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Subdivision Draft Frequently Asked Questions

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These questions are for the Draft Subdivision and Land Development Ordinance. If you have other questions, please see the main FAQ section. In this section MCPC shall stand for the Monongalia County Planning Commission. Throughout these questions Staff has inserted references to WV8A letting you know where in the State Code certain elements are coming from and will look like the following: [8A-Article-Section, Subsection]. Links to the pertinent sections of WV Code can be found at the very beginning of Question 2.

1. What Are Subdivision Regulations?

Subdivision regulations allows for governing bodies to ensure safe development through guaranteeing proper development of roads, stormwater management, utilities, right of ways, and other infrastructure needs in conjunction with any type of subdivision, be it commercial, residential, or industrial.

Ensuring subdivisions occur with required minimums help prevent undersized roads and lack of appropriate utilities during construction and allow for bonding in case of developer abandonment or bankruptcy. Without it there could be an absence of right-of-way requirements, utility requirements, road failure, etc., which could lead to issues such as basement flooding, bus and fire and ambulance turnaround and safety issues, vehicular accidents, and so on and so forth.

Please note that Subdivision Regulations ARE NOT Zoning Regulations. The Supreme Court of West Virginia has even spoken on this exact issue during Singer v Davenport (164 WV 665, 264 S.E.2d 637) in 1980. The court noted that “the purpose of zoning is to provide an overall comprehensive plan for land use, while subdivision regulations govern the planning of new streets, standards for plotting new neighborhoods, and for the protection of the community from financial loss due to poor development”. Further while “different rules may be developed for differing categories of land based upon topography, the availability of services from existing public service districts, or the existence of highways”, the “planning commission is not entitled to block out a section of unzoned land and, to effect, forbid its subdivision regardless of how artfully they design their regulations to this end”. 

2. What Is Required In This Type Of Ordinance?

 West Virginia Code 8A has three Articles which directly affect the creation of subdivision regulations. They are WV 8A Article 4 (Subdivision and Land Development Ordinance), WV 8A Article 5 (Subdivision or Land Development Plan and Plat), and WV 8A Article 6 (Methods of Security).

What Article 4 Does

Authorizes the governing body to develop a subdivision ordinance to regulate subdivisions [8A-4-1,a]. It also lists what the contents of the subdivision ordinance must include [8A-4-2,a]. Without these required items, the County Commission CANNOT enact a subdivision ordinance without being in violation of State Code. They are as follows (as pulled directly from 8A-4-2,a):

  • A minor subdivision or land development process, including criteria, requirements and a definition of minor subdivision;
  • The authority of the planning commission and its staff to approve a minor subdivision or land development;
  • A major subdivision or land development process, including criteria and requirements;
  • The authority of the planning commission to approve a major subdivision or land development;
  • The standards for setback requirements, lot sizes, streets, sidewalks, walkways, parking, easements, rights-of-way, drainage, utilities, infrastructure, curbs, gutters, street lights, fire hydrants, storm water management and water and wastewater facilities;
  • Standards for flood-prone or subsidence areas;
  • A review process for subdivision or land development plans and plats by the planning commission;
  • An approval process for subdivision or land development plans and plats by the planning commission, including the authority to approve subdivision or land development plans and plats with conditions;
  • A process to amend final approved subdivision or land development plans and plats;
  • A requirement that before development of the land is commenced, subdivision and land development plans and plats must be approved by the applicable planning commission, in accordance with the comprehensive plan, if a comprehensive plan has been adopted;
  • A requirement that after approval of the subdivision or land development plat by the planning commission and before the subdivision or development of the land is commenced, the subdivision and land development plat shall be recorded in the office of the clerk of the county commission where a majority of the land to be developed lies;
  • A schedule of fees to be charged which are proportioned to the cost of checking and verifying proposed plats;
  • The process for granting waivers from the minimum standards of the subdivision and land development ordinance;
  • Improvement location permit process, including a requirement that a structure or development of land is prohibited without an improvement location permit;
  • The acceptable methods of payment to cover the cost of the water and sewer service infrastructure, which can include, but are not limited to, bonds, impact fees, escrow fees and proffers;
  • The process for cooperating and coordinating with other governmental agencies affected by the subdivision and land development and use; and
  • Penalties for violating the subdivision and land development

What Article 5 Does

Outlines what is required in both a Minor, and Major, Subdivision Plat. As with Article 4, Article 5 includes requirements, which must be included, for both Minor [8A-5-2,a] and Major [8A-5-7].

Minor Subdivision requirements are as follows (as pulled directly from 8A-5-2,a):

  • Only creates the maximum number of lots specifically permitted by the subdivision and land development ordinance for a minor subdivision or land development;
  • Will not require the development of new or the extension of existing off-tract infrastructure; and
  • Such other requirements as determined by the governing body to ensure that required improvements are installed and not avoided by a series of minor subdivisions or land developments

Major Subdivision contents are as follows (as pulled directly from 8A-5-7,b)

Please Note, while these aren’t required per se, the majority are required via 8A-4-2,a, so we feel confident in listing them here:

  • Show that the subdivision or land development conforms to the governing body's comprehensive plan [8a-4-1,a,10];
  • A method of payment to cover the cost of the water and sewer service infrastructure, which can include, but is not limited to, bonds, impact fees, escrow fees and proffers [8A-4-2,a,15];
  • Coordination among land development with adjoining land owners, including, but not limited to, facilities and streets;
  • Distribution of population and traffic in a manner tending to create conditions favorable to health, safety, convenience and the harmonious development of the municipality or county;
  • Show that there is a fair allocation of areas for different uses, including, but not limited to, streets, parks, schools, public and private buildings, utilities, businesses and industry;
  • Show that there is a water and sewer supply;
  • Setback and lot size measures were used [8a-4-2,a,5];
  • The standards used for designating land which is subject to flooding or subsidence, details for making it safe, or information showing that such land will be set aside for use which will not endanger life or property and will not further aggravate or increase the existing menace [8A-4-2,a,6];
  • The control measures for drainage, erosion and sediment [8a-4-2,a,5];
  • The coordination of streets, sidewalks and pedestrian pathways in and bordering the land development, including a letter from the Division of Highways stating that the plan provides sufficient access to state roads [8A-4-2,a,16]; and
  • The design, construction and improvement measures to be used for the streets, sidewalks, easements, rights-of-way, drainage, utilities, walkways, curbs, gutters, street lights, fire hydrants, water and wastewater facilities, and other improvements installed, including the width, grade and location for the purpose of accommodating prospective traffic, customers and facilitating fire protection [8a-4-2,a,5].

What Article 6 Does

Outlines the methods of security for a subdivision plat.

3. Why Is The Document 102 Pages Long, Can't It Be Shorter?

The Draft Subdivision Regulations is comprised of 3 parts, The Draft Ordinance, and 2 Appendices, A and B.

The Draft Ordinance Required per WV8A Articles 4, 5, and 6 (86 pages long)

When creating a set of subdivision regulations, the County Commission is obligated to incorporate all mandatory elements of WV8A in order to comply with State Code. This section of the document is what is mandated by WV8A, and is what Planning Staff and the MCPC will use to ensure that subdivisions follow the outlined provisions.

Appendix A, Definitions Not required per WV8A (10 pages long)

While not required, it allows for less ambiguity where certain words are concerned.  For example, if Planning Staff were to ask 10 people what defines a road, we would most likely get 10 different answers. By succinctly defining what is and is not a road in the definitions sections it ensures even application among all projects considered. In the Draft Regulations, Staff has defined a road as: A strip of land, comprising the entire area within the right-of-way, intended for use as a means of vehicular and pedestrian circulation to provide access to more than one lot. However, the establishment of a common driveway for access purposes for no more than three separate parcels contiguous to one another shall not be considered a street as this term is defined.

Appendix B, Parking Standards, Required per WV8A-4-2,a,5 (6 pages long)

To make the process easier for everyone involved, Planning Staff has written a minimum requirement standard for parking facilities within the ordinance in a manner such that if there is a conflict between the subdivision regulations and the zoning ordinance, the zoning regulations take precedence.

4. Why Would This Be Required For The Entire County?

Unlike Zoning Ordinances which allow for zoning in portions of the county via State Code [WV8A-7-1,b], the Articles which govern creation and the required elements of subdivision regulations does not include such wording [WV8A-4-1,a]. Further, per WV8A-4-6 “After the enactment of a subdivision and land development ordinance by the governing body, all subsequent subdivisions and land development must be done in accordance with the provisions of the subdivision and land development ordinance”.

The Supreme Court of West Virginia has even spoken on this exact issue during Singer v Davenport (164 WV 665, 264 S.E.2d 637) in 1980. “In order to be within its legitimate authority, a planning commission’s [subdivision] regulations must apply equally to all unzoned land in the county…”.

5. Can The General Public Put It To A Referendum To Repeal It?

 No. Unlike Zoning Ordinances which allow for repeal via State Code [WV8A-7-7,c], the Articles which govern creation and the required elements of subdivision regulations have no such wording.

6. My Subdivision Would Be Exempt. Why Does The County Planner Have To Review It?

There are a few reasons why, the most basic being that someone will have to ensure that the subdivision is in fact exempt. As it is an MCPC document, it would understandable that the MCPC will handle said review.

Beyond that, while WV8A does allow for subdivision regulations to include exemptions [8A-4-2,b,5] from its requirements, WV8A has a stipulation which require review by the MCPC:

It is WV8A-4-6 which states that “after enactment of a subdivision and land development ordinance by the governing body, all subsequent subdivisions and land development must be done in accordance with the provisions of the subdivision and land development ordinance”.

If no review or tracking of exempt subdivision is done, a sub-divider could easily circumvent the required provisions of the ordinance [8A-4-2,a,1-17]. This includes Minor and Major Subdivisions, which do require review. In addition, review of the current subdivision regulations of other West Virginia counties (14 of which have them) showed that for all counties which allowed for exemptions (3 don’t and 2 only allow exemptions for ag purposes), each required review by the Planning Staff.

7. Why Does The Subdivision Have To Go Before The County Clerk After Approval By The MCPC?

There are a few reasons why, the most basic being that someone will have to ensure that the subdivision is in fact exempt. As it is an MCPC document, it would understandable that the MCPC will handle said review.

Beyond that, while WV8A does allow for subdivision regulations to include exemptions [8A-4-2,b,5] from its requirements, WV8A has a stipulation which require review by the MCPC:

It is WV8A-4-6 which states that “after enactment of a subdivision and land development ordinance by the governing body, all subsequent subdivisions and land development must be done in accordance with the provisions of the subdivision and land development ordinance”.

If no review or tracking of exempt subdivision is done, a sub-divider could easily circumvent the required provisions of the ordinance [8A-4-2,a,1-17]. This includes Minor and Major Subdivisions, which do require review. In addition, review of the current subdivision regulations of other West Virginia counties (14 of which have them) showed that for all counties which allowed for exemptions (3 don’t and 2 only allow exemptions for ag purposes), each required review by the Planning Staff.

8. Why Does A Major Subdivision Require A Public Hearing?

WV8A has a requirement that “at a meeting where the application is determined to be complete, the planning commission must set a date, time and place for a public hearing and a meeting to follow the public hearing to vote on the application. The public hearing must be held within forty-five days, and the planning commission must notify the applicant of the public hearing and meeting in writing unless notice is waived in writing by the applicant. The planning commission must publish a public notice of the public hearing and meeting in a local newspaper of general circulation in the area at least twenty-one days prior to the public hearing” [8A-5-8,c].

9. Why Can't I Put In A Road/Extend The Utilities On A Minor Subdivision?

WV8A has a requirement that a minor subdivision “will not require the development of new or the extension of existing off-tract infrastructure” [8A-5-2,a,2].  

While WV8A does not define ‘infrastructure’, it is defined in other areas of WV State Code, often under the term “capital improvements” which has been defined as (A) Water treatment and distribution facilities; (B) Wastewater treatment and disposal facilities; (C) Sanitary sewers; (D) Storm water, drainage and flood control facilities; and (E) Public road systems, including, but not limited to, rights-of-way, lighting, sidewalks and gutters.”

10. Will This Prevent Me From Giving (Insert Relative Here) A Piece Of My Land?

Not as long as the family member is your: father, mother, son, daughter, stepson/daughter, grandson/daughter, brother, sister, or spouse. This allowance is found in Article 3 (Exemptions), Section 3.1 (Exempt Subdivisions), Letter A (Family Subdivision)of the Draft Regulations. Family subdivisions are subject to a list of restrictions in order to prevent circumvention of the intent of the ordinance.

The relatives listed are taken from WV11-22-1,4 (with the exclusion of stepson/daughter, which the MCPC added) where they are not included in the excise tax on transfer of real property.  

11. What Are The Basic Parts Of This Ordinance?

The Articles contained in the Draft Regulations include the following:

Please Note: This is a basic outline and is not all encompassing. Please see the full Draft Subdivision Regulations for more detailed information.

  • Authority and Purpose and General Provisions
    • Lists the enabling legislations and basis requirements of the ordinance
  • Exempt Subdivisions
    • Parcel splits which are exempt from the technical aspects of the Draft Ordinance
  • Minor Subdivisions and Land Developments
    • Parcel splits which are between 1-5 lots and create no new infrastructure
  • Major Subdivisions and Land Developments
    • Parcel splits which are 6 plus, or do not meet exempt or minor subdivision requirements
  • Procedure for Approval of Major Subdivisions and Land Developments
    • The steps for major subdivision approval including a public hearing
  • Subdivision Review Board
    • The body which hears all appeals of any final decision of the Planning Commission.
  • Enforcement
    • How the County Commission and MCPC will ensure the ordinance is being met
  • General Standards for: Roads, Earthwork, Sanitary Sewage and Potable Water, and Storm Water Management and Drainage Design 
    • Gives the construction requirements with most standards following state or local requirements already in place  
  • Sign Requirements, Fire Protection, Special Flood Hazard Areas
    • Gives the requirements for posting a sign for the public hearing as well as a requirement to follow state and local requirements already in place for fire and flood
  • Lot Requirements and HOAs, Utilities, Traffic Impact
    • Gives the requirements where WV36B, traffic and utilities are concerned

 12. Why Does The Ordinance Constantly State "Constitute An Attempt To Circumvent Ordinance Requirements" Or Similar Language?

Per WV8A a minor development shall have “such other requirements as determined by the governing body to ensure that required improvements are installed and not avoided by a series of minor subdivisions or land developments” [8A-5-2,a,3]. Further the minor development also states that “if a subdivision or land development plan and plat cannot be approved through the minor subdivision or land development process, then an applicant must use the major subdivision or land development approval process” [8A-5-1,c].

It is therefore the understanding of Planning Staff that WV8A wishes to prevent circumvention of the ordinance via loopholes.  

13. I'm Just Selling My Land And The Parcel Is Not Changing, Do I Have To Go Before The MCPC?

No, per Section 3.3 of the draft ordinance those parcels which have been previously recorded are not subject to the requirements of the ordinance, provided they are of sufficient survey accuracy to permit the clear conveyance of the subject lots without modification or addition.

Should the parcel need to be resurveyed, amended, modified or corrected it will be subject to the requirements of the draft ordinance. For the sale of a single parcel, it would fall under an exempt subdivision.

14. Why do I have to apply for a Notice of Improvement (called an Improvement Location Permit in WV 8A) prior to any construction?

Per WV8A the subdivision regulations shall include an “improvement location permit process, including a requirement that a structure or development of land is prohibited without an improvement location permit” [8A-4-2a, 14].

 The requirements for an improvement location permit are taken from the definition section of WV8A meaning “a permit issued … in accordance with its subdivision and land development ordinance, for the construction, erection, installation, placement, rehabilitation or renovation of a structure or development of land, and for the purpose of regulating development within flood-prone areas” [8A-1-2,o].

 The ordinance does include the following exceptions:

(1) use of land for agricultural purposes;
(2) an improvement or addition to a building or a structure that does not increase the footprint of the structure;
(3) the addition of windows, doors, or steps to a building;
(4) normal maintenance and repair of a building or structure;
(5) construction of a private driveway no greater than twenty (20) feet in width, a walkway that is not enclosed or covered by a roof, or a patio no greater in size than twenty (20) feet by twenty (20) feet and not enclosed or covered by a roof;
(6) constructionf of a fence or clothesline;
(7) construction of an on-site sign nine square feet or less in area;
(8) additions to detached single-family structures; and
(9) non-habitable accessory structures to residential uses.

The intent of the Improvement Location Permit is to ensure multiple county requirements in relation to Property Assessment, Flood-Prone Areas, and Subdivision Regulations are adhered to. 

15. When is a Notice of Improvement Form needed?

Under the Proposed Ordinance; "the construction, erection, installation, placement, rehabilitation or renovation of a structure or development of land" requires for a review by the MCPC, (via an application), and, at a minimum, an Improvement Location Permit issued. As a basic guideline the following items require the form:

  • Construction of a new detached residence or two-family residential structures
  • Habitable accessory structures to principal residences
  • Additions to townhomes and two-family residential structures
  • Construction of or addition to a commercial, industrial, agricultural or other venture
  • Construction of a patio greater in size than twenty (20) feet by twenty (20) feet
  • Construction of or addition to a paved driveway greater than twenty (20) feet in width
  • Installation of outbuildings such as sheds, garages, or shelters accessory to non-residential uses

Please note that this list is not all inclusive. For other items not listed please feel free to contact the MCPC.

16. Can I do general maintenance without a Notice of Improvement Form?

Yes, the following projects do not require a Notice of Improvement Form

  • Construction of a fence
  • Construction of or addition to a paved driveway no greater than twenty (20) feet in width
  • Construction of a walkway that is not enclosed or covered by a roof
  • Construction of a patio no greater in size than twenty (20) feet by twenty (20) feet and not enclosed or covered by a roof
  • Construction or complete replacement of a deck*
  • Installation of landscaping such as flowers, woodchips, trees or the like
  • Installation of a retaining wall
  • Installation of outbuildings such as sheds, garages, or shelters accessory to residential uses*
  • Installation of an in-ground pool*
  • In kind replacement of a driveway, sidewalk, or patio
  • Maintenance of onsite structures including residing, reroofing, replacement of windows or doors*
  • Maintenance of, but not complete removal and replacement of, a deck*
  • Interior work only*

* May still require a Real Property Improvement Form from the Assessor’s Office to be filled out

Please note that this list is not all-inclusive. For other items not listed please feel free to contact the MCPC.

17. What Is This WV 8A That Keeps Being Mentioned?

West Virginia State Code Chapter 8A is the enabling legislation which governs Planning Commissions, Comprehensive Plans, Zoning, and Subdivision Regulations within the state of West Virginia. The first time West Virginia allowed land controls was in 1931 with WV 8-5, which allowed for municipalities to regulate land use in accordance with a comprehensive plan. This was re-codified in 1959 as WV 8-5 (Urban and Rural Planning and Zoning). This version was repealed in 1969 and re-codified as WV8-24 (Planning and Zoning)   The last major re-codification was in 2004, when the State Legislature Repealed the existing WV8-24 and replaced it with WV8A (Land Use Planning). 

18. What Happened During The Public Meetings?

To see what meetings have been held, and basic notes compiled from these meetings, please click here for a pdf.

19. What Changes Have Been Proposed To Be Made To the Ordinance?

 To see what changes have been made, please click here for a pdf regarding changes made to the August 13, 2019 draft of the ordinance.

20. What Will Happen Now That The Public Meetings Are Done?

 The next step will be to incorporate all pertinent changes gleaned from the public meetings and other meetings staff has held. After that the document will be finalized and then a Public Hearing will be set by the County Commission. This hearing will be comprised of seven parts:

1) The County Commission will open the public hearing.
2) MCPC staff will present the finalized draft of the ordinance.
3) Those who are in support of the ordinance are called to speak.
4) Those in opposition of the ordinance are called to speak.
5) MCPC Staff is granted rebuttal to arguments presented by the opposition.
6) The public portion of the hearing is closed.
7) The County Commission will deliberate the ordinance and then adopt, deny or table the proposed ordinance to a later date.

 Because of enaction of an ordinance of this type requires all persons the ability to comment at the public hearing, it will be held in two parts, once in the morning with the public hearing being carried over into a night session as well. 

This meeting date as well as any other pertinent information will be found on the main page for the Planning Office.