Senate Bill No. 548

(By Senator Dugan)

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[Introduced February 19, 1996; referred to the Committee on Government Organization; and then to the Committee on Finance.]
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A BILL to amend and reenact section seven, article twenty, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section forty-eight, article twenty-four, chapter eight of said code, all relating to fees and expenditures for county development; and requiring county elections on impact fees and zoning ordinances.

Be it enacted by the Legislature of West Virginia:
That section seven, article twenty, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section forty-eight, article twenty-four, chapter eight of said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 20. FEES AND EXPENDITURES FOR COUNTY DEVELOPMENT.

§7-20-7. Establishment of impact fees; levies may be used to fund existing capital improvements.

(a) Impact fees assessed against a development project to fund capital improvements and public services may not exceed the actual proportionate share of any benefit realized by such project relative to the benefit to the resident taxpayers.
Notwithstanding any other provision of this code to the contrary, those counties that meet the requirements of section six of this article are hereby authorized to assess, levy, collect and administer any tax or fee as has been or may be specifically authorized by the Legislature by general law to the municipalities of this state: Provided, That any assessment, levy or collection shall be delayed sixty days from its regular effective date: Provided, however, That in the event fifteen percent of the qualified voters of the county by petition duly signed by them in their own handwriting and filed with the county commission within forty-five days after any impact fee or levy is imposed by the county commission, pursuant to this article, the fee or levy protested may not become effective until it is ratified by a majority of the legal votes cast thereon by the qualified voters of such county at any primary, general or special election as the county commission directs. Voting thereon may not take place until after notice of the subcommission of the fee a levy on the ballot has been given by publication of Class II legal advertisement and publication area shall be the county where such fee or levy is imposed: Provided further, That counties may not "double tax" by applying a given tax within any corporate boundary in which that municipality has implemented such tax. Any such taxes or fees collected under this law may be used to fund a proportionate share of the cost of existing capital improvements and public services where it is shown that all or a portion of existing capital improvements and public services were provided in anticipation of the needs of new development.
(b) In determining a proportionate share of capital improvements and public services costs, the following factors shall be considered:
(1) The need for new capital improvements and public services to serve new development based on an existing capital improvements plan that shows: (A) Any current deficiencies in existing capital improvements and services that serve existing development and the means by which any such deficiencies may be eliminated within a reasonable period of time by means other than impact fees or additional levies; and (B) any additional demands reasonably anticipated as the result of capital improvements and public services created by new development;
(2) The availability of other sources of revenue to fund capital improvements and public services, including user charges, existing taxes, intergovernmental transfers, in addition to any special tax or assessment alternatives that may exist;
(3) The cost of existing capital improvements and public services;
(4) The method by which the existing capital improvements and public services are financed;
(5) The extent to which any new development, required to pay impact fees, has contributed to the cost of existing capital improvements and public services in order to determine if any credit or offset may be due such development as a result thereof;
(6) The extent to which any new development, required to pay impact fees, is reasonably projected to contribute to the cost of the existing capital improvements and public services in the future through user fees, debt service payments, or other necessary payments related to funding the cost of existing capital improvements and public services;
(7) The extent to which any new development is required, as a condition of approval, to construct and dedicate capital improvements and public services which may give rise to the future accrual of any credit or offsetting contribution; and
(8) The time-price differentials inherent in reasonably determining amounts paid and benefits received at various times that may give rise to the accrual of credits or offsets due new development as a result of past payments.
(c) Each county shall assess impact fees pursuant to a standard formula so as to ensure fair and similar treatment to all affected persons or projects. A county commission may provide partial or total funding from general or other nonimpact fee funding sources for capital improvements and public services directly related to new development, when such development benefits some public purpose, such as providing affordable housing and creating or retaining employment in the community.
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 24. PLANNING AND ZONING.

PART XII. SAME -- ELECTION ON ZONING ORDINANCE.


§8-24-48. Election on zoning ordinance; form of ballots or ballot labels; procedure.

If, Within sixty days following adoption of the zoning ordinance by the governing body of the municipality or by the county court commission, a petition is filed with the recorder or the clerk of the county court commission praying for submission of such shall submit the zoning ordinance for approval or rejection to the qualified voters residing in the area within the jurisdiction of the municipal or county planning commission, such and the ordinance shall not take effect until the same shall have been approved by a majority of the legal votes cast thereon at any regular primary or general election or special election called for that purpose. The petition may be in any number of counterparts but must be signed in their own handwriting by a number of qualified voters residing in the area affected by the proposed zoning equal, notwithstanding the provisions of subdivision (10), subsection (b), section two, article one of this chapter, to not less than fifteen percent of the total legal votes cast in the affected area for all candidates for governor at the last preceding general election at which a governor was elected. Only qualified voters residing in the area affected by the proposed ordinance shall be eligible to vote with respect thereto.
Upon the ballots, or ballot labels where voting machines are used, there shall be written or printed the following:


/ / For Zoning

/ / Against Zoning

If a majority of the legal votes cast upon the question be for zoning, the provisions of said zoning ordinance shall, upon the date the results of such an election are declared, be effective. If a majority of the legal votes cast upon the question be against zoning, said zoning ordinance shall not take effect, but and the question may again not be submitted to a vote at any regular primary or general election in the manner herein provided until two years from the date of the first vote on the proposed zoning ordinance.
Subject to the provisions of the immediately preceding sentence, voting upon the question of zoning may be conducted at any regular primary or general election or special election, as the governing body of the municipality or the county court commission in its order submitting the same to a vote may designate.
Notice of all elections at which the question of zoning is to be voted upon shall be given by publication of the order calling for a vote on such question 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 area in which voting on the question of zoning is to be conducted.
Any election at which the question of zoning is voted upon shall be held at the voting precincts established for holding primary or general elections. All of the provisions of the general election laws of this state concerning primary, general or special elections, when not in conflict with the provisions of this article, shall apply to voting and elections hereunder, insofar as practicable.




NOTE: The purpose of this bill is to require counties to submit the questions of imposition of impact fees and levies and zoning ordinances to the voters for approval or disapproval, rather than having these fees, levies and zoning ordinances become effective automatically after imposition or adoption, unless 15% of the voters affected request an election on the issue.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.