H. B. 203
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced June 10, 2003.]
A BILL to amend article twenty-four, chapter eight of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto two new sections, designated
sections eighty-six and eighty-seven; and to amend chapter
sixteen of said code by adding thereto a new article,
designated article thirteen-e, all relating to expanding
funding methods for community improvement generally;
authorizing the use of voluntary proffers through zoning
ordinance; providing enforcement mechanism for proffers;
authorizing the creation of and empowerment of community
improvement districts; providing for the development,
construction, acquisition, financing, extension and
improvement of projects; providing for notice to owners of
real property of assessments; authorizing the issuance of
assessment bonds; and providing for assessments and liens related thereto.
Be it enacted by the Legislature of West Virginia:
That article twenty-four, chapter eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto two new sections, designated sections
eighty-six and eighty-seven; and that chapter sixteen of said code
be amended by adding thereto a new article, designated article
thirteen-e, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 24. PLANNING AND ZONING.
PART XXI. VOLUNTARY PROFERRING.
§8-24-86. Conditions as part of final plat approval.
(a) A zoning ordinance may provide for the voluntary
proffering by a landowner as a requirement of final plat approval
for a development project.
(b) For purposes of this article, a "voluntary proffer" is a
written offer by a landowner to the planning commission whereby the
landowner offers to satisfy certain reasonable conditions as a
requirement of the final plat approval for a development project.
A voluntary proffer made to a county shall be in lieu of payment of
an impact fee as authorized by section four, article twenty,
chapter seven of this code.
(c) For purposes of this section, a condition contained in a
voluntary proffer is considered reasonable if: (1) The development project results in the need for the conditions; (2) the conditions
have a reasonable relation to the development project; and (3) all
conditions are in conformity with the comprehensive plan adopted
pursuant to this article.
(d) No proffer may be accepted by a county or municipality
unless it has approved a list detailing any proposed capital
improvements from all areas within the county or municipality, to
which the proffer is made, and containing descriptions of any
proposed capital improvements, cost estimates, projected time
frames for constructing the improvements and proposed or
anticipated funding sources: Provided, That the approval of the
list does not limit the county or municipality from accepting
proffers relating to items not contained on the list. For purposes
of this subsection, "capital improvement" has the same definition
as found in section three, article twenty, chapter seven of this
code.
(e) If a voluntary proffer includes the dedication of real
property or the payment of cash, the proffer shall provide for the
alternate disposition of the property or cash payment in the event
the property or cash payment is not to be used for the purpose for
which it was proffered.
(f) Notwithstanding any provision of this code to the
contrary, a municipality may transfer the portion of the proceeds
of a voluntary proffer intended by the terms of the proffer to be used by the board of education of a county in which the
municipality is located upon the condition that the portion so
transferred may only be used by the board for capital improvements.
§8-24-87. Enforcement and guarantees.
(a) The planning commission is vested with all the necessary
authority to administer and enforce conditions attached to the
final plat approved for a development project, including, but not
limited to, the authority to: (1) Order in writing the remedy for
any noncompliance with the conditions; (2) bring legal action to
insure compliance with the conditions, including injunction,
abatement, or other appropriate action or proceeding; and (3)
require a guarantee satisfactory to the planning commission in an
amount sufficient for and conditioned upon the construction of any
physical improvements required by the conditions, or a contract for
the construction of the improvements and the contractor's
guarantee, in like amount and so conditioned, which guarantee shall
be reduced or released by the planning commission upon the
submission of satisfactory evidence that construction of the
improvements has been completed in whole or in part.
(b) Failure to meet all conditions attached to the final plat
approved for a development project shall constitute cause to deny
the issuance of any of the required use, occupancy, or building
permits, as may be appropriate.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13E. COMMUNITY ENHANCEMENT ACT.
§16-13E-1. Short title.
This article shall be known and may be cited as the "West
Virginia Community Enhancement Act".
§16-13E-2. Definitions.
For purposes of this article:
(a) "Assessment bonds" means special obligation bonds or notes
issued by a community enhancement district which are payable from
the proceeds of assessments.
(b) "Assessment" means the fee, including interest, paid by
the owner of real property located within a community enhancement
district to pay for the cost of a project or projects constructed
upon or benefitting or protecting such property and administrative
expenses related thereto, which fee is in addition to all taxes and
other fees levied on the property.
(c) "Board" means a community enhancement board created
pursuant to this article.
(d) "Code" means the code of West Virginia, one thousand nine
hundred thirty-one, as amended.
(e) "Community enhancement district" or "district" means a
community enhancement district created pursuant to this article.
(f) "Cost" means the cost of: (1) Construction,
reconstruction, renovation and acquisition of all lands,
structures, real or personal property, rights, rights-of-way, franchises, easements and interests acquired or to be acquired by
the district; (2) all machinery and equipment, including machinery
and equipment needed to expand or enhance county or city services
to the district; (3) financing charges and interest prior to and
during construction and, if deemed advisable by the district or
governing body, for a limited period after completion of the
construction; (4) interest and reserves for principal and interest,
including costs of municipal bond insurance and any other type of
financial guaranty; (5) costs of issuance in connection with the
issuance of assessment bonds; (6) the design of extensions,
enlargements, additions and improvements to the facilities of any
district; (7) architectural, engineering, financial and legal
services; (8) plans, specifications, studies, surveys and estimates
of costs and revenues; (9) administrative expenses necessary or
incident to determining to proceed with any project; and (10) other
expenses as may be necessary or incident to the construction,
acquisition and financing of a project.
(g) "County commission" means the governing body of a county
as defined in section one, article one, chapter seven of this code.
(h) "Governing body" means, in the case of a county, the
county commission and in the case of a municipality, the mayor and
council together, the council or the board of directors, as charged
with the responsibility of enacting ordinances and determining the
public policy of such municipality.
(i) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties;
municipalities; any watershed enhancement districts, soil
conservation districts, sanitary districts, public service
districts, drainage districts, school districts, urban renewal
authorities or regional governmental authorities established
pursuant to this code.
(j) "Municipality" means a municipality as defined in section
two, article one, chapter eight of this code.
(k) "Person" means an individual, firm, partnership,
corporation, voluntary association or any other type of entity.
(l) "Project" means the design, construction, reconstruction,
establishment, acquisition, improvement, renovation, extension,
enlargement, equipping, maintenance, repair (including
replacements) and start-up operation of water transmission and
distribution facilities, sewage collection and transmission
facilities, stormwater systems, police stations, fire stations,
libraries, museums, schools, other public buildings, hospitals,
piers, docks, terminals, drainage systems, culverts, streets,
roads, bridges (including approaches, causeways, viaducts,
underpasses and connecting roadways), motor vehicle parking
facilities (including parking lots, buildings, ramps, curb-line
parking, meters and other facilities deemed necessary, appropriate,
useful, convenient or incidental to the regulation, control and parking of motor vehicles), public transportation, public
recreation centers, public recreation parks, swimming pools, tennis
courts, golf courses, equine facilities, motor vehicle competition
and recreational facilities, flood protection or relief projects,
or the grading, regrading, paving, repaving, surfacing,
resurfacing, curbing, recurbing, widening, lighting or otherwise
improving any street, avenue, road, highway, alley or way, or the
building or renewing of sidewalks and flood protection; and the
terms shall mean and include any project as a whole, and all
integral parts thereof, including all necessary, appropriate,
useful, convenient or incidental appurtenances and equipment in
connection with any one or more of the above.
§16-13E-3. Power and authority of counties and municipalities to
create and establish community enhancement districts.
(a) Every county and municipality is hereby empowered and
authorized, in addition to any other rights, powers and authority
conferred upon it elsewhere in this code, to create, modify and
expand community enhancement districts in the manner hereinafter
set forth in such county or municipality and to assist in the
development, construction, acquisition, extension or improvement of
a project or projects located in such county or municipality.
(b) Unless agreed to by a municipality, the power and
authority hereby conferred on a county shall not extend into
territory within the boundaries of any municipality: Provided, That notwithstanding any provision in this code to the contrary,
the power and authority hereby conferred on counties may extend
within the territory of a public service district created under
section two, article thirteen-a of this chapter.
§16-13E-4. Petition for creation or expansion of community
enhancement district; petition requirements.
(a) The owners of at least sixty-one percent of the real
property, determined by acreage, located within the boundaries of
the area described in the petition, by metes and bounds or
otherwise in a manner sufficient to describe the area, may petition
a governing body to create or expand a community enhancement
district.
(b) The petition for the creation or expansion of a community
enhancement district shall include, where applicable, the
following:
(1) The proposed name and proposed boundaries of such district
and a list of the names and addresses of all owners of real
property within the proposed district;
(2) A detailed project description;
(3) A map showing the proposed project, including all proposed
improvements;
(4) A list of estimated project costs and the preliminary
plans and specifications for such improvements, if available;
(5) A list of nonproject costs and how they will be financed;
(6) A consultant study outlining the projected assessments,
setting forth the methodology for determining the assessments and
the methodology for allocating portions of an initial assessment
against a parcel expected to be subdivided in the future to the
various lots into which the parcel will be subdivided and
demonstrating that such assessments will adequately cover any debt
service on bonds issued to finance the project and ongoing
administrative costs;
(7) A development schedule;
(8) A list of recommended members for the board;
(9) If the project includes water, wastewater or sewer
improvements, written evidence from the utility or utilities that
will provide service to the district that said utility or
utilities:
(A) Currently has adequate capacity to provide service without
significant upgrades or modifications to its treatment, storage or
source of supply facilities;
(B) Will review and approve all plans and specifications for
the improvements to determine that the improvements conform to the
utility's reasonable requirements and, if the improvement consists
of water transmission or distribution facilities, that the
improvements provide for adequate fire protection for the district;
and
(C) If built in conformance with said plans and specifications, will accept the improvements following their
completion, unless such projects are to be owned by the district;
(10) If the project includes improvements other than as
set forth in subdivision (9) of this subsection that will be
transferred to another governmental agency, written evidence that
such agency will accept such transfer, unless such projects are to
be owned by the district;
(11) The benefits that can be expected from the creation of
the district and the project; and
(12) A certification from each owner of real property within
the proposed district who joins in the petition that he or she is
granting an assessment against his or her property in such an
amount as to pay for the costs of the project and granting a lien
for said amount upon said property enforceable in accordance with
the provision of this article.
(c) After reviewing the petition presented pursuant to this
section, the governing body may by order or ordinance determine the
necessity and economic feasibility of creating a community
enhancement district and developing, constructing, acquiring,
improving or extending a project therein. If the governing body
determines that the creation of a community enhancement district
and construction of the project is necessary and economically
feasible, it shall set a date for the public meeting required under
section five of this article and shall cause the petition to be filed with the clerk of the county commission or the clerk or
recorder of the municipality, as the case may be, and be made
available for inspection by interested persons before the meeting.
(d) Notwithstanding any other provision of this article to the
contrary, nothing in this article shall modify:
(1) The jurisdiction of the public service commission to
determine the convenience and necessity of the construction of
utility facilities, to resolve disputes between utilities relating
to which utility should provide service to a district or otherwise
to regulate the orderly development of utility infrastructure in
the state; or
(2) The authority of the infrastructure and jobs development
council as to the funding of utility facilities to the extent that
loans, loan guarantees, grants or other funding assistance from a
state infrastructure agency are involved.
§16-13E-5. Notice to property owners before creation or expansion
of community enhancement district and construction
or acquisition of project; form of notice; affidavit
of publication.
(a) Before the adoption or enactment of an order or ordinance
creating a community enhancement district, the governing body shall
cause notice to be given to the owners of real property located
within the proposed community enhancement district that such
ordinance or order will be considered for adoption or enactment, as the case may be, at a public meeting of the governing body at a
date, time and place named in the notice and that all persons at
that meeting, or any adjournment thereof, shall be given an
opportunity to protest or be heard concerning the adoption,
enactment or rejection of the order or ordinance. At or after the
meeting the governing body may amend, revise or otherwise modify
the information in the petition for the community enhancement
district or project as it may deem appropriate after taking into
account any comments received at such meeting.
(b) The notice required in this section shall be published at
least thirty days prior to the date of the meeting as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code and the publication area for
such publication shall be the county or municipality in which the
proposed community enhancement district is located. The notice
shall be in the form of, or substantially in the form of, the
following notice:
"NOTICE TO ALL PERSONS OWNING PROPERTY LOCATED WITHIN
................... (here describe the boundaries of the proposed
community enhancement district) IN THE ......................
(county or municipality) OF .............. (name of county or
municipality):
A petition has been presented to the ............................
(county commission, city council or other governing body) of the ................ (county or municipality) of .............. (name
of county or municipality) requesting establishment of a community
enhancement district under chapter sixteen, article thirteen-b of
the code of West Virginia to ................ (here describe the
project both within and outside of the proposed community
enhancement district to be financed, developed, constructed,
acquired, extended or improved, or the lots or parcels of land
which may be protected, in the case of a flood relief project) in
................. (name of county or municipality) by
............... (here provide general description of the project)
as the ................ (county commission, city council or other
governing body) may deem proper and to assess the total cost (or,
if the assessments are only necessary to pay for part of the total
cost, the approximate percentage of the total cost) of such
improvement on the property. A copy of the petition is available
in the office of the .......... (name of clerk or recorder) for
review by the public during regular office hours.
The petition to create a community enhancement district and to make
such improvements, and estimates therefor, will be considered by
the ................... (county commission, city council or other
governing body) at a public meeting to be held on the ....... day
of ...................., ......................, at .......m. at
............................... Any owner of property whose
property may be affected by the creation of the above-described community enhancement district, and any person whose property is
not located within said community enhancement district but wishes
his or her property to be included, will be given an opportunity,
under oath, to protest or be heard at said meeting or any
adjournment thereof:
............................ (name of clerk or recorder)
.................................. (official position)."
(c) An affidavit of publication of the notice made by the
newspaper publisher, or a person authorized to do so on behalf of
such publisher, and a copy of the notice shall be made part of the
minutes of the governing body and spread on its records of the
meeting described in the notice. The service of said notice upon
all persons owning any interest in any property located within the
proposed community enhancement district shall conclusively be
deemed to have been given upon the completion of such newspaper
publication.
(d) The petitioners shall bear the expense of publication of
the notice and the meeting, as requested by subsection (e) of this
section.
(e) After the public meeting and before the governing body may
adopt or enact an order or ordinance creating a community
enhancement district, the governing body shall mail a true copy of
the proposed order or ordinance creating the community enhancement
district to the owners of real property in said district. Unless waived in writing, any petitioning owner of real property shall
have thirty days from mailing of the proposed ordinance or order in
which to withdraw his or her signature from the petition in writing
prior to the vote of the governing body on such ordinance or order.
If any signatures on the petition are so withdrawn, the governing
body may pass the proposed ordinance or order only upon
certification by the petitioners that the petition otherwise
continues to meet the requirements of this article. If all
petitioning owners of real property waive the right to withdraw
their signatures from the petition, then the governing body may
immediately adopt or enact the ordinance or order.
§16-13E-6. Creation of community enhancement district; community
enhancement district to be a public corporation and
political subdivision; powers thereof; community
enhancement boards.
(a) Each community enhancement district shall be created by
adoption or enactment of an order or ordinance.
(b) From and after the date of the adoption or enactment of
the order or ordinance creating a community enhancement district,
it shall thereafter be a public corporation and political
subdivision of this state, but without any power to levy or collect
ad valorem taxes. Each community enhancement district is hereby
empowered and authorized, in addition to any other rights, powers
and authorities conferred upon it in this article or elsewhere in this code, to:
(1) Acquire, own and hold, in its corporate name, by purchase,
lease, right of eminent domain, gift or otherwise, such property,
both real and personal and other interests in real estate, or any
other property, whether tangible or intangible, as may be necessary
or incident to the planning, financing, development, construction,
acquisition, extension, improvement and completion of a project;
(2) Design, plan, finance, develop, construct, acquire,
extend, improve and complete one or more projects and assess the
cost of all or any portion of a project on real property located
within the community enhancement district;
(3) Sue or be sued;
(4) Establish a bank account or accounts in its name;
(5) Enter into agreements or other transactions with any
person or governmental agency necessary or incident to the
development, planning, construction, acquisition or improvement of
a project or for the operation, maintenance or disposition of a
project or for any other services required by a project;
(6) Annually, on or before the seventh day of June, certify to
the sheriff of the county in which the property is located the
assessments granted against all property in the district for
inclusion in the tax ticket;
(7) Expend funds to acquire, or construct part of a project on
property located outside of a community enhancement district, and for any work undertaken thereon, as may be necessary or incident to
the completion of a project;
(8) Enter into agreements with one or more counties,
municipalities, public service districts or community enhancement
districts to plan, develop, construct, acquire or improve a project
jointly;
(9) Accept appropriations, gifts, grants, bequests and devises
and use or dispose of the same to carry out its corporate purpose;
(10) Make and execute contracts, releases, assignments,
compromises and other instruments necessary or convenient for the
exercise of its powers, or to carry out its corporate purpose;
(11) Have a seal and alter the same;
(12) Raise funds by the issuance and sale of assessment bonds;
(13) Obtain options to acquire real property, or any interest
therein, by purchase, lease or otherwise, which is found by the
board to be suitable as a site, or part of a site, for the
construction of a project;
(14) Pledge funds generated by assessments in a district or
proceeds from the sale of assessment bonds to payment of debt
service on tax increment financing obligations issued under article
eleven-b, chapter seven of this code, for the period of time
determined by the community enhancement board; and
(15) Take any and all other actions consistent with the
purpose of this article and not in violation of the constitution of this state as may be necessary or incident to the construction and
completion of a project.
(c)
Notwithstanding the powers granted to community
enhancement districts in subsection (b) of this section or as
otherwise provided in this code, no community enhancement district
may expend funds to assist any utility to upgrade, improve, modify,
repair or replace the utility's existing storage, treatment or
source of supply facilities, whether such existing facilities are
located within or outside of the district.
(d) The powers of each community enhancement district shall be
vested in and exercised by a community enhancement board which
shall be composed of five members, four of whom shall be appointed
by the governing body of the county or municipality in which the
community enhancement district is located and one of whom shall be
the sheriff or his or her designee of the county or the treasurer
or his or her designee of the municipality (or such other person
serving in an equivalent capacity if there is no treasurer), as the
case may be, in which the community enhancement district is
located. At least three members of the board shall be residents of
the assessment district: Provided, That should less than three
persons reside within the boundaries of the community enhancement
district, then at least three members of the board shall be
residents of the county or municipality, as the case may be:
Provided, however, That if no persons reside within the boundaries of the community enhancement district then at least three members
must be approved by the owner or owners of the land. No more than
three initial members of the board may be from the same political
party.
(e) The four members appointed by the governing body shall be
appointed for overlapping terms of four years each and thereafter
until their respective successors have been appointed and have
qualified. For the purpose of initial appointments, one member
shall be appointed for a term of four years; one member shall be
appointed for a term of three years; one member shall be appointed
for a term of two years; and one member shall be appointed for a
term of one year. Members may be reappointed for any number of
terms. Before entering upon the performance of his or her duties,
each member shall take and subscribe to the oath required by
section five, article IV of the constitution of this state.
Vacancies shall be filled by appointment by the governing body of
the county or municipality creating the assessment district for the
unexpired term of the member whose office shall be vacant and such
appointment shall be made within thirty days of the occurrence of
such vacancy. Any such member may be removed by the governing body
which appointed such member in case of incompetency, neglect of
duty, gross immorality or malfeasance in office. Members shall be
entitled to no more than fifty dollars per meeting and reasonable
expenses associated with their services.
(f) The board shall organize within thirty days following the
first appointments and annually thereafter at its first meeting
after the first day of January of each year by selecting one of its
members to serve as chairman, one to serve as treasurer and one to
serve as secretary. The secretary, or his or her designee, shall
keep a record of all proceedings of the board which shall be
available for inspection as other public records, and the treasurer
or his or her designee shall maintain records of all financial
matters relating to the community enhancement district, which shall
also be available for inspection as other public records.
Duplicate records shall be filed with the clerk or recorder, as the
case may be, of the county or municipality which created the
community enhancement district and shall include the minutes of all
board meetings. The secretary and treasurer shall perform such
other duties pertaining to the affairs of the community enhancement
district as shall be prescribed by the board.
(g) The members of the board, and the chairman, secretary and
treasurer thereof, shall make available to the governing body
responsible for appointing the board, at all times, all of its
books and records pertaining to the community enhancement
district's operation, finances and affairs for inspection and
audit. The board shall meet at least semiannually.
(h) A majority of the members of the board constitutes a
quorum and meetings shall be held at the call of the chairman.
(i) Staff, office facilities and costs of operation of the
board may be provided by the county or municipality which created
the community enhancement district or by contract and said costs of
operations shall be funded from assessments collected within the
district.
(j) The chairman shall preside at all meetings of the board
and shall vote as any other members of the board, but if he or she
should be absent from any meeting the remaining members may select
a temporary chairman, and if the member selected as chairman
resigns as such or ceases for any reason to be a member of the
board, the board shall select one of its members as chairman to
serve until the next annual organizational meeting.
(k) The board shall, by resolution, determine its own rules of
procedure, fix the time and place of its meetings and the manner in
which special meetings may be called. The members of the board
shall not be personally liable or responsible for any obligations
of the assessment district or the board but are answerable only for
willful misconduct in the performance of their duties.
(l) The official name of a community enhancement district
created under the provisions of this article may contain the name
of the county or municipality, as the case may be, in which it is
located.
(m) Notwithstanding any provision in this code to the
contrary, the power and authority hereby conferred on community enhancement districts may extend within the territory of a public
service district created under section two, article thirteen-a of
this chapter.
§16-13E-7. Provisions for construction of a project.
(a) After the creation of a community enhancement district and
the appointment of the board thereof, the board shall provide by
resolution for the construction of the project and shall also
provide in the same or subsequent resolutions for the supervision
of such work by a professional engineer, governmental agency or any
other person designated by the board. The board may provide for
the construction of the project by one of the two following methods
or any combination thereof:
(1) If there exists a governmental agency with the experience,
knowledge and authority to construct the project, the board may
elect to enter into a contract with such agency for the
construction of all or part of the project or for any other service
necessary or incident to the construction of the project, in which
case such governmental agency shall be responsible for entering
into contracts, subject to the board's approval, with such other
persons as may be necessary or incident to the construction of the
project; or
(2) The board may elect to enter into one or more contracts
with such contractors and other persons as may be necessary or
incident to the construction of the project, in which case it shall solicit competitive bids. All contracts for work on any project,
the expense of which will exceed fifty thousand dollars, shall be
awarded to the lowest qualified responsible bidder who shall
furnish a sufficient performance and payment bond. The board may
reject any and all bids and if it rejects all bids, notices shall
be published as originally required before any other bids may be
received. The board may let portions of the work necessary to
complete a project under different contracts.
(b) The resolution described in subsection (a) of this section
shall also provide for payment of the cost of the project.
(c) Prior to the construction of the project, the board shall
obtain such permits and licenses required by law for the
construction and operation of the project.
(d) Prior to bidding a water, wastewater or storm water
component of a project, the board shall submit the final plans and
specifications to the utility or utilities who will provide the
water, wastewater or storm water service for review and written
approval.
§16-13E-8. Notice to property owners of assessments; correcting
and laying assessments; report on project
completion; credits.
(a) Prior to the issuance of assessment bonds or pledging any
amounts to payment of tax increment financing obligation debt
service, the board shall cause a report to be prepared describing each lot or parcel of land located within the community enhancement
district and setting forth the total cost of the project based on
the contract with the governmental agency, the accepted bid or
bids, or a cost estimate certified by a professional engineer, and
all other costs incurred prior to the commencement of construction
and the future administrative costs, and the respective amounts
chargeable upon each lot or parcel of land and the proper amount to
be assessed against the respective lots or parcels of land with a
description of the lots and parcels of land as to ownership and
location. If two or more different kinds of projects are involved,
the report shall set forth the portion of the assessment
attributable to each respective project. The board shall thereupon
give notice to the owners of real property to be assessed that on
or after a date specified in the notice an assessment will be
deemed granted against the property. The notice shall state that
the owner of assessed property, or other interested party, may on
said date appear before the board to move the revision or
correction of the proposed assessment and shall show the total cost
of the project, whether the assessments will pay for all or part of
the total cost of the project and the lots or parcels of property
to be assessed and the respective amounts to be assessed against
such lots or parcels, with a description of the respective lots and
parcels of land as to ownership and location. The notice shall
also be published as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of the
code, and the publication area for such publication is the
assessment district. On or after the date so advertised, the board
may revise, amend, correct and verify the report and proceed by
resolution to establish the assessments as corrected and verified
and shall certify the same to the governing body which created the
district.
(b) Upon completion of a project, the board shall prepare a
final report certifying the completion of the project and showing
the total cost of the project and whether the cost is greater or
less than the cost originally estimated. If the total cost of the
project is less or greater than the cost shown in the report
prepared prior to construction, the board may revise the assessment
charged on each lot or parcel of land pursuant to subsection (a) of
this section to reflect the total cost of the project as completed,
and in so doing shall, in the case of an assessment increase only,
follow the same procedure with regard to notice and providing each
owner of assessed property the right to appear before the board to
move for the revision or correction of such proposed reassessment
as required for the original assessment. If an assessment is
decreased, the board shall, by resolution and written notice to the
sheriff of the county in which the community enhancement district
is located, cause the next installment or installments of
assessments then due and payable by each affected property owner to be reduced pro rata, and shall provide written notice to such
property owners of the amount of such decrease by the deposit of
such notice in the United States mail, postage prepaid.
(c) The value of the projects financed with the assessments
shall be treated as a credit toward any impact fees related to the
service or services provided levied under chapter seven, article
twenty of this code.
§16-13E-9. Exemption of public property from assessments.
No lots or parcels of land owned or controlled by the United
States, this state, any municipality, county, board of education or
other public body shall be subject to any assessments.
§16-13E-10. Assessment bonds; sinking fund for assessment bonds;
tax exemption.
(a) For constructing or acquiring any project authorized by
this article, and also for reimbursing or paying the costs and
expenses of creating the district, the board of any such district
is hereby authorized to borrow money, from time to time, and in
evidence thereof issue the bonds of such district, payable from the
proceeds of the assessments granted under this article. Such bonds
shall be issued in one or more series, may bear such date or dates,
may mature at such time or times not exceeding thirty-five years
from their respective dates, shall be fully registered as to
principal and interest in the name of the bondholder with a
certificate of authentication attached thereto, may bear interest at such rate or rates not exceeding eighteen percent per annum, may
be payable at such times, may be executed in such manner, may be
payable at such place or places, may be subject to such terms of
redemption with or without premium, may be declared or become due
before maturity date thereof, may be authenticated in any manner,
and, upon compliance of such conditions, may contain such terms and
covenants as provided by the resolution or resolutions of the
board. All such bonds shall be, and shall be treated as,
negotiable instruments for all purposes. Bonds bearing the
signatures of officers and offices on the dates of the signing
thereof shall be valid and binding for all purposes notwithstanding
that before the delivery thereof any or all such persons whose
signatures appear thereon shall have ceased to be such officers.
Notwithstanding the requirements or provisions of any other law,
any such bonds may be negotiated or sold in such manner at such
time or times and at such prices or prices as is found by the board
to be most advantageous. Any resolution or resolutions providing
for the issuance of such bonds may contain covenants and
restrictions upon the issuance of additional bonds thereafter as
may be deemed necessary or advisable for the assurance of the
payment of the bonds thereby authorized.
(b) At or before the time of issuance of any bonds under this
article, the board shall by resolution provide for the creation of
a sinking fund and for payments in succession fund from the assessments granted pursuant to this article in such amount as
shall be sufficient to pay the accruing interest and retire the
bonds at or before the time each will respectively become due and
to establish or maintain reserves therefor. All sums which are or
should be, in accordance with such provisions, paid into such
sinking fund shall be used solely for payment of interest and for
the retirement of such bonds at or prior to maturity as may be
provided or required by such resolution.
(c) The property, including leased property, of the community
enhancement district and bonds and any income or interest thereon
issued by the community enhancement district are exempt from
taxation by the state of West Virginia and other taxing bodies of
the state.
§16-13E-11. Indebtedness of assessment district.
No constitutional or statutory limitation with respect to the
nature or amount of or rate of interest on indebtedness which may
be incurred by municipalities, counties or other public or
governmental bodies shall apply to the indebtedness of a community
enhancement district. No indebtedness of any nature of a community
enhancement district shall constitute an indebtedness of any
municipality or county creating and establishing such community
enhancement district or a charge against any property of said
municipalities or counties but shall be paid solely from the
assessments which the community enhancement district is authorized to impose on the owners of the property within the district by this
article. No indebtedness or obligation incurred by any community
enhancement district shall give any right against any member of the
governing body of any municipality or any member of the county
commission of any county or any member of the community enhancement
board of any community enhancement district.
§16-13E-12. Payment of assessments to sheriff; report to
community enhancement district; collection of
delinquent assessments.
The assessments imposed pursuant to this article will not be
considered to be ad valorem taxes or the equivalent of ad valorem
taxes under any other provision of this code: Provided, That for
the exclusive purposes of collection of the assessments imposed
under section eight of this article and enforcement of the
assessment liens created by section thirteen of this article, the
provisions of chapter eleven-a of this code shall apply as if the
assessments were taxes as that term is defined in section one,
article one of that chapter. The sheriff shall promptly deposit
all assessments upon receipt thereof in a segregated account
established by the sheriff for such purpose and shall maintain a
record of the assessments so received. Each month, the sheriff
shall pay all moneys collected for the community enhancement
district into the district treasury or if the sheriff consents to
a trustee for the benefit of bondholders if assessment bonds are issued by the community enhancement district. Payments to the
community enhancement district shall be made in the time set forth
in section fifteen, article one, chapter eleven-a of this code and
the sheriff shall be entitled to take a commission for collection
of the assessments on behalf of the community enhancement district,
as provided in section seventeen of said article. For each tax
year, the sheriff will prepare and deliver to the board of each
community enhancement district located in the county, a statement
setting forth the aggregate amount of assessments received for such
district and the name of any property owner who failed to pay the
assessments due and payable for the period in question. This
report shall be due on or before the first day of August of the
following year. The sheriff is authorized to collect delinquent
assessments and enforce the liens created in section thirteen of
this article as if those assessments were delinquent real property
taxes and the liens are tax liens using the enforcement tools
provided in articles two and three, chapter eleven-a of this code.
§16-13E-13. Liens; recording notice of liens; priority; release
of lien; notice to future property owners.
(a) With the exception of property exempt from assessment
pursuant to section nine of this article, there shall be a lien on
all real property located within the community enhancement district
for the assessments imposed by section eight of this article, which
lien shall attach on the date specified in the notice to property owners. A notice of the liens of said assessments referring to the
assessing resolution and setting forth a list of the property
assessed, described respectively as to amounts of assessment,
ownership and location of the property, shall be certified, by the
chairman and secretary of the board, to the clerk of the county
commission of the county wherein the project is located. The
county clerk shall record the notice of such lien in the
appropriate trust deed book or other appropriate county lien book
and index the same in the name of each owner of property assessed.
From the date of an assessment, the trustee, for the benefit of
bondholders if assessment bonds are issued by the community
enhancement district, and/or the district shall have such lien and
shall be entitled to enforce the same in its, his or their name to
the extent of the amount, including principal and interest and any
penalty due for any failure to pay an installment when due, of such
assessments and against the property to which the assessment
applies, as to any assessment not paid as and when due. The
trustee or the district, as an alternative to the enforcement
provision set forth in section twelve of this article, are granted
all legal remedies as are necessary to collect the assessment.
Such assessments shall be and constitute liens for the benefit of
the community enhancement district or of the trustee, for the
benefit of bondholders if assessment bonds are issued by the
community enhancement district, upon the respective lots and parcels of land assessed and shall have priority over all other
liens except those for land taxes due the state, county and
municipality and except any liens for preexisting special
assessments provided under this code. If any assessment is revised
in accordance with this article, the lien created by this section
shall extend to the assessment so revised and shall have the same
priority as the priority of the lien created upon the laying of the
original assessment. Such assessments and interest thereon shall
be paid by the owners of the property assessed as and when the
installments are due. Following the payment in full of any
assessment bonds including any interest thereon, the chairman and
secretary of the board shall execute a release of all liens and
shall certify the same to county clerk for recordation.
(b) Following the grant of an assessment on property as
provided in this article, the seller of such property shall provide
reasonable disclosure to the buyer in the real estate contract that
an assessment has been granted on the property, the amount of the
assessment and the duration of the assessment.
§16-13E-14. Liberal construction.
This article being necessary for the public health, safety and
welfare and economic development, it shall be liberally construed
to effectuate the purpose hereof.
NOTE: The purpose of this bill is to expand funding methods
for community improvement by authorizing the use of voluntary proffers through zoning ordinances and providing enforcement
mechanism for proffers; and by authorizing the creation of and
empowerment of community improvement districts for the development,
construction, acquisition, financing, extension and improvement of
projects supported by a voluntary assessment on real property and
providing for notice to owners of real property of assessments, for
issuance of assessment bonds, and for assessments and liens related
thereto, which funding method enhances property tax increment
financing already authorized by the Legislature and the voters of
this State.
Sections 8-24-86, 8-24-87 and 16-13E-1 through 16-13E-14 are
new; therefore strike-throughs and underscoring have been omitted.