Senate Bill No. 428
(By Senators Snyder and Unger)
____________
[Introduced March 7, 2001; referred to the Committee on the
Judiciary.]
____________
A BILL to amend and reenact sections six, eight and nine, article
twenty, chapter seven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend and
reenact section five-b, article three, chapter twenty-nine of
said code, all relating to removing the requirement that
counties, as a prior condition to assessing levy impact fees,
are required to include within their building permit plan that
they will maintain a systematic and ongoing inspection of
existing structures; removing the requirement that impact fees
must be expended within six years; removing the requirement
that impact fees be refunded within six years; and permitting
counties and municipalities to adopt the state building code only to the extent that the code is prospective only and not
retroactive in its application.
Be it enacted by the Legislature of West Virginia:
That sections six, eight and nine, article twenty, chapter
seven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that section
five-b, article three, chapter twenty-nine of said code be amended
and reenacted, all to read as follows:
CHAPTER 7.
COUNTY COMMISSIONS AND OFFICERS
ARTICLE 20. FEES AND EXPENDITURES FOR COUNTY DEVELOPMENT.
§7-20-6. Criteria and requirements necessary to implement
collection of fees.
(a) As a prerequisite to authorizing counties to levy impact
fees related to population growth and public service needs,
counties shall meet the following requirements:
(1) A demonstration that population growth rate history as
determined from the most recent base decennial census counts of a
county, utilizing generally approved standard statistical estimate
procedures, in excess of one percent annually averaged over a
five-year period since the last decennial census count; or a demonstration that a total population growth rate projection of one
percent per annum for an ensuing five-year period, based on
standard statistical estimate procedures, from the current official
population estimate of the county;
(2) Adopting a county-wide comprehensive plan;
(3) Reviewing and updating any comprehensive plan at no less
than five-year intervals;
(4) Drafting and adopting a comprehensive zoning ordinance;
(5) Drafting and adopting a subdivision control ordinance;
(6) Keeping in place a formal building permit and review
system, which provides a process to regulate the authorization of
applications relating to construction or structural modification.
and which further provides for the systematic and ongoing
inspection of existing structures. The county shall adopt,
pursuant to section three-n, article one of this chapter, the state
building code into any such building permit and review system; and
(7) Providing an improvement program which shall include:
(A) Developing and maintaining a list within the county of
particular sites with development potential;
(B) Developing and maintaining standards of service for
capital improvements which are fully or partially funded with revenues collected from impact fees; and
(C) Lists of proposed capital improvements from all areas,
containing descriptions of any such proposed capital improvements,
cost estimates, projected time frames for constructing such
improvements and proposed or anticipated funding sources.
(b) Capital improvement programs may include provisions to
provide for the expenditure of impact fees for any legitimate
county purpose. This may include the expenditure of fees for
partial funding of any particular capital improvement where other
funding exists from any source other than the county, or exists in
combination with other funds available to the county: Provided,
That for such expenditures to be considered legitimate no county or
other local authority may deny or withhold any reasonable benefit
that may be derived therefrom from any development project for
which such impact fee or fees have been paid.
(c) Capital improvement programs for public elementary and
secondary school facilities may include provisions to spend impact
fees based on a computation related to the following: (1) The
existing local tax base; and (2) the adjusted value of accumulated
infrastructure investment, based on net depreciation, and any
remaining debt owed thereon. Any such computation must establish the value of any equity shares in the net worth of an impacted
school system facility, regardless of the existence of any need to
expand such facility. Impact fee revenues may only be used for
capital replacement or expansion.
(d) Additional development areas may be added to any plan or
capital improvements program provided for hereunder if a county
government so desires. The standards governing the construction or
structural modification for any such additional area shall not
deviate from those adopted and maintained at the time such addition
is made.
(e) The county may modify annually any capital improvements
plan in addition to any impact fee rates based thereon, pursuant to
the following:
(1) The number and extent of development projects begun in the
past year;
(2) The number and extent of public facilities existing or
under construction;
(3) The changing needs of the general population;
(4) The availability of any other funding sources; and
(5) Any other relevant and significant factor applicable to a
legitimate goal or goals of any such capital improvement plan.
§7-20-8. Use and administration of impact fees.
(a) Revenues collected from the payment of impact fees shall
be restricted to funding new and additional capital improvements or
expanded or extended public services which benefit the particular
developments from which they were paid. Except as provided herein,
to ensure that developments for which impact fees have been paid
receive reasonable benefits relative to such payments, the use of
such funds shall be restricted to areas wherein development
projects are located. County commissions shall have discretion in
determining geographical configurations related to the expenditure
of impact fee collections.
(b) Impact fees may only be spent on those projects specified
in the capital improvement plan described in this article.
(c) When impact fees are collected, the county commission
shall enter into agreements with any affected party providing new
development in order to ensure compliance with the provisions of
this article.
(d) Impact fee receipts shall be specifically earmarked and
retained in a special account. All receipts shall be placed in
interest-bearing accounts wherein the interest gained thereon shall
accrue. All accumulated interest shall be published at least once each fiscal period. The county commission shall provide an annual
accounting for each account containing impact fee receipts showing
the particular source and amount of all such receipts collected,
earned, or received, and the capital improvements and public
services that were funded, in whole or in part, thereby.
(e) Impact fees shall be expended only in compliance with the
plan. Impact fee receipts shall be expended within six years of
receipt thereof unless extraordinary and compelling reasons exist
to retain them beyond this period. Such extraordinary or
compelling reasons shall be identified and published by the county
commission in a local newspaper of general circulation for at least
two consecutive weeks.
§7-20-9. Refund of unexpended impact fees.
(a) The owner or purchaser of property for which impact fees
have been paid may apply for a refund of any such paid fees. Such
refund shall be made when a county commission fails to expend such
funds within six years from the date such fees were originally
collected. The county commission shall notify potential claimants
by first class mail deposited in the United States mail and
directed to the last known address of any such claimant. Only the
owner or purchaser may apply for such refund. Application for any refund must be submitted to the county commission within one year
of the date the right to claim the refund arises. All refunds due
and unclaimed shall be retained in the special account and expended
as required herein, except as provided in this section. The right
to claim any refund may be limited by the provisions of section
five in this article.
(b) When a county commission seeks to terminate any impact fee
requirement, all unexpended funds shall be refunded to the owner or
purchaser of the property from whom such fund was initially
collected. Upon the finding that any or all fee requirements are
to be terminated, the county commission shall place notice of such
termination and the availability of refunds in a newspaper of
general circulation one time a week for two consecutive weeks and
shall also notify all known potential claimants by first class mail
deposited with the United States postal service at their last known
address. All funds available for refund shall be retained for a
period of one year. At the end of one year, any remaining funds
may be transferred to the general fund and used for any public
purpose. A county commission is released from this notice
requirement if there are no unexpended balances within an account
or funds being terminated.
CHAPTER 29.
MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-5b. Promulgation of rules and statewide building code.
(a) The state fire commission shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code, to safeguard life and
property and to ensure the quality of construction of all
structures erected or renovated throughout this state through the
adoption of a state building code. The rules shall be in
accordance with standard safe practices so embodied in widely
recognized standards of good practice for building construction and
all aspects related thereto and have force and effect in those
counties and municipalities adopting the state building code:
Provided, That each county or municipality shall have the election
to adopt the code to the extent that it is only prospective and not
retroactive in its application.
(b) The state fire commission has authority to propose rules
for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code, regarding
building construction, renovation and all other aspects as related to the construction and mechanical operations of a structure. The
rules shall be known as the "State Building Code."
(c) For the purpose of this section the term "building code"
is intended to include all aspects of safe building construction
and mechanical operations and all safety aspects related thereto.
Whenever any other state law, county or municipal ordinance or
regulation of any agency thereof is more stringent or imposes a
higher standard than is required by the state building code, the
provisions of the state law, county or municipal ordinance or
regulation of any agency thereof governs if they are not
inconsistent with the laws of West Virginia and are not contrary to
recognized standards and good engineering practices. In any
question, the decision of the state fire commission determines the
relative priority of any such state law, county or municipal
ordinance or regulation of any agency thereof and determines
compliance with state building code by officials of the state,
counties, municipalities and political subdivisions of the state.
(d) Enforcement of the provisions of the state building code
is the responsibility of the respective local jurisdiction. Also,
any county or municipality may enter into an agreement with any
other county or municipality to provide inspection and enforcement services: Provided, That any county or municipality may adopt the
state building code with or without adopting the BOCA national
property maintenance code.
(e) After the state fire commission has promulgated rules as
provided in this section, each county or municipality intending to
adopt the state building code shall notify the state fire
commission of its intent.
(f) The state fire commission may conduct public meetings in
each county or municipality adopting the state building code to
explain the provisions of the rules.
(g) The provisions of the state building code relating to the
construction, repair, alteration, restoration and movement of
structures are not mandatory for existing buildings and structures
identified and classified by the state register of historic places
under the provisions of section eight, article one, chapter
twenty-nine of this code, or the national register of historic
places, pursuant to Title XVI, section 470a of the United States
Code. Prior to renovations regarding the application of the state
building code, in relation to historical preservation of structures
identified as such, the authority having jurisdiction shall consult
with the division of culture and history, state historic preservation office. The final decision is vested in the state
fire commission. Additions constructed on a historic building are
not excluded from complying with the state building code.
NOTE: The purpose of this bill is to remove the unnecessary
and financially burdensome condition that counties must maintain a
plan for a "systematic and ongoing inspection of existing
structures" in order to levy fees under the statute; to provide
counties with the latitude to retain the impact fees for a
sufficient period of time to accommodate extensive projects; and to
prevent, upon adoption of the code by a county or municipality,
that application of retroactive rules would create serious
financial burdens on property owners.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.