Senate Bill No. 544
(By Senator Chafin)
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[Introduced February 14, 2003; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section one, article eighteen, chapter
seven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend and reenact sections one,
two, three and four, article six, chapter eight of said code,
all relating to annexation by municipalities generally and
hotel occupancy tax; requiring certain population density in
election and petition methods; providing that the question of
whether territory proposed to be annexed conforms with certain
criteria is reviewable by a circuit court in certain cases;
clarifying the requirements of a majority vote on certain
questions of annexation in the municipality and in the
territory to be annexed; and prohibiting municipalities from
collecting hotel occupancy tax that a county collects in
annexed territory.
Be it enacted by the Legislature of West Virginia:
That section one, article eighteen, chapter seven of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; and that sections one, two, three and
four, article six, chapter eight of said code be amended and
reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 18. HOTEL OCCUPANCY TAX.
§7-18-1. Hotel occupancy tax.
(a) Authority to impose. -- On and after the first day of
July, one thousand nine hundred eighty-five, any county or
municipality may impose and collect a privilege tax upon the
occupancy of hotel rooms located within its taxing jurisdiction.
Such The tax shall be imposed and collected as provided in this
article.
(b) Municipal tax. -- A municipal hotel tax shall be imposed
by ordinance enacted by the governing body of the municipality, in
accordance with the provisions of article eleven, chapter eight of
this code. Such The tax shall be imposed uniformly throughout the
municipality; and the tax shall apply to all hotels located within
the corporate limits of the municipality, including hotels owned by
the state or by any political subdivision of this state: Provided,
That no municipality may impose the tax on a hotel located within
its corporate limits upon which a county was imposing the tax
immediately preceding annexation pursuant to article six, chapter eight of this code, unless after annexation the county commission
ceases to impose the tax on the hotel.
(c) County tax. -- A county hotel tax shall be imposed by
order of the county commission duly entered of record. Such The
tax shall be imposed uniformly throughout the county: Provided,
That no county commission may impose its tax on hotels located
within the corporate limits of any municipality situated, in whole
or in part, within the county: Provided, however, That a county
commission may continue to impose the tax upon a hotel located
within the territory limits of a municipality when the tax was
imposed upon the hotel immediately preceding annexation by a
municipality pursuant to article six, chapter eight: Provided,
further, That the tax collected by a hotel owned by a municipality
but located outside the corporate limits of such municipality
pursuant to this article shall be remitted to the municipality
owning such hotel for expenditure pursuant to the provisions of
section fourteen of this article. The tax shall apply to all
hotels located outside the corporate limits of a municipality and
to those hotels within a municipality that were subject to the
county's tax immediately preceding and continuously since
annexation by the municipality pursuant to article six, chapter
eight, including hotels owned by the state or any political
subdivision of this state.
(d) The tax shall be imposed on the consumer and shall be collected by the hotel operator as part of the consideration paid
for the occupancy of a hotel room: Provided, That the tax shall
not be imposed on any consumer occupying a hotel room for thirty or
more consecutive days.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 6. ANNEXATION.
PART I. GENERAL.
§8-6-1. Annexation of unincorporated territory.
(a) Unincorporated territory may be annexed to and become part
of a municipality contiguous thereto only in accordance with the
provisions of this article.
(b) Any farmlands or operations as described in article
nineteen, chapter nineteen of this code which may be annexed into
a municipality shall be protected in the continuation of
agricultural use after being annexed.
(c) Any new imposition of a tax or any increase in the rate of
tax upon any business, occupation or privilege following annexation
shall be applied in accordance with the provisions of section five,
article thirteen, chapter eight of this code.
PART II. ANNEXATION BY ELECTION.
§8-6-2. Petition for annexation.
(a) Five percent or more of the freeholders of a municipality
desiring to have territory annexed thereto may file 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. The petition shall
be verified and shall be accompanied by an accurate survey map
showing the territory to be annexed to the corporate limits by the
proposed change.
(b) The petitioners shall obtain a surety bond in an amount
set by the governing body sufficient to cover the cost of the
election. The bond shall be forfeited if a majority of the votes
cast are against the proposed annexation.
(c) The governing body shall, upon receipt of the bond, order
a vote of the qualified voters of the municipality to be taken upon
the proposed annexation on a date scheduled in conformity with all
voting requirements of article three, chapter three of this code,
including the absentee voting requirements, and at a time and place
to be named in the order. not less than twenty nor more than thirty
days from the date thereof.
(d) The governing body shall, at the same time, order a vote
of all of the qualified voters of the additional territory and of
all of the freeholders of such additional territory whether they
reside or have a place of business therein or not, to be taken upon
the question on the same day at some convenient place in or near
the additional territory: Provided, That the additional territory
to be included shall conform to the requirements of section one,
article two of this chapter: Provided, however, That the population density requirements of subdivision (3), subsection (a),
section one, article two of this chapter shall not apply and
one-half of the population density requirements of subdivision (2),
subsection (a), section one of this article shall be applied on a
pro-rata basis to the territory proposed to be annexed regardless
of the size of the territory to be annexed: Provided further, That
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, as an order
of any municipality ordering an election may be reviewed under
section sixteen, article five of this chapter.
(e) The governing body shall cause the order for the election
to be published, at the cost of the municipality, as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code. The publication area is
the municipality and the additional territory. The first
publication must be at least fourteen days prior to the date upon
which the vote is to be taken. The order for the election shall
contain an accurate description by metes and bounds of the
additional territory proposed to be annexed to the corporate limits
by the proposed change, a summary of the municipality's plan for
providing services to the additional territory and, if practicable,
shall also contain a popular description of the additional territory.
(f) The election shall be held, superintended and conducted
and the results thereof ascertained, certified, returned and
canvassed in the same manner by the same individuals as elections
for municipal officers. The election is reviewable by the circuit
court of the county in which the municipality or the major portion
thereof, including the area proposed to be annexed, is located.
The order may be reviewed by the circuit court as an order of a
county commission any municipality ordering an election may be
reviewed under section sixteen, article five of this chapter.
(g) The ballots, or ballot labels where voting machines are
used, shall have written or printed on them the words:
/ / For Annexation
/ / Against Annexation
(h) Any freeholder which is a firm or corporation may vote by
its manager, president or executive officer duly designated in
writing by such firm or corporation.
(i) An individual who is a qualified voter and freeholder of
the municipality or the additional territory shall be entitled to
vote only once.
(j) For purposes of this section, the term "qualified voter of
the additional territory" includes a firm or corporation in the
additional territory regardless of whether the firm or corporation is a freeholder all persons in the additional territory who as a
result of annexation could be subject to a business and operations
tax pursuant to section five, article thirteen, chapter eight of
this code. A firm or corporation may vote by its manager,
president or any other authorized executive officer duly designated
in writing by the firm or corporation. In any instance where a
freeholder leases or rents real property to a firm or corporation
the freeholder and the firm or corporation shall determine which
entity will be entitled to vote in the annexation election.
(k) When an election is held in any municipality in accordance
with the provisions of this section, another election relating to
the same proposed change or any part thereof shall not be held for
a period of one year.
(l) If a majority of all of the legal votes cast both in the
municipality and a separate majority of all the legal votes cast in
the territory are each in favor of the proposed annexation, then
the governing body shall proceed as specified in the immediately
succeeding section of this article.
(m) The provisions of this section as enacted in the year two
thousand three shall apply to elections held after the effective
date of enactment.
§8-6-3. Governing body of municipality to certify annexation;
order.
The governing body of such municipality shall enter the results of such election in its minutes, and, when the annexation
proposed is adopted, as provided in the immediately preceding
section of this article, shall forward a certificate to such effect
to the county court commission of the county wherein the
municipality or the major portion of the territory thereof,
including the annexed territory, is located; and such court the
commission shall thereupon enter an order in substance as follows:
"A certificate of the governing body of the municipality of
....................... was this day filed showing that an
annexation has been made, in the manner required by law, to the
corporate limits thereof, and that by such annexation the said
corporate limits are as follows:
"Beginning at (here recite the boundaries as changed). It is,
therefore, ordered that such annexation to said corporate limits
be, and the same is hereby approved and confirmed, and the clerk of
this court commission is directed to deliver to the said governing
body a certified copy of this order as soon as practicable after
the rising of this court commission."
After the date of such order, the corporate limits of the
municipality shall be as set forth therein.
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 the additional territory file with the governing body a petition
to be annexed; and (2) a majority of all freeholders of the
additional territory, whether they reside or have a place of
business therein or not, file with the governing body a petition to
be annexed: Provided, That the additional territory to be included
shall conform to the requirements of section one, article two of
this chapter: Provided, however, That the population density
requirements of subdivision (3), subsection (a), section one,
article two of this chapter shall not apply and one half of the
population density requirements of subdivision (2), subsection (a),
section one of this article shall be applied on a pro-rata basis to
the territory proposed to be annexed regardless of the size of the
territory to be annexed.
(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 all persons in the additional territory who as a
result of annexation operations could be subject to a business and
operations tax pursuant to section five, article thirteen, chapter
eight of this code. A firm or corporation may sign a petition by
its manager, president or any other authorized executive officer
duly designated in writing by the firm or corporation. In any
instance where a freeholder leases or rents real property to a firm or corporation the freeholder and the firm or corporation shall
determine which entity will be entitled to sign a petition relating
to the proposed annexation.
(c) The determination that the requisite number of petitioners
have filed the required petitions shall be reviewable by the
circuit court of the county in which the municipality or the major
portion of the territory thereof, including the area proposed to be
annexed is located, upon certiorari to the governing body in
accordance with the provisions of article three, chapter
fifty-three of this code.
(d) A qualified voter of the additional territory who is also
a freeholder of the additional territory may join only one petition
of 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 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) If all of the eligible petitioners are qualified voters,
only a voters' petition is required.
(g) If satisfied that the petition is sufficient in every
respect, the governing body shall enter 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 as described
in the immediately preceding section of this article. After the
date of the order, the corporate limits of the municipality shall
be as set forth therein.
(h) The determination that the additional territory conforms
with the provisions of this section is 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.
NOTE: The purpose of this bill is to adjust the population
density requirements for annexation of a territory by a
municipality, provide a right of review by the appropriate circuit
court as to whether all of the annexation requirements have been
satisfied and to limit, under certain circumstances, the ability of
a municipality to impose a hotel occupancy tax on annexed
territories.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.