Martinsburg City Zoning Code

CHAPTER ONE

Subdivision Regulations

1301.01 SHORT TITLE.

This Ordinance and any amendments and supplements thereto shall be known and may be cited as the “Subdivision and Land Development Ordinance of the City of Martinsburg, West Virginia” and hereinafter referred to as this “Ordinance.”

(Ord. 2022-13. Passed 11-10-22.)

1301.02 PURPOSE.

The Subdivision and Land Development Ordinance of the City of Martinsburg, West Virginia is intended to guide future growth and development by regulating the Subdivision and physical Development of land within the jurisdiction of the City of Martinsburg for the improvement of the health, safety, comfort, morals, and general public welfare of Martinsburg citizens. This Ordinance is in compliance with Chapter 8A, Land Use Planning, of the West Virginia Code, and has been enacted following public hearings after public notice. In addition, this Ordinance works in conjunction with the Zoning Ordinance and is in accordance with the Martinsburg Comprehensive Plan. (Ord. 2022-13. Passed 11-10-22.)

1301.03 AUTHORITY.

This Ordinance is enacted pursuant to the authority contained in West Virginia Code §8A-4-1(a)(1). (Ord. 2022-13. Passed 11-10-22.)

1301.04 JURISDICTION.

This Ordinance shall apply to all properties within the corporate limits of the City of Martinsburg, West Virginia, hereinafter referred to as the “City.”

(Ord. 2022-13. Passed 11-10-22.)

1301.05 APPLICABILITY.

(a) No Lot, tract or parcel of land within the City of Martinsburg shall be subdivided and no such land may be developed, and no Street, sanitary sewer, storm sewer, water main, or associated facility may be laid out, constructed, opened, or dedicated for public use or travel, or for the use of occupants of Buildings abutting or to abut on them, except in accordance with the provisions of this Ordinance and other applicable City ordinances.

(b) Subdivision or Development of land in the City shall be commenced unless and until:

(1) The Planning Commission (or where such authority has been delegated to the City Engineer/Planning Director or designee) has approved, and so stamped and signed, a Final Record Plat for the subject Subdivision or Land Development; and

(2) The approved Final Record Plat has been duly recorded in the Office of the Clerk of the Berkeley County Commission. It shall be unlawful for any Person that owns or controls any land subject to the provisions of this Ordinance to sell, otherwise transfer, agree to sell or otherwise transfer (except when such agreement is expressly contingent upon approval and recordation of a Final Record Plat), or advertise for sale (except when the pending status of Final Record Plat approval is disclosed), any Lot, tract, or parcel of such land within a Subdivision or Land Development, or to be created by Subdivision or Development activities by such Person, until the Final Record Plat of such Subdivision or Land Development shall have been so approved and recorded.

(c) No Subdivision or Development of land in the City shall be commenced, undertaken, developed, constructed, or otherwise undertaken except in accordance with the provisions, Plans, drawings and other content of this Ordinance and wherein with reference to the Zoning Ordinance.

(d) The scope of this Ordinance shall include all matters over which, by law, the City of Martinsburg is authorized to exercise control by enactment and enforcement of this Ordinance, including, but not limited to:

(1) All Improvements within any tract undergoing Subdivision or Land Development;

(2) The improvement of public facilities adjacent to any tract undergoing Subdivision or Land Development, including Streets and Drainage Facilities which border upon any such tract; and

(3) The installation or enhancement of off-site Improvements needed to adequately serve the Subdivision or Land Development, provided that the extent of required off-site Improvements shall be economically feasible in relation to the size and scope of the proposed Subdivision or Land Development.

(e) Once a Subdivision or Land Development Application, whether for a Minor Subdivision or Major Subdivision and/or Land Development, is duly filed as provided in this Ordinance, the Applicant shall be entitled to a decision in accordance with the provisions of this Ordinance as they existed at the time the application was duly filed. However, if a Subdivision or Land Development Application is properly and finally denied, any subsequent re-application shall be subject to the provisions of the Ordinance in effect at the time of re-application.

(f) Nothing in this Ordinance shall be deemed or construed to void, nullify, abrogate, modify, limit or otherwise adversely affect any right vested under applicable law at the time of enactment of this Ordinance, whether such right arose under a Subdivision or Land Development Plan or Plat, proffer, condition of annexation, or Development agreement proposed by a Person and accepted or approved by the City or any of its departments or commissions or any other source. This Ordinance is not intended to interfere with or abrogate or annul any more restrictive Easements, covenants, Building restrictions, or other agreements between parties relating to use or Development of land.

(g) The terms of this Ordinance shall be applied to support the intent set forth in the Martinsburg Comprehensive Plan.

(h) Exclusions. The sale or other transfer of one or more parcels or Lots from a Subdivision for which Plats or deeds were recorded with the Clerk of the Berkeley County Commission prior to the effective date of this Ordinance shall not constitute a Subdivision or Land Development, or otherwise be, subject to the requirements of this Ordinance, but only if such previously recorded Plats or deeds are of sufficient survey accuracy to permit the clear conveyance of the subject Lots by direct Plat or deed reference without modification or addition; provided that, any resurvey or amended, modified, or corrective Plat shall be subject to the requirements of this Ordinance. (Ord. 2022-13. Passed 11-10-22.)

1301.06 INTERPRETATION.

(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.)

1301.07 SEVERABILITY.

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.)

1301.08 ZONING ORDINANCE - COMPATIBILITY AND INCORPORATION OF PROVISIONS.

(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.)

1301.09 ADMINISTRATION AND ENFORCEMENT.

(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.

(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.)

1301.10 PERMITS, FEES, AND INSPECTIONS.

(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.)

1301.11 APPEALS; WAIVERS; AMENDMENTS.

(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.

Use Under Certain Conditions.

(1) Applicability. The Planning Director may waive site plan application and review for change in use of existing structures, if the applicant demonstrates all of the following:

A. The proposed use is consistent and permitted by zoning ordinance and comprehensive plan;

B. The proposed use does not require additional parking (or that the Planning Commission has granted a parking requirement waiver by Planning Commission);

C. The proposed use does not result in increased safety problems or hazards;

D. The proposed use does not result in any new addition or expansion of the existing structure and/or addition of impervious surface;

E. Necessary Building Code and/or Fire Code improvements and/or utility upgrades can be achieved through the building permit application, review and process.

(2) Additional Criteria. The applicant must also ensure that the property is in compliance with any prior approved landscaping plan, ADA requirements for accessible parking spaces and accessible access.

The applicant shall provide an internal floor plan. Additionally, in the Planning Director's discretion, the application may be required to provide a concept plan that provides additional details and information about the proposed use. The concept plan does not need to be sealed by an engineer or surveyor, but it must be scaled and on a minimum paper size of eleven inches by seventeen inches (11" x 17") showing above-ground features including: property lines, structures, lot dimensions, parking space layout, sidewalks, driveways and ADA access and/ or other pertinent information the Planning Director deems necessary and applicable. Reduced parking requirements will require a waiver by the Planning Commission pursuant to Section 1301.11 . Site plan waivers cannot be granted if additional parking is required unless or until a parking waiver is granted by the Planning Commission. The Planning Director has the authority to waive the requirement for the concept plan if he/she deems it unnecessary to process the site plan waiver.

(3) Procedure. A request for waiver of site plan review for an existing structure shall be considered an administrative application subject to the discretion and approval by the Planning Director. All other requirements of the Codified Ordinances of Martinsburg, including the Building Code, and applicable State and Federal regulations are applicable to administrative applications. The Planning Director is authorized to create a site plan waiver application consistent with this section. Nothing in this section shall be construed as waiving permit requirements for necessary improvements required by applicable building or fire codes.

(4) Change of Use Definition. For the purpose of this section, a change of use occurs when both: (1) the use of a structure or part of a structure changes from one use to another (i.e. retail to restaurant); (2) the new use has more stringent or additional Building Code requirements than the prior use; or (3) the prior use has been abandoned or vacant for more than one (1) year.

(5) Application Fee. There shall be no fee for the site plan waiver application unless a concept plan is required. If a concept plan is required by the Planning Director, the application fee shall be two hundred fifty dollars ($250.00). All other waiver requests pursuant to Section 1301.11 of the Land Development Ordinance shall be two hundred fifty dollars ($250.00).

(6) Site Plan Waiver Appeals. Applicant may appeal to the Martinsburg Planning Commission if Planning Director rejects a site plan waiver pursuant to this Section. The Planning Director's decision as to whether to require a concept plan as part of the deliberative process in determining whether to grant waiver is not appealable.

(Ord. 2024-11. Passed 12-12-24.)

(d) 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.)

1303.01 RULES OF INTERPRETATION.

The following rules apply to the interpretation of this Ordinance:

(a) Words in the singular include the plural and those in the plural include the singular;

(b) Words used in the present tense include the future tense;

(c) The words “Person”, “Applicant”, “Developer”, and “Owner” include a corporation, unincorporated association and a partnership, or other legal entity, as well as an individual engaged in the Subdivision of land and/or Land Development;

(d) The word “Building” includes Structure and shall be construed as if followed by the phrase “or part thereof”;

(e) The word “Watercourse” includes channel, creek, ditch, dry run, spring, stream, Swale, and river;

(f) The words “should” and “may” are permissive; the words “shall” and “will” are mandatory and directive;

(g) The word “Lot” includes the words plot, tract and parcel; and

(h) The word “used” or “occupied” as applied to any land or Building shall be construed to include the words “intended, arranged or designed to be used or occupied.”

(Ord. 2022-13. Passed 11-10-22.)

1303.02 DEFINED WORDS AND TERMS.

The following terms or words, when capitalized herein, shall be interpreted or defined as indicated:

ACCESS DRIVE – A paved way or drive, whether on the same parcel as the primary use served thereby or by Right-of-Way on another parcel, providing a place and access for vehicular movement between a Street or Alley and an off-street parking area/facility for any use of land other than a single residential Unit of occupancy or agricultural use (farm) or between a Street or Alley and one or more Driveways.

ADJACENT PROPERTY – Property that is contiguous with, or directly across a public Street or other Right-of-Way from, the boundaries of any side of the subject property.

ALLEY – A minor Right-of-Way, publicly or privately owned, primarily for service access to the back or side of properties and not intended for general traffic circulation.

ASTM – ASTM International, originally known as the American Society for Testing and Materials (ASTM).

BERM – An earthen mound designed to create a visual interest on a site, screen undesirable views, reduce noise or provide a buffer between a use and adjoining properties, Streets, and adjacent uses.

BLOCK – A surface land area which is separated and distinguished from other surface land areas by visible physical boundaries such as Streets, railroads, rivers, extremely steep land, or other physical barriers.

BUILDING – Any Structure on a Lot having a roof supported by columns or walls and intended for the shelter, housing, or enclosure of Persons, animals, or chattels, and including covered porches or bay windows, and chimneys.

CARTWAY – That portion of a Street or Alley that is improved or intended for vehicular use excluding the shoulders.

CERTIFICATION – A signed statement appended to a Plan or other document whereby the signer represents that to the best of their knowledge and belief said Plan or document is true and correct and that the City may rely upon the accuracy thereof.

CITY – The City of Martinsburg, West Virginia.

CITY COUNCIL – City Council of the City of Martinsburg, West Virginia.

CLEAR SIGHT TRIANGLE – An area of unobstructed vision at Street Intersections defined by lines of sight between points at a given distance from the Intersection of the Street center lines (see Figure 1303-1).

CROSSWALK – A Right-of-Way, publicly or privately owned, intended to furnish access for pedestrians.

CUL-DE-SAC – A Street with access closed at one end and with a vehicular turn-around at the closed end. The length of a Cul-de-sac shall be measured from the centerline of the intersecting Street to the center of the turning circle.

CUT – An Excavation. The difference between a point on the original ground and designated point of lower elevation on the final grade. Also, the material removed in Excavation.

DEDICATION – The deliberate donation of land by its owner for any general and public, or limited public, use, reserving to the owner no other rights than such as are compatible with the full exercise and enjoyment of the public uses to which the property has been devoted.

DETENTION – The temporary storage of storm Runoff in a Stormwater Management practice with the goals of controlling Peak Discharge rates and providing gravity settling of pollutants.

DEVELOPER – The legal or beneficial owner or owners of a Lot or of any land included in a proposed Development, including the holder of an option or contract to purchase, or other Persons having enforceable proprietary interests in such land.

Figure 1303-1, Clear Sight Triangle

Source: American Association of State Highways and Transportation Officials (AASHTO) “A Policy on Geometric Design of Highways and Streets”

DEVELOPMENT – The physical alteration or improvement of improved or unimproved land, and/or Structures thereon, by human activity or action, or any change or expansion in use of land that would require such alteration or improvement to comply with the requirements of this Ordinance (assuming for purposes of such analysis that the change or expansion of use is deemed a Development). Development includes, without limitation, the following activities:

(1) Subdivision of land;

(2) Construction or alteration of Structures, Buildings, Roads, utilities, and other facilities;

(3) Installation of water, sewer (or septic), Stormwater Management, or other utility systems, facilities, or Improvements;

(4) Grading, dredging, Filling, paving, or Excavation;

(5) Deposit of refuse, debris, or Fill materials;

(6) Clearing of natural vegetative cover (with the exception of agricultural activities);

(7) A change or expansion in use of land that requires alteration or improvement of the land to comply with the requirements for landscape screening, parking, Impervious Coverage, and other provisions of this Ordinance applicable to the changed or expanded use; and

(8) Routine repair and maintenance of existing Improvements do not constitute Development.

DRAINAGE – The flow of water or liquid waste and the methods of directing such flow.

DRAINAGE EASEMENT – A legal right granted by a Landowner to a grantee allowing the use of private land for Stormwater Management purposes.

DRIVEWAY – A private travel way for Vehicles that provides access to a public Street or Road from a parking space, Garage, Dwelling, Structure or Use. Driveways shall be paved with asphalt or concrete.

EASEMENT – A right to use or control land owned by another (or an area above or below it) for a specified purpose.

ENGINEER, CITY – The duly authorized Engineer for the City of Martinsburg, West Virginia.

EROSION AND SEDIMENT CONTROL PLAN – A Plan that is designed to minimize Accelerated Erosion and Sediment Runoff at a site during construction activities.

EXCAVATION – Any act by which earth, sand, gravel, rock or any other similar material is dug into, Cut, quarried, uncovered, removed, displaced, relocated or bulldozed and shall include the conditions resulting therefrom.

FILL – Shall be defined as follows:

(1) Any act by which earth, sand, gravel or rock or any other material is placed, pushed, dumped, pulled, transported or moved to a new location above the stripped surface and shall include the conditions resulting therefrom;

(2) The difference in elevation between a point on the original ground and a designated point of higher elevation on the final grade; and

(3) The material used to make a Fill.

FINAL PLAN – The Plan and Plat submitted as part of a Final Subdivision and/or Land Development Application.

FINAL PLAT – The final version of the Plat submitted as part of a Final Subdivision and/or Land Development Application approved by the City Engineer/Planning Director or designee, which Plat has been stamped and signed by or on behalf of the Planning Commission and is to be recorded pursuant to Section 1305.05 .

FINAL SUBDIVISION AND/OR LAND DEVELOPMENT APPLICATION – The application for approval of a Final Plan & Plat for a Subdivision and/or Land Development, which application is prepared in accordance with, and contains the content specified in, Section 1305.05 .

FLOOD – A temporary inundation of normally dry land areas.

FLOODPLAIN – See definition of “Flood-Prone Area” below.

FLOOD-PRONE AREA – A relatively flat or low land area which is subject to partial or complete inundation from an adjoining or nearby stream, river or Watercourse; and/or any area subject to the unusual and rapid accumulation of surface waters from any source.

FRONTAGE – Abutting Lot boundary line that abuts a Public Street, Road, or highway, or rural Right-of-Way.

IMPERVIOUS AREA – Any portion of a Lot covered by material impenetrable by precipitation, including but not limited to Buildings, Structures and paved areas.

IMPERVIOUS COVER – Any natural or Person-made material utilized to cover, pave or re-surface any portion or area of a Lot whether permeable or impermeable excepting only soil, plants or vegetative coverings. Impervious Cover shall include, among other materials, any form or mixture of concrete, stone, asphalt, tar, porous pavement, or other substance designed and intended to alter the natural state of the land.

IMPERVIOUS COVERAGE – That portion of any Lot, tract or property covered by an Impervious Surface.

IMPERVIOUS SURFACE – A surface covered with Impervious Cover that prevents the percolation of water into the ground.

IMPROVEMENTS – Those physical changes to the land necessary to produce usable and desirable Lots from raw acreage including but not limited to: grading, paving, curb, gutter, storm sewers and drains, Improvements to existing Watercourses, sidewalks, Crosswalks, Monuments, water supply facilities, and sewerage disposal facilities.

INTERSECTION – A crossing of two or more roadways at grade, a crossover, or any at-grade connection with a roadway such as a commercial entrance.

KARST – A type of geology that is formed over limestone, dolomite or gypsum by solution of the rock and is characterized by closed depressions or Sinkholes, caves and underground Drainage.

LAND DEVELOPMENT – The Development of one or more Lots, tracts, or parcels of land by any means and for any purpose; provided that, for purposes of this Ordinance, the following shall not be considered a Subdivision or Land Development:

(1) Easements, Rights-Of-Way, or construction of private Roads for extraction, harvesting or transporting natural resources;

(2) Remodeling projects involving no change in use, and rehabilitation or renovation of single-family residences;

(3) Additions to an existing Structure requiring construction upon no more than 250 additional square feet of land and involving no change in use;

(4) The conversion of an existing single-family detached dwelling or single-family semidetached dwelling into not more than three (3) residential Units, unless such Units are intended to be a condominium;

(5) The addition of an accessory Building, including farm Buildings, on a Lot or Lots subordinate to an existing principal Building and involving no change in use; provided that, the added accessory Building contains no more than five hundred (500) square feet of floor area; and

(6) The addition or conversion of Buildings or rides within the confines of an existing amusement park. For the purposes of this subclause, an amusement park is defined as a tract or area used principally as the location for permanent amusement Structures or rides. This exclusion shall not apply to land not previously used as an amusement park.

Also, a Land Development is, collectively, the various Lots, tracts, or parcels subject to Development.

LAND DISTURBANCE OR LAND DISTURBANCE ACTIVITY – A Person-made change to the land surface that potentially changes its Runoff Characteristics including any clearing, grading, or Excavation associated with a construction activity regulated pursuant to the Clean Water Act and this chapter.

LAND DISTURBANCE PERMIT – A permit issued by the City of Martinsburg for the clearing, filling, excavating, grading, transporting of land, or for any combination thereof or for any purpose set forth by this Ordinance.

LANDOWNER – The legal or beneficial owner or owners of land including the holder of an option or contract to purchase (whether or not such option or contract is subject to any condition), a lessee if lessee is authorized under the lease to exercise the rights of the Landowner, or other Person having a proprietary interest in land.

LANDSCAPING – The planting of turf, trees, shrubs, and other appropriate vegetative materials and ground cover within the open areas of a Lot other than for agricultural purposes, and including the maintenance and replacement thereof, for the purposes of erosion control, retention of precipitation, protection against the elements and promotion of human comfort and welfare.

LICENSED LANDSCAPE ARCHITECT – Any Person who engages in the Practice of Architecture and is licensed by the West Virginia Board of Landscape Architects.

LOT – A designated parcel, tract, or area of land established or to be established by Plat or Subdivision or otherwise as permitted by law, or previously established as a record Lot.

LOW IMPACT DESIGN (LID) – A Stormwater Management method that is modeled after nature.

LID treats Stormwater close to where it falls, which makes LID designs unique to each site.

MAINTENANCE AGREEMENT – A legally recorded document that acts as a binding restriction and/or covenant upon the subject property, and which provides for long-term maintenance of Stormwater Management Facilities, Private Streets, or other Improvements.

MAJOR LAND DEVELOPMENT – A Preliminary Plan and Plat Approval is required for the submission of a Building or multiple Buildings on one lot where there is no Subdivision of land.

MAJOR SUBDIVISION AND LAND DEVELOPMENT – A Preliminary Plan and Plat Approval and a Final Plan and Plat Approval is required for the submission of a Building or multiple Buildings that will require the merger, adjustment or Subdivision of land.

MAJOR SUBDIVISION DEVELOPMENT – A Preliminary Plan and Plat Approval and a Final Plan and Plat Approval is required.

MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES (MUTCD) – The MUTCD is published by the Federal Highway Administration (FHWA) under 23 Code of Federal Regulations (CFR), Part 655, Subpart (F).

MANUFACTURED HOME – A Structure, built to the Manufactured Home Construction and Safety Standards (HUD Code) in the controlled environment of a manufacturing plant on a permanent chassis, and transportable in one or more sections, which in the traveling mode is eight (8) body feet or more in width or forty (40) both feet or more in length, or, when erected on site, is three hundred twenty (320) square feet or more, and designed to be used as a dwelling with our without a permanent foundation when connected to the required utilities, and includes plumbing, heating, air conditioning, and electrical systems contained therein. Note: HUD was given exclusive jurisdiction over design and construction of Manufactured Homes by legislation enacted by Congress in 1974, and effective in June of 1976. There is no difference other than a clause in the 1974 Federal Legislation that gave HUD jurisdiction over Manufactured homes. It mandated that what was formerly called a Mobile Home must forevermore be referred to as a Manufactured Home.

METES AND BOUNDS – A description where the land or the associated effects on the land have been measured by starting at a known point and describing, in sequence, the lines by direction and distance forming the boundaries of the land or a defined area relative to the physical land features, associated effects or structural Improvements on the land.

MINOR SUBDIVISION– Does not require a Preliminary Plan and Plat Approval, only a Final Plan and Plat Approval. Also known as a Final Record Plat.

MANUFACTURED HOME PARK – A parcel or contiguous parcels of land which has been so designated and improved that it contains two (2) or more Manufactured Home Spaces for the placement thereon of Manufactured Homes.

MOBILE HOME – See MANUFACTURED HOME.

MONUMENTS – Markers placed on or in the land.

OPEN SPACE – A parcel or parcels of land or an area of water, or a combination of land and water within a Development site and designed and intended for the use or enjoyment of residents of the Development, not including buffer areas, Streets, sidewalks, Stormwater Detention ponds, off-street parking areas, and areas set aside for public facilities.

PERFORMANCE AGREEMENT – An agreement between the Planning Commission and an owner/Developer that specifies the Improvements required to be constructed in accordance with Article 1309 by the owner/Developer, the manner of construction of such Improvements, and the required date of completion.

PERSON – Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town or other political Subdivision of the State of West Virginia, any interstate body or any other legal entity.

PLAN – A written description of a Subdivision or Land Development.

PLAT – A map of a Subdivision or Land Development.

PRACTICE OF GEOLOGY – The performance of any service or work for the general public wherein the principles and methods of geology are applied.

PRACTICE OF LANDSCAPE ARCHITECTURE – The performance of professional services, including but not limited to, analysis, consultations, evaluations, research, planning, design, management or responsible supervision of projects principally directed at the functional, aesthetic use, preservation and stewardship of the land and natural and built environments.

PRACTICE OF SURVEYING – Providing professional surveying services, including consulting, investigating, expert testimony, evaluating, planning, mapping and surveying, and as further defined in West Virginia Code §30-13A.

PRELIMINARY PLAN & PLAT – The Plan and Plat submitted as part of a Preliminary Subdivision Land Development Application.

PRELIMINARY SUBDIVISION LAND DEVELOPMENT APPLICATION – The application for approval of a Preliminary Plan & Plat for a Subdivision or Land Development, which application is prepared in accordance with, and contains the content specified in, Section 1305.04 .

PROFESSIONAL ENGINEER, – A person who has been duly registered or licensed as a Professional Engineer by the West Virginia State Board of Registration for Professional Engineers. The board may designate a Professional Engineer, on the basis of education, experience and examination, as being licensed in a specific discipline or branch of engineering signifying the area in which the Engineer has demonstrated competence.

PROFESSIONAL GEOLOGIST – A person who is certified in the Practice of Geology and by the West Virginia Board for Professional Geologists.

PROFESSIONAL LAND SURVEYOR – A person licensed by the West Virginia Board of Professional Surveyors to engage in the Practice of Surveying.

PROPERTY OWNER – A person or persons having an ownership interest in real property located within the geographic boundaries of Berkeley County, West Virginia.

RECREATION, ACTIVE – Leisure time activities, usually of a more formal nature and performed with other individuals, often requiring equipment and taking place at prescribed places, site or fields. Such areas usually require physical alteration to the area before they can occur and are intensively used, such as playgrounds, ball courts, and swimming pools.

RECREATION, PASSIVE – Leisure time activities, usually of an informal nature and which can be carried out with little alteration or disruption to the area in which they occur, such as hiking and picnicking.

RIGHT-OF-WAY – A public thoroughfare for vehicular traffic and/or pedestrian traffic, whether designated as a Street, highway, thoroughfare, parkway, Road, avenue, boulevard, lane, Alley, or however designated.

ROAD – A Street, avenue, boulevard, Road, highway, freeway, parkway, lane, Alley, viaduct and any other ways used or intended to be used by vehicular traffic or pedestrian whether public or private.

RUNOFF (OR STORMWATER RUNOFF) – That portion of precipitation that is discharged across the land surface or through conveyances to one or more waterways.

RUNOFF CHARACTERISTICS – The surface components on any water shed which either individually or in any combination thereof, directly affect the rate, amount and direction of Stormwater Runoff. These may include, but are not limited to: vegetation, soils, Slopes and any type of person-made landscape alterations.

SCREENING – The use of plant or Landscaping materials, fencing, walls and/or earthen Berms to aid in the concealment of such features as parking areas and vehicles within them or open storage areas, and to provide privacy between two (2) or more different land uses which abut one another.

SEDIMENT CONTROL – Related to the prevention of eroded sediment from leaving the site.

SETBACK – The minimum horizontal distance required between the Building Restriction Line and the related front, side or rear property line, unless otherwise allowed by the Zoning Ordinance. In cases where the property line is located within a Street, Alley, or other Right-of-Way for vehicle access (e.g., for older parcels in Martinsburg where the property line is the center line of the Street), the required Setback shall be measured from the face of the curb if a curb exists, or otherwise from the edge of Street pavement, whichever applies.

SIGHT DISTANCE – The length of roadway visible to the driver of a passenger vehicle at a given point on the roadway when the view is unobstructed by traffic.

SINKHOLE – Any natural depression formed as a result of subsurface removal of soil or rock materials and causing the formation of a collapse feature that exhibits internal Drainage. The existence of a Sinkhole shall be indicated by the uppermost closed depression contour lines on the United States Geological Survey (7.5 minute quadrangle topographic maps or as determined by field investigations.

SLOPE – The face of an embankment or Cut section; any ground whose surface makes an angle with the plane of the horizon. Slopes are usually expressed in a percentage based upon vertical difference in feet per one hundred (100) feet of horizontal distance.

STORMWATER – Runoff from the surface of the land resulting from precipitation or snow or ice melt.

STORMWATER MANAGEMENT – The use of structural or non-structural practices that are designed to reduce Stormwater Runoff pollutant loads, discharge volumes, and/or Peak Discharge rates.

STORMWATER MANAGEMENT PLAN – A Plan or design for controlling Stormwater in order to reduce or minimize the risk and degree of erosion and Flooding and/or other adverse effects of Stormwater from Impervious Areas, as required by Section 1307.01 .

STORMWATER RUNOFF – See RUNOFF

STREET – A Street, avenue, boulevard, Road, highway, freeway, parkway, lane, Alley, viaduct and any other ways used or intended to be used by vehicular traffic or pedestrians whether public or private. See Section 1307.02 (c) for types of Streets.

STREET, HALF – A Street or Right-of-Way that only partially meets width requirements. Also referred to as a partial Street. Half Streets are prohibited unless authorized by the City Council pursuant to Section 1307.02 (n) of this Ordinance.

STREET LINE OR STREET RIGHT-OF-WAY LINE – The dividing line between a Lot and a

STREET.

STREET, PRIVATE – A strip of land, including the entire Right-of-Way, intended for use as a means of vehicular and pedestrian circulation, but not intended to be dedicated for public use.

STREET, PUBLIC – A strip of land, including the entire Right-of-Way, intended to be dedicated for use as a means of vehicular and pedestrian circulation by the public at large.

STRUCTURE – Any person-made object having an ascertainable stationary location on or in land or water, whether or not affixed to the land.

SUBDIVISION – The division of a Lot, tract or parcel of land by any means into two (2) or more Lots, tracts, parcels or other divisions of land, or the merger, consolidation, or other recombination of Lots, tracts, or parcels of land, including any further division of such merged or consolidated Lots, tracts, or parcels. Also, collectively, the various Lots, tracts, or parcels resulting from the Subdivision of land.

SUBDIVISION AND/OR LAND DEVELOPMENT APPLICATION – A Preliminary or Final Subdivision Land Development Application.

SUBDIVISION LAND DEVELOPMENT, MAJOR – See definition of Major Subdivision Development, Major Land Development, Major Subdivision and Land Development, and Section 1305.02 (a)(3).

SUBDIVISION, MINOR – See definition of Minor Subdivision and Section 1305.02 (a)(2).

SURVEYOR – A person licensed to practice surveying under the provisions of West Virginia Code, Article 13A, Land Surveyors. Surveyor shall also be referred to herein as “Professional Land Surveyor” or “Land Surveyor.”

SWALE – A low-lying stretch of land characterized as a depression used to carry surface water Runoff.

UNIT – A part of a property, Structure, or Building designed or intended for any type of independent use, which has direct exit to a Public Street or way, or to a common element or common elements leading to a Public Street or way or to an Easement or Right-of-Way leading to a Public Street or way, and includes a proportionate undivided interest in the common elements, which is assigned to the property, Structure or Buildings.

WAIVER – Adjustments that may be made to the requirements of this Ordinance to unusual site conditions in order to achieve a better design. Waivers may not be used to circumvent the process requirements of this Ordinance.

WALKWAY – A landscaped pathway provided for pedestrian use through parking Lots.

WATERCOURSE – Any channel of conveyance of surface water having defined bed and banks, whether natural or artificial, with perennial or intermittent flow.

WATERSHED – The entire region or area drained by a river or other body of water whether natural or artificial.

WATERWAY – A channel that directs surface runoff to a Watercourse, or to the public storm drain.

WETLAND – Those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs and similar areas.

ZONING ORDINANCE – The Martinsburg Zoning Ordinance, Part 13, Chapter 3, Articles 1321 to 1333 , of the Martinsburg Code.