Entitlement pathway election — West Virginia

West Virginia's zoning landscape: local option, not statewide mandate

Zoning authority in West Virginia flows from West Virginia Code Chapter 8A (Land Use Planning), specifically Article 7 (Zoning Ordinance). Chapter 8A empowers counties and municipalities to adopt planning commissions, comprehensive plans, subdivision ordinances, and zoning ordinances -- it does not compel any of them to do so. Zoning is consequently a local-option regime: some West Virginia counties and municipalities have adopted zoning (Berkeley and Jefferson Counties, in the state's fast-growing Eastern Panhandle, are commonly cited examples with active planning and zoning departments), and many others have not.

The National Zoning Atlas -- an independent, multi-university academic mapping project that has been systematically cataloguing zoning codes nationwide -- states on its West Virginia state page that it has analyzed all 285 jurisdictions in the state and reports: "Three quarters of West Virginia's jurisdictions do not have zoning." This is a real, citable, independently sourced statistic, not a WVHDF statement -- the Fund's own materials do not publish a jurisdiction-by-jurisdiction zoning inventory. This research did not identify an official, comprehensive, currently maintained state list of exactly which of West Virginia's 55 counties and hundreds of municipalities have adopted zoning as of today; the accurate, verifiable statement is the roughly three-quarters/one-quarter split reported by the National Zoning Atlas, not a specific named list. A developer should confirm any individual jurisdiction's actual zoning status directly with that county commission or municipal clerk rather than assume from general reputation.

How WVHDF's own process is built around that reality

The Fund's Tax Credit Manual does not pretend every West Virginia site sits in a zoned jurisdiction. In both of the places entitlement documentation is required -- the "Documents Due One Year from the Date of the Carryover Allocation Certificate" section (for 9% and non-bond properties) and the "Bond Closing Deadline and Post-Bond Closing Submissions for Tax-Exempt Bond Financed Properties" section (for bond deals) -- the requirement is worded identically and directly addresses the no-zoning scenario: "documentation evidencing that all necessary/required local zoning, local planning, and building permit approvals have been received. If a property is in a jurisdiction which does not require one or more of these approvals, the Applicant must submit documentation evidencing that fact. Local zoning approval is not required for Existing Housing."

Three things about that exact language are worth pulling apart. First, it bundles three distinct approval types -- zoning, local planning, and building permits -- into one requirement, and each can independently be "not required" in a given jurisdiction; a site might need a building permit but face no zoning process at all, or vice versa. Second, the burden is affirmatively on the Applicant to document a negative -- proving that a jurisdiction does not require an approval, not simply asserting it -- which in practice generally means obtaining a letter or similar written confirmation from the local building official, zoning administrator, or county/municipal clerk stating that no such approval process exists there. Third, the explicit carve-out that "local zoning approval is not required for Existing Housing" only exempts zoning specifically for existing-property deals -- it does not appear to extend to local planning or building permit approvals for those same properties, which is worth confirming directly with the Fund for any Existing Housing deal that involves a scope of work large enough to trigger a building permit.

Timing: entitlement proof comes long after the site is already locked

Unlike some states that score site control, zoning, or entitlement readiness directly in their competitive point system, West Virginia's Selection and Preference Criteria contain no scoring category tied to zoning or entitlement status at all -- the 993 available points are built from set-aside categories, financing structure, market feasibility, property location and housing-needs data, sponsor characteristics, tenant targeting, energy efficiency, and similar criteria, none of which reward a site for already being entitled or zoning-approved. Zoning is handled entirely as a later eligibility gate, not an application-stage scoring input.

That gate does not open until surprisingly late in the process. For non-bond properties, proof of zoning/planning/building-permit status (or proof it is not required) is bundled with several other significant deliverables -- the Schedule B basis certification, the permanent financing commitment, the final Partnership Agreement, and applicable HUD/RD approvals -- all due together no later than one year from the date of the Carryover Allocation Certificate. For Tax-Exempt Bond Financed Properties, the same bundle of documents (with the same zoning/planning/permit language, worded identically) is due no later than 90 calendar days after bond closing instead.

The practical consequence is a real sequencing tension worth naming directly: the site itself is effectively irreversible from the Pre-Registration deadline forward (mid-March or mid-April, per Phase 1), and functionally locked again at Reservation Request under the Manual's "no site change" rule (Phase 2) -- but the Fund does not require confirmation that the chosen entitlement pathway (a rezoning, a conditional use permit, a building permit, or simply a written confirmation that no approval applies) actually works until roughly a year later. A developer who sources and locks a site in West Virginia without independently confirming its zoning/entitlement pathway during Phase 1 screening is carrying that risk silently for the better part of a year before the Fund's own paperwork forces the question.

What still applies locally, even where zoning does not

The absence of zoning in a given West Virginia jurisdiction does not mean the absence of every local approval. The Fund's own Minimum Housing Standards list "local building code (if any exists for the jurisdiction within which the buildings in the property are or will be located)" and "local floodplain ordinance, if any" as separate, independent baseline eligibility conditions alongside "local zoning and/or land use regulations or restrictions, if any." Each of these three -- zoning, building code, and floodplain ordinance -- has to be checked individually for a given site's specific jurisdiction; a county with no zoning ordinance can still enforce a local building code, a local floodplain ordinance, or both, and a site screener should not treat "no zoning" as shorthand for "no local approvals of any kind."

The Property Architect Site Suitability Rating (required with the Reservation Request; see Phases 1 and 2) also functions, in practice, as a de facto land-use feasibility check even in unzoned jurisdictions -- it requires assessment of "propriety of building set-back from access roads," "existence of residential tenants living in any form of dwelling ... or existence of commercial tenants ... on site," and general site suitability for the intended use, all independent of whether a formal zoning process exists to bless those same facts. A poor rating on these items can sink a Reservation Request on its own, regardless of the jurisdiction's zoning status.

Finally, a Certified BUILD WV District (discussed in Phase 1 as a QAP scoring path worth 15 points) is not itself a substitute for whatever local entitlement process actually applies. BUILD WV District certification is a state economic-development designation carrying sales-tax and property-tax-adjustment incentives, administered by the West Virginia Division of Economic Development and the Secretaries of Commerce, Economic Development, and Tourism -- it runs on an entirely separate track from local zoning, planning, or building-permit approval, and a site inside a Certified BUILD WV District in a jurisdiction that does have zoning would still need to clear that jurisdiction's actual zoning process.

No state preemption mechanism was found -- comment rights are not approval rights

This research did not find any WVHDF-administered or state-statutory mechanism that would preempt, override, or substitute for a local jurisdiction's actual zoning or entitlement authority. The Fund's own local-jurisdiction notification process -- required under Subsection 42(m)(1)(A)(ii) of the Internal Revenue Code, giving the local Chief Executive Officer 60 calendar days to comment on a property (discussed in Phase 2) -- is a federally mandated notice-and-comment procedure, not a state entitlement or zoning process, and it runs in parallel with, not in place of, whatever actual local approval process the jurisdiction has. The Fund's statement that it will not act on comments that would violate the Fair Housing Act or other applicable law limits what it will do with objections it receives; it is not a statement that the Fund can compel a local zoning body to approve, or waive its own approval process for, a specific site.