COMMITTEE SUBSTITUTE

FOR

H. B. 4332

(By Delegates Doyle and Manuel)


(Originating in the Committee on Finance)


[February 22, 2002]


A BILL to amend and reenact sections six and seven, article twenty, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section eleven, all relating to the county school boards levying impact fees; requirements relating to eligibility to levy the fee; authorizing certain county school boards to levy impact fees; establishing requirements associated with qualification for and assessment of the impact fee; establishing criteria to be included in a capital improvements plan; providing for development and modification of capital improvement plan; authorizing modification of the fee assessed in certain conditions; and designation of single points of application for development projects and for collections of impact fees.

Be it enacted by the Legislature of West Virginia:
That sections six and seven, article twenty, chapter seven of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section eleven, all to read as follows:
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 a year for an ensuing five-year period, based on standard statistical estimate procedures, from the current official population estimate of the county;
(2) Adopting a countywide 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. The county shall adopt, pursuant to section three-n, article one of this chapter, the state building code into any such the 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 the proposed capital improvements, cost estimates, projected time frames for constructing such these 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 the 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 the impact fee or fees have been paid.
(c) Capital improvement programs for public elementary and secondary school facilities and vocational-technical education and training facilities in counties where the school board does not, within one year of the county meeting the requirements of subsection (a) of this section, levy separate impact fees pursuant to section eleven of this article 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 on the investment. The 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 the 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 under this article if a county government so desires. The standards governing the construction or structural modification for any such the additional area shall may not deviate from those adopted and maintained at the time such the addition is made.
(e) The county may modify annually any capital improvements plan in addition to any impact fee rates based thereon, on the plan 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 the capital improvement plan.
§7-20-7. Establishment of impact fees; levies may be used to fund existing capital improvements.

(a) Impact fees assessed against a development project to fund capital improvements and public services may not exceed the actual proportionate share of any benefit realized by such the project relative to the benefit to the resident taxpayers.
Notwithstanding any other provision of this code to the contrary, those counties that meet the requirements of section six of this article are hereby authorized to assess, levy, collect and administer any tax or fee as has been or may be specifically authorized by the Legislature by general law to the municipalities of this state: Provided, That any assessment, levy or collection shall is to be delayed sixty days from its regular effective date: Provided, however, That in the event fifteen percent of the qualified voters of the county by petition duly signed by them in their own handwriting and filed with the county commission within forty-five days after any impact fee or levy is imposed by the county commission or school board, pursuant to this article, the fee or levy protested may not become effective until it is ratified by a majority of the legal votes cast thereon by the qualified voters of such the county at any primary, general or special election as the county commission directs. Voting thereon may not take place until after notice of the subcommission of the that the question of ratification of the proposed fee a levy will be on the ballot has been given by publication of a class II legal advertisement. and The publication area shall be the county where such the fee or levy is imposed: Provided further, That counties may not "double tax" by applying a given tax within any corporate boundary in which that municipality has implemented such the same tax. Any such taxes or fees collected under this law may be used to fund a proportionate share of the cost of existing capital improvements and public services where it is shown that all or a portion of existing capital improvements and public services were provided in anticipation of the needs of new development: And provided further, That imposition of an impact fee does not limit or otherwise modify the collection or disposition of a county or municipal building permit fee.
(b) In determining a proportionate share of capital improvements and public services costs, the following factors shall must be considered:
(1) The need for new capital improvements and public services to serve new development based on an existing capital improvements plan that shows (A) any current deficiencies in existing capital improvements and services that serve existing development and the means by which any such deficiencies may be eliminated within a reasonable period of time by means other than impact fees or additional levies; and (B) any additional demands reasonably anticipated as the result of capital improvements and public services created by new development;
(2) The availability of other sources of revenue to fund capital improvements and public services, including user charges, existing taxes, intergovernmental transfers, in addition to any special tax or assessment alternatives that may exist;
(3) The cost of existing capital improvements and public services;
(4) The method by which the existing capital improvements and public services are financed;
(5) The extent to which any new development, required to pay impact fees, has contributed to the cost of existing capital improvements and public services in order to determine if any credit or offset may be due such the development as a result thereof;
(6) The extent to which any new development, required to pay impact fees, is reasonably projected to contribute to the cost of the existing capital improvements and public services in the future through user fees, debt service payments, or other necessary payments related to funding the cost of existing capital improvements and public services;
(7) The extent to which any new development is required, as a condition of approval, to construct and dedicate capital improvements and public services which may give rise to the future accrual of any credit or offsetting contribution; and
(8) The time-price differentials inherent in reasonably determining amounts paid and benefits received at various times that may give rise to the accrual of credits or offsets due new development as a result of past payments.
(c) Each county shall assess impact fees pursuant to a standard formula so as to ensure fair and similar treatment to all affected persons or projects. A county commission may provide partial or total funding from general or other nonimpact fee funding sources for capital improvements and public services directly related to new development, when such the development benefits some public purpose, such as providing affordable housing and creating or retaining employment in the community.
§7-20-11. County school board impact fees.
(a) In addition to the fees or taxes that may be imposed by a county under the provisions of this article, a county school board located in a county that meets the requirements of section six of this article and has adopted a county-wide comprehensive capital improvements plan for the county's public primary and secondary school facilities and vocational-technical education and training facilities is authorized to levy separate impact fees on any projects against which they may be levied under the provisions of this article. The school board has the power and authority granted by the provisions of this article to the county to effect the purposes of this section. The total impact fees that may be levied by a school board under the provisions of this section may not exceed the total cost of the capital improvements under the plan. The impact fee as levied by the school board is only to pay the costs of school capital improvements as provided by this section. Only infrastructure capital improvements as provided in section six of this article shall be levied by the county commission.
(b) The amount and use of revenues collected by a county or county school board from the payment of impact fees where the school board levies separate impact fees is restricted as provided by section eight of this article except that the use of the revenues collected by the county does not extend to capital improvements for the county's public primary and secondary school facilities and vocational-technical education and training facilities . The total amount of impact fees that may be levied by a county school board may not exceed total amount that may be levied for school capital improvements under sections six and seven of this article. The total amount of fees that may be levied by a county that levies impact fees subsequent to the levy of impact fees by the county's school board may not exceed the total amount that may be levied for capital improvements other than school capital improvements under sections six and seven of this article, less the total amount levied by the county school board.
(c) As a prerequisite to authorizing county school boards to levy impact fees related to population growth and public service needs, boards shall:
Provide an improvement program which shall include:
(1) Developing and maintaining a list within the county of particular sites with development potential;
(2) Developing and maintaining standards of service for capital improvements which are fully or partially funded with revenues collected from impact fees; and
(3) Lists of proposed capital improvements from all areas, containing descriptions of the proposed capital improvements, cost estimates, projected time frames for constructing the improvements and proposed or anticipated funding sources.
(d) Capital improvement programs may include provisions to provide for the expenditure of impact fees for any legitimate county school board 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 board, or exists in combination with other funds available to the county board: Provided, That for the expenditures to be considered legitimate no county board or other local authority may deny or withhold any reasonable benefit that may be derived therefrom from any development project for which the impact fee or fees have been paid.
(e) Capital improvement programs for public elementary and secondary school facilities and vocational-technical education and training 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 on the investment. The 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 the facility. Impact fee revenues may only be used for capital replacement or expansion.
(f) Additional development areas may be added to any plan or capital improvements program provided for under this article if a county school board so desires. The standards governing the construction or structural modification for the additional area may not deviate from those adopted and maintained at the time the addition is made.
(g) The county school board may modify annually any capital improvements plan in addition to any impact fee rates based on the plan, 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 the capital improvement plan.
(h) Where county commission of a county in which the school board levies impact fees under the provisions of this section levies county impact fees for the purposes for which a county may levy the fees under the provisions of this article , the county shall, at the time of its determination to levy the county impact fees, include in the determination its designation of a single point of application to undertake a development project subject to both the county and the school board impact fees and a single point of collection of both the county and the school board impact fees. Upon the designation, all such applications and collections shall be made at the single point or points designated by the county.