COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 689
(By Senator Bailey)
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[Originating in the Committee on the Judiciary;
reported March 5, 1998.]
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A BILL to amend and reenact section five, article six, chapter
eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section eight, article two-a, chapter seventeen of said
code, all relating to requiring a municipality to obtain the
approval of the division of highways prior to annexing a
public right-of-way by minor boundary adjustment; requiring
the commissioner of the division of highways to provide
legal notice of a hearing on the question of annexation; and
requiring the division of highways to conduct a hearing on
the question of annexation.
Be it enacted by the Legislature of West Virginia:
That section five, article six, chapter eight of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; and that section eight, article two-a,
chapter seventeen be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 6. ANNEXATION.
§8-6-5. Annexation by minor boundary adjustment.
(a) In the event a municipality desires to increase its
corporate limits by making a minor boundary adjustment, the
governing body of 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.
(b) Such 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.
(c) 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.
(d) If the freeholders of the area proposed to be annexed
who are present or are represented 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 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.
(e) If the municipality desires to annex by minor boundary
adjustment a public right-of-way, the municipality shall make a
formal request to the commissioner of the division of highways,
pursuant to the provisions of section eight, article two-a,
chapter seventeen of this code, requesting authorization to annex
the public right-of-way. Upon receiving approval from the
commissioner of the division of highways, the governing body may
then proceed with annexation pursuant to the provisions of subsections (a) through (d) of this section.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 2A. WEST VIRGINIA COMMISSIONER OF HIGHWAYS.
§17-2A-8. Powers, duties and responsibilities of commissioner.
In addition to all other duties, powers and responsibilities
given and assigned to the commissioner in this chapter, the
commissioner may:
(1) Exercise general supervision over the state road program
and the construction, reconstruction, repair and maintenance of
state roads and highways;
(2) Determine the various methods of road construction best
adapted to the various sections and areas of the state and
establish standards for the construction and maintenance of roads
and highways therein;
(3) Conduct investigations and experiments, hold hearings
and public meetings and attend and participate in meetings and
conferences within and without the state for purposes of
acquiring information, making findings and determining courses of
action and procedure relative to advancement and improvement of
the state road and highway system;
(4) Enter private lands to make inspections and surveys for
road and highway purposes;
(5) Acquire, in name of the department division, by lease,
grant, right of eminent domain or other lawful means, all lands
and interests and rights in lands necessary and required for roads, rights-of-way, cuts, fills, drains, storage for equipment
and materials, and road construction and maintenance in general;
(6) Procure photostatic copies of any or all public records
on file at the state capitol of Virginia which may be deemed
necessary or proper in ascertaining the location and legal status
of public road rights-of-way located or established in what is
now the state of West Virginia, which photostatic copies, when
certified by the commissioner, may be admitted in evidence, in
lieu of the original, in any of the courts of this state;
(7) Plan for and hold annually a school of good roads, of
not less than three or more than six days' duration, for
instruction of his or her employees, which school shall be held
in conjunction with West Virginia university and may be held at
the university or at any other suitable place in the state;
(8) Negotiate and enter in reciprocal contracts and
agreements with proper authorities of other states and of the
United States relating to and regulating the use of roads and
highways with reference to weights and types of vehicles,
registration of vehicles and licensing of operators, military and
emergency movements of personnel and supplies and all other
matters of interstate or national interest;
(9) Classify and reclassify, locate and relocate,
expressway, trunkline, feeder and state local service roads, and
designate by number the routes within the state road system;
(10) Create, extend or establish, upon petition of any interested party or parties or on the commissioner's own
initiative, any new road or highway as may be found necessary and
proper;
(11) Exercise jurisdiction, control, supervision and
authority over local roads, outside the state road system, to the
extent determined by him or her to be expedient and practicable;
(12) Discontinue, vacate and close any road or highway, or
any part thereof, the continuance and maintenance of which are
found unnecessary and improper, upon petition and hearing, or
upon investigation initiated by the commissioner;
(13) Close any state road while under construction or repair
and provide a temporary road during the time of such construction
or repair;
(14) Adjust damages occasioned by construction,
reconstruction or repair of any state road or the establishment
of any temporary road;
(15) Establish and maintain a uniform system of road signs
and markers;
(16) Fix standard widths for road rights-of-way, bridges and
approaches thereto and fix and determine grades and elevations
therefor;
(17) Test and standardize materials used in road
construction and maintenance, either by governmental testing and
standardization activities or through contract by private
agencies;
(18) Allocate the cost of retaining walls and drainage
projects, for the protection of a state road or its right-of-way,
to the cost of construction, reconstruction, improvement or
maintenance;
(19) Acquire, establish, construct, maintain and operate, in
the name of the department division, roadside recreational areas
along and adjacent to state roads and highways;
(20) Exercise general supervision over the construction and
maintenance of airports and landing fields under the jurisdiction
of the West Virginia state aeronautics commission, of which the
commissioner is a member, and make a study and general plan of a
statewide system of airports and landing fields;
(21) Provide traffic engineering services to municipalities
of the state upon request of the governing body of any such
municipality and upon such terms as may be agreeably arranged;
(22) Institute complaints before the public service
commission or any other appropriate governmental agency relating
to freight rates, car service and movement of road materials and
equipment;
(23) Invoke any appropriate legal or equitable remedies to
enforce his or her orders, to compel compliance with requirements
of law and to protect and preserve the state road and highway
system or any part thereof;
(24) Make and promulgate rules and regulations for the
government and conduct of personnel, for the orderly and efficient administration and supervision of the state road
program and for the effective and expeditious performance and
discharge of the duties and responsibilities placed upon him or
her by law;
(25) Delegate powers and duties to his or her appointees and
employees who shall act by and under his or her direction and be
responsible to him or her for their acts;
(26) Designate and define such construction and maintenance
districts within the state road system as may be found expedient
and practicable;
(27) Contract for the construction, improvement and
maintenance of the roads;
(28) Have authority to comply with provisions of present and
future federal aid statutes and regulations, including execution
of contracts or agreements with and cooperation in programs of
the United States government and any proper department, bureau or
agency thereof relating to plans, surveys, construction,
reconstruction, improvement and maintenance of state roads and
highways;
(29) Prepare budget estimates and requests;
(30) Establish a system of accounting covering and including
all fiscal and financial matters of the department division;
(31) Have authority to establish and advance a right-of-way
acquisition revolving fund, a materials revolving fund and an
equipment revolving fund;
(32) Enter into contracts and agreements with and cooperate
in programs of counties, municipalities and other governmental
agencies and subdivisions of the state relating to plans,
surveys, construction, reconstruction, improvement, maintenance
and supervision of highways, roads, streets and other travel ways
when and to the extent determined by the department division to
be expedient and practical;
(33) Determine whether to approve the request of a
municipality, pursuant to the provisions of section five, article
six, chapter eight of this code, to annex by minor boundary
adjustment a public right-of-way: Provided, That, upon such
request, the commissioner shall, by Class II-0 legal
advertisement in a newspaper of general circulation within the
municipality and the area to be annexed, notify the public at
large of the proposed annexation. The notice shall,
additionally, inform the public of the time and place of a public
hearing to be held upon the question of the proposed annexation.
The commissioner, through his designees, shall conduct a hearing
at the regular meeting place for the governing body of the
municipality seeking annexation. The hearing shall be held
within thirty days of the last legal advertisement. At the time
of the hearing, any citizen who resides in the county in which
the municipality is situated and who travels the public right-of- way to be annexed may attend and be heard on the question of
whether authorization should be granted for annexation. The commissioner may not arbitrarily or unreasonably withhold
approval for the proposed annexation and, in the event the
commissioner denies approval, he or she shall set forth in
writing just cause for such denial of approval which shall be
premised upon considerations involving the public good. Any
municipality aggrieved by a denial of approval under this
subdivision has the right to appeal to the circuit court in the
county in which the municipality is located;
(33) (34) Report, as provided by law, to the governor and
the Legislature;
(34) (35) Purchase materials, supplies and equipment
required for the state road program and system;
(35) (36) Dispose of all obsolete and unusable and surplus
supplies and materials, which cannot be used advantageously and
beneficially by the department division in the state road
program, by transfer thereof to other governmental agencies and
institutions by exchange, trade or sale thereof;
(36) (37) Investigate road conditions, official conduct of
department division personnel and fiscal and financial affairs of
the department division and hold hearings and make findings
thereon or on any other matters within the jurisdiction of the
department division;
(37) (38) Establish road policies and administrative
practices; and
(38) (39) Take actions necessary to alleviate such conditions as the governor may declare to constitute an
emergency, whether or not the emergency condition affects areas
normally under the jurisdiction of the department division of
highways.
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(NOTE: The purpose of this bill is to require the division
of highways to approve a municipality's annexation by minor
boundary adjustment of a public right-of-way.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.)