Senate Bill No. 567
(By Senator Bailey)
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[Introduced March 22, 1993; referred to the Committee
on the Judiciary.]
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A BILL to amend article six, chapter eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new section, designated section one-a;
and to amend and reenact sections two, four and five of said
article, all relating to municipal annexation; deleting the
existing population density requirement but retaining the
requirement that the territory to be annexed be urban in
character; including voters in the petition for annexation
elections; defining freeholder for the purpose of municipal
annexation; authorizing the cost of annexation election to
be paid by the municipality; providing for a municipality to
call for an annexation election; requiring a study of the
costs and benefits and a plan for services in the annexed
area to be completed by the municipality prior to issuance
of an order for an annexation election and requiring the
estimate and plan to be included in the order; authorizing
an estimate of the costs and benefits of a minor boundary
adjustment and plan for services in the affected territory
to be included in the application for adjustment and if
included, requiring their inclusion in the notice of
proposed annexation; and clarifying the definition of
substantial opposition to a minor boundary adjustment.
Be it enacted by the Legislature of West Virginia:
That article six, chapter eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
one-a; and that sections two, four and five of said article be
amended and reenacted, all to read as follows:
ARTICLE 6. ANNEXATION.
PART I. GENERAL.
§8-6-1a. Definitions.
As used in sections two and five of this article, unless the
context in which used clearly implies a different meaning,
"freeholder" means a person who does not reside within the
boundaries of the municipality to which territory is to be
annexed or within the boundaries of the territory to be annexed
and who owns real property with those boundaries. For the
purpose of petitions and elections regarding the question of
annexation, only one freeholder may be designated for each
property and the freeholder is entitled to vote in annexation
elections and sign petitions requesting annexation elections by
virtue of his status as a freeholder and upon certification of
that status by the governing body of the applicable municipality. The rights of any freeholder which is a firm or corporation shall
be exercised by the president of the firm or corporation. In the
case of property owned by a partnership or joint heirs or other
joint ownership, the rights of freeholder shall be exercised by
one joint owner designated to exercise the rights by mutual
agreement of the joint owners, except that any joint owner or
joint owners who reside on the property, may exercise their
rights as voters and not as freeholders. Failure by the parties
jointly owning property to reach a mutual agreement as to the
designated freeholder may not in any way jeopardize the holding
of an annexation election and any vote or signature on an
annexation petition by a joint owner challenged by a joint owner
of the same property on the basis of a failure to reach mutual
agreement shall not be counted.
PART II. ANNEXATION BY ELECTION.
§8-6-2. Petition for annexation; election; notice; election.
(a) Additional territory determined by the governing body of
the municipality to be urban in character may be annexed to the
corporate limits of a municipality upon the affirmative vote of
the voters of the municipality and voters and freeholders of the
territory to be annexed in accordance with the provisions of this
Part II. The determination that the additional territory is
urban in character is reviewable by the circuit court of the
county in which the municipality or the major portion of the
territory thereof, including the area proposed to be annexed, is
located, upon certiorari to the governing body, in accordancewith the provisions of article three, chapter fifty-three of this
code.
(b) Five percent or more of the voters and freeholders of a
municipality desiring who desire to have territory annexed
thereto to the municipality may file their petition in writing
with the governing body thereof, setting forth the change
proposed in the metes and bounds of the municipality, and asking
that a vote be taken upon the proposed change. Such The petition
shall be verified and shall be accompanied by an accurate survey
map showing the territory which would be annexed to the corporate
limits by the proposed change. The governing body, upon bond in
penalty prescribed by the governing body with good and sufficient
surety being given by petitioners, and conditioned to pay the
costs of such election if a majority of the legal votes cast are
against the proposed change in boundary, shall thereupon order a
vote of the qualified voters of such municipality to be taken
upon the proposed change on a date and at a time and place
therein to be named in the order, not less than twenty nor more
than thirty days from the date thereof. The governing body
shall, at the same time, order a vote of all of the qualified
voters of the additional territory, and of all of the freeholders
of such additional territory, whether they reside or have a place
of business therein or not, to be taken upon the question on the
same day, at some convenient place in or near such additional
territory: Provided, That the additional territory to be
included shall conform to the requirements of section one,article two of this chapter, and the determination that the
additional territory does so conform shall be reviewable by the
circuit court of the county in which the municipality or the
major portion of the territory thereof, including the area
proposed to be annexed, is located upon certiorari to the
governing body, in accordance with the provisions of article
three, chapter fifty-three of this code. shall thereupon cause
to be made: (1) An estimate of the costs and benefits to both
the municipality and the territory proposed to be annexed which
may result from the annexation; and (2) a plan for providing or
improving municipal services in the area proposed to be annexed.
The estimate and the plan shall be included in the order for a
vote on the question of annexation. After completion of the
estimate and plan, the governing body shall order a vote on the
question of annexation and either pay for the costs of the vote
from municipal revenues or require a bond in penalty prescribed
by the governing body with good and sufficient surety being given
by the petitioners and conditioned to pay the costs of the
election if a majority of the legal votes cast are against the
proposed change in boundary.
(c) The governing body of a municipality may, by its own
resolution, set forth a proposed change in the metes and bounds
of the municipality accompanied by an accurate survey map showing
the territory which would be annexed to the corporate limits by
the proposed change and shall thereupon cause to be made: (1) An
estimate of the costs and benefits to both the municipality andthe territory proposed to be annexed which may result from the
annexation; and (2) a plan for providing or improving municipal
services in the area proposed to be annexed. The estimate and
plan shall be included in the order for a vote on the question of
annexation. After completion of the estimate and plan, the
governing body may order a vote on the question of annexation
and, if so ordered, shall pay the costs of the vote from
municipal revenues.
(d) If the governing body of a municipality orders a vote on
the question of annexation of additional territory, the order
shall provide for a vote of the voters and freeholders of the
additional territory to be annexed on a date and at a time and
(1) place or places in the municipality for the voters of the
municipality and (2) at some convenient place or places in or
near the additional territory to be annexed for the voters and
freeholders of the additional territory.
The governing body shall cause the order to be published, at
the cost of the municipality, as a Class II-0 legal advertisement
in compliance with the provisions of article three, chapter
fifty-nine of this code, and the publication area for such
publication shall be the municipality and the additional
territory. The first publication must be at least fourteen
thirty days prior to the date upon which the vote is to be taken.
The order so published shall contain an accurate description by
metes and bounds of the additional territory proposed to be
annexed to the corporate limits by the proposed change, theestimate and plan specified in subsection (b) of this section,
and, if practicable, shall also contain a popular description of
such additional territory.
The election shall be held, superintended and conducted, and
the results thereof ascertained, certified, returned and
canvassed in the same manner and by the same individuals as
elections for municipal officers. The ballots, or ballot labels
where voting machines are used, shall have written or printed on
them the words:
/ / For Annexation
/ / Against Annexation
Any freeholder which is a firm or corporation may vote by
its manager, president, or executive officer duly designated in
writing by such firm or corporation. Even though an individual
who is a qualified voter of the municipality or the territory is
also a freeholder of the territory, such person shall be entitled
to vote only once.
When an election is held in any municipality in accordance
with the provisions of this section, another such election
relating to the same proposed change or any part thereof shall
not be held for a period of one year.
If a majority of all of the legal votes cast both in the
municipality and in the territory are in favor of the proposed
annexation, then the governing body shall proceed as specified in
the immediately succeeding section three of this article.
PART III. ANNEXATION WITHOUT ELECTION.
§8-6-4. Annexation without an election.
The governing body of a municipality may by ordinance
provide for the annexation of additional territory without
ordering a vote on the question if (1) a majority of the
qualified voters of such additional territory file with the
governing body their petition to be annexed, and (2) a majority
of all freeholders of such additional territory, whether they
reside or have a place of business therein or not, file with the
governing body their petition to be annexed:
Provided,
That the
additional territory shall conform to the requirements of section
one, article two of this chapter be determined by the governing
body to be urban in character, and the determination that the
additional territory does so conform is urban in character or
that the requisite number of petitioners have filed the required
petitions shall be reviewable by the circuit court of the county
in which the municipality or the major portion of the territory
thereof, including the area proposed to be annexed, is located
upon certiorari to the governing body, in accordance with the
provisions of article three, chapter fifty-three of this code.
A qualified voter of the additional territory who is also a
freeholder of the additional territory may join only in the
voters' petition of such additional territory. It shall be is
the responsibility of the governing body to enumerate and verify
the total number of eligible petitioners, in each category, from
the additional territory. In determining the total number ofeligible petitioners, in each category, a freeholder or any other
entity that is a freeholder shall be limited to one vote or one
signature on a petition as provided in this section. There shall
be allowed only one signature on a petition per parcel of
property and any freehold interest that is held by more than one
individual or entity shall be allowed to sign a petition only
upon the approval by the majority of the individuals or entities
that have an interest in the parcel of property. A qualified
voter of the additional territory who is also a freeholder of the
additional territory shall be counted only as a freeholder and if
all of the eligible petitioners are qualified voters, then only
a voters' petition shall be required. If satisfied that the
additional territory conforms to the requirements of section one,
article two of this chapter is urban in character and that the
petition is sufficient in every respect, the governing body shall
enter such fact upon its journal and forward a certificate to
that effect to the county commission of the county wherein the
municipality or the major portion of the territory thereof,
including the additional territory, is located. The county
commission shall thereupon enter an order along the lines of the
order described in the immediately preceding section of this
article. After the date of such order, the corporate limits of
the municipality shall be as set forth therein.
PART IV. ANNEXATION BY MINOR BOUNDARY ADJUSTMENT.
§8-6-5. Annexation by minor boundary adjustment.
In the event a municipality desires to increase itscorporate limits by making a minor boundary adjustment, the
governing body of such municipality may apply to the county
commission of the county wherein the municipality or the major
portion of the territory thereof, including the territory to be
annexed, is located for permission to effect such annexation by
minor boundary adjustment.
Such The application shall disclose the number of persons
residing in the territory to be annexed to the corporate limits
by the proposed change, and shall have attached thereto an
accurate map showing the metes and bounds of such additional
territory. The application may also include at the option of the
municipality an estimate and plan as specified in subsection (b),
section two of this article. If an estimate and plan are
included, they shall also be included in the notice of proposed
annexation to be published by the county commission.
If satisfied that the proposed annexation is only a minor
boundary adjustment, the county commission shall order
publication of a notice of the proposed annexation to the
corporate limits and of the date and time set by the commission
for a hearing on such proposal. Publication shall be as in the
case of an order calling for an election, as set forth in section
two of this article. A like notice shall be prominently posted
at not less than five public places within the area proposed to
be annexed.
If less than a majority of the voters and the freeholders of
the area proposed to be annexed who are present or arerepresented at the hearing are not substantially opposed to the
proposed boundary change, the commission may enter an order
changing the corporate limits of the municipality as requested,
which order may be reviewed by the circuit court as an order of
a county commission ordering an election may be reviewed under
section sixteen, article five of this chapter. After the date of
such order, the corporate limits of the municipality shall be as
set forth therein, unless judicial review is sought under the
provisions of said section sixteen. If the proposed change is
substantially opposed at the hearing by any such a majority of
the voters and freeholders present, freeholder the commission
shall dismiss the application. Dismissal of any such application
shall not preclude proceedings in accordance with the provisions
of sections two and three or section four of this article. The
municipality shall pay the costs of all proceedings under this
section.
NOTE: This bill amends statutes on annexation by election
to provide (a) the municipality may pay the cost of the election;
(b) the municipality may order the election on its own
resolution; and (c) the municipality must conduct a study of the
costs and benefits of the proposed annexation and provide a plan
for services in the territory to be annexed and include both the
estimate and plan in the order. The bill clarifies the
definition of substantial objection to a minor boundary
adjustment. The bill deletes the existing population density
requirement but retains the requirement that the territory to be
annexed be "urban in character."
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§8-6-1a is new; therefore, strike-throughs and underscoringhave been omitted.