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.