Senate Bill No. 689

(By Senator Bailey)


[Originating in the Committee on the Judiciary;

reported March 5, 1998.]


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:

§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.


§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.

(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.)