Senate Bill No. 689

(By Senator Bailey)


[Introduced February 23, 1998; referred to the Committee on the Judiciary.]

A BILL to amend and reenact section two, 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 the approval of the division of highways prior to a municipality annexing land; requiring the commissioner of the division of highways to provide legal notice of a hearing on the question of annexation; and requiring the department of highways to conduct a hearing on the question of annexation.

Be it enacted by the Legislature of West Virginia:
That section two, 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:

§8-6-2. Petition for annexation; requirement that commissioner of department of highways approve proposed annexation.
Five percent or more of the freeholders of a municipality desiring to have territory annexed thereto 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 the 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 the 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. 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 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, 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 the 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 of this article make a formal request to the commissioner of the department of highways, pursuant to the provisions set forth under section eight, article two-a, chapter seventeen of this code, requesting authorization to annex the proposed territory. Upon receiving approval from the commissioner of the department of highways the governing body shall then proceed as specified in the immediately succeeding section of this article.


§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, 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 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 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, 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 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 by law;
(25) Delegate powers and duties to his appointees and employees who shall act by and under his direction and be responsible to him 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;
(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 to be expedient and practical;
(33) Make determinations upon the request of a municipality, pursuant to the provisions of section two, article six, chapter eight of this code, whether approval shall be granted to annex land: Provided, That, upon such request, the commissioner shall, by Class II-O legal advertisement in a newspaper of general circulation within the municipality and territory involved, 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 city or town council or like body in 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 wherein the municipality or proposed territory to be annexed is situated and who travels on any road or highway existing in the territory, 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 of appeal to the circuit court located in the county in which the municipality or territory 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 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 personnel and fiscal and financial affairs of the department and hold hearings and make findings thereon or on any other matters within the jurisdiction of the department;
(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 of highways.

NOTE: The purpose of this bill is to require the department of highways to approve any annexation of territory by a municipality.

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