The current rule of
the supreme court calls for a case-by-case review. Many jurisdictions
don't protect projects from changes in ordinances until construction is
actually underway.

8A-7-2 removes the right of cities and counties to control "intensity of
use," now in the law. This seems to mean zones can have no limit on
density of either houses or businesses.

OTHER PROBLEMS

8A-1-2 says town & county governments can adopt goals "for all activities
that affect growth." That is a bit broad.

8A-1-2 and 8A-8-9 shift authority over conditional use permits from the
planning commission to the board of zoning appeals, with no criteria for
approval.

8A-1-2 and 8A-7-3 allow sewer plants in every zone, as "essential
utilities and equipment." They also allow telecommunications in every
zone, but not the main telecommunications facilities regulated by the
FCC. Truck weigh stations also seem to have the same protection, for no
apparent reason. What is the purpose of planning if not to control the
location of things like large sewage plants relative to houses, daily
shopping, and tourist sites?

8A-1-2 expands flood rules to anywhere "susceptible to repeated
inundation." This would include even the 500-year floodplain and more.

8A-1-2 covers mobile homes only if they follow the 1976 federal
standards, nothing more recent.

8A-1-2 says planning must provide for "the development of land."
Preservation gets a back seat.

8A-1-2 and other sections oppose sprawl, but the definition is unusable.
Who thinks their own project is "poorly planned or uncontrolled"?

8A-2-1 says planning commissions have only the powers given by local
ordinances, but 8A-2-11 and 8A-6-3 give them long lists of powers. Which
is right?

8A-2-2 requires membership changes (e.g. to meet the residency
requirement) at the first meeting after the laws is effective; no time
for training or advertising for applicants.

8A-2-3 and 8A-2-4 says representatives of governing bodies stay on the
planning commission for their whole term of office: up to 6 years for
county commissioners.

8A-2-3 and 8A-2-4 remove advisory members between cities & counties. So
cities and counties can only testify like any member of the public, if
the planning commission allows them, instead of participating in the
discussions, where decisions greatly affect all local governments.

8A-2-7 and 8A-8-5 require no public notice of special meetings. This
seems to supersede 6-9A-3 of the Open Meetings Law

8A-3-1 opposes both congestion and scattering of population. Does the
Legislature oppose all population?

8A-3-1 pre-judges that all growth should be in & near existing developed
areas. What about local choice?

8A-3-7 and 8A-7-5 requires only 15 days notice of hearings before
adoption of a plan or zoning ordinance. The zoning ordinance, but not
the plan, must be at public libraries. Both should be required to be in
public libraries and on the web. What year is the legislature living in?
(8A-3-6 requires 30 days notice of a plan. Which is right?)

8A-3-7 has no provision for the planning commission to change the plan
after the hearing, just for the governing body to make changes.

8A-4-2 requires fees to be changed only by amending the ordinance.

8A-4-2 allows the ordinance to set up a "board of subdivision and land
development appeals" which explicitly duplicates the "board of zoning
appeals."

8A-5-7 gives completeness requirements for applications, if the ordinance
has none. These requirements include "convenience and harmonious
development," which the supreme court has already said are not specific
enough unless an ordinance defines them.

8A-5-8 requires the planning commission to decide completeness at its
next meeting, even if the request for a decision is just 5 minutes before
the meeting. This seems to supersede the advance agenda requirements of
the open meeting law, and leaves the commission no time to study an
application, which may be hundreds of pages long.

8A-5-8 requires a public hearing within 45 days after completeness is
decided., and it has to be advertised 21 days ahead. When ads sometimes
need to be placed more than a week ahead, the planning commission has to
meet on a 5 or 6-week schedule, which is a straitjacket. The Jefferson
planning commission meets twice a month, which sometimes gives a choice
of 4 or 7 weeks ahead, especially around holidays. And what if a hearing
is scheduled in 6 weeks (42 days) and lacks a quorum, with no time to
re-schedule?

8A-6-2 allows local governments to "require" "voluntary proffers." This
is legally confusing. Even a low proffer for parks, fire, etc., can
protect the developer from paying impact fees other than schools.

8A-7-13 creates a voter petition process pretending to repeal just
"nontraditional zoning ordinances" but the definition covers anything.

8A-8-3 and 8A-8-4 put an alternate member on a zoning board when a
regular member cannot serve (e.g. sick, or conflict of interest), and
then the alternate member seems to hold the seat, replacing the regular
member for as long as it takes to decide the first matter the alternate
dealt with. Then original member comes back, even though this may be in
the middle of the process on other matters that the alternate started
dealing with.

8A-8-4 says zoning board members "Cannot hold any other elective or
appointive office in the county government," but does not define whether
"county government" includes schools? independent parks commissions? etc.

8A-8-6 says zoning boards may now decide by 2-1 votes if only 3 members
are present, which may lead to random variations in decisions, as do the
alternate members.

8A-8-11 requires 15 days newspaper legal notice of zoning appeals, but
not signs on the property, which are much more effective. As noted above,
more advance notice is needed than 15 days.

8A-8-11 restricts hearings to "parties." Other residents and businesses
should continue to be allowed to speak.

The law overall repeals the requirement in 8-24-36 that building permits
comply with the comprehensive plan.