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Committee Substitute House Bill 2781 History

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HB2781 SUB
COMMITTEE SUBSTITUTE

FOR

H. B. 2781

(By Delegates Wysong, Tansill, Tabb and Doyle)

(Originating in the Committee on the Judiciary)


[March 28, 2005]


A BILL to amend and reenact §8-6-1, §8-6-4 and §8-6-5 of the Code of West Virginia, 1931, as amended, all relating to annexation of unincorporated territory; providing additional requirements for petitions for annexation; defining the term additional territory; providing that upon annexation the municipality shall provide public services within five years; requirements for the application for annexation for minor boundary adjustment; and consideration of non-contiguous territory for annexation.

Be it enacted by the Legislature of West Virginia:
That §8-6-1, §8-6-4 and §8-6-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 6. ANNEXATION.
PART I. GENERAL.

§8-6-1. Annexation of unincorporated territory.
(a) Unincorporated territory may be annexed to and become part of a municipality contiguous thereto only in accordance with the provisions of this article.
(b) Any farmlands or operations as described in article nineteen, chapter nineteen of this code which may be annexed into a municipality shall be protected in the continuation of agricultural use after being annexed.
(c) Any new imposition of a tax or any increase in the rate of tax upon any business, occupation or privilege following annexation shall be applied in accordance with the provisions of section five, article thirteen, chapter eight of this code.
PART III. ANNEXATION WITHOUT ELECTION.

§8-6-4. Annexation without an election.
(a) The governing body of a municipality may, by ordinance, provide for the annexation of additional territory without ordering a vote on the question if: (1) A majority of the qualified voters of the additional territory file with the governing body a petition to be annexed; and (2) a majority of all freeholders of the additional territory, whether they reside or have a place of business therein or not, file with the governing body a petition to be annexed: Provided, That no annexation shall proceed when less than twenty qualified voters and freeholders of the additional territory have petitioned to be annexed: Provided however, That if the number of qualified voters when added to the majority of all freeholders in the additional territory is less than twenty, no annexation shall proceed unless all qualified voters and a majority of freeholders petition to be annexed, excluding the roadway as a qualified voter or freeholder.
(b) For purposes of this section: the
(1) The term "qualified voter of the additional territory" includes firms and corporations in the additional territory regardless of whether the firm or corporation is a freeholder. A firm or corporation may sign a petition by its manager, president or executive officer duly designated in writing by the firm or corporation. In any instance where a freeholder leases or rents real property to a firm or corporation the freeholder and the firm or corporation shall determine which entity will be entitled to sign a petition relating to the proposed annexation; and
(2) The term "additional territory" means that territory which, without regards to roads, is not more than three air miles from the nearest point of the municipal boundary of the municipality proposing annexation unless the property is owned by the municipality prior to the time of annexation or unless the municipality and county agree: Provided, That for those municipalities located within counties that have enacted the Local Powers Act, additional territory means that territory which, without regards to roads, is not more than three air miles from the nearest point of the municipal boundary, in effect on the first day of July, two thousand one, of the municipality proposing to annex the additional territory: Provided however, That if the additional territory to be annexed is not contiguous to the corporate limits of the municipality, then the additional territory to be annexed cannot exceed twenty percent, in any calendar year, of the combined area of the corporate limits of the municipality if the municipality is located within a county that has enacted the Local Powers Act, the corporate limits of the municipality in effect on the first day of July, two thousand one, and the additional territory to be annexed unless the municipality and the county mutually agree otherwise.
(c) The determination that the requisite number of petitioners have filed the required petitions shall be reviewable by the circuit court of the county in which the municipality or the major portion of the territory thereof, including the area proposed to be annexed is located, upon certiorari to the governing body in accordance with the provisions of article three, chapter fifty-three of this code.
(d) A qualified voter of the additional territory who is also a freeholder of the additional territory may join only one petition of the additional territory.
(e) It shall be the responsibility of the governing body to enumerate and verify the total number of eligible petitioners, in each category, from the additional territory. In determining the total number of eligible petitioners, in each category, a freeholder or any other entity that is a freeholder shall be limited to one signature on a petition as provided in this section. There shall be allowed only one signature on a petition per parcel of property and any freehold interest that is held by more than one individual or entity shall be allowed to sign a petition only upon the approval by the majority of the individuals or entities that have an interest in the parcel of property.
(f) If all of the eligible petitioners are qualified voters, only a voters' petition is required.
(g) If satisfied that the petition is sufficient in every respect, the governing body shall enter that fact upon its journal and forward a certificate to that effect to the county commission of the county wherein the municipality or the major portion of the territory thereof, including the additional territory, is located. The county commission shall thereupon enter an order as described in the immediately preceding section of this article. After the date of the order, the corporate limits of the municipality shall be as set forth therein and the municipality shall provide all authorized public services within the corporate limits of the municipality set forth by the order as were provided within the corporate limits of the municipality existing prior to the entry of the order with five years unless a state agency makes compliance within five years impossible.
PART IV. ANNEXATION BY MINOR BOUNDARY ADJUSTMENT.

§8-6-5. Annexation by minor boundary adjustment.
(a) In the event a municipality desires to increase its corporate limits by making a minor boundary adjustment, the governing body of the municipality may apply: to the county commission of the county wherein the municipality or the major portion of the territory thereof, including the territory to be annexed,(1) The county commission wherein the major portion of the municipality lies; and (2) every county commission where the territory to be annexed is located for permission to effect annexation by minor boundary adjustment. The municipality shall pay the costs of all proceedings before the commission.
(b) In addition to any other annexation configuration, a municipality may incorporate by minor boundary adjustment: (i) Territory that consists of a street or highway as defined in section thirty-five, article one, chapter seventeen-c of this code and one or more freeholders; or (ii) territory that consists of a street or highway as defined in section thirty-five, article one, chapter seventeen-c of this code which does not include a freeholder but which is necessary for the provision of emergency services in the territory being annexed.
(c) A county commission may develop a form application for annexation for minor boundary adjustment. An application for annexation by minor boundary adjustment shall include, but not be limited to:
(1) The number of businesses located in and persons residing in the additional territory;
(2) An accurate map showing the metes and bounds of the additional territory;
(3) A statement setting forth the municipality's plan for providing the additional territory with all applicable public services such as police and fire protection, solid waste collection, public water and sewer services and street maintenance services, including to what extent the public services are or will be provided by a private solid waste collection service or a public service district;
(4) A statement of the impact of the annexation on any private solid waste collection service or public service district currently doing business in the territory proposed for annexation in the event the municipality should choose not to utilize the current service providers;
(5) A statement of the impact of the annexation on fire protection and fire insurance rates in the territory proposed for annexation;
(6) A statement of how the proposed annexation will affect the municipality's finances and services including increased public service costs resulting from the municipality providing authorized public services to the territory to be annexed; and
(7) A statement that the proposed annexation meets the requirements of this section.
(d) Upon receipt of a complete application for annexation by minor boundary adjustment, the county commission shall determine whether the application meets the threshold requirements for consideration as a minor boundary adjustment, including whether the annexation could be efficiently and cost effectively accomplished under section two or four of this article.
(e) If the application meets the threshold requirements, the county commission shall order publication of a notice of the proposed annexation to the corporate limits and of the date and time set by the commission for a hearing on the proposal. Publication shall be as in the case of an order calling for an election, as set forth in section two of this article. A like notice shall be prominently posted at not less than five public places within the area proposed to be annexed.
(f) In making its final decision on an application for annexation by minor boundary adjustment, the county commission shall, at a minimum, consider the following factors:
(1) Whether the territory proposed for annexation is contiguous to the corporate limits of the municipality. For purposes of this section, "contiguous" means that at the time the application for annexation is submitted, the territory proposed for annexation either abuts directly on the municipal boundary or is separated from the municipal boundary by an unincorporated street or highway, or street or highway right-of-way, a creek or river, or the right-of-way of a railroad or other public service corporation, or lands owned by the state or the federal government: Provided, That if the territory to be annexed is not contiguous to the corporate limits of the municipality, then the territory to be annexed cannot exceed twenty percent, in a calendar year, of the combined area of the corporate limits of the municipality, or if the municipality is located within a county that has enacted the Local Powers Act, the corporate limits of the municipality in effect on the first day of July, two thousand one, and the territory to be annexed unless the municipality and county mutually agree otherwise.
(2) Whether the proposed annexation is limited solely to a division of highways right-of-way or whether the division of highways holds title to the property in fee;
(3) Whether affected parties of the territory to be annexed oppose or support the proposed annexation. For purposes of this section, "affected parties" means freeholders, firms, corporations and qualified voters in the territory proposed for annexation and in the municipality and a freeholder whose property abuts a street or highway, as defined in section thirty-five, article one, chapter seventeen-c of this code, when: (i) The street or highway is being annexed to provide emergency services; or (ii) the annexation includes one or more freeholders at the end of the street or highway proposed for annexation;
(4) Whether the proposed annexation consists of a street or highway as defined in section thirty-five, article one, chapter seventeen-c of this code and one or more freeholders;
(5) Whether the proposed annexation consists of a street or highway as defined in section thirty-five, article one, chapter seventeen-c of this code which does not include a freeholder but which is necessary for the provision of emergency services in the territory being annexed;
(6) Whether another municipality has made application to annex the same or substantially the same territory; and
(7) Whether the proposed annexation is in the best interest of the county as a whole.
(g) If the county commission denies the application for annexation by minor boundary adjustment, the commission may allow the municipality to modify the proposed annexation to meet the commissions' objections. The commission must order another public hearing if significant modifications are proposed.
(h) The final order of the commission shall include the reasons for the grant or denial of the application.
(i) The municipality applying for annexation or any affected party may appeal the commission's final order to the circuit court of the county in which the municipality or the major portion thereof, including the area proposed to be annexed, is located. The county commission may participate in any appeal taken from its order in the same manner and to the same extent as a party to the appeal. The order may be reviewed by the circuit court as an order of a county commission ordering an election may be reviewed under section sixteen, article five of this chapter.




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