H. B. 4381
(By Delegates Moye, Staggers, Manchin,
Campbell, Miley, Doyle)
[Introduced
February 5, 2010
; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §8-6-1, §8-6-2, §8-6-3, §8-6-4, §8-6-5
and §8-6-6 of the Code of West Virginia, 1931, as amended; and
to amend said code by adding thereto a new section, designated
§8-6-7, all relating to annexation generally; fixing
antiquated language; and granting circuit court review of
county commission decisions.
Be it enacted by the Legislature of West Virginia:
That §8-6-1, §8-6-2, §8-6-3, §8-6-4, §8-6-5 and §8-6-6 of the
Code of West Virginia, 1931, as amended, be amended and reenacted;
and to amend said code by adding thereto a new section, designated
§8-6-7, all to read as follows:
ARTICLE 6. ANNEXATION.
PART I. GENERAL.
§8-6-1. Annexation of unincorporated territory.
(a) Contiguous 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 Agricultural lands 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 II. ANNEXATION BY ELECTION.
§8-6-2. Petition for annexation.
(a) Five percent or more of the freeholders of a municipality
desiring to have territory annexed thereto may file a petition in
writing with the governing body thereof setting forth the change
proposed in the metes and bounds of the municipality and asking
that a vote be taken upon the proposed change. The petition shall
be verified and shall be accompanied by an accurate survey map
showing the territory to be annexed to the corporate limits by the
proposed change.
(b) The petitioners shall obtain a surety bond in an amount
set by the governing body sufficient to cover the cost of the
election. The bond shall be forfeited if a majority of the votes
cast are against the proposed annexation.
(c) The governing body shall, upon receipt of the bond, order
a vote of the qualified voters of the municipality to be taken upon
the proposed annexation on a date and at a time and place to be named in the order.
(d) The governing body shall, at the same time, order a vote
of all of the qualified voters of the additional territory and of
all of the freeholders of the additional territory whether they
reside or have a place of business therein or not, to be taken upon
the question on the same day at some convenient place in or near
the additional territory.
(e) The governing body shall cause the order for the election
to be published, at the cost of the municipality, as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code. The publication area is
the municipality and the additional territory. The first
publication must be at least fourteen days prior to the date upon
which the vote is to be taken. The order for the election shall
contain an accurate description by metes and bounds of the
additional territory proposed to be annexed to the corporate limits
by the proposed change, a summary of the municipality's plan for
providing services to the additional territory and, if practicable,
shall also contain a popular description of the additional
territory.
(f) The election shall be held, superintended and conducted
and the results thereof ascertained, certified, returned and
canvassed in the same manner by the same individuals as elections
for municipal officers. The election is reviewable by 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 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.
(g) The ballots, or ballot labels where voting machines are
used, shall have written or printed on them the words:
/ / For Annexation
/ / Against Annexation
(h) Any freeholder which is a firm or corporation may vote by
its manager, president or executive officer duly designated in
writing by the firm or corporation.
(i) An individual who is a qualified voter and freeholder of
the municipality or the additional territory shall be entitled to
vote only once.
(j) For purposes of this section, the term "qualified voter of
the additional territory" includes a firm or corporation in the
additional territory regardless of whether the firm or corporation
is a freeholder. A firm or corporation may vote 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 vote in the annexation election.
(k) When an election is held in any municipality in accordance
with the provisions of this section, another election relating to the same proposed change or any part thereof shall not be held for
a period of one year.
(l) If a majority of all of the legal votes cast in the
municipality and a majority of all the legal votes cast in the
territory are in favor of the proposed annexation, then the
governing body shall proceed as specified in the immediately
succeeding section of this article.
§8-6-3. Governing body of municipality to certify annexation;
order.
The governing body of
such the municipality shall enter the
results of
such the election in its minutes, and, when the
proposed
annexation
proposed is adopted, as provided in the immediately
preceding section of this article,
the municipality shall forward
a certificate to such effect to the county
court of the county
wherein commission where the municipality or the major portion of
the territory thereof, including the annexed territory, is located;
and
such court the commission shall
thereupon enter an order
in
substance as follows:
"A certificate of the governing body of the municipality of
................... was this day filed showing that an annexation
has been made, in the manner required by law, to the corporate
limits thereof, and that by such annexation the said corporate
limits are as follows:
"Beginning at (here recite the boundaries as changed). It is,
therefore, ordered that such annexation to said corporate limits be, and the same is hereby approved and confirmed, and the clerk of
this
court commission is directed to deliver to the said governing
body a certified copy of this order as soon as practicable after
the rising of this
court commission."
After the
date of such order
is entered, the corporate limits
of the municipality shall be as set forth therein.
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.
(b) For purposes of this section, 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.
(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) (c) 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) (d) It shall be the responsibility of The governing body
to shall 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) (e) If all of the eligible petitioners are qualified
voters, only a voters' petition is required.
(g) (f) 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.
PART IV. ANNEXATION BY MINOR BOUNDARY ADJUSTMENT.
§8-6-5. Annexation by minor boundary adjustment.
(a)
In the event If 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 where the municipality or the major
portion of the territory thereof, including 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; 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;
(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.
PART V. DUTIES AS TO AD VALOREM TAXES FOR MUNICIPAL PURPOSES
ON PROPERTIES IN NEWLY ANNEXED AREAS.
§8-6-6. Duties as to ad valorem taxes for municipal purposes on
properties in newly annexed areas.
Upon the effective date of any annexation under the provisions
of this article,
it shall be the duty of the governing body of the
municipality
to shall notify the county assessor of such annexation,
and upon being so notified,
it shall be the duty of such the
assessor
to see to it that the shall assess the properties
situate
situated within the newly annexed area
are assessed with the
municipal ad valorem taxes for the current fiscal year and
subsequent fiscal years or the ensuing and subsequent fiscal years,
depending upon the date of notification to such assessor.
§8-6-7. Circuit court review.
(a) 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.
(b) 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.
(c) The circuit court shall review the order of the county
commission de novo.
NOTE: The purpose of this bill is to modernize language of the
statute, give the county commission a first level of review and the
circuit court de novo review of the commission's ruling.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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