ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 202
(Senators Snyder, Burnette, Oliverio, McKenzie, Kessler and Edgell,
original sponsors)
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[Passed April 12, 2001; in effect ninety days from passage.]
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AN ACT to amend and reenact sections one, two, four and five,
article six, chapter eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating to
modifying procedures allowing municipal incorporation by
annexation; prohibiting retroactive taxation of businesses
being annexed; requiring additional information to be
submitted by municipalities to county commissions relating to
proposed annexations; modifying eligibility to participate in
annexation election as a qualified voter; allowing firms and
corporations to sign petitions and vote on annexation;
revising procedure for annexation by minor boundary
adjustment; altering certain population requirements for
annexations; revising areas eligible to be annexed by minor boundary adjustment; altering requirements and
responsibilities of county commissions' review of annexation
by minor boundary adjustment; modifying application
requirements for annexation by minor boundary adjustment;
requiring municipalities to provide an analysis of impact of
proposed annexation on businesses and the municipality;
establishing minimum criteria to be considered by county
commission when making a determination regarding an annexation
by minor boundary adjustment; allowing modification of a
denied annexation application to be resubmitted to the county
commission; requiring explanation of decision by county
commission; and providing for judicial review of annexation
decisions.
Be it enacted by the Legislature of West Virginia:
That sections one, two, four and five, article six, chapter
eight of the code of West Virginia, one thousand nine hundred
thirty-one, 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 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 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, not less than twenty nor more than thirty days
from the date thereof.
(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 such 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 such 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 both in the
municipality and 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.
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) 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.
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, 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.
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