SB269 SUB1 - BRYANT
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 269
(By Senators Brackenrich, Dittmar, Whitlow and Anderson)
____________
[Originating in the Committee on Transportation;
reported March 17, 1993.]
____________
A BILL to repeal sections thirteen, thirteen-a, thirteen-b,
thirteen-c, thirteen-d, thirteen-e, thirteen-f, thirteen-g,
thirteen-h, thirteen-i, thirteen-j, fifteen, sixteen,
sixteen-a, seventeen, seventeen-b and seventeen-c, article
one, chapter five-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact sections four, five, six, seven, twelve and eighteen
of said article; to amend and reenact section one, article
one, chapter seventeen-a of said code; to amend and reenact
sections two and four, article three of said chapter; to
amend and reenact section one, article six of said chapter;
to further amend said chapter by adding thereto a new
article, designated article ten-a; and to amend chapter
twenty of said code by adding thereto two new articles,
designated articles three-c and four-b, all relating to
removing control of state parks and recreation from division
of tourism and parks; renaming division of tourism and parks
as tourism marketing; transferring control of state parks
and recreation to the division of natural resources;
creating the West Virginia off-highway recreational vehicle
management act; defining certain terms; exempting off-
highway recreational motorcycles from motor vehicle
registration; assigning fees obtained from the tax for the
privilege of certification of title to the newly created
off-highway recreational vehicle trail development fund;
legislative findings; requirements for numbering of off-
highway recreational vehicles; exemptions from numbering
requirements; creating the off-highway recreational vehicle
management commission; creating an off-highway recreational
vehicle management fund; creating the off-highway
recreational vehicle trail development fund; authorizing the
issuance of off-highway recreational vehicle trail
development bonds; requiring recreational use stickers for
operating off-highway recreational vehicles; restricting the
use of off-highway recreational vehicles on roads and
highways; restricting operation of off-highway recreational
vehicles on public lands and private lands; general use
restrictions; criminal penalties; enforcement; requiring
reporting certain accidents involving off-highway
recreational vehicles; and authorizing the off-highway
recreational vehicle management commission to promulgate
rules concerning off-highway recreational vehicle use.
Be it enacted by the Legislature of West Virginia:
That sections thirteen, thirteen-a, thirteen-b, thirteen-c,thirteen-d, thirteen-e, thirteen-f, thirteen-g, thirteen-h,
thirteen-i, thirteen-j, fifteen, sixteen, sixteen-a, seventeen,
seventeen-b and seventeen-c, article one, chapter five-b of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that sections four, five, six, seven,
twelve and eighteen of said article be amended and reenacted;
that section one, article one, chapter seventeen-a of said code
be amended and reenacted; that sections two and four, article
three of said chapter be amended and reenacted; that section one,
article six of said chapter be amended and reenacted; that said
chapter be further amended by adding thereto a new article,
designated article ten-a; and that chapter twenty of said code be
amended by adding thereto two new articles, designated articles
three-c and four-b, all to read as follows:
ECONOMIC DEVELOPMENT ACT OF 1990.
ARTICLE 1. DIVISION OF TOURISM MARKETING.
§5B-1-4. Division created; appointment, compensation and
qualifications of commissioner.
Effective the first day of July, one thousand nine hundred
ninety-three, there is hereby created in the executive branch of
state government a division of tourism marketing and the office
of commissioner of tourism marketing. The commissioner shall be
the chief executive officer of the division with control and
supervision of its operations and shall be appointed by the
governor with the advice and consent of the Senate and shall be
paid a salary of sixty-five thousand dollars a year. The
commissioner shall have control and supervision of the division
and shall be responsible for the work of each of its sections. Under the control and supervision of the commissioner, each
section director shall be responsible for the work of his
section. The commissioner shall have the authority to employ
such assistants as may be necessary for the efficient operation
of the division.
The commissioner may appoint such deputy commissioners and
assign them such duties as may be necessary for the efficient
management and operation of the division.
§5B-1-5. General powers of the division.
The division of tourism marketing shall have the authority
and duty to:
(1) Promote, encourage and facilitate the expansion and
development of markets for West Virginia products and services
and the state's national and international image and prestige by
any and all reasonable methods;
(2) Compile periodically a census of the crafts, trades,
skills and occupations of all adult persons in the state, in
cooperation with other agencies, and analyze and publish the
information in such form as to be most valuable to business and
industry;
(3) Advertise and publicize the material, economic quality
of life, recreational and other advantages of the state which
render it a desirable place for commerce and residence;
(4) Collect, compile and distribute information and
literature concerning the advantages and attractions of the
state, its historic and scenic points of interest and the
highway, transportation and other facilities of the state;
(5) Plan and carry out a program of information andpublicity designed to attract to West Virginia tourists, visitors
and other interested persons from outside the state;
(6) Make recommendations to the governor and the Legislature
of any legislation deemed necessary to facilitate the carrying
out of any of the foregoing powers and duties, and to exercise
any other power that may be necessary or proper for the orderly
conduct of the business of the division and the effective
discharge of the duties of the division; and
(7) To cooperate and assist in the production of motion
pictures and television and other communications.
§5B-1-6. Sections created; continuation of civil service
coverage for persons employed in the former department of
commerce; section of parks and recreation abolished.
(a) There is hereby created within the division of tourism
marketing:
(1) The section of tourism;
(2) The section of advertising and promotion; and
(3) The section of sales and marketing.
(b) Each said section shall be under the control of a
director to be appointed by the commissioner who shall be
qualified by reason of exceptional training and experience in the
field of activities of his respective section and shall serve at
the will and pleasure of the commissioner. The commissioner
shall have authority to establish such additional sections as may
be determined necessary to carry out the purposes of this
chapter.
(c) All persons employed on the effective date of this
chapter in the department of commerce, the duties and functionsof which have been transferred to the division of tourism and
parks created by virtue of the provisions of the economic
development act of one thousand nine hundred ninety, are hereby
assigned and transferred to the division of tourism and parks,
and no person's employment shall be eliminated, nor shall any
person's salary, benefits or position classification be reduced
or diminished by reason of the provisions of this chapter. All
persons affected shall retain their coverage under the civil
service system and all matters relating to job classification,
job tenure, salary and conditions of employment shall remain in
force and effect from and after the effective date of this
chapter: Provided, That nothing herein shall prohibit the
disciplining or dismissal of any employee for cause, or the
dismissal of any nonclassified supervising employees appointed by
the governor and serving at the will and pleasure of the
governor.
(d) The section of parks and recreation existing within the
division of tourism and parks prior to the effective date of this
section, the duties and functions of which section are
transferred to the division of natural resources, is hereby
eliminated and abolished.
§5B-1-7. Section of tourism; purpose; powers and duties
generally.
It shall be the duty of the section of tourism:
(a) To promote and enhance the tourist industry and improve
tourist facilities and attractions;
(b) To compile a listing of all tourist facilities in this
state, whether public or private, including, but not limited to,state parks and forests, camping grounds, back-packing and hiking
trails, public and private hunting areas (including the game or
fowl indigenous thereto), fishing lakes, ponds, rivers and
streams (including the type of fish indigenous thereto; and the
dates of the stocking thereof), ski resorts and areas, ice
skating rinks or facilities, rifle and pistol target practice
areas, skeet and other shooting facilities, archery ranges,
swimming pools, lakes, ponds, rivers and streams, hotels, motels,
resorts and lodges (including any attendant restaurant, banquet,
meeting or convention facilities or services), health spas or
mineral water or spring water health facilities, museums,
cultural centers, live performance theaters, colleges, schools,
universities, technical centers, airports, railroad stations, bus
stations, river docks, boating areas, government or military
installations (which are not restricted to public access),
historical places, markers or places of events, birthplaces of
famous West Virginians, or any other thing of like kind and
nature, and to develop relative thereto a series of films,
videotapes, pamphlets, brochures and other advertising or
promotional media, and to distribute the same in such a manner
as to enhance the public's knowledge about West Virginia and its
many attractions;
(c) Develop a plan for tourist facility expansion and new
development, including financing;
(d) To develop a system, means and mechanism to distribute
the promotional media described in subdivision (b) of this
section, both nationally and internationally; and to make the
same available to travel agents, tour groups, senior citizenorganizations, airlines, railroads, bus companies, newspapers,
magazines, radio and television stations, and the travel editors
thereof; to develop, in cooperation with the division of
highways, a series of information stations along interstate and
other major highways of this state, utilizing existing rest stop
areas and other areas at or near the main points of egress and
ingress of this state for the purpose of making said information
available to the public at large;
(e) To develop and implement a marketing strategy, employing
radio, television, magazine and newspaper advertising, or any
combination thereof, in those major metropolitan areas of the
nation, in order to attract the residents thereof to visit and
enjoy the tourist facilities of this state;
(f) To encourage, cooperate with and participate in, any
group or organization, including regional travel councils, the
purpose of which is to promote and advertise, or encourage the
use of, tourist facilities in West Virginia;
(g) To provide professional assistance, technical advice or
marketing strategies to any privately owned facility or
attraction, as described in subdivision (b) of this section,
which is open and available to the general public, which has
developed or is attempting to develop its own advertising
program;
(h) To assist tour groups, travel agencies, public carriers
or other entities of like kind or nature in developing a program
of preplanned tours, visits or vacations in West Virginia; and,
in conjunction therewith, to coordinate the activities of said
tour groups, travel agencies, public carriers or other entitieswith the services offered by any of the facilities set forth in
subdivision (b) of this section; and to encourage said facilities
to offer special or discount rates to any party traveling with
said tour groups, travel agencies, public carriers or other
entities of like kind or nature; and
(i) To cooperate with the division of highways in
developing a system of informational highway signing relating to
the recreational, scenic, historic and transportational
facilities and attractions of the state that comply with the
current federal and state regulations as related to outdoor
advertising and signing as required by the Manual of Uniform
Traffic Control Devices.
§5B-1-12. Section of parks and recreation duties, records and
equipment transferred from the division of tourism and parks
to the division of natural resources; funds.
(a) The duties, powers and functions of the section of parks
and recreation within the division of tourism and parks prior to
the effective date of this section are hereby transferred to the
division of natural resources.
(b) All books, papers, maps, charts, plans, literature and
other records and all equipment in the possession of the parks
and recreation section of the division of tourism and parks on
the effective date of this section shall be delivered or turned
over to the division of natural resources.
(c) The division of natural resources shall have the duty
and authority to administer all properties which are a part of
the state parks and public recreation system and the legal title
to such properties shall remain in the same.
(d) All existing contracts and obligations of the division
of parks and recreation on the effective date of this section
shall remain in full force and effect and any such contracts and
obligations relating to parks and recreation shall inure to the
benefit of and be performed by the division of natural resources.
(e) The unexpended balance existing on the effective date of
this section in any appropriation made to the division of
tourism and parks is hereby transferred and appropriated to the
division of natural resources.
The director of the division of natural resources and the
commissioner of tourism marketing shall cooperate fully and
exercise their powers to facilitate the development of new or the
expansion of existing park facilities, including, but not limited
to, the authorities as set forth in this chapter relating to the
division of tourism marketing, and as set forth in section
twenty, article one, chapter twenty of this code, relating to the
division of natural resources, as amended from time to time.
§5B-1-18. Sunset provision.
Unless sooner terminated by law, the division of tourism
marketing shall terminate on the first day of July, one thousand
nine hundred ninety-four, in accordance with the provisions of
article ten, chapter four of this code.
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION,
CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.
ARTICLE 1. WORDS AND PHRASES DEFINED.
§17A-1-1. Definitions.
Except as otherwise provided in this chapter the following
words and phrases when used in this chapter shall have themeanings respectively ascribed to them in this article:
(a) "Vehicle" means every device in, upon or by which any
person or property is or may be transported or drawn upon a
highway, excepting devices moved by human power or used
exclusively upon stationary rails or tracks.
(b) "Motor vehicle" means every vehicle which is self-
propelled and every vehicle which is propelled by electric power
obtained from overhead trolley wires, but not operated upon
rails.
(c) "Motorcycle" means every motor vehicle, including motor-
driven cycles and mopeds as defined in sections five and five-a,
article one, chapter seventeen-c of this code, having a saddle
for the use of the rider and designed to travel on not more than
three wheels in contact with the ground and designed for
operation on highways but excluding a tractor and an all-terrain
vehicle.
(d) "School bus" means every motor vehicle owned by a public
governmental agency and operated for the transportation of
children to or from school or privately owned and operated for
compensation for the transportation of children to or from
school.
(e) "Bus" means every motor vehicle designed for carrying
more than seven passengers and used for the transportation of
persons; and every motor vehicle, other than a taxicab, designed
and used for the transportation of persons for compensation.
(f) "Truck tractor" means every motor vehicle designed and
used primarily for drawing other vehicles and not so constructed
as to carry a load other than a part of the weight of the vehicleand load so drawn.
(g) "Farm tractor" means every motor vehicle designed and
used primarily as a farm implement for drawing plows, mowing
machines, and other implements of husbandry.
(h) "Road tractor" means every motor vehicle designed, used
or maintained for drawing other vehicles and not so constructed
as to carry any load thereon either independently or any part of
the weight of a vehicle or load so drawn.
(i) "Truck" means every motor vehicle designed, used or
maintained primarily for the transportation of property.
(j) "Trailer" means every vehicle with or without motive
power designed for carrying persons or property and for being
drawn by a motor vehicle and so constructed that no part of its
weight rests upon the towing vehicle but excluding recreational
vehicles.
(k) "Semitrailer" means every vehicle with or without motive
power designed for carrying persons or property and for being
drawn by a motor vehicle and so constructed that some part of its
weight and that of its load rests upon or is carried by another
vehicle.
(l) "Pole trailer" means every vehicle without motive power
designed to be drawn by another vehicle and attached to the
towing vehicle by means of a reach, or pole, or by being boomed
or otherwise secured to the towing vehicle, and ordinarily used
for transporting long or irregularly shaped loads such as poles,
pipes, or structural members capable, generally, of sustaining
themselves as beams between the supporting connections.
(m) "Specially constructed vehicles" means every vehicle ofa type required to be registered hereunder not originally
constructed under a distinctive name, make, model or type by a
generally recognized manufacturer of vehicles and not materially
altered from its original construction.
(n) "Reconstructed vehicle" means every vehicle of a type
required to be registered hereunder materially altered from its
original construction by the removal, addition or substitution of
essential parts, new or used.
(o) "Essential parts" means all integral and body parts of
a vehicle of a type required to be registered hereunder, the
removal, alteration or substitution of which would tend to
conceal the identity of the vehicle or substantially alter its
appearance, model, type or mode of operation.
(p) "Foreign vehicle" means every vehicle of a type required
to be registered hereunder brought into this state from another
state, territory or country other than in the ordinary course of
business by or through a manufacturer or dealer and not
registered in this state.
(q) "Implement of husbandry" means every vehicle which is
designed for or adapted to agricultural purposes and used by the
owner thereof primarily in the conduct of his agricultural
operations, including, but not limited to, trucks used for
spraying trees and plants: Provided, That said vehicle shall not
be let for hire at any time.
(r) "Special mobile equipment" means every self-propelled
vehicle not designed or used primarily for the transportation of
persons or property and incidentally operated or moved over the
highways, including, without limitation, farm equipment,implements of husbandry, road construction or maintenance
machinery, ditch-digging apparatus, stone crushers, air
compressors, power shovels, cranes, graders, rollers, well-
drillers, wood-sawing equipment, asphalt spreaders, bituminous
mixers, bucket loaders, ditchers, leveling graders, finishing
machines, motor graders, road rollers, scarifiers, earth-moving
carryalls, scrapers, drag lines, rock-drilling equipment and
earth-moving equipment. The foregoing enumeration shall be
deemed partial and shall not operate to exclude other such
vehicles which are within the general terms of this subdivision.
(s) "Pneumatic tire" means every tire in which compressed
air is designed to support the load.
(t) "Solid tire" means every tire of rubber or other
resilient material which does not depend upon compressed air for
the support of the load.
(u) "Metal tire" means every tire the surface of which in
contact with the highway is wholly or partly of metal or other
hard, nonresilient material.
(v) "Commissioner" means the commissioner of motor vehicles
of this state.
(w) "Division" means the division of motor vehicles of this
state acting directly or through its duly authorized officers and
agents.
(x) "Person" means every natural person, firm,
copartnership, association or corporation.
(y) "Owner" means a person who holds the legal title to a
vehicle, or in the event a vehicle is the subject of an agreement
for the conditional sale or lease thereof with the right ofpurchase upon performance of the conditions stated in the
agreement and with an immediate right of possession vested in the
conditional vendee or lessee, or in the event a mortgagor of a
vehicle is entitled to possession, then such conditional vendee
or lessee or mortgagor shall be deemed the owner for the purpose
of this chapter.
(z) "Nonresident" means every person who is not a resident
of this state.
(aa) "Dealer" or "dealers" is a general term meaning,
depending upon the context in which used, either a new motor
vehicle dealer, used motor vehicle dealer, house trailer dealer,
recreational vehicle dealer, trailer dealer or motorcycle dealer,
as defined in section one, article six of this chapter, or all of
such dealers or a combination thereof, and in some instances a
new motor vehicle dealer or dealers in another state.
(bb) "Registered dealer" or "registered dealers" is a
general term meaning, depending upon the context in which used,
either a new motor vehicle dealer, used motor vehicle dealer,
house trailer dealer, trailer dealer, recreational vehicle dealer
or motorcycle dealer, or all of such dealers or a combination
thereof, licensed under the provisions of article six of this
chapter.
(cc) "Licensed dealer" or "licensed dealers" is a general
term meaning, depending upon the context in which used, either a
new motor vehicle dealer, used motor vehicle dealer, house
trailer dealer, trailer dealer, recreational vehicle dealer or
motorcycle dealer, or all of such dealers or a combination
thereof, licensed under the provisions of article six of thischapter.
(dd) "Transporter" means every person engaged in the
business of delivering vehicles of a type required to be
registered hereunder from a manufacturing, assembling or
distributing plant to dealers or sales agents of a manufacturer.
(ee) "Manufacturer" means every person engaged in the
business of constructing or assembling vehicles of a type
required to be registered hereunder at a place of business in
this state which is actually occupied either continuously or at
regular periods by such manufacturer where his books and records
are kept and a large share of his business is transacted.
(ff) "Street" or "highway" means the entire width between
boundary lines of every way publicly maintained when any part
thereof is open to the use of the public for purposes of
vehicular travel.
(gg) "Motorboat" means any vessel propelled by an
electrical, steam, gas, diesel or other fuel propelled or driven
motor, whether or not such motor is the principal source of
propulsion, but shall not include a vessel which has a valid
marine document issued by the bureau of customs of the United
States government or any federal agency successor thereto.
(hh) "Motorboat trailer" means every vehicle designed for or
ordinarily used for the transportation of a motorboat.
(ii) "All-terrain vehicle" (ATV) means an off-highway
recreational vehicle traveling on three or more low-pressure
tires, designed for operator use only with no passengers, having
a seat or saddle designed to be straddled by the operator and
handlebars for steering control.
(jj) "Travel trailer" means every vehicle, mounted on
wheels, designed to provide temporary living quarters for
recreational, camping or travel use of such size or weight as not
to require special highway movement permits when towed by a motor
vehicle and of gross trailer area less than four hundred square
feet.
(kk) "Fold down camping trailer" means every vehicle
consisting of a portable unit mounted on wheels and constructed
with collapsible partial sidewalls which fold for towing by
another vehicle and unfold at the camp site to provide temporary
living quarters for recreational, camping or travel use.
(ll) "Motor home" means every vehicle, designed to provide
temporary living quarters, built into an integral part of or
permanently attached to a self-propelled motor vehicle, chassis
or van including: (1) Type A motor home built on an incomplete
truck chassis with the truck cab constructed by the second stage
manufacturer; (2) Type B motor home consisting of a van-type
vehicle which has been altered to provide temporary living
quarters; and (3) Type C motor home built on an incomplete van or
truck chassis with a cab constructed by the chassis manufacturer.
(mm) "Snowmobile" means an off-highway recreational vehicle
designed or used for operation over snow or ice which utilizes
sled-type runners, skis, an endless belt tread or any combination
of these or other similar means of contact with the surface upon
which it is operated.
(nn) "Recreational vehicle" means a motorboat, motorboat
trailer, off-highway recreational vehicle, travel trailer, fold
down camping trailer or motor home.
(oo) "Off-highway recreational vehicle" means a motorized
vehicle fifty inches or less in width, having a dry weight of six
hundred pounds or less, designed or utilized for off-highway
travel on or over land, water, snow, ice or other natural terrain
and includes any all-terrain vehicle, off-highway recreational
motorcycle, snowmobile or other similar vehicle,but excluding any
motorboat.
(pp) "Off-highway recreational motorcycle" means an off-
highway recreational vehicle traveling on two wheels and having
a seat or saddle designed to be straddled by the operator and
handlebars for steering control and includes any such vehicle
which is registered under chapter seventeen-a of this code for
highway use if it is also used for off-highway operation on
trails or unimproved terrain.
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF
CERTIFICATES OF TITLE.
§17A-3-2. Every motor vehicle, etc., subject to registration and
certificate of title provisions; exceptions.
(a) Every motor vehicle, trailer, semitrailer, pole trailer
and recreational vehicle when driven or moved upon a highway
shall be subject to the registration and certificate of title
provisions of this chapter except:
(1) Any such vehicle driven or moved upon a highway in
conformance with the provisions of this chapter relating to
manufacturers, transporters, dealers, lienholders or nonresidents
or under a temporary registration permit issued by the division
as hereinafter authorized;
(2) Any implement of husbandry upon which is securelyattached a machine for spraying fruit trees and plants of the
owner or lessee or for any other implement of husbandry which is
used exclusively for agricultural or horticultural purposes on
lands owned or leased by the owner thereof and which is not
operated on or over any public highway of this state for any
other purpose other than for the purpose of operating it across
a highway or along a highway other than an expressway as
designated by the commissioner of the division of highways from
one point of the owner's land to another part thereof,
irrespective of whether or not the tracts adjoin: Provided, That
the distance between the points shall not exceed twenty-five
miles, or for the purpose of taking it or other fixtures thereto
attached, to and from a repair shop for repairs. The foregoing
exemption from registration and license requirements shall also
apply to any vehicle hereinbefore described or to any farm
trailer owned by the owner or lessee of the farm on which such
trailer is used, when such trailer is used by the owner thereof
for the purpose of moving farm produce and livestock from such
farm along a public highway for a distance not to exceed twenty-
five miles to a storage house or packing plant, when such use is
a seasonal operation.
(A) The exemptions contained in this section shall also
apply to farm machinery and tractors: Provided, That such
machinery and tractors may use the highways in going from one
tract of land to another tract of land regardless of whether such
land be owned by the same or different persons.
(B) Any vehicle exempted hereunder from the requirements of
annual registration certificate and license plates and feestherefor shall not be permitted to use the highways between
sunset and sunrise.
(C) Any vehicle exempted hereunder from the requirements of
annual registration certificate and license plates shall be
permitted to use the highways as herein provided whether such
exempt vehicle is self-propelled, towed by another exempt vehicle
or towed by another vehicle for which registration is required.
(D) Any vehicle used as an implement of husbandry exempt
hereunder must have the words "farm use" affixed to both sides of
the implement in ten inch letters. Any vehicle which would be
subject to registration as a Class A or B vehicle if not exempted
by this section shall display a farm use exemption certificate on
the lower driver's side of the windshield.
(i) The farm use exemption certificate shall be provided by
the commissioner and shall be issued annually by the assessor of
the applicant's county of residence. The assessor shall issue a
farm use exemption certificate upon his or her determination
pursuant to an examination of the property books or documentation
provided by the applicant that the vehicle has been properly
assessed as Class I personal property. The assessor shall charge
a fee of two dollars for each certificate, one dollar of the fee
shall be retained by the assessor and one dollar shall be
remitted by the assessor to the commissioner of the division of
motor vehicles to be deposited in a special revolving fund to be
used in the administration of this section.
(ii) A farm use exemption certificate shall in no way exempt
the applicant from maintaining the security as required by
chapter seventeen-d of this code on any vehicle being operated onthe roads or highways of this state.
(iii) No person charged with operating a vehicle without a
farm use exemption certificate, if required under this section,
shall be convicted if he or she produces in court or in the
office of the arresting officer a valid farm use exemption
certificate for the vehicle in question within five days;
(3) Any vehicle which is propelled exclusively by electric
power obtained from overhead trolley wires though not operated
upon rails;
(4) Any vehicle of a type subject to registration owned by
the government of the United States;
(5) Any wrecked or disabled vehicle which is being towed by
a licensed wrecker or dealer on the public highways of this
state;
(6) The following recreational vehicles shall be exempt from
the requirements of annual registration, license plates and fees,
unless otherwise specified by law, but shall be subject to the
certificate of title provisions of this chapter even if not
driven or moved upon a highway: Motorboats, all-terrain
vehicles, snowmobiles and off-highway recreational motorcycles
which are designed for use exclusively off-highway and are not
designed and equipped for highway use. No certificate of title
shall be issued for such vehicle unless the applicant presents a
serial number verification certified by a law enforcement officer
or an application for title for a new vehicle on a form
prescribed by the division. Upon certification by the applicant
that the applicant owned the vehicle prior to the first day of
July, one thousand nine hundred eighty-nine, the vehicle shallnot be subject to the tax imposed by section four, article three
of this chapter.
No off-highway recreational vehicle shall be registered for
highway use under this chapter unless it is first inspected by an
inspection station authorized under the provisions of article
sixteen, chapter seventeen-c of this code and found to be
equipped with United States department of transportation highway-
approved tires and to comply with all the equipment requirements
which would be applicable to a motorcycle under article fifteen,
chapter seventeen-c of the code. No all-terrain vehicle or
snowmobile shall be registered for highway use under this
chapter.
Recreational vehicles which are exempt or precluded from
registration under this section shall only be operated on the
highway under the authority granted in section eleven, article
three-c, chapter twenty of this code.
(b) The provisions of this article relating to recreational
vehicles shall become effective on the first day of July, one
thousand nine hundred eighty-nine.
§17A-3-4. Application for certificate of title; tax for
privilege of certification of title; penalty for false
swearing.
(a) Certificates of registration of any vehicle or
registration plates therefor, whether original issues or
duplicates, shall not be issued or furnished by the division of
motor vehicles or any other officer charged with the duty, unless
the applicant therefor already has received, or at the same time
makes application for and is granted, an official certificate oftitle of the vehicle. The application shall be upon a blank form
to be furnished by the division of motor vehicles and shall
contain a full description of the vehicle, which description
shall contain a manufacturer's serial or identification number or
other number as determined by the commissioner and any
distinguishing marks, together with a statement of the
applicant's title and of any liens or encumbrances upon the
vehicle, the names and addresses of the holders of the liens and
any other information as the division of motor vehicles may
require. The application shall be signed and sworn to by the
applicant.
(b) A tax is hereby imposed upon the privilege of effecting
the certification of title of each vehicle in the amount equal to
five percent of the value of the motor vehicle at the time of the
certification. If the vehicle is new, the actual purchase price
or consideration to the purchaser thereof is the value of the
vehicle; if the vehicle is a used or secondhand vehicle, the
present market value at time of transfer or purchase is the value
thereof for the purposes of this section: Provided, That so much
of the purchase price or consideration as is represented by the
exchange of other vehicles on which the tax imposed by this
section has been paid by the purchaser shall be deducted from the
total actual price or consideration paid for the vehicle, whether
the same be new or secondhand; if the vehicle is acquired through
gift, or by any manner whatsoever, unless specifically exempted
in this section, the present market value of the vehicle at the
time of the gift or transfer is the value thereof for the
purposes of this section. No certificate of title for anyvehicle shall be issued to any applicant unless the applicant has
paid to the division of motor vehicles the tax imposed by this
section which is five percent of the true and actual value of the
vehicle whether the vehicle is acquired through purchase, by gift
or by any other manner whatsoever except gifts between husband
and wife or between parents and children: Provided, however,
That the husband or wife, or the parents or children previously
have paid the tax on the vehicles transferred to the state of
West Virginia: Provided further, That the division of motor
vehicles may issue a certificate of registration and title to an
applicant if the applicant provides sufficient proof to the
division of motor vehicles that the applicant has paid the taxes
and fees required by this section to a motor vehicle dealership
that has gone out of business or has filed bankruptcy proceedings
in the United States bankruptcy court and the taxes and fees so
required to be paid by the applicant have not been sent to the
division by the motor vehicle dealership or have been impounded
due to the bankruptcy proceedings: And provided further, That
the applicant makes an affidavit of the same and assigns all
rights to claims for money the applicant may have against the
motor vehicle dealership to the division of motor vehicles: And
provided further, That the division of motor vehicles shall issue
a certificate of registration and title to an applicant without
payment of the tax imposed by this section if the applicant is a
corporation, partnership or limited liability company
transferring the vehicle to another corporation, partnership or
limited liability company when the entities involved in the
transfer are members of the same controlled group and thetransferring entity has previously paid the tax on the vehicle
transferred. For the purposes of this section, control means
ownership, directly or indirectly, of stock or equity interests
possessing fifty percent or more of the total combined voting
power of all classes of the stock of a corporation or equity
interests of a partnership or limited liability company entitled
to vote or ownership, directly or indirectly, of stock or equity
interests possessing fifty percent or more of the value of the
corporation, partnership or limited liability company.
The tax imposed by this section does not apply to vehicles
to be registered as Class H vehicles, or Class S vehicles, as
defined in section one, article ten of this chapter, which are
used or to be used in interstate commerce. Nor does the tax
imposed by this section apply to the titling of Class B, Class K
or Class E vehicles registered at a gross weight of fifty-five
thousand pounds or more, or to the titling of Class C or Class L
semitrailers, full trailers, pole trailers, and converter gear:
Provided, That if an owner of a vehicle has previously titled the
vehicle at a declared gross weight of fifty-five thousand pounds
or more and the title was issued without the payment of the tax
imposed by this section, then before the owner may obtain
registration for the vehicle at a gross weight less than fifty-
five thousand pounds, the owner must surrender to the
commissioner the exempted registration, the exempted certificate
of title, and pay the tax imposed by this section based upon the
current market value of the vehicle: Provided, however, That
notwithstanding the provisions of section nine, article fifteen,
chapter eleven of this code, the exemption from tax under thissection for Class B, Class K or Class E vehicles in excess of
fifty-five thousand pounds and Class C or Class L semitrailers,
full trailers, pole trailers and converter gear shall not subject
the sale or purchase of the vehicles to the consumers sales tax.
The tax imposed by this section does not apply to titling of
vehicles by a registered dealer of this state for resale only,
nor does the tax imposed by this section apply to titling of
vehicles by this state or any political subdivision thereof, or
by any volunteer fire department or duly chartered rescue or
ambulance squad organized and incorporated under the laws of the
state of West Virginia as a nonprofit corporation for protection
of life or property. The total amount of revenue collected by
reason of this tax shall be paid into the state road fund and
expended by the commissioner of highways for matching federal
funds allocated for West Virginia. Provided, That fees from the
tax for the privilege of certification of title collected from
off-highway recreational vehicle purchases, pursuant to this
section, shall be paid out in accordance with subsection (c) of
this article. In addition to the tax, there is a charge of five
dollars for each original certificate of title or duplicate
certificate of title so issued: Provided further, That this
state or any political subdivision thereof, or any volunteer fire
department, or duly chartered rescue squad, is exempt from
payment of the charge.
The certificate is good for the life of the vehicle, so long
as the same is owned or held by the original holder of the
certificate, and need not be renewed annually, or any other time,
except as provided in this section.
If, by will or direct inheritance, a person becomes the
owner of a motor vehicle and the tax imposed by this section
previously has been paid, to the division of motor vehicles, on
that vehicle, he or she is not required to pay the tax.
A person who has paid the tax imposed by this section is not
required to pay the tax a second time for the same motor vehicle,
but is required to pay a charge of five dollars for the
certificate of retitle of that motor vehicle, except that the tax
shall be paid by the person when the title to the vehicle has
been transferred either in this or another state from such person
to another person and transferred back to such person.
(c) Fees from the tax for the privilege of certification of
title collected from the purchases of off-highway recreational
vehicles under this section shall be deposited in the off-highway
recreational vehicle trail development fund established under
section seven, article three-c, chapter twenty of this code:
Provided, That the certificate of title for any off-highway
recreational vehicle owned by the applicant on the thirtieth day
of June, one thousand nine hundred ninety-nine, shall not be
subject to the tax for the privilege of certification of title
imposed by this section. Provided further, That this subsection
shall not be construed as to entitle any applicant for
certificate of title for a refund of any tax for the privilege of
certification previously paid.
Applicants for certificates of title for any off-highway
recreational vehicle purchased on or after the first day of July,
one thousand nine hundred and eighty-nine, shall be subject to
the tax for the privilege of certification of title imposed bythis section on the purchase price of the vehicle as represented
by a sales invoice from the dealer or a notorized bill of sale
completed by the seller. Applicants unable to provide either a
sales invoice from the dealer or a notorized bill of sale
completed by the seller shall be subject to the tax for the
privilege of certification of title imposed by this section on
the suggested list price of the vehicle as new.
Applicants for certificate of title not presenting either a
certificate of title reassigned by the previous owner or a
manufacturers' certificate of origin shall provide the division
with such information the division may require in order to
establish ownership including, but not limited to a notarized
affidavit of ownership and serial number verification completed
by a law enforcement officer.
(d) Notwithstanding any provisions of this code to the
contrary, the owners of trailers, semitrailers, recreational
vehicles and other vehicles not subject to the certificate of
title tax prior to the enactment of this chapter are subject to
the privilege tax imposed by this section: Provided, That
the certification of title of any recreational vehicle owned by
the applicant on the thirtieth day of June, one thousand nine
hundred eighty-nine, is not subject to the tax imposed by this
section: Provided, however, That mobile homes, house trailers,
modular homes and similar nonmotive propelled vehicles, except
recreational vehicles, susceptible of being moved upon the
highways but primarily designed for habitation and occupancy,
rather than for transporting persons or property, or any vehicle
operated on a nonprofit basis and used exclusively for thetransportation of mentally retarded or physically handicapped
children when the application for certificate of registration
for the vehicle is accompanied by an affidavit stating that the
vehicle will be operated on a nonprofit basis and used
exclusively for the transportation of mentally retarded and
physically handicapped children, are not subject to the tax
imposed by this section, but are taxable under the provisions of
articles fifteen and fifteen-a, chapter eleven of this code.
(e) Any person making any affidavit required under any
provision of this section, who knowingly swears falsely, or any
person who counsels, advises, aids or abets another in the
commission of false swearing, is on the first offense guilty of
a misdemeanor, and, upon conviction thereof, shall be fined not
more than five hundred dollars or be imprisoned in the county
jail for a period not to exceed six months, or, in the discretion
of the court, both fined and imprisoned. For a second or any
subsequent conviction within five years, that person is guilty of
a felony, and, upon conviction thereof, shall be fined not more
than five thousand dollars or be imprisoned in the penitentiary
for not less than one year nor more than five years or, in the
discretion of the court, fined and imprisoned.
(f) Notwithstanding any other provisions of this section,
any person in the military stationed outside West Virginia, or
his or her dependents who possess a motor vehicle with valid
registration, are exempt from the provisions of this article for
a period of nine months from the date that that person returns to
this state or the date his or her dependent returns to this
state, whichever is later.
ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS;
SPECIAL PLATES; TEMPORARY PLATES OR MARKERS, ETC.
§17A-6-1. Definitions.
(a) Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "New motor vehicle dealer" means every person (other
than his agents and employees, if any, while acting within the
scope of their authority or employment), engaged in, or who holds
himself out to the public to be engaged in, the business in this
state of selling five or more new motor vehicles or new and used
motor vehicles in any fiscal year of a type required to be
registered under the provisions of this chapter, except, for the
purposes of this article only, motorcycles.
(2) "Used motor vehicle dealer" means every person (other
than his agents and employees, if any, while acting within the
scope of their authority or employment), engaged in, or holds
himself out to the public to be engaged in, the business in this
state of selling five or more used motor vehicles in any fiscal
year of a type required to be registered under the provisions of
this chapter, except, for the purposes of this article only,
motorcycles.
(3) "House trailer dealer" means every person (other than
his agents and employees, if any, while acting within the scope
of their authority or employment), engaged in, or who holds
himself out to the public to be engaged in, the business in this
state of selling new and/or used house trailers, or new and/or
used house trailers and trailers.
(4) "Trailer dealer" means every person (other than hisagents and employees, if any, while acting within the scope of
their authority or employment), engaged in, or who holds himself
out to the public to be engaged in, the business in this state of
selling new and/or used trailers.
(5) "Motorcycle dealer" means every person (other than his
agents and employees, if any, while acting within the scope of
their authority or employment), engaged in, or who holds himself
out to the public to be engaged in, the business in this state of
selling new and/or used motorcycles.
(6) "Used parts dealer" means every person (other than his
agents and employees, if any, while acting within the scope of
their authority or employment), engaged in, or who holds himself
out to the public to be engaged in, the business in this state of
selling any used appliance, accessory, member, portion or other
part of any vehicle.
(7) "Wrecker/dismantler/rebuilder" means every person (other
than his agents and employees, if any, while acting within the
scope of their authority or employment), engaged in, or who holds
himself out to the public to be engaged in, the business in this
state of dealing in wrecked or damaged motor vehicles or motor
vehicle parts for the purpose of selling the parts thereof or
scrap therefrom or who are in the business of rebuilding salvage
motor vehicles for the purpose of resale to the public.
(8) "New motor vehicles" means all motor vehicles, except
motorcycles and used motor vehicles, of a type required to be
registered under the provisions of this chapter.
(9) "Used motor vehicles" means all motor vehicles, except
motorcycles, of a type required to be registered under theprovisions of this chapter which have been sold and operated, or
which have been registered or titled, in this or any other state
or jurisdiction.
(10) "House trailers" means all trailers designed or
intended for human occupancy and commonly referred to as mobile
homes or house trailers, but shall not include fold down camping
and travel trailers.
(11) "Trailers" means all types of trailers other than house
trailers, and shall include, but not be limited to, pole trailers
and semitrailers but excluding recreational vehicles.
(12) "Sales instrument" means any document resulting from
the sale of a vehicle, which shall include, but not be limited
to, a bill of sale, invoice, conditional sales contract, chattel
mortgage, chattel trust deed, security agreement or similar
document.
(13) "Sell," "sale" or "selling" shall, in addition to the
ordinary definitions of such terms, include offering for sale,
soliciting sales of, negotiating for the sale of, displaying for
sale, or advertising for sale, any vehicle, whether at retail,
wholesale or at auction. "Selling" shall, in addition to the
ordinary definition of that term, also include buying and
exchanging.
(14) "Applicant" means any person making application for an
original or renewal license certificate under the provisions of
this article.
(15) "Licensee" means any person holding any license
certificate issued under the provisions of this article.
(16) "Predecessor" means the former owner or owners oroperator or operators of any new motor vehicle dealer business or
used motor vehicle dealer business.
(17) "Established place of business" shall, in the case of
a new motor vehicle dealer, mean a permanent location, not a
temporary stand or other temporary quarters, owned or leased by
the licensee or applicant and actually occupied or to be occupied
by him or her, as the case may be, which is or is to be used
exclusively for the purpose of selling new motor vehicles or new
and used motor vehicles, which shall have space under roof for
the display of at least one new motor vehicle and facilities and
space therewith for the servicing and repair of at least one
motor vehicle, which servicing and repair facilities and space
shall be adequate and suitable to carry out servicing and to make
repairs necessary to keep and carry out all representations,
warranties and agreements made or to be made by such dealer with
respect to motor vehicles sold by him or her, which shall be
easily accessible to the public, which shall conform to all
applicable laws of the state of West Virginia and the ordinances
of the municipality in which it is located, if any, which shall
display thereon at least one permanent sign, clearly visible from
the principal public street or highway nearest said location and
clearly stating the business which is or shall be conducted
thereat, and which shall have adequate facilities to keep,
maintain and preserve records, papers and documents necessary to
carry on such business and to make the same available to
inspection by the commissioner at all reasonable times:
Provided, That each established place of business shall have a
display area which may be outside or inside or a combinationthereof of at least twelve hundred square feet which is to be
used exclusively for the display of vehicles which are offered
for sale by the dealer, office space of at least one hundred
forty-four square feet, and a telephone listed in the name of the
dealership. Each established place of business shall be open to
the public a minimum of twenty hours per week at least forty
weeks per calendar year with at least ten of those hours being
between the hours of nine-thirty a.m. and eight-thirty p.m.,
Monday through Saturday: Provided, however, That the requirement
of exclusive use shall be met even though (i) some new and any
used motor vehicles sold or to be sold by such dealer or sold or
are to be sold at a different location or locations not meeting
the definition of an established place of business of a new motor
vehicle dealer, if each such location is or is to be served by
other facilities and space of such dealer for the servicing and
repair of at least one motor vehicle, adequate and suitable as
aforesaid, and each such location used for the sale of some new
and any used motor vehicles otherwise meets the definition of an
established place of business of a used motor vehicle dealer;
(ii) house trailers, trailers and/or motorcycles are sold or are
to be sold thereat, if, subject to the provisions of section five
of this article, a separate license certificate is obtained for
each such type of vehicle business, which license certificate
remains unexpired, unsuspended and unrevoked; (iii) farm
machinery is sold thereat; and (iv) accessory, gasoline and oil,
or storage departments are maintained thereat, if such
departments are operated for the purpose of furthering and
assisting in the licensed business or businesses.
(18) "Farm machinery" means all machines and tools used in
the production, harvesting or care of farm products.
(19) "Established place of business" shall, in the case of
a used motor vehicle dealer, mean a permanent location, not a
temporary stand or other temporary quarters, owned or leased by
the licensee or applicant and actually occupied or to be occupied
by him, as the case may be, which is or is to be used exclusively
for the purpose of selling used motor vehicles, which shall have
facilities and space therewith for the servicing and repair of at
least one motor vehicle, which servicing and repair facilities
and space shall be adequate and suitable to carry out servicing
and to make repairs necessary to keep and carry out all
representations, warranties and agreements made or to be made by
such dealer with respect to used motor vehicles sold by him or
her, which shall be easily accessible to the public, shall
conform to all applicable laws of the state of West Virginia, and
the ordinances of the municipality in which it is located, if
any, which shall display thereon at least one permanent sign,
clearly visible from the principal public street or highway
nearest said location and clearly stating the business which is
or shall be conducted thereat, and which shall have adequate
facilities to keep, maintain and preserve records, papers and
documents necessary to carry on such business and to make the
same available to inspection by the commissioner at all
reasonable times: Provided, That each established place of
business shall have a display area which may be outside or inside
or a combination thereof of at least twelve hundred square feet
which is to be used exclusively for the display of vehicles whichare offered for sale by the dealer, office space of at least one
hundred forty-four square feet, and a telephone listed in the
name of the dealership. Each established place of business shall
be open to the public a minimum of twenty hours per week at least
forty weeks per calendar year with at least ten of those hours
being between the hours of nine-thirty a.m. and eight-thirty
p.m., Monday through Saturday: Provided, however, That if a used
motor vehicle dealer has entered into a written agreement or
agreements with a person or persons owning or operating a
servicing and repair facility or facilities adequate and suitable
as aforesaid, the effect of which agreement or agreements is to
provide such servicing and repair services and space in like
manner as if said servicing and repair facilities and space were
located in or on said dealer's place of business, then, so long
as such an agreement or agreements are in effect, it shall not be
necessary for such dealer to maintain such servicing and repair
facilities and space at the place of business in order for such
place of business to be an established place of business as
herein defined: Provided further, That the requirement of
exclusive use shall be met even though (i) house trailers,
trailers and/or motorcycles are sold or are to be sold thereat,
if, subject to the provisions of section five of this article, a
separate license certificate is obtained for each such type of
vehicle business, which license certificate remains unexpired,
unsuspended and unrevoked; (ii) farm machinery is sold thereat;
and (iii) accessory, gasoline and oil, or storage departments are
maintained thereat, if such departments are operated for the
purpose of furthering and assisting in the licensed business orbusinesses.
(20) "Established place of business" shall, in the case of
a house trailer dealer, trailer dealer, recreational vehicle
dealer, motorcycle dealer, used parts dealer and wrecker or
dismantler, mean a permanent location, not a temporary stand or
other temporary quarters, owned or leased by the licensee or
applicant and actually occupied or to be occupied by him, as the
case may be, which shall be easily accessible to the public,
which shall conform to all applicable laws of the state of West
Virginia and the ordinances of the municipality in which it is
located, if any, which shall display thereon at least one
permanent sign, clearly visible from the principal public street
or highway nearest said location and clearly stating the business
which is or shall be conducted thereat, and which shall have
adequate facilities to keep, maintain and preserve records,
papers and documents necessary to carry on such business and to
make the same available to inspection by the commissioner at all
reasonable times.
(21) "Manufacturer" means every person engaged in the
business of reconstructing, assembling or reassembling vehicles
with a special type body required by the purchaser if said
vehicle is subject to the title and registration provision of the
code.
(22) "Transporter" means every person engaged in the
business of transporting vehicles to or from a manufacturing,
assembling or distributing plant to dealers or sales agents of a
manufacturer, or purchasers.
(23) "Recreational vehicle dealer" means every person (otherthan his agents and employees, if any, while acting within the
scope of their authority or employment), engaged in, or who holds
himself out to the public to be engaged in, the business in this
state of selling new and/or used recreational vehicles.
(24) "Motorboat" means any vessel propelled by an
electrical, steam, gas, diesel or other fuel propelled or driven
motor, whether or not such motor is the principal source of
propulsion, but shall not include a vessel which has a valid
marine document issued by the bureau of customs of the United
States government or any federal agency successor thereto.
(25) "Motorboat trailer" means every vehicle designed for or
ordinarily used for the transportation of a motorboat.
(26) "All-terrain vehicle" (ATV) means an off-highway
recreational vehicle traveling on three or more low-pressure
tires, designed for operator use only with no passengers, having
a seat or saddle designed to be straddled by the operator and
handlebars for steering control.
(27) "Travel trailer" means every vehicle, mounted on
wheels, designed to provide temporary living quarters for
recreational, camping or travel use of such size or weight as not
to require special highway movement permits when towed by a motor
vehicle and of gross trailer area less than four hundred square
feet.
(28) "Fold down camping trailer" means every vehicle
consisting of a portable unit mounted on wheels and constructed
with collapsible partial sidewalls which fold for towing by
another vehicle and unfold at the camp site to provide temporary
living quarters for recreational, camping or travel use.
(29) "Motor home" means every vehicle, designed to provide
temporary living quarters, built into an integral part of or
permanently attached to a self-propelled motor vehicle, chassis
or van including: (1) Type A motor home built on an incomplete
truck chassis with the truck cab constructed by the second stage
manufacturer; (2) Type B motor home consisting of a van-type
vehicle which has been altered to provide temporary living
quarters; and (3) Type C motor home built on an incomplete van or
truck chassis with a cab constructed by the chassis manufacturer.
(30) "Snowmobile" means an off-highway recreational vehicle
designed or used for operation over snow or ice which utilizes
sled-type runners, skis, an endless belt tread or any combination
of these or other similar means of contact with the surface upon
which it is operated.
(31) "Recreational vehicle" means a motorboat, motorboat
trailer, off-highway recreational vehicle, travel trailer, fold
down camping trailer or motor home.
(32) "Off-highway recreational vehicle" means a motorized
vehicle fifty inches or less in width, having a dry weight of six
hundred pounds or less, designed or utilized for off-highway
travel on or over land, water, snow, ice or other natural terrain
and includes any all-terrain vehicle, off-highway recreational
motorcycle, snowmobile or other similar vehicle, but excluding
any motorboat.
(33) "Off-highway recreational motorcycle" means an off-
highway recreational vehicle traveling on two wheels and having
a seat or saddle designed to be straddled by the operator and
handlebars for steering control and includes any such vehiclewhich is registered under chapter seventeen-a of this code for
highway use if it is also used for off-highway operation on
trails or unimproved terrain.
(34) "Major component" means any one of the following
subassemblies of a motor vehicle: (i) Front clip assembly
consisting of fenders, grille, hood, bumper and related parts;
(ii) engine; (iii) transmission; (iv) rear clip assembly
consisting of quarter panels and floor panel assembly; or (v) two
or more doors.
(b) Under no circumstances whatever shall the terms "new
motor vehicle dealer," "used motor vehicle dealer," "house
trailer dealer," "trailer dealer," "recreational vehicle
dealer," "motorcycle dealer," "used parts dealer" or
"wrecker/dismantler/rebuilder" be construed or applied under this
article in such a way as to include a banking institution,
insurance company, finance company, or other lending or financial
institution, or other person, the state or any agency or
political subdivision thereof, or any municipality, who or which
owns or shall come in possession or ownership of, or acquire
contract rights, or security interests in or to, any vehicle or
vehicles or any part thereof and shall sell such vehicle or
vehicles or any part thereof for purposes other than engaging in
and holding himself or itself out to the public to be engaged in
the business of selling vehicles or any part thereof.
(c) It is recognized that throughout this code the term
"trailer" or "trailers" is used to include, among other types of
trailers, house trailers. It is also recognized that throughout
this code the term "trailer" or "trailers" is seldom used toinclude semitrailers or pole trailers. However, for the purposes
of this article only, the term "trailers" shall have the meaning
ascribed to it in subsection (a) of this section.
ARTICLE 10A. SPECIAL REGISTRATION OF OFF-HIGHWAY VEHICLES.
§17A-10A-1. Certificate of numbers required for off-highway
recreational vehicles.
(a) No person shall operate an off-highway recreational
vehicle, as defined in section one, article one of this chapter,
within the territorial limits of this state unless it has been
assigned a number in accordance with the provisions of this
article. The certificate of numbers shall expire three years
after its date of issuance.
(b) Application for a certificate of numbers shall be made
to the division of motor vehicles in a form prescribed by the
division, and must be accompanied by proof that the vehicle is
titled under article three, chapter seventeen-a of this code.
(c) The fee for obtaining a certificate of numbers or
renewal of such certificate shall be thirty dollars. All
certificates of numbers issued before the first day of October,
nineteen hundred ninety-six, shall expire on that day, regardless
of when the application is made. Certificates of numbers issued
after the first day of October, nineteen hundred ninety-six,
shall expire on the first day of October of every third year
thereafter. The fee shall be prorated by years remaining in the
three year cycle: Provided, That if a certificate has been lost
or destroyed, the division shall issue a replacement certificate
upon payment of a duplicate fee of five dollars.
Fees collected under this section shall be deposited in thestate treasury to the credit of the off-highway recreational
vehicle management fund and shall be disbursed in accordance with
section six, article three-c, chapter twenty of this code:
Provided, That five dollars of each certificate of numbers fee,
fees from the issuance of replacement certificates of numbers and
five dollars of each fee for renewal of certificates of numbers
shall be credited to the division to be used for the
administration of the off-highway recreational vehicle numbering
system.
Upon receipt of a completed application, proof of title and
required fees, the division shall issue a certificate of numbers,
in a form prescribed by the division, which the operator shall
maintain in his or her possession while operating an off-highway
recreational vehicle. The division shall also issue the
applicant a certificate of numbers sticker: Provided, That the
off-highway recreational vehicle management commission shall
promulgate rules regarding color and size of such sticker and
requirements for how such sticker shall be displayed on an off-
highway recreational vehicle.
(d) Renewal of an expired certificate of numbers shall be
made in the same manner as application for the original
certificate of numbers: Provided, That the renewal process may
be accomplished by mail at the discretion of the division.
(e) Should the ownership of an off-highway recreational
vehicle change, a new application for a certificate of numbers
and a new application for a certificate of title with fees shall
be filed with the division and a new certificate of numbers shall
be awarded in the same manner as the original certificate ofnumbers was awarded.
(f) A recreational vehicle dealer, at the time of sale of an
off-highway recreational vehicle, may require the buyer to
complete an application for a certificate of title and an
application for a certificate of numbers and fees, unless the
vehicle will be exempt from numbering requirements under section
two of this article. The dealer shall mail the completed
application and fees to the division of motor vehicles and shall
provide a copy of the completed certificate of numbers
application to the buyer which shall serve as a temporary
certificate of numbers for up to sixty days after the date of
sale.
§17A-10A-2. Certain off-highway recreational vehicles exempt
from certificate of numbers requirements.
The following off-highway recreational vehicles are exempt
from the certificate of numbers requirements:
(a) An off-highway recreational vehicle used exclusively by
the state or any agency or political subdivision thereof, or by
the United States;
(b) An off-highway recreational vehicle owned by a
recreational vehicle dealer or manufacturer and held for resale,
display or demonstration or operated exclusively in a program of
off-highway recreational vehicle operator safety instruction;
(c) An off-highway recreational vehicle used exclusively for
farming, animal husbandry or natural resource production in going
from one tract of land to another tract of land regardless of
whether such land be owned by the same or different persons; and
(d) An off-highway recreational vehicle owned by an out-of-state resident, while being operated within the state: Provided,
That the out-of-state resident operating his or her vehicle
within the state shall comply with the provisions of section ten,
article three-c, chapter twenty of this code.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 3C. OFF-HIGHWAY RECREATIONAL VEHICLE MANAGEMENT ACT.
§20-3C-1. Legislative findings.
The Legislature finds that there is a growing need for the
management of the use of off-highway recreational vehicles. The
Legislature recognizes that many citizens of this state and other
states own and operate off-highway recreational vehicles for
recreation and that the establishment of environmentally sound
trail systems for off-highway recreational vehicles will
encourage safe and responsible use of such vehicles and increase
tourism in West Virginia. The Legislature further finds that
off-highway recreational vehicles are often used to pursue other
activities including hunting and fishing in addition to
agriculture and natural resource production. The Legislature
finds that appropriate management of off-highway recreational
vehicles will reduce irresponsible use of such vehicles that
often results in conflicts with other land uses and adverse
environmental impacts. The Legislature hereby declares that a
program is needed to acquire appropriate land resources to
establish recreational facilities for off-highway recreational
vehicles that are properly planned and managed by the state. The
Legislature further declares that such program can be sustained
from revenues generated from the tax for privilege of certificate
of title from off-highway recreational vehicles purchases andfees imposed on off-highway recreational vehicle use as provided
in this article.
The Legislature finds that there is a need for the
regulation of the use of off-highway recreational vehicles to
reduce conflicts with other land uses and adverse environmental
impacts that result from such use, and that such regulation
should include prohibition of use in areas of environmental,
social or cultural sensitivity. The Legislature hereby
recognizes that many citizens own and operate off-highway
recreational vehicles for recreation and that regulation of such
vehicles and establishment and management of appropriate trail
systems for off-highway recreational vehicles will provide
opportunities for safe and responsible use while reducing adverse
effects. The Legislature hereby declares that to accomplish such
regulation, a comprehensive program for off-highway recreational
vehicle management be established and self-funded with revenues
that are derived from the use of off-highway recreational
vehicles and that such revenues be used to acquire lands to
establish public off-highway recreational vehicle trails and
trail facilities.
§20-3C-2. Definitions.
(a) "Director" means the director of the division of natural
resources.
(b) "Division" means the division of natural resources.
(c) "Off-highway recreational vehicle" means a motorized
vehicle fifty inches or less in width, having a dry weight of six
hundred pounds or less, designed or utilized for off-highway
travel on or over land, water, snow, ice or other natural terrainand includes any all-terrain vehicle, off-highway recreational
motorcycle, snowmobile or other similar vehicle, but excluding
any motorboat.
(d) "All-terrain vehicle" means an off-highway recreational
vehicle traveling on three or more low-pressure tires, designed
for operator use only with no passengers, having a seat or saddle
designed to be straddled by the operator and handlebars for
steering control.
(e) "Off-highway recreational motorcycle" means an off-
highway recreational vehicle traveling on two wheels and having
a seat or saddle designed to be straddled by the operator and
handlebars for steering control and includes any such vehicle
which is registered under chapter seventeen-a of this code for
highway use if it is also used for off-highway operation on
trails or unimproved terrain.
(f) "Snowmobile" means an off-highway recreational vehicle
designed or used for operation over snow or ice which utilizes
sled-type runners, skis or endless belt tread or any combination
of these or other similar means of contact with the surface upon
which it is operated.
(g) "Off-highway recreational vehicle trail" means a
generally unpaved public way which is designated and managed
primarily for recreational travel by one or more types of off-
highway recreational vehicles but may also be designated and
managed for shared use by one or more varieties of non-motorized
users.
(h) "Off-highway recreational vehicle use area" means an
area which does not have an off-highway recreational vehicletrail, but which is designated and managed for cross-country off-
highway recreational vehicle use and which may also be designated
and managed for shared use by one or more varieties of non-
motorized users.
(i) "Off-highway recreational vehicle trail facility"
includes off-highway recreational vehicle use areas, off-highway
recreational vehicle trails, off-highway recreational vehicle
trailheads and all support areas, including camping, buffer,
parking, access and control areas, of a site which is designated
and managed for off-highway recreational vehicle use.
(j) "Off-highway recreational vehicle trailhead" means a
designated area where an off-highway recreational vehicle
operator can load and unload the off-highway recreational
vehicle, before or after use, and which accesses an off-highway
recreational vehicle trail.
(k) "Dealer" means any person engaged in the business of
selling, leasing or renting new or used off-highway recreational
vehicles at retail, at a regular place of business within this
state, and who is licensed as a recreational vehicle dealer under
the provisions of article six, chapter seventeen-a of this code.
§20-3C-3. Off-highway recreational vehicle management commission
created; composition; quorum; meetings; off-highway
recreational vehicle management plan.
The state off-highway recreational vehicle management
commission is hereby created and shall develop, publish and
maintain a comprehensive off-highway recreational vehicle
management plan. The commission shall be comprised of the
following members: The secretary of the department of commerce,labor and environmental resources, who shall serve as chair; the
director of the division of natural resources, who shall serve as
vice-chair; the administrative forester of the division of
forestry; the director of the division of environmental
protection; the commissioner of the division of highways; the
commissioner of the division of motor vehicles; and six citizens
appointed by the governor with the advice and consent of the
Senate from nominations of organizations active within the state
that represent the following interests: A citizen representing
the interests of users of all-terrain vehicles; a citizen
representing the interests of users of off-highway recreational
motorcycles; a citizen representing the interests of users of
snowmobiles; two citizens representing the interests of non-
motorized outdoor recreation; one of whom shall represent the
interests of trail based recreation and one of whom shall
represent the interests of hunters and fishermen; and a citizen-
at-large. No more than three citizen members appointed shall be
from the same political party.
The members of the commission may designate persons from
within their respective agencies or organizations to represent
them on the commission from time to time. The members of the
commission shall make use of available resources and personnel
within their agencies and organizations to obtain expertise and
information necessary to develop and maintain the off-highway
recreational vehicle management plan. The citizen members of the
commission shall serve without compensation but shall be
reimbursed for necessary travel and other expenses incurred in
connection with carrying out their duties as members, whichexpenses shall be paid in the manner and form prescribed by law.
The terms of office for members of the commission shall run
concurrently with that of the governor.
The commission shall meet quarterly, or as often as
necessary, upon call by the chairman. A majority of the
membership of the commission shall constitute a quorum. Any
meeting of the commission shall be open to the public.
Biennially, the commission shall present a report to the
Legislature on the status of off-highway recreational vehicle use
in the state.
§20-3C-4. Off-highway recreational vehicle management plan.
(a) The off-highway recreational vehicle management plan
shall include: (1) Policies for the use of off-highway
recreational vehicles; (2) management practices established by
the commission for the mitigation of environmental impacts
associated with the use, design, construction and management of
off-highway recreational vehicle trails; (3) standards for the
planning, design, construction and maintenance of such trails;
(4) policies and guidelines to be utilized by the commission and
the director of the division of natural resources in the
disbursement of funds for the purposes of this article; and (5)
standards for monitoring, mitigation and reclamation of any
adverse environmental impacts or resource conflicts associated
with such trails.
The plan may identify appropriate locations for off-highway
recreational vehicle trails, specify lands to be leased or
acquired for such trails and recommend appropriate personnel
qualifications and training to implement the provisions of thisarticle.
(b) No off-highway recreational vehicle trails designated
under this article shall be located upon the waters of any
stream, river, bog, wetland, swamp, marsh or quagmire, except
over a bridge, culvert or similar structure.
(c) Public participation shall be facilitated in the
development and implementation of this off-highway recreational
vehicle management plan.
(d) The off-highway recreational vehicle management plan
developed under this article shall be consistent with the state
comprehensive outdoor recreation plan, the forest land management
plan of national forests within the state and laws of this state
and the United States.
§20-3C-5. General powers and duties of the director and
commission.
(a) The director, with the approval of the commission, shall
promulgate rules establishing standards for the use and operation
of off-highway recreational vehicles in formal events and
competitions on public lands vested in the state of West Virginia
or managed by the division of natural resources pursuant to this
article and which rules shall be consistent with the findings and
purposes of this article.
(b) The director of the division of natural resources may,
with the approval of the commission, exercise the following
powers: (1) Lease or acquire lands for off-highway recreational
vehicle trails in the name of the division of natural resources;
(2) design, layout and construct such trails; (3) establish
policies for the management of such trails; (4) make grants fromthe off-highway recreational vehicle management fund for any
purpose authorized pursuant to section six; (5) make grants from
the off-highway recreational vehicle trail development fund for
any purpose authorized pursuant to section seven; and (6)
designate appropriate areas for off-highway recreational vehicle
trails.
(c) The director shall, with the approval of the commission,
develop an annual budget for the expenditure of all funds
pursuant to the provisions of this article.
§20-3C-6. Off-highway recreational vehicle management fund.
(a) There is hereby created a special fund in the state
treasury, designated the off-highway recreational vehicle
management fund. This fund consists of (1) a portion of fees
received from the issuance of off-highway recreational vehicles
certificate of numbers, not to exceed twenty-five dollars per
certificate of numbers issued pursuant to article ten-a, chapter
seventeen-a of this code; (2) from moneys received under the
National Recreational Trails Fund Act (Public Law 102-240) that
are designated for the establishment of motorized recreational
trails; (3) a portion of recreational use sticker fees; (4) a
portion of annual non-resident use stickers fees, not to exceed
twenty-five dollars per sticker issued; (5) a portion of
temporary six-day-use sticker fees, ten dollars per temporary
six-day-use sticker issued; and (6) any gifts endowments, grants
and any other moneys specifically appropriated or allocated to
the fund. The fund shall not be treated by the auditor or
treasurer as part of the general revenue of the state. The fund
shall be a dedicated, special revolving fund to be administeredby the off-highway recreational vehicle management commission in
the manner specified in this section.
(b) Moneys in the off-highway recreational vehicle
management fund shall be utilized by the director of the
division of natural resources for the following purposes:
(1) To develop, maintain and update the off-highway
recreational vehicle management plan;
(2) To administer the provisions of this article, including
hiring an off-highway recreational vehicle program supervisor who
shall direct and carry out the duties of the commission;
(3) To hire, train, and retain off-highway recreational
vehicle managers to adequately enforce the provisions of this
article and rules promulgated thereunder concerning off-highway
recreational vehicle use on public lands;
(4) To promote and publicize the location of public off-
highway recreational vehicle trails throughout the state to
residents and tourists: Provided, That no funds shall be spent
for this purpose until at least three different public off-
highway recreational vehicle trails are open for use;
(5) For grants to qualified agencies or jurisdictions to
assist in providing law enforcement and off-highway recreational
vehicle user education to encourage responsible, safe use of off-
highway recreational vehicles;
(6) To pay the expenses of the citizen members of the off-
highway recreational vehicle management commission incurred
during the performance of their duties;
(7) To repair, reclaim and rehabilitate property, soils,
vegetation or streams damaged by unauthorized use of off-highwayrecreational vehicles on land procured and designated for use
under the provisions of this article; and
(8) To educate users on environmentally sensitive riding
habits including promoting avoidance of sensitive habitats, such
as wetlands, streams and public lands not acquired under this
act, and avoiding conflicts with the general public.
§20-3C-7. Off-highway recreational vehicle trail development
fund.
(a) There is hereby created a special fund in the state
treasury, designated the off-highway recreational vehicle trail
development fund. This fund consists of: (1) fees collected from
the tax for privilege of certification of title for off-highway
recreational vehicle purchases, pursuant to section four, article
three, section seventeen-a of the code; (2) moneys received under
the National Recreational Trails Fund Act (Public Law 102-240)
that are designated for the establishment of motorized
recreational trails; and (3) any gifts, endowments, grants and
other moneys specifically appropriated or allocated to the fund.
The fund shall not be treated by the auditor or treasurer as
part of the general revenue of the state. The fund shall be a
dedicated, special revolving fund to be administered by the
director of the division of natural resources in the manner
specified in this section:
(1) To procure by license, lease, or easement agreement
appropriate land resources for off-highway recreational vehicle
trails;
(3) For repayment of bonds issued in accordance with section
eight of this article to fund or partially fund the purchase ofland for the construction of new off-highway recreational vehicle
trails;
(4) To designate suitable areas for off-highway recreational
vehicle trails, including design, construction, maintenance and
management of off-highway recreational vehicle trails;
(5) To provide personnel, equipment, material, supplies,
insurance and other necessary resources for the development,
maintenance and management of public off-highway recreational
vehicle trails; and
(6) For grants to qualified state and federal agencies or
public or private organizations to fund or partially fund off-
highway recreational vehicle trail construction and maintenance
projects consistent with the off-highway recreational vehicle
management plan established by the off-highway recreational
vehicle management commission.
§20-3C-8. Off-highway recreational vehicle trail development
bonds.
The department of commerce, labor and environmental
resources is hereby authorized to issue bonds for the purpose of
financing the purchases of land and equipment for establishing
and constructing off-highway recreational vehicle trails. The
total indebtedness incurred from the issuance of such bonds shall
not exceed twenty percent of the projected annual revenues from
the off-highway recreational vehicle trail development fund.
Revenues in the fund shall be the sole source of funds used in
repaying the debt incurred in the issuance of such bonds.
§20-3C-9. Personnel.
(a) Persons hired or designated to serve in the positionslisted under subdivisions two and three, subsection (b), section
six of this article shall be employees of the division of natural
resources.
(b) The person hired or designated to be the off-highway
recreational vehicle program supervisor shall administer and
direct the implementation of this article at the direction of the
director of the division of natural resources: Provided, That
the program supervisor may also have additional duties within the
division of natural resources, such as wildlife planning, real
estate administration or other functions to the extent that such
duties do not interfere with that person's ability to carry out
the provisions of this article.
(c) The chief conservation officer of the division of
natural resources, acting under the supervision of the director,
is authorized to select and appoint as a special conservation
officer any off-highway recreational vehicle program supervisor
or manager with the same powers and duties, and subject to the
same requirements, as special conservation officers appointed
pursuant to section one, article seven of this chapter.
(d) A person hired or designated as the off-highway
recreational vehicle program supervisor or as an off-highway
recreational vehicle recreation manager shall meet the
qualifications set by rule by the director of the division of
natural resources.
(e) The salaries of persons hired or designated to be off-
highway recreational vehicle recreation managers and of the
person hired or designated to be the off-highway recreational
vehicle program supervisor shall be paid from the off-highwayrecreational vehicle management fund.
§20-3C-10. Recreational use stickers and non-resident off-
highway recreational vehicle use sticker required.
(a) No person shall operate or possess an off-highway
recreational vehicle owned by a resident of this state on an off-
highway recreational vehicle trail on designated public lands
without a valid recreational use sticker displayed on the vehicle
in a readily visible manner as promulgated by rules.
(b) The division or its agents, authorized under subsection
(f) of this section, shall issue recreational use stickers, upon
request, accompanied by a fifteen dollar fee and proof of
certificate of numbers or completed certificate of numbers
application. The recreational use sticker shall expire two years
from its date of issue and shall be renewed in the same manner
that the original recreational use sticker was obtained.
(c) No person shall operate within the territorial limits of
this state an off-highway recreational vehicle owned by a
resident of another state and exempt from numbering under section
two, article ten-a, chapter seventeen-a of this code without a
current valid non-resident use sticker affixed and displayed upon
the vehicle in a readily visible manner, unless such vehicle is
exempted under subsection (h) of this section.
(d) Application for an off-highway recreational vehicle
recreational use sticker and non-resident use sticker shall be
made in a form prescribed by the division of natural resources or
duly appointed agent. The division or its agents shall require
the applicant for a non-resident use sticker to provide proof of
residence and proof of vehicle ownership. The off-highwayrecreational vehicle management commission shall promulgate rules
to implement this section.
(e) The off-highway recreational vehicle management
commission shall authorize the director of the division of
natural resources to issue annual non-resident use stickers upon
receipt of a completed application, proof of ownership and
residence and a fee of thirty dollars. The division may also
issue a temporary six-day-use sticker that shall sell for ten
dollars.
(f) The director of the division of natural resources may
appoint persons as agents with authority to issue recreational
use stickers, non-resident use stickers and temporary six-day use
stickers. Such agents may include recreational vehicle dealers
and hunting and fishing licensing agents. Additionally, the
director may authorize employees of any state agency to sell
recreational use stickers, non-resident use stickers and
temporary six-day use stickers. The director shall require each
agent, other than state agency or county employees, authorized to
issue recreational use stickers, non-resident use stickers and
temporary six-day use stickers to file a bond of one thousand
dollars conditioned on the faithful performance of the
obligations of the agent to issue such stickers in accordance
with this article and to account for all fees collected in the
issuance of the stickers. The issuing agent or agency shall be
entitled to collect and retain a two dollar administrative fee
for each sticker issued.
(g) The director shall receive all fees collected in issuing
recreational use stickers, non-resident use stickers andtemporary six-day use stickers and shall deposit two dollars from
the fees on each sticker in the state treasury to the credit of
the division of natural resources to be used for administering
the use sticker system. The director shall deposit all remaining
fees collected in issuing recreational use stickers, non-resident
use stickers and temporary six-day use stickers in the state
treasury to the credit of the off-highway recreational vehicle
management fund to be used and paid out by the off-highway
recreational vehicle management commission solely for purposes
specified in section six of this article.
(h) Registered participants in organized competitive off-
highway recreational vehicle events on private property or
organized off-highway recreational vehicle outings conducted in
cooperation with public agencies, whether for profit or not-for-
profit, while participating in that event, shall be exempt from
the non-resident use stickers requirements.
§20-3C-11. Off-highway recreational vehicle use on public roads
and highways.
(a) Except as otherwise provided in this article, no person
may operate an off-highway recreational vehicle that is not
properly registered for operation on roads and highways by the
division of motor vehicles or does not meet equipment standards
established for operation on such roads and highways on any
public road or highway or within the right of way of any highway.
(b) The operator of an off-highway recreational vehicle is
permitted to make a direct crossing of a highway, except a
limited access highway, subject to the following conditions:
(1) The crossing shall be made at a ninety degree angle tothe direction of the highway and at a location causing minimal
obstruction of traffic.
(2) The operator shall bring the off-highway recreational
vehicle to a complete stop before entering the roadway portion of
the highway, and the operator must yield to all traffic.
(3) If so equipped, both the headlamp and taillight shall be
illuminated when crossing the roadway.
(c) The operator of an off-highway recreational vehicle may
cross a limited access highway, subject to the provisions in
subsection (b) of this section, but only at a point that is
officially designated as an off-highway recreational vehicle
crossing by the division of highways and the off-highway
recreational vehicle management commission.
(d) An off-highway recreational vehicle used exclusively for
farming, animal husbandry or the commercial production of natural
resources in going from one tract of land to another tract of
land regardless of whether such land be owned by the same or
different persons, may operate within the right of way of a
highway, staying off the roadway as much as possible, for a
maximum distance of fifteen miles, as necessary to proceed
directly from one tract of land to another tract of land of the
vehicle.
(e) The off-highway recreational vehicle shall be operated
in a safe manner and in no case shall exceed twenty miles per
hour. Any off-highway recreational vehicle operating on roads or
highways under the provisions of this section shall have
displayed the slow-moving vehicle emblem required under section
nine, article six, chapter seventeen-c of the code. Theheadlight and taillight of the off-highway recreational vehicle
shall be illuminated at all times when operating within such
right of way. For the purposes of this subsection, members of
the land owner's family are considered owners.
(f) The Legislature recognizes that this state has many
miles of primitive and low service roads and rights of way
currently under the jurisdiction of the division of highways
that, if appropriate, may be used to establish off-highway
recreational vehicle trails. The Legislature hereby encourages
that such roads be evaluated for suitability for inclusion in an
off-highway recreational vehicle trails system and further
encourages the division of highways and the commission to
designate such roads as off-highway recreational vehicle trails
managed under the plan: Provided, That such designation will not
significantly and adversely affect existing uses of such roads or
adjoining land with respect to noise, dust, congestion or other
disturbances and is given public notice and a public hearing held
on such designation in close proximity to the location of the
primitive or low service road or right-of-way under the
jurisdiction of the division of highways proposed to be converted
into a off-highway recreational vehicle trail, at a time to allow
adequate public participation. Provided further, That in
addition to publishing a Class III legal advertisement, in
accordance with article three, chapter fifty-nine of the code,
the off-highway recreational vehicle management commission shall
notify by certified mail, those persons owning lands adjacent to
such road or right-of-way proposed to be converted into an off-
highway recreational vehicle trail, of the time, date andlocation of the public hearing held on the proposal such public
notice shall be a Class III legal advertisement in accordance
with article three, chapter fifty-nine of the code.
(g) Any off-highway recreational vehicle that is being
lawfully operated under the provisions of this article may be
operated within the right of way of a highway which is closed and
has been designated as open to off-highway recreational vehicle
traffic by the division of highways and the off-highway
recreational vehicle management commission: Provided, That the
operator of an off-highway recreational vehicle operating on a
highway designated for off-highway recreational vehicle use under
this section shall operate in accordance with articles three,
seven, eight, nine and ten, chapter seventeen-c of this code,
relating to obeying traffic signs, operating on the right side of
the roadway, passing, turning, stopping, right-of-way and
pedestrians' right-of-way.
(h) The penalty for violation of the provisions of this
section is a fine of not more than fifty dollars for the first
offense and a fine of not more than one hundred dollars for each
subsequent offense.
§20-3C-12. Off-highway recreational vehicle use prohibited on
certain state lands; exceptions.
(a) It shall be unlawful to operate an off-highway
recreational vehicle on state parks, state forests and wildlife
management areas except for the following:
(1) The state agency managing such land may designate
certain roads open to holders of Class Q hunting licenses,
subject to the provisions of article two, chapter twenty of thecode governing legal hunting; and
(2) The state agency managing such land may designate and
authorize the establishment of off-highway recreational vehicle
trailhead facilities along the outer boundary of any state park,
state forest or wildlife management area if it is determined to
be compatible with the existing uses of that state park, state
forest or wildlife management area and if there has been a
demonstration of a need for trailhead facilities and sufficient
adjoining land resources are available for establishing off-
highway recreational vehicle trails.
(b) It shall be unlawful to operate an off-highway
recreational vehicle on public lands not specifically designated
for such use, to operate an off-highway recreational vehicle on
public land outside of a designated off-highway recreational
vehicle trail or trail facility.
(c) The penalty for a violation of this section, a
misdemeanor, is a fine of not less than one hundred dollars nor
more than three hundred dollars for the first offense, a fine of
not less than three hundred dollars nor more than five hundred
dollars for the second offense. For the third and subsequent
offenses, the penalty is a fine of not less than three hundred
dollars nor more than five hundred dollars and confinement in the
county jail for not less than twenty-four hours nor more than one
year and revocation of the certificate of numbers by the division
of motor vehicles for a period of not less than five years or
forfeiture of the off-highway recreational vehicle which shall be
auctioned and sold and the proceeds obtained therefrom shall be
placed in the off-highway recreational vehicle management fundand used to reclaim, repair and rehabilitate areas damaged by
off-highway recreational vehicle use.
§20-3C-13. Lands acquired for public off-highway recreational
vehicle trails and trail facilities; off-highway
recreational vehicle use restrictions on private lands.
(a) The Legislature hereby encourages private landowners to
make their lands available for the establishment of public off-
highway recreational vehicle trails under the management of the
state as provided for in this article.
(b) The off-highway recreational vehicle management
commission is hereby authorized to enter license, lease and
easement agreements with the owners of private land for the
purposes set forth in this article and in accordance with the
off-highway recreational vehicle management plan. Such
agreements shall be for a sufficient time period to amortize the
investment of public funds for the construction of off-highway
recreational vehicle trails.
(c) The off-highway recreational vehicle management
commission is hereby authorized to purchase interests in lands
from a willing seller for the purposes set forth in this article
and in accordance with the off-highway recreational vehicle
management plan if an agreement in accordance with subsection (b)
is not feasible or desirable.
(d) An owner or lessee who provides land for the purposes of
this article or who owns land adjoining or adjacent to such land,
by providing land for off-highway recreational vehicle trails,
shall not:
(1) Be presumed to extend any assurance that the land issafe for any purpose;
(2) Incur any duty of care toward a person who goes on that
land; or
(3) Become liable for any injury to persons or property
caused by an act or an act of omission of a person who goes on
that land.
(e) Subsection (d) shall be applicable regardless of whether
the person using the land or adjoining land is an invitee,
licensee, trespasser or otherwise.
(f) This article does not relieve any person of liability
which would otherwise exist for deliberate, willful or malicious
injury to persons or property.
(g) Lands adjoining areas designated for public off-highway
recreational vehicle trails and trail facilities shall be
considered posted closed to entry unless conspicuously posted
open for public entry. Willfull entry on such land shall be
considered trespass and subject to the penalties listed under
subsection (l).
(h) The owner or lessee who provides the public with land as
provided in subsection (b) is eligible to receive funds for
existing or subsequent damage as provided for in this article
under section five of this article.
(i) A private landowner whose person or property is damaged
by unauthorized use of an off-highway recreational vehicle,
including but not limited to damage to livestock, turf, fences,
structures, machinery, shall be entitled to civil damages against
the owner of said off-highway recreational vehicle three times
the value of the actual damage.
(j) It shall be a violation of this article and a
misdemeanor for any operator of an off-highway recreational
vehicle on private land to not stop and identify himself upon the
request of the owner or lessee of such land. The penalty for a
violation of this subsection is a fine of not less than one
hundred dollars nor more than five hundred dollars or confinement
in a county jail for not less than twenty-four hours nor more
than six months.
(k) No person shall operate an off-highway recreational
vehicle in or upon any private property owned by another person
without the written consent of the owner, owner's agent, lessee
or other authorized person in his or her immediate possession.
Failure to post, fence or otherwise enclose such private property
in a manner to exclude intruders or failure by the private
property owner, owner's agent, lessee or other authorized person
to personally communicate against trespass shall not imply
consent by the private property owner to off-highway recreational
vehicle use. The penalty for a violation of this subsection is
a fine of not less than one hundred dollars nor more than five
hundred dollars or confinement in a county jail for not less than
twenty-four hours nor more than six months.
(l) In addition to the provisions of subsection (k), it
shall be a violation of this article and a misdemeanor for any
person operating an off-highway recreational vehicle on private
land to not immediately remove the off-highway recreational
vehicle from such land upon the request of the owner, owner's
agent, lessee or other authorized person. The penalty for a
violation of this subsection is a fine of not less than onehundred dollars nor more than five hundred dollars or confinement
in a county jail for not less than twenty-four hours nor more
than six months.
(m) It shall be a violation of this article and a
misdemeanor for any person to gain entry onto private property
for the purpose of operating an off-highway recreational vehicle
by disabling a locked gate; by intentionally by-passing such
gate; by cutting or destroying fencing or walls, or by removing,
damaging, or otherwise defacing signs posted on such property.
The penalty for a violation of this subsection is a fine of not
less than twenty dollars nor more than two hundred dollars, or
imprisonent in the county jail not less that one nor more than
six months or both fine and imprisonent.
(n) The criminal penalties in this subsection shall be in
addition to civil damages available under subsection (i).
§20-3C-14. General restrictions for off-highway recreational
vehicle use.
(a) No person shall operate or permit to be operated an off-
highway recreational vehicle unless the vehicle is equipped with
a spark arrester type United States forest service approved
muffler in good working order and in constant operation or with
an exhaust system that exceeds a 99dbA sound as measured by the
test procedure outlined in the American national standards
institute SAEJ1287, on any public land or within the confines of
any public off-highway recreational vehicle trail. The penalty
for a violation of this subsection, upon conviction, shall be a
fine not less than fifty dollars nor more than five hundred
dollars for the first offense and not less than two hundreddollars nor more than one thousand dollars for each subsequent
offense.
(b) No person shall possess, operate or transport or allow
to be operated or transported an off-highway recreational
vehicle, owned by a resident of this state, within this state
without a valid certificate of numbers sticker displayed on the
vehicle in accordance with section two, article ten-a, chapter
seventeen-a of this code and rules promulgated thereunder. The
penalty for a violation of this subsection is a fine of not less
than fifty dollars nor more than five hundred dollars for the
first offense and not less than two hundred dollars nor more than
one thousand dollars for each subsequent offense.
(c) No person shall operate an off-highway recreational
vehicle, owned by a resident of another state, within the
territorial limits of this state, without a valid recreational
use sticker being displayed on the off-highway recreational
vehicle in a readily visible manner, in accordance with this
article. The penalty for a violation of this subsection is a
fine of not less than one hundred dollars nor more than five
hundred dollars for the first offense and a fine of not less than
one hundred dollars nor more than five hundred dollars in
addition to confinement in a county jail for not less than
twenty-four hours nor more than six months for each subsequent
offense.
(d) Any person, sixteen years of age and over, operating an
off-highway recreational vehicle on a road or highway under the
jurisdiction of the division of highways or within the right-of-
way of any road or highway under the jurisdiction of the divisionof highways, as authorized under the provisions of this article,
shall possess a valid driver's license issued by his or her state
of residence, which shall be maintained in his or her possession.
The penalty for a violation of this subsection is a fine of not
less than fifty dollars nor more than one hundred dollars for the
first offense and a fine of not less than one hundred dollars nor
more than two hundred dollars for each subsequent offense.
(e) Every person under sixteen years of age while operating
an off-highway recreational vehicle on property not owned by said
person or the family of said person shall be under the constant
and direct supervision of an adult unless such youthful operator
has in his possession a valid riders safety certificate
recognized by the off-highway recreational vehicle management
commission. The penalty for a violation of this subsection is a
fine of not less than fifty dollars nor more than one hundred
dollars for the first offense and a fine of not less than one
hundred dollars nor more than two hundred dollars for each
subsequent offense.
(f) No person sixteen years of age or under shall operate an
off-highway recreational vehicle on public land or lands procured
under this article unless that person has completed a rider's
safety training course recognized by the off-highway recreational
vehicle management commission and maintains in his or her
possession a valid riders safety certificate verifying such
completion. Provided, That if the youthful operator has not
completed the course and is approached by any law enforcement
officer authorized to enforce the provisions of this article,
that person shall be required to complete a rider's safetytraining course within thirty days. Provided further, That if
the youthful operator fails to complete the rider's safety
training course within thirty days, that person shall be
prohibited from operating an off-highway recreational vehicle on
public lands or lands procured under this article for one year.
If the youthful operator continues to operate an off-highway
recreational vehicle in violation of this subsection, the parents
or legal guardian of such operator shall be subject to a fine of
not less than one hundred dollars nor more than two hundred
dollars.
This subsection shall not apply to any person operating an
off-highway recreational vehicle for farming, animal husbandry or
the commercial production of natural resources.
(g) No person under twelve years of age shall operate or be
allowed to operate an off-highway recreational vehicle on public
lands or lands acquired under this article: Provided, That the
off-highway recreational vehicle management commission may
approve and designate certain off-highway recreational vehicle
trails and trail facilities which permit off-highway recreational
motorcycles to be operated by persons six years of age and older,
subject to the provisions of this article and any rules
promulgated hereunder. The parents or legal guardian of any
person in violation of this subsection are subject to a fine of
not less than fifty dollars nor more than one hundred dollars for
the first offense and not less than one hundred dollars nor more
than two hundred dollars for each subsequent offense.
(h) Every person operating an off-highway recreational
vehicle on a public off-highway recreational vehicle trail shallwear an approved safety helmet meeting the United States
department of transportation standards and eye protection. The
penalty for a violation of this subsection is a fine of not less
than fifty dollars nor more than one hundred dollars for the
first offense and a fine of not less than one hundred dollars nor
more than two hundred dollars for each subsequent offense.
§20-3C-15. Enforcement.
(a) All law enforcement personnel, including the employees
or authorized agents of the division of forestry, the division of
tourism marketing, the division of public safety, the sheriff of
any county; municipal police departments, the United States
department of agriculture, the United States forest service, the
United States department of interior, bureau of land management
and national park service, are hereby authorized to enforce the
provisions of this article and rules promulgated hereunder.
(b) The state is hereby authorized to enter into cooperative
agreements with federal agencies for the purpose of regulating
off-highway recreational vehicle use on federal lands.
§20-3C-16. Accidents and accident reports.
If an accident involving an off-highway recreational vehicle
results in the death of any person or in the injury of any person
which requires treatment by a physician, the operator of each
vehicle involved in the accident shall give immediate notice of
the accident to the law enforcement agency with jurisdiction over
the location of the accident. The operator of each vehicle and
the investigating law enforcement officer shall file a written
accident report with the division of natural resources within
thirty days following the accident.
§20-3C-17. Authority for regulations.
The commissioner of the division of motor vehicles and the
off-highway recreational vehicle management commission are
authorized to promulgate rules necessary to effectuate the
provisions of this article, and any reference to rules in this
article shall be interpreted to require promulgation of rules in
accordance with section three, chapter twenty-nine-a of this
code.
ARTICLE 4B. PARKS AND RECREATION
§20-4B-1. Legislative findings.
The Legislature hereby finds and declares, in order to more
efficiently and effectively manage the system of state parks and
recreation areas, that the section of parks and recreation
formerly within the division of tourism should be, and hereby is,
abolished and that all powers and duties formerly incumbent upon
said section should be, and hereby are, transferred to the
division of natural resources.
§20-4B-2. Additional powers and duties of the division of
natural resources generally.
It shall be the power and duty of the division of natural
resources to have within its jurisdiction and supervision:
(a) All state parks and state recreation areas, including
all lodges, cabins, swimming pools, motorboating and all other
recreational facilities therein, except the roads therein which,
by reason of section one, article four, chapter seventeen of this
code, are transferred to the state road system and to the
responsibility of the commissioner of highways with respect to
the construction, reconstruction and maintenance of the roads orany future roads for public usage on publicly owned lands in
future state parks, state forests and public hunting and fishing
areas;
(b) The authority and responsibility to do the necessary
cutting and planting of vegetation along road rights-of-way in
state parks and recreational areas;
(c) The administration of all laws and rules relating to the
establishment, development, protection, use and enjoyment of all
state parks and state recreational facilities consistent with the
provisions of this article;
(d) The Berkeley Springs sanitarium in Morgan County shall
be continued as a state recreational facility under the
jurisdiction and supervision of the division of natural resources
of the department of commerce, labor and environmental resources
and shall be managed, directed and controlled as prescribed in
this article and in article one of this chapter.
The director of the division has all of the powers and
authority and shall perform all of the functions and duties with
regard to Berkeley Springs sanitarium as are necessary to carry
out the provisions of this article;
(e) The Washington Carver camp in Fayette County is hereby
transferred to the director of the division of natural resources
who shall have the jurisdiction and supervision of the camp
subject to the jurisdiction and authority of the division of
culture and history as provided under section thirteen, article
one, chapter twenty-nine of this code. The director shall manage
the Washington Carver camp as a state recreational facility and
a component of the state park system;
(f) The improved recreational area of Camp Creek State
Forest in Mercer County, as delineated according to section
three, article one-a, chapter nineteen of this code, is hereby
renamed as the Camp Creek State Park and under that name shall be
managed as a state recreational facility;
(g) The improved recreational area of Moncove Lake public
hunting and fishing area, consisting of all improved recreational
facilities, including all land between the lake and private
property beginning at the main entrance on secondary route eight
to the first stream on the southwest side of the improved
recreational area, approximately two hundred feet southwest of
the private property corner where it meets the Roxalia Springs
trail, thence northwest to a stream and along this stream
northward to and across the Diamond Hollow trail to the area
boundary, thence continuing around area boundary to the lake
shore, thence following the lake shore around the shoreline to
meet the line drawn from the main entrance where the boundary
begins. This area is hereby renamed as the Moncove Lake State
Park and under that name shall be managed as a state recreational
facility: Provided, That the boundary, as herein described,
shall be plainly marked within ninety days of the effective date
of this article; and
(h) The secretary of the department of commerce, labor and
environmental resources shall be primarily responsible for the
execution and administration of the provisions herein as an
integral part of the parks and recreation program of the state
and shall organize and staff the department for the orderly,
efficient and economical accomplishment of these ends.
§20-4B-3. Definitions regarding the state parks and recreation
system.
As used in this article, unless the context clearly requires
otherwise:
"Bonds" shall mean bonds previously issued by the
commissioner of tourism and parks and bonds issued by the
director.
"Cost of project" shall embrace the cost of construction,
the cost of all land, property, material and labor which are
deemed essential thereto, cost of improvements, financing
charges, interest during construction, and all other expenses,
including legal fees, trustees', engineers' and architects' fees
which are necessarily or properly incidental to the project.
"Director" means director of the division of natural
resources.
"Project" shall be deemed to mean collectively the
acquisition of land, the construction of any buildings or other
works, together with incidental approaches, structures and
facilities, reasonably necessary and useful in order to provide
new or improved recreational facilities.
"Recreational facilities" shall mean and embrace cabins,
lodges, swimming pools, golf courses, restaurants, commissaries
and other revenue producing facilities in any state park.
"Rent or rental" shall include all moneys received for the
use of any recreational facility.
In addition to the powers and duties vested in the director
elsewhere in this chapter, he or she shall have the power and
duty to establish and maintain a state park and public recreationsystem and to do all things necessary and incident to the
development and administration thereof. Individual projects of
such system may be financed from any moneys of the department
available for such purposes, or by the issuance of park
development revenue bonds as provided in this.
The purposes of such system shall be to promote conservation
by preserving and protecting natural areas of unique or
exceptional scenic, scientific, cultural, archaeological or
historic significance, and to provide outdoor recreational
opportunities for the citizens of this state and its visitors.
In accomplishing such purposes the director shall, insofar as is
practical, maintain in their natural condition lands that are
acquired for and designated as state parks. The director may
promulgate rules to control such uses and may further provide for
the construction and operation of cabins, lodges, resorts,
restaurants and other developed recreational and service
facilities. The director shall not permit public hunting, the
exploitation of minerals or the harvesting of timber for
commercial purposes in any state park.
All revenue derived from the operation of the state park and
public recreation system shall be expended by the director solely
for operating, maintaining and improving the system, or for the
retirement of park development revenue bonds.
§20-4B-4. Authority of director to issue park development
revenue bonds; grants and gifts.
The director with the approval of the governor, is hereby
empowered to raise the cost of any project, as defined
hereinabove, by the issuance of park development revenue bonds ofthe state, the principal of and interest on which bonds shall be
payable solely from the special fund herein provided for such
payment. Such bonds shall be authorized by order of the approved
by the governor, which shall recite an estimate by the director
of the cost of the project, and shall provide for the issuance of
bonds in an amount sufficient, when sold as hereinafter provided,
to produce such cost, less the amount of any grant or grants,
gift or gifts received, or in the opinion of the director
expected to be received from the United States of America or from
any other source. The acceptance by the director of any and all
such grants and gifts, whether in money or in land, labor or
materials, is hereby expressly authorized. All such bonds shall
have and are hereby declared to have all the qualities of
negotiable instruments under the provisions of article eight,
chapter forty-six of this code. The director shall have the
power:
(a) To issue negotiable bonds, security interests or notes
and to provide for and secure the payment thereof, and to provide
for the rights of the holders thereof, and to purchase, hold and
dispose of any of its bonds, security interests or notes.
(b) To sell, at public or private sale, any bond or other
negotiable instrument, security interests or obligation of the
director in any manner and upon such terms as the director deems
would best serve the purposes set forth herein.
(c) To issue its bonds, security interests and notes payable
solely from the revenues or funds available to the director
therefor; and the director may issue its bonds, security
interests or notes in such principal amounts as it shall deemnecessary to provide funds for any purposes herein, including:
(i) The payment, funding or refunding of the principal of,
interest on, or redemption premiums on any bonds, security
interests or notes issued by it whether the bonds, security
interests, notes or interest to be funded or refunded have or
have not become due.
(ii) The establishment or increase of reserves to secure or
to pay bonds, security interests, notes or the interest thereon
and all other costs or expenses of the director incident to and
necessary or convenient to carry out its purposes and powers.
Any bonds, security interests or notes may be additionally
secured by a pledge of any revenues, funds, assets or moneys of
the special fund herein provided.
(d) To issue renewal notes, or security interest, to issue
bonds to pay notes or security interests and, whenever it deems
refunding expedient, to refund any bonds by the issuance of new
bonds, whether the bonds to be refunded have or have not matured
except that no such renewal notes shall be issued to mature more
than ten years from date of issuance of the notes renewed, and no
such refunding bonds shall be issued to mature more than twenty-
five years from the date of issuance.
(e) To apply the proceeds from the sale of renewal notes,
security interests or refunding bonds to the purchase, redemption
or payment of the notes, security interests or bonds to be
refunded.
(f) To accept gifts or grants or property, funds, security
interest, money, materials, labor, supplies or services from the
United States of America or from any governmental unit or anyperson, firm or corporation, and to carry out the terms or
provisions of, or make agreements with respect to, or pledge, any
gifts or grants, and to do any and all things necessary, useful,
desirable or convenient in connection with the procuring,
acceptance or disposition of gifts or grants.
(g) To the extent permitted under its contracts with the
holders of bonds, security interests or notes of the authority,
to consent to any modification of the rate of interest, time of
payment of any installment of principal or interest, security or
any other term of any bond, security interests, note or contract
or agreement of any kind to which the director is a party.
(h) The director shall determine the form of such bonds,
including coupons to be attached thereto to evidence the right of
interest payments, which bonds shall be signed by the director,
under the great seal of the state, attested by the secretary of
state, and the coupons attached thereto shall bear the facsimile
signature of the director. In case any of the officers whose
signatures appear on the bonds or coupons shall cease to be such
officers before the delivery of such bonds, such signatures shall
nevertheless be valid and sufficient for all purposes the same as
if they had remained in office until such delivery.
(i) The director shall fix the denominations of the bonds,
the principal and interest of which shall be payable at the
office of the treasurer of the state of West Virginia, at the
capitol of the state, or, at the option of the holder, at some
bank or trust company in the city of New York to be named in the
bonds in such medium as may be determined by the director.
(j) The director may provide for the registration of suchbonds in the name of the owner as to principal alone, and as to
both principal and interest under such terms and conditions as
the director may determine, and shall sell such bonds in such
manner as he or she may determine to be for the best interest of
the state, taking into consideration the financial responsibility
of the purchaser, and the terms and conditions of the purchase,
and especially the availability of the proceeds of the bonds when
required for payment of the cost of the project.
(k) The proceeds of such bonds shall be used solely for the
payment of the cost of the project, and shall be deposited and
checked out as provided by this article, and under such further
restrictions, if any, as the director may provide.
(l) If the proceeds of such bonds, by error in calculation
or otherwise, shall be less than the cost of the project,
additional bonds may in like manner be issued to provide the
amount of the deficiency, and unless otherwise provided for in
the trust agreement hereinafter mentioned, shall be deemed to be
of the same issue, and shall be entitled to payment from the same
fund, without preference or priority as the bonds before issued.
(m) If the proceeds of bonds issued for the project shall
exceed the cost thereof, the surplus shall be paid into a special
fund to be established for payment of the principal and interest
of such bonds as specified in the trust agreement provided for in
the following section. Such fund may be used for the purchase of
any of the outstanding bonds payable from such fund at the market
price, but at not exceeding the price, if any, at which such
bonds shall in the same year be redeemable, and all bonds
redeemed or purchased shall forthwith be canceled, and shall notagain be issued. Prior to the preparation of definitive bonds,
the director may, under like restrictions, issue temporary bonds
with or without coupons, exchangeable for definitive bonds upon
the issuance of the latter. Such revenue bonds may be issued
without any other proceedings or the happening of any other
conditions or things than those proceedings, conditions and
things which are specified and required herein or by the
constitution of the state.
(n) All powers, duties, rights and obligations held by the
commissioner of tourism and parks prior to the effective date of
this section with regard to bonds previously issued pursuant to
article one, chapter five-b of this code, are hereby transferred
to the director.
§20-4B-5. Tax exemption.
The exercise of the powers granted to the director herein
will be in all respects for the benefit of the people of the
state, for the improvement of their health, safety, convenience
and welfare and for the enhancement of their recreational
opportunities and is a public purpose. As the operation and
maintenance of park development projects will constitute the
performance of essential government functions, the director shall
not be required to pay any taxes or assessments upon any park
development projects or upon any property acquired or used by the
director or upon the income therefrom. Such bonds and notes and
all interest and income thereon shall be exempt from all taxation
by this state, or any county, municipality, political subdivision
or agency thereof, except inheritance taxes.
§20-4B-6. Investment in notes, bonds, and security interests.
The notes, bonds, and security interests of the director are
hereby made securities in which the state board of investments,
all insurance businesses, all banking institutions, trust
companies, building and loan associations, savings and loan
associations upon which the notes, security interests or bonds
become subject to redemption plus accrued interest to such date.
Upon such purchase such notes, security interests or bonds shall
be canceled.
§20-4B-7. Disclaimer of any liability of state of West
Virginia.
The state of West Virginia shall not be liable on notes,
security interests or bonds or other evidences of indebtedness of
the director and such notes, security interests or bonds or other
evidence of indebtedness shall not be a debt of the state of West
Virginia, and such notes, security interests or bonds or other
evidence of indebtedness shall contain on the face thereof a
statement to such effect.
§20-4B-8. Trustee for holders of park development revenue
bonds.
The director may enter into an agreement or agreements with
any trust company, or with any bank having the powers of a trust
company, either within or outside the state, as trustee for the
holders of bonds issued hereunder, setting forth therein such
duties of the state and of the director in respect to
acquisition, construction, improvement, maintenance, operation,
repair and insurance of the project, the conservation and
application of all moneys, the insurance of moneys on hand or on
deposit, and the rights and remedies of the trustee and theholders of the bonds, as may be agreed upon with the original
purchasers of such bonds, and including therein provisions
restricting the individual right of action of bondholders as is
customary in trust agreements respecting bonds and debentures of
corporations, protecting and enforcing the rights and remedies of
the trustee and the bondholders, and providing for approval by
the original purchaser of the bonds of the appointment of
consulting architects, and of the security given by those who
contract to construct the project, and by any bank or trust
company in which the proceeds of bonds or rentals shall be
deposited, and for approval by the consulting architects of all
contracts for construction. All expenses incurred in carrying
out such agreement may be treated as a part of the cost of
maintenance, operation and repair of the project.
§20-4B-9. Proceeds of park development revenue bonds, grants and
gifts.
The proceeds of all bonds sold for any park development
project and the proceeds of any grant or gift received by the
director for any project financed by the issuance of park
development revenue bonds shall be paid to the treasurer of the
state of West Virginia, who shall not commingle such funds with
any other moneys, but shall deposit them in a separate bank
account or accounts. The moneys in such accounts shall be paid
out on check of the treasurer on requisition of the director, or
of such other person as the director may authorize to make such
requisition. All deposits of such moneys shall, if required by
the treasurer or the director, be secured by obligation of the
United States, of the state of West Virginia, or of the director,of a market value equal at all times to the amount of the
deposit, and all banking institutions are authorized to give such
deposits.
§20-4B-10. Authority of director to pledge revenue from
recreational facilities as security.
The director, with the approval of the governor, shall have
authority to pledge all revenue derived from any project as
security for any bonds issued to defray the cost of such project.
In any case in which the director may deem it advisable, he shall
also have the authority to pledge the revenue derived from any
existing recreational facilities under his control, or any state
park or forest, as additional security for the payment of any
bonds issued under the provisions of this article to pay the cost
of any park development project.
§20-4B-11. Management and control of project.
The division shall properly maintain, repair, operate,
manage and control the project, fix the rates of rental, and
establish bylaws and rules for the use and operation of the
project, and may make and enter into all contracts or agreements
necessary and incidental to the performance of its duties and the
execution of its powers hereunder.
§20-4B-12. Provisions of constitution and law observed; what
approval required.
It shall not be necessary to secure from any officer or
board not named in this article any approval or consent, or any
certificate or finding, or to hold an election, or to take any
proceedings whatever, either for the construction of any project,
or the improvement, maintenance, operation or repair thereof, orfor the issuance of bonds hereunder, except such as are
prescribed by these provisions or are required by the
constitution of this state.
Nothing contained herein shall be so construed or
interpreted as to authorize or permit the incurring of state debt
of any kind or nature as contemplated by the provisions of the
constitution of the state in relation to state debt.
§20-4B-13. Contracts for operation of commissaries, restaurants,
recreational facilities and other establishments limited to
ten years' duration; renewal at option of director;
termination of contract by the director; contracts for
development of revenue producing facilities within the state
parks and recreational facilities; level of investment of
contracts; term of investment contract; reservation of
option to renew; and purchase of investment in event of
default and price determination upon such event.
(a) When it is deemed necessary by the director to enter
into a contract with a person, firm or corporation for the
operation of a commissary, restaurant, recreational facility or
other such establishment within the state parks and public
recreation system, such contract shall be for a duration not to
exceed ten years, but a contract so made may provide for an
option to renew at the director's discretion for an additional
term or terms not to exceed ten years at the time of renewal.
Any contract entered into by the director shall provide an
obligation upon the part of the operator that he or she maintain
a level of performance satisfactory to the director, and shall
further provide that any such contract may be terminated by thedirector in the event he or she determines that such performance
is unsatisfactory and has given the operator reasonable notice
thereof.
(b) When it is deemed necessary by the director to enter
into a contract with a person, firm or corporation for the
development of revenue producing facilities within the state
parks and public recreation system for a period of more than ten
years, such contract shall be at least a one million dollar level
of investment for such revenue producing facilities. The term of
the investment contract may be up to twenty-five years of
duration at the determination of the director and based upon the
amount of the investment and the achievement of the
environmental, recreational and cultural goals of the state park
or recreation areas system of this state.
Any contract so entered into may provide for an option to
renew at the discretion of the director for an additional term
not to exceed an additional fifteen-year term at the time of
renewal.
Any such investment contract entered into by the director
shall contain a provision for the purchase of the investment upon
an event of default on the part of the investor on the contract.
Such purchase may be exercised only for default. The purchase
price of the investment shall be determined by determining a
percentage by dividing the number of years remaining in the term
of the contract at the time of default by the number of years of
the term of the contract and then reducing the purchase price by
such percentage of the amount of the investment. The amount of
the investment shall be the actual cost of constructing thefacilities, not including overhead, called for in the contract,
as certified by a certified public accountant at the time the
facilities are completed. The contract shall provide that the
payments to the defaulting investor shall be made in equal
payments yearly during the remaining period of the term of the
contract.
(c) The director may not solicit nor enter into contracts,
except for the operation of a commissary, restaurant or marina
for a period of less than ten years, until a master plan for the
administration of that state park or recreation area has been
developed. He or she shall supervise the preparation of the plan
and may utilize the staff of the division of tourism marketing or
any other state governmental agency whose expertise he or she
desires to enlist in the preparation thereof. The director shall
solicit public participation and involvement in all stages of the
preparation of the plan and in the preparation of any requests
for proposals for the development of a revenue producing
facility, as described herein, with a contract duration in excess
of ten years. The plan shall be consistent with the
environmental, recreational and cultural goals of the state park
and recreation areas system of the state and, to the extent
practical, with the public comments and input received during
plan development.
(d) If the director considers a proposal for the development
of a revenue producing facility, as described herein, such
proposal shall be made available to the public in a convenient
location in the county wherein the proposed facility may be
located. The director shall publish a notice of the proposal byClass I legal advertisement in accordance with the provisions of
article three, chapter fifty-nine of this code. The publication
area is the county in which the proposed facility would be
located. Any citizen may communicate by writing to the director
his or her opposition or approval to such proposal within a
period of not less than thirty days from the date of the
publication of notice.
(e) No contract of a term greater than ten years may be
entered into by the director until a public hearing is held in
the vicinity of the location of the proposed facility with at
least two weeks notice of such hearing by Class I publication
pursuant to section two, article three, chapter fifty-nine of
this code. The director shall make findings prior to rendering
a decision on any proposed contract of a duration of more than
ten years. All studies, records, documents and other materials
which are considered by the director in making such findings as
required herein shall be made available for public inspection at
the time of the publication of the notice of public hearing and
at a convenient location in the county where the proposed
development may be located.
The director shall make rules in accordance with chapter
twenty-nine-a of this code for the conduct of the hearing
required by this section. Persons attending such hearings shall
be permitted a reasonable opportunity to be heard on the proposed
development.
At such hearing the director shall present in writing the
following findings and supporting statements therefor:
(1) That the proposed development will not deprive users ofthe state park or recreational area of existing recreational
facilities in any significant fashion;
(2) That the proposed development will not have substantial
negative impact on the environmental, scenic or cultural
qualities of the said park or area; and
(3) That the proposed development, considered as a whole, is
of benefit to the recreational goals of the state and is
consistent with the master plan developed for that park or
recreational area.
(f) Following a public hearing as prescribed herein any
interested person may submit to the director written comments on
the proposed development. All comments made at a hearing, in
addition to those received in writing within thirty days after
any such hearing, shall be considered by the director in the
determination of whether to approve the proposed development.
(g) The director may not enter into any contract of a
duration of more than ten years unless all procedures and
requirements as prescribed by this section have been complied
with.
(h) The director shall make a decision whether to approve
any proposal to enter into a contract for a duration of more than
ten years within sixty days after the conclusion of the hearing
as specified herein.
§20-4B-16. Acquisition of former railroad subdivision for
establishment of Greenbrier River Trail; development,
protection, operation and maintenance of trail.
The director may acquire from the West Virginia railroad
maintenance authority approximately seventy-five miles of right-of-way along the former Greenbrier subdivision of the Chessie
Railroad System between Caldwell in Greenbrier County and Cass
in Pocahontas County to be developed as the "Greenbrier River
Trail." The acquired property shall be operated under the
authority of the division of natural resources and used for:
(1) The construction and maintenance of barriers for the
protection of the trail from motorized vehicular traffic and for
the protection of adjacent public and private property; and
(2) The development, construction, operation and maintenance
of bicycle and hiking trails, horseback trails, primitive camping
facilities and other compatible recreational facilities to be so
designated by the director.
§20-4B-15. Restaurants and other facilities.
The director may, on all areas under his jurisdiction and
control, operate commissaries, restaurants and other
establishments for the convenience of the public. For these
purposes the director may purchase equipment, foodstuffs,
supplies and commodities, according to law.
§20-4B-16. Acquisition of former railway system for
establishment of North Bend Rail Trail.
The director may acquire from the West Virginia railroad
maintenance authority approximately sixty and fifty-seven one-
hundredths miles of right-of-way of the CSX railway system
between Walker in Wood County and Wilsonburg in Harrison County
and related property to be developed as the "North Bend Rail
Trail": Provided, That no state moneys may be used to purchase
the right-of-way or the related property. This acquired property
shall be operated under the authority of the division of naturalresources and used as an improvement to North Bend State Park
for:
(a) The construction and maintenance of barriers for the
protection of the trail from motorized vehicular traffic and for
the protection of adjacent public and private property; and
(b) The development, construction, operation and maintenance
of bicycle and hiking trails, horseback trails, camping
facilities and other compatible recreational and tourism
facilities to be so designated by the director.
§20-4B-17. Correlation of projects and services.
The director of the division of natural resources shall
correlate and coordinate his park and recreation programs,
projects and developments with the functions and services of
other offices and sections of the division and other agencies of
the state government so as to provide, consistent with the
provisions of this chapter, suitable and adequate facilities,
landscaping, personnel and other services at and about all state
parks and public recreation facilities under his or her
jurisdiction.
§20-4B-18. Discounts for West Virginia residents over the age
of sixty-two.
The director shall provide to West Virginia citizens who are
sixty-two years of age or older, and who document residency and
age by a valid West Virginia driver's license, a fifty percent
reduction in campground rental fees for each campsite to be used
exclusively by said eligible camper: Provided, That the fifty
percent reduction in campground rental fees shall only apply to
those rentals occurring during the period of time beginning onthe day after Labor Day and ending four days prior to Memorial
Day.
§20-4B-19. Discounts for West Virginia residents who are totally
and permanently disabled.
The director shall issue a discount card to West Virginia
residents who are totally and permanently disabled which would
provide a fifty percent reduction in campground rental fees for
each campsite to be used exclusively by the eligible camper:
Provided, That in order to be eligible for the reduction, that
person shall document that he or she is a resident of this state
and that he or she has a total and permanent disability. The
director shall promulgate rules in accordance with article three,
chapter twenty-nine of this code setting forth the documentation
which is necessary to prove residency and total and permanent
disability: Provided, however, That the fifty percent reduction
in campground rental fees applies only to those rentals occurring
during the period of time beginning on the day after Labor Day
and ending four days prior to Memorial Day.