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(a) In interpreting and applying the provisions of this Ordinance, they shall be held to be minimum requirements for the promotion of public health, safety, comfort, convenience, and general welfare of the City of Martinsburg and its citizens. Stricter requirements in any other applicable rule, regulation, statute, ordinance, or other law shall prevail.
(b) The Planning Department and/or Planning Commission shall interpret the intent and effect of this Ordinance and may issue decisions regarding the same.
(c) In the event of a conflict between or among the provision of this Ordinance, the Zoning Ordinance, and/ or any other Codified Ordinance of the City, the conflicting provisions shall be given precedence in the following order:
(1) The provisions of the Zoning Ordinance;
(2) The provisions of this Ordinance; and
(3) The provisions of the City’s other Codified Ordinances with precedence among them given to the provision bearing the latest date of passage.
(Ord. 2022-13. Passed 11-10-22.)
Should a court of competent jurisdiction declare any article, section, subsection, or provision of this Ordinance invalid or unconstitutional, this decision shall not affect the validity or constitutionality of this Ordinance as a whole, or any part thereof, other than the particular part so declared to be invalid or unconstitutional.
(Ord. 2022-13. Passed 11-10-22.)
(a) Nothing contained in this Ordinance shall be deemed to relieve any Person from complying with the applicable provisions of the Zoning Ordinance. It is the expressed intent that the Martinsburg Subdivision and Land Development Ordinance and Zoning Ordinance be compatibly enforced and together foster the stated planning goals and objectives of the City.
(b) Where any inconsistencies between the Martinsburg Subdivision and Land Development Ordinance and Zoning Ordinance may exist, the provisions of the Zoning Ordinance shall be deemed to control.
(c) The various bulk and area regulations specified in Article 1325
of the Zoning Ordinance are incorporated herein by reference as standards applicable to the Subdivision and Development of land located in the indicated Zoning Districts. The Setback requirements for certain specified Structures and riparian buffer Setbacks are set forth in the Supplemental Regulations contained in Article 1329
Supplemental Regulations of the Zoning Ordinance.
(d) The various provisions of the Supplemental Regulations in Article 1329
of the Zoning Ordinance are incorporated herein by reference as standards applicable to the Subdivision and Development of land, to the extent said provisions contain such standards.
(Ord. 2022-13. Passed 11-10-22.)
(a) The provisions of this Ordinance shall be administered by the Martinsburg Planning Department. The City Engineer/Planning Director or designee shall act on the Planning Commission’s behalf and carry out the duties listed in Subsection (C) of this Section.
(b) All departments, officials, and public employees of the City of Martinsburg which are vested with the duty or authority to issue permits or licenses shall issue no permit or license for any use, Building or purpose if the same would be in conflict with the provisions of this Ordinance.
(c) It shall be the duty and the power of the City Engineer/Planning Director or designee or designee to:
(1) Receive and examine all applications and submissions related to any proposed Subdivision or Land Development, including, without limitation, Preliminary Plans, Final Plats (whether for Minor Subdivision or Major Subdivision and/or Land Development), Erosion and Sediment Control Plans, applications for Land Disturbance Permits, and As-Built Plans. All applications, Plans, and documents submitted shall be considered a public record provided that the City Engineer/Planning Director or designee may withhold sensitive information, such as the information of a complainant in a violation, as permitted by Chapter 29B of the West Virginia Code, Freedom of Information;
(2) Issue permits only where there is compliance with the provisions of this Ordinance and with other City Ordinances;
(3) Meet with applicants for Major Subdivision and/or Land Development to:
A. Discuss the proposed Major Subdivision and/or Land Development and the criteria for its classification as major, and
B. Understand, discuss, and attempt to resolve issues. The City Engineer/Planning Director or designee may make site inspections of properties when determined appropriate;
(4) Approve or deny a Final Subdivision and/or Land Development Application for a properly classified Minor Subdivision;
(5) Review Preliminary and Final Subdivision and/or Land Development Applications for Major Subdivision and/or Land Development for completeness and make recommendations to the Planning Commission regarding completeness;
(6) Review Preliminary and Final Subdivision and/or Land Development Applications for Major Subdivision and/or Land Development, and conduct inspections and surveys, to determine compliance with the requirements of this Ordinance, and make recommendations to the Planning Commission regarding compliance;
(7) Receive applications for Waivers and promptly forward these applications to the Planning Commission;
(8) Issue written stop, cease and desist orders and other written orders for correction of all conditions found to be in violation of provisions of this Ordinance. Such written orders shall be served by certified mail upon Owners or Persons deemed by the City Engineer/Planning Director or designee to be violating the requirements and standards of this Ordinance;
(9) Institute in the name of the City, any appropriate action or proceeding seeking an injunction to restrain a Person from violating this Ordinance or directing a Person to remove a Structure erected in violation of this Ordinance;
(10) Bring any matter to the Planning Commission for its action or information;
(11) Upon the request of the Planning Commission, or the Board of Appeals, present to such body’s facts, records, or reports which they may request to assist them in making decisions or assist them in any other way as requested; and
(12) Create and maintain standardized forms for applications and other required documents.
References in this Ordinance to the “Planning Commission” with respect to performance of any of the tasks set forth in this subsection (c), or reasonably contemplated in the performance of such tasks, shall be deemed to include reference to the City Engineer/Planning Director or designee.
(d) Violations, Penalties, Continuing Offenses. Consistent with West Virginia Code §8A-10-2, a Person who violates any provision of this Ordinance, including without limitation failure to comply with any stop, cease, and desist or other order issued pursuant to this Ordinance, is guilty of a misdemeanor, and upon conviction, shall be fined for each offense not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00). Each and every day during which such violation continues shall be deemed a separate offense. Work carried on in violation of the cancellation of any permit issued under this Ordinance shall also be deemed a violation punishable in the same manner. City Council is empowered to enforce this penalty, and it may do so on a case-by-case basis by directing the City Engineer/Planning Director or designee to act on its behalf.
(e) Injunctive Relief. When any land is subdivided or developed in violation of this Ordinance, or any provision of this Ordinance is otherwise violated, the Planning Commission, Board of Appeals, or City Engineer/Planning Director or designee may institute action in the Circuit Court of Berkeley County for an injunction to restrain a Person from violating this Ordinance or directing a Person to remove a Structure erected in violation of this Ordinance.
(f) Procedures. Whenever the City Engineer/Planning Director or designee becomes aware that any Person is in violation of any provision of this Ordinance, the City Engineer/Planning Director or designee shall provide to such Person a written stop, cease, and desist order specifying the violations and stating that, unless such Person:
(1) Immediately ceases any actions identified as being in violation of this Ordinance,
(2) Commences correction of all violations within five (5) days of the receipt of the order, and
(3) Completes correction of all violations within thirty (30) days thereafter (or such extension of time as allowed by the City Engineer/Planning Director or designee or Planning Commission when correction of such violation is being pursued in good faith to the satisfaction of the City Engineer/Planning Director or designee or Planning Commission), each and every day during which such violation continues shall be deemed a separate offense punishable by the fine prescribed under subsection (d) above.
(g) Other Relief. In the case of any violation of this Ordinance, City Council may, in addition to other remedies institute injunction, mandamus, or other appropriate action or proceeding to prevent such violation, the occupancy of any Building, Structure, or land subdivided or developed in violation of this Ordinance, or any illegal act, conduct, business, or use in or about such premises. The rights and remedies provided in this Ordinance are cumulative and are in addition to all other remedies provided by law.
(Ord. 2022-13. Passed 11-10-22.)
(a) Permits. The following permits shall be required as specified below.
(1) Land Disturbance Permits. The Development of any land in the City, including the construction or alteration of any Building or Structure, is prohibited and shall not be commenced unless and until a Land Disturbance Permit is obtained from the City Engineer/Planning Director or designee, except as expressly exempted under subsection (a)(1)C. hereof.
A. Application. An Applicant for a Land Disturbance Permit shall submit to the City Engineer/Planning Director or designee an application consisting of the following items:
1. A completed application form for such permit, in the form prescribed by the City Engineer/Planning Director or designee, together with applicable fees;
2. The Final Plat for the subject Subdivision or Land Development, stamped and signed as approved by the Planning Commission, or a copy thereof;
3. A Plan clearly showing the area to be disturbed and/or any Structures to be constructed or altered upon the subject land, unless such items are clearly shown on the Final Record Plat;
4. If the proposed activities will involve the disturbance of at least one (1) acre or creation or replacement of 5,000 square feet of Impervious Area, an Erosion and Sediment Control Plan approved by the City Engineer/Planning Director or designee in accordance with the provisions of Section 1309.02
. Alternatively, the Applicant may submit an application for approval of the Erosion and Sediment Control Plan together with the application for the Land Disturbance Permit, in which case approval of the Erosion and Sediment Control Plan shall be a prerequisite for approval of the Land Disturbance Permit, and the application for approval of the Land Disturbance Permit shall not be deemed complete, and its review shall not commence, until the Erosion and Sediment Control Plan is duly approved;
5. Any state and federal permits required under applicable law for the proposed activities upon the subject land and duly issued by the appropriate authority; and
6. Any performance guarantee required pursuant to Article 1309
hereof for the proposed activities upon the subject land.
B. Review and Approval Process. The City Engineer/Planning Director or designee shall review each application for a Land Disturbance Permit to determine its conformance with the provisions of this Ordinance and other applicable law. Within thirty (30) days after receiving a complete application for a Land Disturbance Permit, the City Engineer/Planning Director or designee shall, in writing:
1. Issue the permit; or
2. Issue the permit subject to such reasonable conditions necessary to substantially satisfy the requirements of this Section; or
3. Disapprove the permit application, indicating the deficiencies and the procedure for submitting a revised application.
C. Exemptions. No Land Disturbance Permit is required for the following activities:
1. Any emergency activity which is immediately necessary for the protection of life, property or natural resources.
2. Existing nursery and agricultural operations conducted as a principal Permitted Use or Accessory Use under the Zoning Ordinance.
3. Any activity for which approval of a Final Subdivision and/or Land Development Application is not required under this Ordinance.
D. Multiple Permits. A Land Disturbance Permit will pertain to and authorize only the specific activities covered in the underlying application. One or more additional Land Disturbance Permits will be required for other activities. For example, if an initial Land Disturbance Permit for a residential Subdivision applies only to the construction and installation of Roads, water and sewer Improvements, and other infrastructure, additional permits may be required for the subsequent construction of residential Units.
E. Building Permits. Nothing herein shall be deemed to eliminate or modify the requirement for a Building permit under other applicable law.
F. Revocation of Permit. A Land Disturbance Permit may be revoked by the City Engineer/Planning Director or designee for failure to comply with the Land Disturbance Plan or requirements or conditions of the Land Disturbance Permit.
(b) Fees. All Subdivision and Land Development Applications and other applications and submissions made under this Ordinance shall be accompanied by the prevailing fees.
(c) Inspections. All Stormwater Management Facilities on land subject to a Land Disturbance Permit shall be inspected periodically by the City Engineer/Planning Director or designee during construction. Prior to the release of bonding, all Stormwater Management Facilities shall be as-built and inspected by the City Engineer/Planning Director or designee.
(Ord. 2022-13. Passed 11-10-22.)
(a) Appeals. Appeals from orders, requirements, decisions, or determinations made by the City Engineer/Planning Director or designee or Planning Commission under this Ordinance, or any rule or regulation adopted pursuant thereto, may be made to the Berkeley County Circuit Court.
(b) Waivers.
(1) The Planning Commission may grant a Waiver to the requirements of one or more of the provisions of this Ordinance only when the Commission finds that granting a Waiver will be consistent with all of the following criteria and the exception is the minimum necessary to afford relief:
A. That the design of the project will provide public benefit such as a reduction in City maintenance cost, greater Open Space, or benefits of a similar nature;
B. The Waiver, if granted, will not adversely affect the public health, safety or welfare, or the rights of Adjacent Property Owners or residents;
C. That the Waiver, if granted, will be in keeping with the intent and purpose of this Ordinance; and
D. That the Waiver, if granted, will result in a project of better quality and/or character.
E. No process or procedural Waivers will be granted.
(2) An application for a Waiver may be made by anyone with a financial interest in a property. The owner is responsible for providing all information and justification for the Waiver request.
(3) All requests for a Waiver shall be in writing and shall accompany the Preliminary Plat submission. The request shall cite or refer to the sections of this Ordinance involved and the minimum modification necessary. The Planning Commission shall keep a written record of all actions on all requests for Waivers.
(4) The Planning Commission shall not be bound by the terms of the Applicant’s request for Waiver(s), and may grant Waivers with such conditions as will, in the estimation of the Commission, assure adherence to the intent of the standards or requirements being waived.
(5) Waivers which are granted shall be noted upon the Final Plat.
(c) Amendments. Pursuant to West Virginia Code §8A-4-5, all amendments to this Ordinance shall be made by City Council after holding a public hearing with public notice.
(Ord. 2022-13. Passed 11-10-22.)
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