COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 202

(By Senators Snyder, Burnette, Oliverio, McKenzie, Kessler and Edgell)

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[Originating in the Committee on the Judiciary;

reported March 20, 2001.]

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A BILL to amend and reenact sections one, two, four and five, article six, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to modifying procedures allowing municipal incorporation by annexation; prohibiting retroactive taxation of businesses being annexed; requiring additional information to be submitted by municipalities to county commissions relating to proposed annexations; modifying eligibility to participate in annexation election as a qualified voter; allowing firms and corporations to sign petitions and vote on annexation; revising procedure for annexation by minor boundary adjustment; altering certain population requirements for annexations; revising areas eligible to be annexed by minor boundary adjustment; altering requirements and responsibilities of county commissions' review of annexation by minor boundary adjustment; modifying application requirements for annexation by minor boundary adjustment; requiring municipalities to provide an analysis of impact of proposed annexation on businesses and the municipality; establishing minimum criteria to be considered by county commission when making a determination regarding an annexation by minor boundary adjustment; allowing modification of a denied annexation application to be resubmitted to the county commission; requiring explanation of decision by county commission; and providing for judicial review of annexation decisions.

Be it enacted by the Legislature of West Virginia:
That sections one, two, four and five, article six, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 6. ANNEXATION.
PART I. GENERAL.

§8-6-1. Annexation of unincorporated territory.
(a) Unincorporated territory may be annexed to and become part of a municipality contiguous thereto only in accordance with the provisions of this article.
(b) Any farmlands or operations as described in article nineteen, chapter nineteen of this code which may be annexed into a municipality shall be protected in the continuation of agricultural use after being annexed.
 (c) Any new imposition of a tax or any increase in the rate of tax upon any business, occupation or privilege following annexation shall be applied in accordance with the provisions of section five, article thirteen, chapter eight of this code.
PART II. ANNEXATION BY ELECTION.

§8-6-2. Petition for annexation.
(a) Five percent or more of the freeholders of a municipality desiring to have territory annexed thereto may file their a 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 to which would be annexed to the corporate limits by the proposed change.
(b) 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, The petitioners shall obtain a surety bond in an amount set by the governing body sufficient to cover the cost of the election. The bond shall be forfeited if a majority of the votes cast are against the proposed annexation.
(c) The governing body shall, upon receipt of the bond, thereupon order a vote of the qualified voters of such the municipality to be taken upon the proposed change annexation 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. (d) 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 the 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.
(e) The governing body shall cause the order for the election 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 The publication area for such publication shall be is 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 for the election 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, a summary of the municipality's plan for providing services to the additional territory and, if practicable, shall also contain a popular description of such the additional territory.
(f) 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 election is reviewable by the circuit court of the county in which the municipality or the major portion thereof, including the area proposed to be annexed, is located. The 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.
(g) The ballots, or ballot labels where voting machines are used, shall have written or printed on them the words:

/ / For Annexation


/ / Against Annexation

(h) 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.
(i) An individual who is a qualified voter and freeholder of the municipality or the additional territory shall be entitled to vote only once.
(j) For purposes of this section, the term "qualified voter of the additional territory" includes a firm or corporation in the additional territory regardless of whether the firm or corporation is a freeholder. A firm or corporation may vote by its manager, president, or executive officer duly designated in writing by the firm or corporation. In any instance where a freeholder leases or rents real property to a firm or corporation the freeholder and the firm or corporation shall determine which entity will be entitled to vote in the annexation election.
(k) 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.
(l) 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.
PART III. ANNEXATION WITHOUT ELECTION.

§8-6-4. Annexation without an election.
(a) 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 the additional territory file with the governing body their a petition to be annexed; and (2) a majority of all freeholders of such the additional territory, whether they reside or have a place of business therein or not, file with the governing body their a petition to be annexed: Provided, That the additional territory shall conform to the requirements of section one, article two of this chapter, and the determination that the additional territory does so conform 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.
(b) For purposes of this section, the term "qualified voter of the additional territory" includes firms and corporations in the additional territory regardless of whether the firm or corporation is a freeholder. A firm or corporation may sign a petition by its manager, president or executive officer duly designated in writing by the firm or corporation. In any instance where a freeholder leases or rents real property to a firm or corporation the freeholder and the firm or corporation shall determine which entity will be entitled to sign a petition relating to the proposed annexation.
(c) The determination 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.
(d) A qualified voter of the additional territory who is also a freeholder of the additional territory may join only in the voters' one petition of such the additional territory.
(e) It shall be 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 of eligible 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.
(f) 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 If all of the eligible petitioners are qualified voters, then only a voters' petition shall be is required.
(g) If satisfied that the additional territory conforms to the requirements of section one, article two of this chapter and that the petition is sufficient in every respect, the governing body shall enter such that 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 as described in the immediately preceding section of this article. After the date of such the 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.
(a) In the event a municipality desires to increase its corporate limits by making a minor boundary adjustment, the governing body of such the 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. The municipality shall pay the costs of all proceedings before the commission.
(b) In addition to any other annexation configuration, a municipality may incorporate by minor boundary adjustment: (i) Territory that consists of a street or highway as defined in section thirty-five, article one, chapter seventeen-c of this code and one or more freeholders; or (ii) territory that consists of a street or highway as defined in section thirty-five, article one, chapter seventeen-c of this code which does not include a freeholder but which is necessary for the provision of emergency services in the territory being annexed.
(c) Such A county commission may develop a form application for annexation for minor boundary adjustment. An application for annexation by minor boundary adjustment 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. include, but not be limited to:
(1) The number of businesses located in and persons residing in the additional territory; (2) An accurate map showing the metes and bounds of the additional territory;
(3) A statement setting forth the municipality's plan for providing the additional territory with all applicable public services such as police and fire protection, solid waste collection, public water and sewer services and street maintenance services, including to what extent the public services are or will be provided by a private solid waste collection service or a public service district;
(4) A statement of the impact of the annexation on any private solid waste collection service or public service district currently doing business in the territory proposed for annexation in the event the municipality should choose not to utilize the current service providers;
(5) A statement of the impact of the annexation on fire protection and fire insurance rates in the territory proposed for annexation;
(6) A statement of how the proposed annexation will affect the municipality's finances and services; and
(7) A statement that the proposed annexation meets the requirements of this section.
(d) If satisfied that the proposed annexation is only a minor boundary adjustment, Upon receipt of a complete application for annexation by minor boundary adjustment, the county commission shall determine whether the application meets the threshold requirements for consideration as a minor boundary adjustment including whether the annexation could be efficiently and cost effectively accomplished under section two or four of this article.
(e) If the application meets the threshold requirements, 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 the 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.
(f) In making its final decision on an application for annexation by minor boundary adjustment, the county commission shall, at a minimum, consider the following factors:
(1) Whether the territory proposed for annexation is contiguous to the corporate limits of the municipality. For purposes of this section, "contiguous" means that at the time the application for annexation is submitted, the territory proposed for annexation either abuts directly on the municipal boundary or is separated from the municipal boundary by an unincorporated street or highway, or street or highway right-of-way, a creek or river, or the right-of-way of a railroad or other public service corporation, or lands owned by the state or the federal government;
(2) Whether the proposed annexation is limited solely to a division of highways right-of-way or whether the division of highways holds title to the property in fee;
(3) Whether affected parties of the territory to be annexed oppose or support the proposed annexation. For purposes of this section, "affected parties" means freeholders, firms, corporations and qualified voters in the territory proposed for annexation and in the municipality and a freeholder whose property abuts a street or highway, as defined in section thirty-five, article one, chapter seventeen-c of this code, when:(i) The street or highway is being annexed to provide emergency services; or (ii) the annexation includes one or more freeholders at the end of the street or highway proposed for annexation;
(4) Whether the proposed annexation consists of a street or highway as defined in section thirty-five, article one, chapter seventeen-c of this code and one or more freeholders;
(5) Whether the proposed annexation consists of a street or highway as defined in section thirty-five, article one, chapter seventeen-c of this code which does not include a freeholder but which is necessary for the provision of emergency services in the territory being annexed;
(6) Whether another municipality has made application to annex the same or substantially the same territory; and
(7) Whether the proposed annexation is in the best interest of the county as a whole.
(g) If the county commission denies the application for annexation by minor boundary adjustment, the commission may allow the municipality to modify the proposed annexation to meet the commissions objections. The commission must order another public hearing if significant modifications are proposed.
(h) The final order of the commission shall include the reasons for the grant or denial of the application.
 (i) The municipality applying for annexation or any affected party may appeal the commission's final order to the circuit court of the county in which the municipality or the major portion thereof, including the area proposed to be annexed, is located. The county commission may participate in any appeal taken from its order in the same manner and to the same extent as a party to the appeal. The 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.
 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, article five of this chapter.
If the proposed change is substantially 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.

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(NOTE: The purpose of this bill is to simplify and clarify the three annexation methods currently available for use by municipalities; reiterate that business and occupation taxes can not be retroactively applied to businesses newly annexed into a city; and revise the methods and criteria for annexation by minor boundary adjustment.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
This bill was recommended for passage by the joint standing committee on the judiciary.)