A BILL to amend and reenact sections two, four and five, article six, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to modifying procedures allowing municipal incorporation by annexation; requiring additional information be submitted by municipalities to county commissions relating to proposed annexations; modifying the eligibility to participation in annexation election as a qualified voter; allowing firms and corporations to become eligible to be a qualified voter; revising procedure for annexation by small boundary adjustment; altering certain population requirements for annexations; revising areas eligible to be annexed by small boundary adjustment; altering requirements and responsibilities of county commissions review of annexation by small boundary adjustment; modifying application requirements for annexation by small boundary adjustment; municipalities to provide an analysis of impact of proposed annexation to municipality and local area; establishing new factors to be considered by county commission when making a determination regarding an annexation by small boundary adjustment; allowing adjustment of a denied annexation be resubmitted to the county commission; requiring findings and conclusions by county commissions; and establishing administrative procedures and standards for judicial appeals of annexation decisions.

Be it enacted by the Legislature of West Virginia:
That sections 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 to read as follows:

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 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 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.
(c) 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.
(d) 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 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, 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.
(e) 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

(f) 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.
(g) An individual who is a qualified voter and freeholder of the municipality or the additional territory shall be

(h) 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.
(i) 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.
(j) 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.

(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 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 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

(c) Such The county commission of every county shall 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 including police and fire protection, solid waste collection, public water and sewer services and street maintenance services;
(4) A statement of the impact of the annexation on any provider of public services in the territory proposed for annexation;
(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 territory proposed for 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 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.

(e) In determining whether to approve or deny 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 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, lands owned by the municipality or other political subdivision, or lands owned by the State;
(2) Whether the annexation could be efficiently and cost effectively accomplished under sections two or four of this article; (3) Whether the proposed annexation is limited solely to the right-of-way of the division of highways, regardless of whether the division of highways holds title to the property in fee or by easement;
(4) Whether a majority of the affected parties of the territory proposed to be annexed oppose or support 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;
(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, and one or more freeholders; and
(6) 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.
(7) whether another municipality
(e) If the county commission determines that the proposed annexation does not meet the requirements of this section for a minor boundary adjustment, the application for annexation may be denied

significant modifications are proposed.
(f) The final order of the commission shall include findings of fact and conclusions of law forming the basis of the commission's decision.

(g) Any party adversely affected by a final order or decision in a contested case is entitled to judicial review thereof under this chapter, but nothing in this chapter shall be deemed to prevent other means of review, redress or relief provided by law.
(h) Proceedings for review shall be instituted by filing a petition, in the circuit court of the county in which the petitioner or any one of the petitioners resides or does business, or with the judge thereof in vacation, within thirty days after the date upon which such party received notice of the final order or decision of the commission. A copy of the petition shall be served upon the commission and all other parties of record by registered or certified mail. The petition shall state whether the appeal is taken on questions of law or questions of fact, or both. No appeal bond shall be required to effect any such appeal.
(i) The filing of the petition shall stay enforcement of the commission's order.
(j) Within fifteen days after receipt of a copy of the petition by the commission, or within such further time as the court may allow, the commission shall transmit to the circuit court the original or a certified copy of the entire record of the proceeding under review.
(k) Appeals taken on questions of law, fact or both, shall be heard upon assignments of error filed in the cause or set out in the briefs of the appellant. Errors not argued by brief may be disregarded, but the court may consider and decide errors which are not assigned or argued. The court or judge shall fix a date and time for the hearing on the petition, but such hearing, unless by agreement of the parties, shall not be held sooner than ten days after the filing of the petition, and notice of such date and time shall be forthwith given to the commission.
(l) The review shall be conducted by the court without a jury and shall be upon the record made before the commission, except that in cases of alleged irregularities in procedure before the commission, not shown in the record, testimony thereon may be taken before the court. The court may hear oral arguments and require written briefs.
(m) The court may affirm the order or decision of the commission or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the commission if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the commission; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(n) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals of this state.
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

NOTE: The purpose of this bill is to simplify and clarify the three methods annexation currently available for use by municipalities; revise the methods and criteria for annexation by small boundary adjustment; and clarify the administrative review of county commission annexations decisions.

This bill was recommended for introduction and passage by the Joint Standing Committee on the Judiciary.

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