The Legislature notes that there are public highways that run over the surface of this land, over and through the navigable streams, rivers and waterways on this earth and above the surface of this earth in the form of highways in the sky, commonly known as airways. The Legislature finds that each of these types of public highways are essential to the development of this state and that the health and safety of each of the citizens of this state are affected daily by the availability of each of these three types of public highways, and that it is the best interests of the people of this state that each of these be recognized and included within the meaning of public highways. The Legislature further recognizes that airports are an important and integral part of the public highways existing above the surface of this state, and that airports are necessary to access such highways, and therefore airports, including runways, taxiways, parking ramps, access roads and air traffic control facilities located at airports, are hereby declared to be part of the public highway system of this state.
"Vehicle" shall mean and include any mechanical device for the conveyance, drawing or other transportation of persons or property upon the public roads and highways, whether operated on wheels or runners or by other means, except those propelled or drawn by human power or those used exclusively upon tracks.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1967 Reg. Sess., Ch. 168.
Repealed.
Acts, 1967 Reg. Sess., Ch. 168.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Acts, 1995 Reg. Sess., Ch. 169.
There is hereby continued the office of West Virginia commissioner of highways who shall be appointed by the governor, by and with the advice and consent of the Senate, subject to the provisions of section two-a, article seven, chapter six of this code.
Acts, 2010 Reg. Sess., Ch. 32.
The commissioner shall select and employ a business manager assistant and one or more chief engineer assistants who shall be registered professional engineers, and shall establish such other offices, activities, divisions, sections and organizational units as may be necessary and practical. The business manager assistant shall be in charge of and responsible for matters of finance and such other functions as may be assigned to him from time to time by the commissioner. The chief engineer assistant or, if the commissioner has selected and employed more than one chief engineer assistant, the chief engineer assistants shall be in charge of and responsible for planning, equipment, materials, construction, maintenance, and such other functions as may be designated by the commissioner as well as such other functions as may from time to time be assigned to such chief engineer assistant or assistants by the commissioner.
The commissioner shall require every employee who collects fees or handles funds or who has custody or control of equipment or supplies belonging to the state to give bond, with such sureties and in such penal sum as may be approved by the commissioner, for the faithful discharge of each such employee's duties and his accounting for all such fees, funds, equipment and supplies coming into his hands or under his custody or control. All such bonds, when approved by the commissioner, shall be filed in the office of the secretary of state. Premiums on all such bonds shall be paid from commission funds.
In addition to the other powers given and assigned to him in this chapter, the commissioner may authorize the payment of:
(1) The reasonable traveling expenses incurred by any person he requests to visit his office to be interviewed concerning the possible employment of such person by the state road commission;
(2) All or part of the reasonable expense incurred by a person newly employed by the commission in moving his household furniture, effects and immediate family to his place of employment;
(3) All or part of the reasonable expense incurred by a technical or supervisory employee of the commission, but excluding all employees at the county level, in moving his household furniture, effects and immediate family as a result of a reassignment of the employee which is considered desirable, advantageous to and in the best interests of the state: Provided, That no part of the moving expenses of any one such employee shall be paid more frequently than once in twelve months.
The expenditures for such payments shall be made from the state road fund, and shall be a cost of administration of said commission.
The commissioner of highways is empowered to enter into contracts for training programs with state colleges, universities and other training sources and to award scholarships to competent persons, whether presently employed by the division of highways or not, for the purpose of enabling and encouraging such persons to attend a college or university to pursue the course of study as may be approved by the commissioner of highways, but the number of persons holding such scholarships at any one time shall not exceed fifteen. Each scholarship shall carry a stipend in an amount fixed by the commissioner of highways not in excess of twelve thousand dollars in the aggregate. The necessary expenditures for the scholarships shall be made from the funds available to the division of highways. The recipient of a scholarship shall execute notes and shall deliver said notes to the commissioner of highways. Each note shall be in the amount of the sum received from the state road fund and shall be payable on demand to the division of highways. The commissioner of highways shall hold said notes and if, for any reason, except death or physical or mental disability, or being drafted into the armed services, the recipient of a scholarship fails successfully to complete the course of study for which the scholarship was granted or if after the completion of the prescribed course of study does not continue or become an employee of the division of highways, or ceases to be an employee before all the notes have been paid or canceled, the commissioner of highways shall make demand for payment of all of the unpaid and uncanceled notes and shall promptly enforce collection thereon and shall deposit the sums so collected thereon in the state road fund. The commissioner of highways is authorized to credit the oldest outstanding notes in the sum of one thousand five hundred dollars every six months that the recipient of the scholarship is employed by the division of highways after completing the course of study for which the scholarship was granted. The commissioner of highways shall have the power and authority to make all necessary rules to carry this section into effect.
No person may be appointed as commissioner or employed in any other capacity or employment by the commission or commissioner when he is a candidate for or holds any public office or is a member of any political party committee. In the event the commissioner or any employee of the commission or commissioner becomes a candidate for or holds any public office or becomes a member of any political party committee, his office as commissioner or position as employee, as the case may be, shall be immediately vacated.
All commission accounting and auditing services shall be on the fiscal year basis. The commissioner shall prepare an annual financial report covering all receipts and disbursements for each fiscal year and shall deliver such report to the commission on or before the first day of December next succeeding the end of the fiscal year.
The commissioner shall report quarterly to the commission on finances, personnel and other aspects and phases of the road program and system.
(1) Shall select and employ a competent legal staff adequate for the ordinary legal services required by him and shall provide therefor such quarters, equipment, facilities, services and stenographic and other personnel as may be necessary;
(2) May call upon the attorney general and the prosecuting attorneys of the several counties, within their respective jurisdictions, for legal assistance and services as provided by law;
(3) May employ such additional legal counsel as he deems necessary upon a reasonable fee basis to perform legal services in acquiring, by right of eminent domain or otherwise, property, or an estate, right or interest therein.
(1) Exercise general supervision over the state road program and the construction, reconstruction, repair and maintenance of state roads and highways;
(2) Determine the various methods of road construction best adapted to the various sections and areas of the state and establish standards for the construction and maintenance of roads and highways in the various sections and areas of the state;
(3) Conduct investigations and experiments, hold hearings and public meetings and attend and participate in meetings and conferences within and without the state for purposes of acquiring information, making findings and determining courses of action and procedure relative to advancement and improvement of the state road and highway system;
(4) Enter private lands to make inspections and surveys for road and highway purposes;
(5) Acquire, in name of the department, by lease, grant, right of eminent domain or other lawful means all lands and interests and rights in lands necessary and required for roads, rights-of-way, cuts, fills, drains, storage for equipment and materials and road construction and maintenance in general;
(6) Procure photostatic copies of any or all public records on file at the state capitol of Virginia which may be considered necessary or proper in ascertaining the location and legal status of public road rights-of-way located or established in what is now the state of West Virginia, which when certified by the commissioner, may be admitted in evidence, in lieu of the original, in any of the courts of this state;
(7) Plan for and hold annually a school of good roads, of not less than three or more than six days' duration, for instruction of his or her employees, which is held in conjunction with West Virginia university and may be held at the university or at any other suitable place in the state;
(8) Negotiate and enter in reciprocal contracts and agreements with proper authorities of other states and of the United States relating to and regulating the use of roads and highways with reference to weights and types of vehicles, registration of vehicles and licensing of operators, military and emergency movements of personnel and supplies and all other matters of interstate or national interest;
(9) Classify and reclassify, locate and relocate, expressway, trunkline, feeder and state local service roads and designate by number the routes within the state road system;
(10) Create, extend or establish, upon petition of any interested party or parties or on the commissioner's own initiative, any new road or highway found necessary and proper;
(11) Exercise jurisdiction, control, supervision and authority over local roads, outside the state road system, to the extent determined by him or her to be expedient and practicable;
(12) Discontinue, vacate and close any road or highway, or any part of any road or highway, the continuance and maintenance of which are found unnecessary and improper, upon petition and hearing or upon investigation initiated by the commissioner;
(13) Close any state road while under construction or repair and provide a temporary road during the time of the construction or repair;
(14) Adjust damages occasioned by construction, reconstruction or repair of any state road or the establishment of any temporary road;
(15) Establish and maintain a uniform system of road signs and markers;
(16) Fix standard widths for road rights-of-way, bridges and approaches to bridges and fix and determine grades and elevations therefor;
(17) Test and standardize materials used in road construction and maintenance, either by governmental testing and standardization activities or through contract by private agencies;
(18) Allocate the cost of retaining walls and drainage projects, for the protection of a state road or its right-of-way, to the cost of construction, reconstruction, improvement or maintenance;
(19) Acquire, establish, construct, maintain and operate, in the name of the department, roadside recreational areas along and adjacent to state roads and highways;
(20) Exercise general supervision over the construction and maintenance of airports and landing fields under the jurisdiction of the West Virginia state aeronautics commission, of which the commissioner is a member, and make a study and general plan of a statewide system of airports and landing fields;
(21) Provide traffic engineering services to municipalities of the state upon request of the governing body of any municipality and upon terms that are agreeably arranged;
(22) Institute complaints before the public service commission or any other appropriate governmental agency relating to freight rates, car service and movement of road materials and equipment;
(23) Invoke any appropriate legal or equitable remedies to enforce his or her orders, to compel compliance with requirements of law and to protect and preserve the state road and highway system or any part of the system;
(24) Make and promulgate rules for the government and conduct of personnel, for the orderly and efficient administration and supervision of the state road program and for the effective and expeditious performance and discharge of the duties and responsibilities placed upon him or her by law;
(25) Delegate powers and duties to his or her appointees and employees who shall act by and under his or her direction and be responsible to him or her for their acts;
(26) Designate and define any construction and maintenance districts within the state road system that is found expedient and practicable;
(27) Contract for the construction, improvement and maintenance of the roads;
(28) Comply with provisions of present and future federal aid statutes and regulations, including execution of contracts or agreements with and cooperation in programs of the United States government and any proper department, bureau or agency of the United States government relating to plans, surveys, construction, reconstruction, improvement and maintenance of state roads and highways;
(29) Prepare budget estimates and requests;
(30) Establish a system of accounting covering and including all fiscal and financial matters of the department;
(31) Establish and advance a right-of-way acquisition revolving fund, a materials revolving fund and an equipment revolving fund;
(32) Enter into contracts and agreements with and cooperate in programs of counties, municipalities and other governmental agencies and subdivisions of the state relating to plans, surveys, construction, reconstruction, improvement, maintenance and supervision of highways, roads, streets and other travel ways when and to the extent determined by the department to be expedient and practical;
(33) Report, as provided by law, to the governor and the Legislature;
(34) Purchase materials, supplies and equipment required for the state road program and system;
(35) Dispose of all obsolete and unusable and surplus supplies and materials which cannot be used advantageously and beneficially by the department in the state road program by transfer of the supplies and materials to other governmental agencies and institutions by exchange, trade or sale of the supplies and materials;
(36) Investigate road conditions, official conduct of department personnel and fiscal and financial affairs of the department and hold hearings and make findings thereon or on any other matters within the jurisdiction of the department;
(37) Establish road policies and administrative practices;
(38) Fix and revise from time to time tolls for transit over highway projects constructed by the division of highways after the first day of May, one thousand nine hundred ninety-nine, that have been authorized by the provisions of section five-b, article seventeen-a of this chapter;
(39) Take actions necessary to alleviate any conditions as the governor may declare to constitute an emergency, whether or not the emergency condition affects areas normally under the jurisdiction of the department of highways; and
(40) Provide family restrooms at all rest areas along interstate highways in this state, all to be constructed in accordance with federal law.
Notwithstanding any law to the contrary, the commissioner may employ as witnesses to testify in eminent domain proceedings such persons who are qualified to give competent testimony as to the value of the property, or estate, right or interest therein, being condemned in an eminent domain proceeding, as he deems necessary. Each such person so employed shall receive for his services the sum agreed upon in a written contract signed by the commissioner and such person. The sum contracted to be paid, however, shall not be made contingent upon the outcome of the action or hearing in which the competent testimony is to be given.
In addition to the other powers given and assigned to him in this chapter, where an emergency exists, the commissioner may authorize the use of state road commission vehicles to provide towing service to vehicles stranded on any highway in this state, or may provide a sufficient quantity of gasoline or other fuel for the vehicle to propel it to a point where such fuel may be purchased.
In addition to the other powers given and assigned to him in this chapter, the commissioner of highways shall have authority to use, and permit and allow or disallow his designated employees to use, publicly provided carriage to travel from their residences to their workplace and return: Provided, That such usage is subject to the supervision of such official and is directly connected with and required by the nature and in the performance of such official's or designated employee's duties and responsibilities.
In any hearing, investigation or proceeding conducted by or before the commission or commissioner, the evidence of witnesses and the production of documentary evidence may be required at any designated place of hearing and summons may be issued therefor by the commissioner or any member of the commission. In case of disobedience to a summons or other process so issued, the commissioner, a member of the commission or any party to the proceedings may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses and the production of papers, books and documents. And upon proper showing, such court shall issue an order requiring such persons to appear before the commissioner or commission, as the case may be, and produce all books and papers and give evidence touching the matter in question. Any person failing to obey such order may be punished by such court as for contempt. A claim that any such testimony or evidence may tend to incriminate the person giving the same shall not excuse such witness from testifying, but such witness shall not be prosecuted for any offense concerning which he is compelled hereunder to testify.
The commission may regulate and, when the safety and convenience of the traveling public so require, may prohibit parking of vehicles on and along roads and highways and the rights-of-way thereof.
All purchases and acquisitions shall be made in consideration and within limits of available appropriations and funds and in accordance with applicable provisions of article two, chapter five-a of this code, relating to expenditure schedules and quarterly allotments of funds.
The director of purchases shall make available the facilities and services of his department to the commissioner in the purchase and acquisition of materials, supplies and equipment and shall cooperate with the commissioner in all such purchases and acquisitions upon request of the commissioner. The actual expenses incurred by the director of purchases in all such cases shall be paid by the commissioner.
Any person, firm or corporation failing or refusing to comply with said statute as herein required shall be ineligible to sell or offer to sell commodities to the commissioner as hereinabove set forth.
As used in this article, "state road purposes" shall include provision for, but shall not be limited to, the following:
(a) Constructing, establishing, laying out, widening, enlarging, extending, straightening, reconstructing, relocating, grading, altering, improving, and maintaining state roads;
(b) Rights-of-way for state roads, including those needed for such roads within municipalities, such rights-of-way to be as wide as deemed necessary by the commissioner;
(c) Adequate drainage of state roads;
(d) Controlled-access facilities, as defined in section thirty-nine, article four of this chapter, including existing and vested rights of access, air, view and light, whether privately or publicly owned, and local service roads to controlled-access facilities;
(e) Broadcasting stations, weighing stations, shops, equipment sheds, office buildings, storage buildings and yards, snow fences, road maintenance or construction sites;
(f) Road-building material storage sites, quarry sites, gravel pits, sites for the acquisition or manufacture of road- building materials including borrow pits, stock pile sites, waste- material sites and access roads to any such sites or places;
(g) The culture and support of trees which benefit any state road by aiding in the maintenance and preservation of the road;
(h) Landscape and roadside development, and maintenance thereof, within any state road right-of-way, and the acquisition and maintenance of lands and interests in lands for the restoration, preservation and enhancement of places of scenic beauty, and other objects of attraction or scenic value adjacent to or near any state road, and the acquisition, development and maintenance of publicly owned and controlled rest and recreation areas and sanitary and other facilities reasonably necessary for the accommodation of the traveling public, within, adjacent to or near the right-of-way of any road within the state road system;
(i) Development and maintenance of parking places, auto camps, camp sites, roadside parks, historic roadside markers and sites, forest or timbered areas or other places of attraction and scenic value which are adjacent to or near any state road and which in the judgment of the commissioner are necessary for the convenience of the public and will contribute to the general welfare and pleasure of the motoring public or road users;
(j) Maintenance of an unobstructed view of any portion of any state road in order to provide for the safety of the traveling public;
(k) Erection and maintenance of markers, warning signs and traffic signals;
(l) Construction and maintenance on state roads of sidewalks and highway illumination;
(m) Elimination or prevention of hazardous or undesirablepoints of entry to state roads from adjacent property;
(n) Acquisition of property, or any interest or right therein, for the purpose of exchanging it for other property, or any interest or right therein, which the commission is authorized to acquire by the other provisions of this section: Provided, That such substitute property, or any interest or right therein, may be acquired by the commissioner by condemnation only if the following conditions are satisfied: (1) Money compensation would be substantially inadequate for the property, or interest or right therein, which the commissioner is authorized to acquire by the other provisions of this section, and (2) the commission has entered into a written agreement to exchange the substitute property, or the right or interest therein, for the property, or right or interest therein, which is needed for state road purposes, regardless of whether the person who has agreed to accept the exchange has the right to condemn the substitute property, or the right or interest therein;
(o) Acquisition of real property, not needed as such for a state road, for the purpose of moving and relocating thereon a building or other structure or appurtenance which is situated on a lot or tract of land all or a portion of which is needed for a state road and which, after relocation, will be suitable for the purpose for which it was used prior to its being relocated: Provided, however, That such additional real property may be acquired by the commissioner by condemnation only if the following conditions are satisfied: (1) The building or other structure or appurtenance is of substantial value, (2) the real property on which it is to be relocated is not substantially improved and is adjacent to or near the location from which it is to be removed, (3) the owner of the real property needed for the state road has entered into a written agreement with the commission to accept in exchange the additional property with the relocated building or structure or appurtenance thereon, (4) substantial savings in expenditure of state road funds will result from condemning the additional property and relocating the building or structure or appurtenance rather than condemning the lot or tract, or the portion thereof, on which the building or other structure or appurtenance may be located, and (5) the real property with the relocated building or structure or appurtenance thereon will be relatively equal in value to the real property needed for the state road.
(b) This subsection applies to property held by the division, including a right-of-way, that was not acquired for use, or used, as a highway. When the real property, or any part of the property, or any interest or right in the property, is considered by the commissioner not necessary, or desirable for present or presently foreseeable future division of highways purposes, it may be exchanged for other real property, or any interest or right in the property, considered by the commissioner to be necessary or desirable for present or presently foreseeable future division of highways purposes, or it may be sold. In addition the division may exchange real property, or any part of the property, or any interest or right in the property, even though it may be necessary or desirable for present or presently foreseeable future division of highways purposes, if the exchange is made for other real property, or any interest or right in the property, in close proximity to the property which the commissioner considers of equal or superior useful value for present or presently foreseeable future division of highways purposes. In making exchanges the division may make allowances for differences in the value of the properties being exchanged and may move or pay the cost of moving buildings, structures or appurtenances in connection with the exchange.
Every sale of real property, or any interest or right in the property or structure on the property, shall be at public auction in the county in which the real property, or the greater part of the property, is located, and the division shall advertise, by publication or otherwise, the time, place, and terms of the sale at least twenty days prior to the sale. The property shall be sold in the manner which will bring the highest and best price. The division may reject any or all bids received at the sale. The commissioner shall keep a record, open to public inspection, indicating the manner in which the real property, or any interest or right in the property or structure on the property, was publicly advertised for sale, the highest bid received and from whom, the person to whom sold, and payment received. The record shall be kept for a period of five years and may be destroyed after five years.
(c)(1) This subsection applies to property held by the division, including a right-of-way, that was acquired for use, or used, as a highway. The commissioner may transfer, sell or otherwise dispose of any right-of-way properties or any interest or right in the property, owned by or to be acquired by the division of highways which the commissioner in his or her sole discretion determines are not necessary or desirable for present or presently foreseeable future highway purpose by first offering the property to the principal abutting landowners without following the procedure for public auction provided in subsection (b) of this section.
(2) The commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code governing and controlling the making of any leases or sales pursuant to the provisions of this subsection. The rules may provide for the giving of preferential treatment in making leases to the persons from whom the properties or rights or interests in the property were acquired, or their heirs or assigns and shall also provide for granting a right of first refusal to abutting landowners at fair market value in the sale of any real estate or any interest or right in the property, owned by the division of highways.
(3)(A) With respect to real property acquired subsequent to the year one thousand nine hundred seventy-three for use as a highway through voluntary real estate acquisition or exercise of the right of eminent domain, which real estate the commissioner has determined should be sold as not necessary for highways purposes, the commissioner shall give preferential treatment to an abutting landowner if it appears that:
(i) A principal abutting landowner is an individual from whom the real estate was acquired or his or her surviving spouse or descendant. In order to qualify for preferential treatment, the surviving spouse or descendant need not be a beneficiary of the individual. The terms used in this subdivision are as defined in section one, article one, chapter forty-two of this code; and
(ii) The primary use of the abutting property has not substantially changed since the time of the acquisition.
(B) When the provisions of paragraph (A) of this subdivision are met, the commissioner shall offer the property for sale to the principal abutting landowner at a cost equal to the amount paid by the division of highways in acquiring the real estate. If improvements on the property have been removed since the time of the acquisition, the cost shall be reduced by an amount attributable to the value of the improvements removed. The cost may be adjusted to reflect interest at a rate equal to the increase in the consumer price index for all urban consumers as reported by the United States department of labor since the time of disbursement of the funds.
(d) The commissioner may insert in any deed or conveyance, whether it involves an exchange, lease or sale, the conditions as are in the public interest and have been approved in advance by the governor.
(e) All moneys received from the exchange, sale, or lease of real property, or any right or interest in the property, shall be paid into the state treasury and credited to the state road fund.
(f) Notwithstanding the provisions of this section, property may not be transferred, sold or otherwise disposed of unless the commissioner finds that the right-of-way or other property has no significant value to the state as a hiking trail and does not serve as a link between two or more state owned properties. This subsection does not apply to property that lies within six hundred feet of any dwelling house.
In any instance where the West Virginia department of highways has or shall hereafter acquire title to the airspace upon and over any highway or right-of-way for highway purposes, such department may, subject to the conditions herein, transfer such airspace or any part thereof to any person, firm or corporation by sale, lease or permit to use.
When such airspace or any part thereof is determined by the commissioner not necessary, or desirable for present or presently foreseeable future state road purposes, it may be transferred by lease for such period or periods of time and on such terms and conditions, including consideration, as the commissioner shall determine to be fair and reasonable, or it may be transferred by sale, or the commissioner may transfer the use thereof by a permit to use such airspace or any part thereof for such period or periods of time as he shall determine and under such terms and conditions, including consideration, as he shall deem fair and reasonable, except that in the case of a publicly or privately owned utility, no consideration shall be required for an easement through such airspace or any part thereof.
Every such transfer by sale shall be at public auction in the county in which the airspace to be transferred by sale is located, and the department shall advertise, by publication, the time, place and terms of such sale at least twenty days prior thereto. The publication shall be published as a Class I-O 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 in which the airspace to be transferred by sale is located. The airspace shall be sold in a manner which will bring the highest and best price therefor. The department may reject any or all bids received at the sale. The commissioner shall keep a record, open to public inspection, indicating the newspapers in which the airspace to be transferred by sale was publicly advertised for sale, the highest bid received therefor and from what party, the party to whom sold, and the payment received therefor. Such record shall be kept for a period of five years and may thereafter be destroyed. Every such transfer by lease with any party other than another agency of this state or any county or municipality in this state or any agency thereof shall be upon the basis of competitive bids solicited by publication of a notice of the proposed lease published as a Class I-O 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 in which the airspace to be transferred by lease is located.
The commissioner shall adopt and promulgate rules and regulations governing and controlling the transferring of airspaces by sale, lease, or permit to use, pursuant to the provisions of this section, which rules and regulations shall provide for the giving of preferential treatment in making leases or issuing permits to use to the persons from whom the airspace was acquired, or their heirs or assigns.
The commissioner may insert in any instrument executed pursuant to the provisions of this section such conditions as are in the public interest and have been approved in advance by the governor.
All moneys received from the sale or lease of, or permit to use, any airspace or any part thereof, shall be paid into the state treasury and credited to the state road fund.
Any individual, family, business concern (including the operation of a farm) or nonprofit organization to be displaced by a highway construction project shall be compensated consistent with the provisions and limitations of federal acts for reasonable and necessary costs to be incurred in consequence of being so displaced. When a family is displaced, no additional payment shall be made to individuals who are members of such family; but, if two or more displaced families occupy the same dwelling or comprise a single household, each family within such dwelling or household may receive relocation costs as provided in this section. Payments under this section are subject to the limitations provided herein and to any rules and regulations made by the commissioner as herein provided.
With respect to state highway projects and federal-aid highway projects, the commissioner shall have authority to make such payments for relocation costs, reestablishment costs, replacement housing costs, including the increased interest costs which the displaced person is required to pay for financing the acquisition of a comparable replacement dwelling, and reasonable expenses incurred by such displaced person for evidence of title, recording fees, and other closing costs incident to the purchase of the replacement dwelling, and expenses incidental to the transfer of property as are authorized by the abovementioned Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, being Public Law 91-646 enacted by the Ninety-first Congress of the United States of America, and the 1987 amendments thereto known as Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987, being Public Law 100-17 enacted by the One Hundredth Congress of the United States of America.
The commissioner shall establish by rules and regulations a procedure for the payment of relocation costs within the limits of and consistent with the policies of this section and the aforesaid federal laws and regulations. Such rules and regulations may authorize lump sum payments to individuals or families, in lieu of their respective provable costs, based upon the size of the dwelling being vacated or the number of persons being affected or any other reasonable basis. The commissionermay authorize the obligations of or payment of relocation costs in advance of expenditure for relocation by any person, firm or organization eligible to receive such payment where such advance obligation or payment would speed the clearance of highway construction sites or reduce hardships.
With respect to state highway projects and federal-aid highway projects, the commissioner shall also have authority to comply with the aforesaid federal laws and regulations relating to providing last-resort replacement housing.
Nothing contained in this section or in the federal laws and regulations relating to relocation assistance and payments to displaced person shall be construed as creating in any condemnation proceedings brought under the power of eminent domain, any element of damages not in existence on the effective date of this section or of the federal laws and regulations relating to relocation assistance and payments to displaced persons.
In order to promote engineering and design quality and to ensure maximum competition by professional companies of all sizes providing engineering and design services, the commissioner of highways may establish cost principles for determining the reasonableness and allowability of various costs. These cost principles will govern the overhead ceilings, salary limits, expense reimbursement and any other cost the commissioner may deem necessary to regulate. The commissioner of highways shall propose a legislative rule pursuant to article three, chapter twenty-nine-a of this code regarding standard cost principles for determining the reasonableness and allowability of various costs. The legislative rule may include provisions for deviations from the standard cost principles in special situations and circumstances.
The commissioner may issue a commercial work order to certified vendors for repair of vehicles and equipment when the commissioner determines that the repairs would extend the life of the equipment or vehicle a minimum of five years and that the expenditure would be the safest cost effective alternative to purchase of new vehicles and equipment or in-house repair.
Any commercial vendor of vehicle and equipment repair may apply to the commissioner for certification as a certified repair vendor under the provisions of this section. In order to qualify, the vendor must provide proof that it has the trained personnel, the required tools, equipment and facilities to provide the work. The commissioner shall inspect or cause to be inspected the facilities and shall review the qualifications of personnel of vendors applying for certification. If approved by the commissioner, the vendor may be certified as a qualified vendor for the type of repair work the commissioner determines the vendor is qualified to provide.
Prior to issuing a commercial work order with a certified vendor, the commissioner must determine the cost of repair of the vehicle or equipment. If on site inspection is required, the commissioner may issue a work order to provide for the inspection and estimate.
Preference for issuing vehicle and equipment repair work orders shall be given to in-state licensed qualified vendors: Provided, That a vendor which fails to guarantee its work for at least one year, or which fails to guarantee its work for a longer period if the longer period is comparable to that offered by local rebuild or repair shops, or which fails to complete any work order in the time specified within the work order, or which fails to complete any work order to the specifications of the work order, shall be decertified for a period of one year.
Nothing herein requires the commissioner of highways to issue a work order to any particular commercial vendor.
The commissioner of highways shall propose a legislative rule pursuant to article three, chapter twenty-nine-a of this code regarding certification of qualified vendors and awarding work orders. The legislative rule may include provisions for deviations from the standard cost principles in special situations and circumstances.
(a) The Legislature hereby finds and declares:
(1) That modern, well-constructed and properly maintained roads and highways are of great importance to the economic and industrial growth and development and well-being of the state and to the health, education, welfare and prosperity of its citizens;
(2) That due to budgetary and economic constraints, it is frequently not feasible, desirable nor prudent to meet the costs of construction and maintenance of a modern highways system sufficient to meet current or future needs of the state, of its citizens and of its industrial and commercial communities through the utilization of current revenues, increased or expanded taxation or general obligation bonds;
(3) That there is opinion that alternative methods of financing the construction and maintenance of an efficient and modern road and highway system could be desirable; that these alternative methods may include, but not necessarily be limited to, the utilization of tolls to be paid by the users of such highways and other methods of financing or a combination of various methods, including tolls; and
(4) That the purpose of this article is to create a commission, as hereinafter constituted and appointed, to study various and alternative methods of financing road and highway construction and maintenance, with particular emphasis upon the feasibility and desirability of adopting a system of tolls to be paid by the users of such roads and highways either alone or in combination with other methods of financing.
(b) The Legislature further declares that it recognizes that the provisions of section 1, article V of the Constitution of West virginia prohibit any person from exercising the powers of more than one branch or department of government at the same time; however, it is the express purpose, intent and finding of the Legislature that those members of the commission who are members of the Legislature are acting as such while serving on the commission and in the furtherance of the Legislature's inherent right and power to investigate and inquire into and report on those matters which are legimately within its powers, and that since the commission's role and duties are investigative and reportive in nature, the service upon the commission by its legislative members is not violative of nor inimical to the constitutional mandate with respect to the separation of governmental powers.
The West Virginia toll road study commission is hereby created. The commission shall consist of eleven members, who are designated or to be appointed as follows:
(a) The West Virginia commissioner of highways shall serve as a voting member of the commission by virtue of that person's office and shall serve as chairman of the commission;
(b) The chairman of the West Virginia turnpike commission shall serve as a voting member of the commission by virtue of that person's office;
(c) Three members shall be appointed by the governor who shall be representative private citizens and who shall have been residents of this state for a period of at least one year immediately next preceding such persons' appointment no more than two of whom shall be members of the same political party; and
(d) Three members of the commission shall be members of the Senate, to be appointed by the president thereof; no more than two of whom shall be members of the same political party; and
(e) Three members of the commission shall be members of the House of Delegates, to be appointed by the speaker thereof; no more than two of whom shall be members of the same political party.
(a) Members of the commission shall be reimbursed for their reasonable and necessary travel and other expenses actually incurred in connection with the performance of their duties as members of the commission, including, but not limited to, their attendance at meetings thereof.
(b) Except as to those members of the commission who are members of the Legislature, the reimbursement of expenses provided for in subsection (a) of this section shall be paid from legislative appropriations to the state department of highways, account number 6700, line item number 7, "Toll Road Examination."
(c) As to those members of the commission who are members of the Legislature, the reimbursement of expenses provided for in subsection (a) of this section shall be paid from legislative appropriations to the joint committee on government and finance, under "Account No. 103 - Joint Expenses."
(d) Members of the commission shall receive no other compensation for their services on or with the commission other than the reimbursement of expenses as provided in this section.
(e) All other expenses and costs incurred by the commission, which are not otherwise provided for in this section shall be paid from legislative appropriations to the state department of highways, account number 6700, line item number 7, "Toll Road Examination."
The commission shall have the following powers, duties and
responsibilities:
(a) To conduct a thorough and comprehensive study into the various ways and means of financing the construction and maintenance of a modern and efficient system of roads and highways which would be in addition to or in augmentation of or in conjunction with already existing roads and highways, with particular, but not exclusive, emphasis upon the feasibility, desirability and prudence of utilizing the imposition of tolls upon the users of such roads and highways, either alone or together with other means and methods of financing the construction and maintenance of the same;
(b) Special attention shall be given to planning, financing and construction of a modern highway connecting the Appalachian Corridor "G" highway at Chapmanville with Interstate Highway 64 at Huntington; and the planning, financing, and construction of Appalachian Corridor "H";
(c) To file an interim report as to its progress and tentative conclusions with the governor, the president of the Senate and the speaker of the House of Delegates not later than the second Wednesday in January, in the year one thousand nine hundred eighty-six;
(d) To file its final report with respect to its findings and conclusions, together with any legislation it deems appropriate to recommend and as it deems necessary to carry its findings and conclusions into effect with the governor, the president of the Senate and the speaker of the House of Delegates not later than the second Wednesday in January in the year one thousand nine hundred eighty-eight;
(e) To employ such legal, technical, investigative, clerical, stenographic, advisory and other personnel as it deems necessary and needful and to fix the reasonable compensation of such persons as may be so employed;
(f) To request such information and data from any state officer or agency or from any political subdivision of the state as the commission may deem necessary to assist it in the performance of its duties and it shall be the duty of all such officers and agencies to cooperate with and assist the commission in and about the completion of its studies and deliberations;
(g) To confer with representative citizens and groups of the private, business and industrial sectors with respect to all matters deemed relevant to the study program of the commission; and
(h) To perform every other act necessary or desirable to carry out any of the other powers, duties or responsibilities enumerated in this article.
The commission shall meet at such times and places as its chairman shall deem to be proper and expedient. Such meetings shall be coordinated with and be in conjunction with the monthly meeting of the joint committee on government and finance insofar as the same may be practicable. Nothing herein shall preclude the commission from meeting with such frequency or at such times and places as it may determine. The presence of no less than six members of the commission shall constitute a quorum for the conducting of any business by the commission.
(a) The provisions of this article shall be liberally construed in order to permit the commission sufficient latitude for the orderly completion of its studies and duties.
(b) The commission shall cease its existence on the first day of July, one thousand nine hundred eighty-eight.
The Legislature hereby finds and declares it to be important for the economic and social development of the state that a program for the identification, acquisition and maintenance of orphan roads and bridges be undertaken by the state. In particular, the Legislature finds and declares that basic maintenance should be performed on orphan roads and bridges to promote the well-being of the public.
In order for a road or bridge to qualify for inclusion into the state system, all necessary rights-of-way shall be either dedicated or donated to the division of highways.
In the event that all property owners do not agree to dedicate or donate the necessary rights-of-way, then any individual, group, business or governmental entity can donate to the state road fund a sum sufficient to cover the expense of acquiring the right-of-way that has not been dedicated or donated. The commissioner may also use any moneys donated to the state road fund specifically for the purposes of acquiring a right-of-way which has not been dedicated or donated.
The division of highways is required to furnish trucks or other proper motor vehicles and gravel or other required materials to be used by the workforce created by this section in the maintenance of the orphan roads and bridges in each district and county.
On or before the thirtieth day of January, one thousand nine hundred ninety-nine, and annually thereafter, the commissioner of the division of highways shall submit a report to the Legislature which recounts the activities of the program and the roads and bridges which have been accepted into the state maintenance system. The report shall include a breakdown by county of those roads and bridges being maintained, the estimated costs associated with maintenance and any other information the commissioner deems necessary. Before the thirtieth day of January, two thousand two, the commissioner shall also submit proposed legislation formulating a policy for the designation and acceptance into the state system of orphan roads and bridges in the future.
(b) A design-build project may not be let to contract after June 30, 2013. The Division of Highways may expend no more than $75 million in each of the two years remaining in the pilot program after the effective date of the amendment to this article in the regular session of 2011: Provided, That if any of the $75 million is unused in the first year, the remaining amount may be applied to the following year's amount: Provided, however, That the total aggregate amount to be expended after the effective date of the amendment to this article in the regular session of 2011 may not exceed $150 million.
(c) A design-build project may be let to contract only in accordance with the commissioner's established policies and procedures concerning design-build projects.
(d) After June 30, 2013, projects may not be let under the provisions of this article unless the West Virginia Legislature either approves additional projects or makes the program permanent.
(e) Projects receiving special funding above the regular federal core funding may utilize the pilot program, but shall not be included in the total number of projects or expenditure limits provided by subsections (a) and (b) of this section.
(f) Effective after the effective date of the amendment to
this article in the regular session of 2011, no consultant engineer
who prepares preliminary plans, planning reports or other project
development products for a project pursuant to the provisions of
this section may participate in the construction of that project.
(1) The procedures to be followed for submitting bids and the procedures for making awards;
(2) The proposed general terms and conditions for the design-build contract;
(3) The description of the drawings, specifications or other information to be submitted with the bid, with guidance as to the form and level of completeness of the drawings, specifications or
submittals that will be acceptable;
(4) A proposed time schedule commencement and completion of the design-build contract;
(5) Budget limits for the design-build contract, if any;
(6) Requirements or restrictions for the subletting of specific portions of the design-build contract, if any; and
(7) Requirements for performance bonds, payment bonds, insurance, professional liability insurance and workers' compensation coverage.
(b) The division shall make available to the qualified design-builders, a list of prequalified consultants, approved subcontractors, suppliers and sureties, as applicable, additional information including, but not limited to, surveys, soils reports, drawings or information regarding existing structures, environmental studies, photographs or references to public records, or other pertinent information.
(c) The division shall set forth its needs with sufficient clarity to assure that there is a comprehensive understanding of the project's scope and requirement.
(b) The design-builder shall furnish a bid bond not to exceed five percent of the maximum cost of the design-build contract.
(c) The selection committee may choose to reject all bids. If the selection committee chooses to accept a bid, the committee shall award the project to the qualified design-builder based on low bid or a value-based selection process combining technical qualifications and competitive bidding elements. The selection committee shall ascertain that the submissions comply with the requirements of this article and the policies and procedures of the commissioner.
There shall be a state road fund, which shall consist of the proceeds of all state license taxes imposed upon automobiles or other motor or steam driven vehicles; the registration fees imposed upon all owners, chauffeurs, operators and dealers in automobiles or other motor driven vehicles; all sums of money which may be donated to such fund; all proceeds derived from the sale of state bonds issued pursuant to any resolution or act of the Legislature carrying into effect the "Better Roads Amendment" to the constitution of this state, adopted in the month of November, one thousand nine hundred sixty-four, except that the proceeds from the sale of these bonds shall be kept in a separate and distinct account in the state road fund; all proceeds from the sale of state bonds issued pursuant to any resolution or act of the Legislature carrying into effect the "Safe Roads Amendment of 1996" to the constitution of this state, adopted in the month of November, one thousand nine hundred ninety-six, except that the proceeds from the sale of these bonds shall be kept in a separate and distinct account in the state road fund; all moneys and funds appropriated to it by the Legislature; and all moneys allotted or appropriated by the federal government to this state for road construction and maintenance pursuant to any act of the Congress of the United States; the proceeds of all taxes imposed upon and collected from any person, firm or corporation and of all taxes or charges imposedupon and collected from any county, district or municipality for the benefit of the fund; the proceeds of all judgments, decrees or awards recovered and collected from any person, firm or corporation for damages done to, or sustained by, any of the state roads or parts thereof; all moneys recovered or received by reason of the violation of any contract respecting the building, construction or maintenance of any state road; all penalties and forfeitures imposed, recovered or received by reason thereof; and any and all other moneys and funds appropriated to, imposed and collected for the benefit of such fund, or collected by virtue of any statute and payable to such fund: Provided, That notwithstanding any provisions of this code to the contrary, fifty cents of every license fee paid pursuant to the provisions of subdivision (2), subsection (a), section eight, article two, chapter seventeen-b of this code shall be paid to the special fund established pursuant to the provisions of subsection (a), section twelve, article two, chapter three of this code.
When any money is collected from any of the sources aforesaid, it shall be paid into the state treasury by the officer whose duty it is to collect and account for the same, and credited to the state road fund, and shall be used only for the purposes named in this chapter, which are: (a) To pay the principal and interest due on all state bonds issued for the benefit of said fund, and set aside and appropriated for that purpose; (b) to pay the expenses of the administration of the road department; and (c) to pay the costof maintenance, construction, reconstruction and improvement of all state roads.
The Legislature acting through the joint committee on government and finance shall cause an annual audit to be made by a resident independent certified public accountant of all books, accounts and records relating to all receipts and expenditures of the state road commission which are not audited by the United States bureau of public roads or the United States general accounting office. The state road commissioner shall make available to such independent auditor or auditors performing such audit all of the commission's books, accounts and records pertaining to all funds received and expended. The auditor or auditors performing such audit shall make available annually the audit report with copies thereof to the members of the Legislature, the governor, the state road commissioner, the secretary of state, the state treasurer, the attorney general and the state auditor; and the audit report shall be available to the public in the office of the secretary of state.
The Legislature acting through the joint committee on government and finance shall obtain the services of a resident independent certified public accountant for this purpose, the cost of which shall be payable out of funds appropriated by the Legislature. Any audits of the funds which have been made by any official auditing agency of the United States government shall be accepted and its work not duplicated.
Any claim of a contractor or others, not otherwise provided for, for labor done or for materials, services or supplies furnished to the state road commission, pursuant to the provisions of any article to this chapter, shall be audited by the commissioner, and, if found correct, the commissioner shall issue the commission's requisition upon the auditor of the state therefor, showing the nature of such claim and whether it is for labor done or materials, services or supplies furnished for construction of state roads, or for other purposes, and the auditor shall issue his warrant upon the state treasurer therefor, and the treasurer shall pay the same to the person, firm or corporation entitled thereto, out of the funds in the treasury provided for that purpose.
When the state road commissioner has commenced an action for condemnation of any real or personal property, or estate, right, or interest therein, and immediate entry upon, possession of, appropriation or use thereof, is deemed necessary by the commissioner, he may certify to the state auditor such facts, and issue the commission's requisition upon the auditor for advancement of the sum the commissioner estimates to be the fair value of the property, or estate, right, or interest therein, sought to be condemned, and the damages, if any, to the residue beyond the benefits, if any, to such residue, by reason of the taking. Upon receipt of such certificate and requisition, the auditor shall issue his warrant upon the state treasurer in favor of the clerk of the court wherein the action was commenced, for the sum requisitioned by the commission, to the use of the defendants in that action, and the treasurer shall pay the same to the clerk of that court out of the funds in the treasury provided for this purpose.
All moneys received from the federal government for road construction shall be expended as provided, or as may hereafter be provided by act of Congress.
If at the end of any annual period, any money in the reserve fund remains unexpended or unappropriated, it shall be placed in the general fund for reserve and distribution during the next annual period.
The remaining eighty percent, or, if such reserve fund is not set aside, then all the funds shall be appropriated in the following order and preference:
(1) For the construction, reconstruction, and maintenance of expressway and trunkline roads, and to comply with the requirements for the receipt of aid from the federal government;
(2) For the maintenance of all feeder and state local service roads, as provided in section six-a of this article;
(3) For the construction and reconstruction of feeder and state local service roads as prescribed in section six-a of this article.
On or before the first day of January of each year the state road commissioner shall ascertain and determine the total amount of available funds for expenditure in the whole state for the construction, reconstruction and maintenance of feeder and state local service roads during such annual period. Of the amount so ascertained the commissioner may set aside as a reserve fund not to exceed twenty percent thereof, to be used and expended by him in his discretion in such manner as will best serve the interests of the state and the convenience of its inhabitants.
The remaining eighty percent, or, if such reserve fund is not set aside, then all the funds shall be appropriated in the following order and preference:
(1) Maintenance funds. -- To be allocated to the various counties on the basis of the mileage of various types or road surfaces:
(a) Paved surfaces of all types, such as, brick, cement, concrete, bituminous, etc.
(b) Traffic-bound surfaces, such as, slag, crushed stone, gravel, chert, red dog, shale, etc.
(c) Unimproved earth roads; by applying certain weights or percentages, based on past experience, to the various types of road surfaces.
(2) Construction and reconstruction. -- To be allocated to the various counties on the basis of the ratio of the unimproved mileage of feeder and state local service roads in the county to the total unimproved mileage of feeder and state local service roads in the state.
For the purposes of this section, the words "unimproved mileage" are defined and shall be construed to mean roads which are not passable for all-weather travel by motor vehicle.
All moneys received from the federal government for road construction or reconstruction shall be expended as provided, or as may hereafter be provided by act of Congress.
When the state road commissioner determines that there are funds available for the purpose of participating, on a matching fund basis, with the county court of one or more counties for the construction, reconstruction, repair and maintenance of any feeder and state local service roads within said county or counties, he shall in his discretion determine the amount the county court must deposit or place in escrow for matching purposes before the state road commissioner will commit any funds to a proposed project.
Nothing in this section shall be construed to alter or change in any way the allotment of funds for feeder and state local service roads as provided by section six-a of this article: Provided, however, That the feeder and state local service road fund of the county or counties participating under this section shall be charged with the amount advanced by the state road commissioner.
The state of West Virginia hereby further assents to any similar provision or provisions that may be made by any subsequent act of Congress making appropriation for the survey, construction and maintenance of rural post roads.
Each duplicate bond issued under the provisions of this section shall correspond with the original as to date, maturity, form and execution, except it may be given a number different from the original. It shall have printed or engraved on the face thereof the word "duplicate," and on its back a certificate executed by the treasurer in the following form: "The within duplicate bond is executed and issued under and by virtue of an act of the West Virginia Legislature passed on the nineteenth day of February, 1929, in lieu of road bond number ..... in the amount of $......., dated ........., 19 ..... , and maturing ........, 19 ......."
Any duplicate bond issued hereunder shall be taken and treated in all respects as the original, and the original shall be deemed cancelled.
The finder of any lost bond for which a duplicate has been issued shall forthwith transmit the same to the treasurer, who shall cancel it. Any person who shall retain possession of any such bond with knowledge that a duplicate has been issued therefor, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not exceeding one thousand dollars or confined in jail not exceeding one year.
(a) Any other provision of this code notwithstanding, there is hereby continued in the State Treasury the Industrial Access Road Fund, referred to in this article as "the fund". There shall be deposited into the fund three fourths of one percent of all state tax collections which are otherwise specifically dedicated by the provisions of this code to the State Road Fund or the percentage of those tax collections that will produce $3 million for each fiscal year. At the end of each fiscal year, all unobligated moneys in the fund revert to the State Road Fund.
(b) The moneys in the fund shall be expended by the Division
of Highways for constructing and maintaining industrial access
roads within counties and municipalities to industrial sites on
which manufacturing, distribution, processing or other economic
development activities, including publicly owned airports, are
already constructed or are under firm contract to be constructed.
In the event there is no industrial site already constructed or for
which the construction is under firm contract, a county or
municipality may guarantee to the Division of Highways an
acceptable surety or a device in an amount equal to the estimated
cost of the access road or that portion provided by the Division of
Highways, that an industrial site will be constructed and if no
industrial site acceptable to the Division of Highways is
constructed within the time limits of the surety or device, the
surety or device shall be forfeited.
industrial access roads.
In determining whether or not to construct or improve any
industrial access road and in determining the nature of the road to
be constructed, the division of highways shall base its decision on
the costs of the industrial access road in relation to the volume
and nature of the traffic to be generated as a result of developing
the industrial site within the total industrial area. In making a
decision on any industrial site, the total volume of traffic to be
generated shall be considered in regard to the overall cost of the
project. The division of highways shall consult and work in
cooperation with the West Virginia development office in
determining the use of industrial access road funds.
Prior to a formal request for the use of moneys from the fund to provide access to new or expanding industrial sites, the location of the industrial access road shall be submitted for approval of the division of highways. The division of highways shall consider the cost of the industrial access road as it relates to the project's location and as it relates to the possibility of future extensions of the road to serve other possible industrial sites as well as the future development of the surrounding area.
Prior to the allocation of moneys from the fund for the construction or maintenance of an industrial access road to an industry proposing to locate or expand in a county or municipality, the governing body of the county or municipality shall, by resolution, request moneys from the fund and shall be responsible for the preliminary negotiations with the industries and other interested parties. The division of highways shall be available for consultation with the governing bodies of the counties or municipalities and other interested parties and may prepare surveys, plans, engineering studies and cost estimates for the proposed industrial access road.
Any industrial access road constructed under this article is a state local service road in the state road system and shall thereafter be maintained in accordance with the provisions of this chapter.
(b) Moneys from the fund may not be expended until the governing body of the county or municipality certifies to the division of highways that the industrial site is constructed and operating or is under firm contract to be constructed or operated, or upon the presentation of an acceptable surety or device in an amount equal to the estimated cost of the access road or that portion provided by the division of highways in accordance with section one of this article.
(c) Not more than four hundred thousand dollars of unmatched moneys from the fund may be allocated for use in any one county in any fiscal year. The maximum amount of unmatched moneys which may be allocated from the fund is ten percent of the fair market value of the designated industrial establishment. The amount of unmatched funds allocated may be supplemented with additional matched moneys from the fund, in which case the matched moneys allocated from the fund may not exceed one hundred fifty thousand dollars, to be matched equally from sources other than the fund. The amount of matched moneys which may be allocated from the fund over and above the unmatched funds may not exceed five percent of the fair market value of the designated industrial site.
(d) Funds may only be allocated to those items of construction and engineering which are essential to providing an adequate facility to serve the anticipated traffic. Funds may not be allocated for items such as storm sewers, curbs, gutters and extra pavement width unless necessary to extend or connect an existing access road.
The Legislature, acting through the joint committee on government and finance, shall obtain the services of a resident independent certified public accountant for this purpose, the cost of which shall be payable out of funds appropriated by the Legislature. Any audits of the funds which have been made by any official auditing agency of the United States government shall be accepted in lieu of the state audit.
The county courts shall retain the superintendence and administration of roads, bridges and landings that remain under their jurisdiction as provided in section one, article ten of this chapter.
The commissioner of highways shall take control of all existing roads which are publicly owned within the state parks system and in the state forests including public hunting and fishing areas, formerly the responsibility of the director of the department of natural resources, on the effective date of this section and shall assume control of their further construction, reconstruction and maintenance as a part of the state road system. The commissioner is responsible for construction, reconstruction and maintenance as a part of the state road system of any new roads for public usage that may be constructed with the approval of the director of the department of natural resources, in existing state parks, state forests, public hunting and fishing areas or any such roads for public usage which may be established on publicly owned lands in any future state park, state forest, public hunting or fishing areas.
The director of the department of natural resources has the authority and responsibility to do the necessary cutting and planting of vegetation along road rights-of-way in state parks, state forests and public hunting and fishing areas.
(a) "Expressway." -- Serves major intrastate and interstate travel, including federal interstate routes.
(b) "Trunkline." -- Serves major city to city travel.
(c) "Feeder." -- Serves community to community travel or collects and feeds traffic to the higher systems or both.
(d) "State local service." -- Localized arterial and spur roads which provide land access and socioeconomic benefits to abutting properties.
(e) "Park and forest." -- Serves travel within state parks, state forests and public hunting and fishing areas.
The state road commissioner, or the state road commission, for any of the purposes aforesaid may likewise acquire by eminent domain any bridge or bridge site across any stream separating this state from an adjoining state, any portion thereof, or the approaches thereto, or any interest, franchise, right, or privilege in the same, whether the same be owned and operated by a bridge company, a railroad or electric company, or other railway, or other utility, or any other person, firm, or corporation, such right to be exercised to provide either for a permanent title, ownership, use, or easement thereon or thereover, or for a temporary use and easement thereon or thereover as a detour, or temporary road or bridge; and such rights may be acquired subject to the use by any railroad or electric company, or other railway or utility, or under such reasonable regulation as to such use as the court may prescribe. The state road commission may also exercise in any adjoining state such powers of eminent domain for any of the purposes aforesaid, whether such powers are now conferred or may be hereafter conferred upon the commission by any act of Congress of the United States, if such act of Congress be necessary for the exercise of such powers. Title to property condemned in any adjoining state may be taken either in the name of the state or of the state road commission.
The proceedings for the purposes aforesaid may be instituted in the name of the commissioner, or the state road commission, either at law or in equity, and prosecuted and determined as provided in chapter fifty-four.
Whenever in his judgment it is necessary for the safety of the traveling public or to comply with the safety, design or construction standards for a federal-aid highway project, the state road commissioner may require any railroad company, owning, controlling or operating a railroad in this State, to eliminate railway-highway crossings at grade on existing highways and to avoid railway-highway crossings at grade on new highways, relocated highways and extensions of existing highways by separating the grades or by relocating an existing highway. The commissioner may determine the location, design and grade for any project or structure for the elimination or avoidance of railway-highway crossings at grade, and may determine whether a new, relocated or extended highway shall pass over or under the railroad right of way or tracks. The railroad company shall not be required to bear any part of the cost of construction or maintenance of such grade separation, except where the separation structure eliminates an existing grade crossing.
(b) The commissioner's order shall include at least the following:
(1) A statement describing and locating the railway-highway crossing at grade to be eliminated or avoided; and
(2) A statement of the general plan to be followed in effecting the elimination or avoidance of the specified railway-highway crossing at grade, including general details concerning the following matters:
(A) Whether a new, relocated or extended highway shall pass over or under the railroad right-of-way or tracks; and
(B) The location, grade and width of the grade separation structure or crossing to be constructed and the angle at which the structure or crossing shall meet and converge into the highway bed on either side of the railroad tracks or right-of-way.
(c) Whenever a railroad company affected by the order specified in subsection (a) refuses to enter into a written agreement with the state road commissioner respecting a federal-aid railway-highway project for elimination or avoidance of railway-highway crossings at grade, the commissioner may amend the order made under subsection (a) to incorporate therein insofar as practicable all the details required by the regulations, policies and procedures of the Bureau of Public Roads, United States Department of Commerce, to be included in written agreements between a railroad and a state respecting federal-aid railway-highway projects. The amended order shall be furnished by registered mail to the state auditor or attorney of record of the railroad affected thereby.
Any order entered by the state road commissioner pursuant to the provisions of this section shall be subject to judicial review by the circuit court of the county in which the grades to be separated or eliminated are located, or the circuit court of Kanawha county, upon the filing in such court or with the judge thereof in vacation, of a petition for appeal by the party or parties aggrieved by such order, within thirty days from the date of the giving of written notice of such order by the state road commissioner to the party or parties to the hearing of the protest by certified or registered mail.
The party or parties making such appeal shall forthwith send a copy of such petition for appeal, by certified or registered mail, to the state road commissioner. Upon receipt of such copy of such petition for appeal the state road commissioner shall promptly certify and file in such court a complete transcript of the record upon which the order complained of was entered. The costs of such transcript shall be recovered by the party substantially prevailing on appeal.
The court sitting in lieu of the jury, or judge thereof in vacation, shall, after due notice, conduct a hearing on the issues presented by such appeal and shall permit argument, oral or written or both, by the parties. The court shall permit such pleadings, in addition to the pleadings before the state road commissioner, as it deems to be required. Evidence relating to the making of the order complained of and relating to the questions raised by the allegations of the pleadings or other questions pertinent in the proceeding may be offered by the parties to the proceeding.
Upon such conditions as may be required and to the extent necessary to prevent irreparable injury, any circuit court to which an appeal has been made as provided in this section, may, after due notice to and hearing of the parties to the appeal, issue all necessary and appropriate process to postpone the effective date of order of the state road commissioner complained of or to grant such other relief as may be appropriate pending final determination.
A circuit court to which an appeal has been made as provided in this section, may affirm, annul or revise the order of the state road commissioner complained of, or it may remand the proceeding to the state road commissioner for such further action as it directs.
The decision of the circuit court on an appeal from the state road commissioner shall be final, subject only to review by the supreme court of appeals of West Virginia upon a petition for certiorari filed in such court within sixty days from the entry of the order and decision of the circuit court upon such appeal from the state road commissioner.
The state road commissioner shall have the same authority and follow the same procedure and the cost and maintenance provision shall be the same, in the relocation and reconstruction of existing grade separation structures, where the tracks of any railroad and any state road cross, as is provided in sections nine to seventeen, inclusive, of this article.
(b) If the notice is in conjunction with a highway improvement project, it will be provided at the date of advertisement or award. Prior to the notice directing the physical removal, relocation or adjustment of a utility line or facility, the utility shall adhere to the division's utility relocation procedures for public road improvements which shall include, but not be limited to, the following:
(1) The division will submit to the utility a letter and a set of plans for the proposed highway improvement project;
(2) The utility must within a reasonable time submit to the division a written confirmation acknowledging receipt of the plans and a declaration of whether or not its facilities are within the proposed project limits and the extent to which the facilities are in conflict with the project;
(3) If the utility is adjusting, locating or relocating facilities or lines from or into the division's right-of-way, the utility must submit to the division plans showing existing and proposed locations of utility facilities.
(4) The utility's submission shall include with the plans a work plan demonstrating that the utility adjustment, location or relocation will be accomplished in a manner and time frame established by the division's written procedures and instructions. The work plan shall specify the order and calendar days for removal, relocation or adjustment of the utility from or within the project site and any staging property acquisition or other special requirements needed to complete the removal, relocation or adjustment. The division shall approve the work plan, including any requests for compensation, submitted by a utility for a highway improvement project if it is submitted within the established schedule and does not adversely affect the letting date. The division will review the work plan to ensure compliance with the proposed improvement plans and schedule.
(c) If additional utility removal, relocation, or adjustment work is found necessary after the letting date of the highway improvement project, the utility shall provide a revised work plan within thirty calendar days after receipt of the division's written notification of the additional work. The utility's revised work plan shall be reviewed by the division to ensure compliance with the highway project or improvement. The division shall reimburse the utility for work performed by the utility that must be performed again as the result of a plan change on the part of the division.
(d) Should the utility fail to comply with the notice to remove, relocate or adjust, the utility is liable to the division for direct contract damages, including costs, fees, penalties or other contract charges, for which the division is proven to be liable to a contractor caused by the utility's failure to timely remove, relocate or adjust, unless a written extension is granted by the division. The utility shall not be liable for any delay or other failure to comply with a notice to remove, relocate or adjust that is not solely the fault of the utility, including, but not limited to, the following:
(1) The division has not performed its obligations in accordance with the division's rules;
(2) The division has not obtained all necessary rights-of-way that affect the utility;
(3) The delay or other failure to comply by the utility is due to the division's failure to manage schedules and communicate with the utility;
(4) The division seeks to impose liability on the utility based solely upon oral communications or communications not directed to the utility's designated contact person;
(5) The division changes construction plans in any manner following the notice to remove or relocate and the change affects the utility's facilities; or,
(6) Other good cause, beyond the control of and not the fault of the utility, including, but not limited to, labor disputes, unavailability of materials on a national level, act of God, or extreme weather conditions.
(e) In order to avoid construction delays and to create an efficient and effective highway program, the division may schedule program meetings with the public utility on a quarterly basis to assure that schedules are maintained.
Acts, 2006 Reg. Sess., Ch. 201.
(b) If the work is to be done, or the materials therefor are to be furnished by contract, the commissioner shall thereupon publish the following described advertisement as a Class II legal advertisement, in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for the publication shall be the county or municipality in which the road lies.
(c) The advertisement shall also be published at least once in at least one daily newspaper published in the city of Charleston and in other journals or magazines as may to the commissioner seem advisable. The advertisement shall solicit sealed proposals for the construction or other improvement of the road, and for the furnishing of materials therefor, accurately describing the same, and stating the time and place for opening the proposals and reserving the right to reject any and all proposals: Provided, That whenever the estimated amount of any contract for work or for materials or supplies is less than three thousand dollars, the commissioner may not be required to advertise the letting of the contract in newspapers as above required, but may award the contract to the lowest responsible bidder, when two or more sealed proposals or bids have been received by him or her without the advertisement, but the contract may not be so awarded unless the bid of the successful bidder is three thousand dollars or less.
(d) The commissioner shall have the power to prescribe proper prequalifications of contractors bidding on state road construction work: Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, article three, chapter five-a of this code, may not bid on or be awarded a contract under this section.
(e) To all sealed proposals there shall be attached the certified check of the bidder or bidder's bond acceptable to the commissioner, in the amount as the commissioner shall specify in the advertisement, but not to exceed five percent of the aggregate amount of the bid; but the amount shall never be less than five hundred dollars. The proposals shall be publicly opened and read at the time and place specified in the advertisement, and the contract for the work, or for the supplies or materials required therefor shall, if let, be awarded by the commissioner to the lowest responsible bidder for the type of construction selected.
(f) In case all bids be rejected, the commissioner may thereafter do the work with commission forces or with prison labor, or may readvertise in the same manner as before and let a contract for the work pursuant thereto.
Any contract made by reason of any false statement or representation may be cancelled by order of the court.
Beginning the first day of July, one thousand nine hundred eighty-eight, any guardrail placed or replaced in new or existing locations on the state road system must be constructed using wooden posts unless use of another material would reduce the costs of such construction or reconstruction: Provided, That when guardrails are damaged, materials of a like kind may be used.
The commissioner is empowered to enter into contracts with the proper authorities of other states to establish, jointly, plants for the preparation and manufacture of cement, brick, stone and other materials to be used in the construction of roads as provided herein, and to operate jointly such plants, acquire all materials and do all other things necessary for such operation, and the disposition of the products thereof, for the more economic prosecution of the work of building and maintaining public roads.
The state road commissioner may, at any time, after due consultation with and notice to the governing body of the municipal corporation, locate and designate or relocate and redesignate, as a connecting part of the state road system, any bridge or street within a municipal corporation. The commissioner may construct, reconstruct, improve and maintain the designated or redesignated connecting part at the cost and expense of the state.
Any existins free bridge forming a connecting link between two counties or two state routes is hereby adopted as part of the state road system and shall hereafter be maintained by the state, and any existing free bridge forming a connecting link between this and another state is hereby adopted as part of such system, and shall, as to that part of the bridge within the boundary of this state, be maintained by the state.
The state road commissioner shall exercise the same control over connecting parts of the state road system in municipalities, except the regulation of traffic, that he exercises over such system generally, but he shall assume no greater duty or obligation in the construction, reconstruction and maintenance of streets which are part of the state road system than he is required to assume in the case of state roads outside of municipalities. In order, however, to promote the safe and efficient utilization of such streets, the location, form and character of informational, regulatory and warning signs, curb and pavement or other markings, and traffic signals installed or placed by any municipality on any highway or street hereafter constructed with state or federal aid shall be subject to the approval of the state road commissioner.
Before the state road commissioner shall construct, reconstruct, improve or repair a section of the state road system within a municipality he shall, where the road is an "expressway" or "truckline," and he may, where said road is a "feeder" or "state local service" road, give the municipality a notice of such proposed construction, reconstruction, improvement, and repair, and shall likewise give notice to all public service companies and public utilities of such proposed work. Upon receipt of such notice, the municipality shall by ordinance compel all abutting property owners to lay all necessary pipe and to make necessary connections along, in, under, and through the said section of said road before the construction, reconstruction, improvement, or repair is started. All public service companies and public utilities receiving notice from said state road commissioner shall also lay all necessary pipe and make necessary connections along, in, under, and through said section of said road before the construction, reconstruction, improvement, or repair is started.
Should any person, firm, association, or corporation, including municipal corporation, fail or neglect to make all such necessary repairs and connections within a reasonable time after the enactment of such ordinance or the service of notice on them by the state road commissioner, then the said state road commissioner may law such pipe and make such connections and the cost and expenses of laying such pipe and making such connections shall be chargeable to the person, firm, association, or corporation who shall have failed or refused to lay such pipe and make such connections, and the state road commissioner shall collect all of such necessary costs and expenses from the person, firm, association, or corporation, who shall have so failed, refused or neglected to perform such work, by proper action in any court having jurisdiction thereof. However, the cost and expenses shall not be chargeable against any municipality to the extent that the same would impose an indebtedness against any municipality in excess of the amount allowed by law.
The taking over of streets as provided in section twenty-six shall not affect the rights owned or held by any person under any franchise now existing or hereafter granted.
The taking over of streets as a connecting part of the state road system shall not affect any existing contract for construction, reconstruction or improvement.
In the absence of regulations by the commissioner, the municipal authorities may continue to exercise the same authority that they have over other streets within their jurisdiction.
Repealed.
Acts, 1967 Reg. Sess., Ch. 175.
Nothing in this section, however, shall have any application to any turnpike project as defined in section four, chapter one hundred thirty-nine, acts of the Legislature, regular session, one thousand nine hundred forty-seven, as amended.
(1) To provide for maximum safety of persons traveling upon, entering or leaving state highways;
(2) To provide for efficient and rapid movement of traffic upon state highways;
(3) To permit proper maintenance, repair and drainage of state highways; and
(4) To facilitate appropriate public use of state highways.
(b) Except where the right of access has been limited by or pursuant to law, every owner or occupant of real property abutting upon any existing state highway has a right of reasonable means of ingress to and egress from such state highway consistent with those policies expressed in subsection (a) of this section and any regulations issued by the commissioner under section forty-eight of this article.
(c) If the construction, relocation or reconstruction of any state highway, to be paid for, in whole or in part, with federal or state road funds, results in the abutment of real property as defined in subsection (a) of this section on the state highway that did not previously abut on it, no rights of direct access shall accrue because of such abutment. However, the commissioner may authorize or limit access from an abutting property if the property is compatible with the policies stated in subsection (a) of this section and any regulations issued by the commissioner as authorized by section forty-eight of this article.
(d) The policies expressed in this section are applicable to state highways generally and shall in no way limit the authority of the Commissioner of Highways to establish controlled-access facilities under sections thirty-nine through forty-six, inclusive, of this article.
(e) Any unauthorized access to a state highway may be removed, blocked, barricaded or closed in any manner considered necessary by the commissioner to protect the safety of the public and enforce the policies of this section and sections forty-eight, forty-nine and fifty of this article.
(f) As a condition of granting access to a state highway, the commissioner may require the owners of real property developed or to be developed to provide a bond in an amount the commissioner determines necessary to compensate the division for improvements to highway facilities required as a result of the development. This bond shall be held a maximum of ten years: Provided, that no bond shall be required for any residential development consisting of one hundred homes or less.
(a) Standards suggested by any public organization or body concerned with highway or traffic safety; or
(b) Studies, surveys or reports made for the commissioner or for any other governmental agency; or
(c) Any other data deemed relevant by the commissioner. Regulations affecting access previously issued by the commissioner or the state road commission shall continue in effect until altered or withdrawn by the commissioner.
(b) Plans for any new point of access shall be submitted to the Commissioner of Highways directly and the following rules shall apply:
(1) Notice of the proposed new point of access shall be filed with the commissioner, along with a plan of the proposed new point of access.
(2) The commissioner shall review the plan to ensure compliance with the policies stated in section forty-seven of this article and with any regulations issued by the commissioner under section forty-eight of this article.
(3) If the commissioner objects to a plan, he or she shall reduce his or her objections to the proposed new point of access to writing and promptly furnish notice of the objection to the owner or owners of the real property affected and advise the owner or owners of the right to demand a hearing on the proposed plan and the objections. If a plan is not objected to within six weeks from the time it is filed with the commissioner, it is considered approved by the commissioner.
(4) In any case where the commissioner objects to the proposed new point of access, the owner or owners of the real property affected shall have reasonable opportunity for a hearing on such objections.
(c)(1) Existing points of access to and from state highways from and to real property used for commercial, industrial or mercantile purposes may be reviewed by the commissioner to determine whether such points of access comply with the policies stated in section forty-seven of this article and with any regulations issued by the commissioner under section forty-eight of this article. The commissioner may direct reasonable changes in existing points of access to and from state highways from and to property used for commercial, industrial or mercantile purposes if he or she determines from accident reports or traffic surveys that the public safety is seriously affected by such points of access and that such reasonable changes would substantially reduce the hazard to public safety. When such changes require construction, reconstruction or repair, such work shall be done at state expense as any other construction, reconstruction or repair.
(2) If the commissioner makes a preliminary determination that any changes should be made, the following rules apply:
(A) The commissioner shall reduce his or her preliminary determination to writing and promptly furnish notice of such preliminary determination to the owner or owners of the real property affected and of their right to demand a hearing on the preliminary determination. The commissioner's notice shall include a description of suggested changes suitable for reducing the hazard to the public safety.
(B) In any case where the commissioner makes a preliminary determination that any changes should be made, the owner or owners of the real property affected shall have reasonable opportunity for a hearing on the preliminary determination.
(B) For purposes of this section, the following terms have the following meanings:
(1) "Lot" means an identified area of land one acre or less in size.
(2) "Subdividing" means the dividing, laying out or separating of five or more lots from or within a parcel of land or a successive dividing, laying out or separating of lots resulting in the creation of five or more lots within a parcel of land within five years.
(3) "Subdivision plan" means a graphic representation of a parcel of land showing the lots therein and any other relevant natural or man-made topographical feature.
(4) "Parcel" means an identified area of land owned by a person or owned by a combination of persons jointly or in common; or more than one identified area of land where such areas are contiguous and the owners act in concert in relation to such land.
(C) Subdividing occurs and a subdivision results within the meaning of this section whenever:
(1) A person subdivides five or more lots from a parcel at one time; or
(2) A successive division of lots out of a parcel results in the separation of the fifth or subsequent lot within a five- year period; or
(3) A person divides a parcel into tracts of land larger than a lot knowing, or having reason to know, that such parcels will in turn be divided or separated into a total of five or more lots.
(D) The remedies provided by this section shall not apply to lots which became such prior to the effective date of this section, but such lots may be considered in determining when an act of subdividing occurs after the effective date of this section, and in reviewing subdivision plans and applying remedies to lots which became such after the effective date of this section.
(E) The subdivision plans of the subdividing of any land, a part of which abuts on a state highway, shall be submitted to the state road commissioner directly, and the following rules shall apply:
(1) Notice of the proposal to subdivide shall be filed with the commissioner, along with a plan of the proposed subdivision.
(2) The commissioner shall review the plan to insure compliance with the policies stated in section forty-seven of this article and with any regulations issued by the commissioner under section forty-eight of this article.
(3) The commissioner shall reduce his objections to the proposed point of access to and from the state highway from and to the real property that is to be subdivided into lots, if any, to writing and promptly furnish notice of such objections to the person proposing such subdivision and of his right to demand a hearing thereon. A subdivision plan not so objected to within six weeks from the time it is filed with the commissioner shall be deemed to have been approved by the commissioner.
(4) In any case where the commissioner so objects to the proposed access to and from a new subdivision plan, the person submitting such plan shall have reasonable opportunity for a hearing on such objections.
(F) A subdivision is deemed disapproved if it was not submitted to the commissioner for review under the provisions of this section or if the commissioner has made timely objection tosuch plan and such objections have not been withdrawn. Disapproval shall have the following effect:
(1) The commissioner may post signs upon the adjacent highway right-of-way stating that the subdivision is disapproved, that access to and from lots in such subdivision from and to the state highway is not allowed, and any other relevant information deemed by the commissioner necessary to warn the public of such disapproval and its effect; and
(2) The commissioner shall have authority to limit access to and from such subdivision as a whole from and to the state highway to such access as would have been reasonable before the land was subdivided and to prevent and prohibit any other access to and from the state highway from and to such subdivision.
(b) The commissioner may delegate the authority to make, revise, amend and withdraw objections and preliminary determinations and hold hearings required or authorized under this section and sections forty-seven, forty-eight, forty-nine and fifty of this article.
(b) Notice of any preliminary determination or objection required or authorized by sections forty-seven, forty-eight, forty-nine or fifty of this article shall be given by causing such notice to be delivered to the owner or owners of the real property affected or by causing a copy thereof to be sent by certified or registered mail to such owner or owners at his or their last-known place of business or residence.
(b) The owner or owners making such appeal shall forthwith send a copy of such petition for appeal, by certified or registered mail, to the state road commissioner. Upon receipt of such copy of such petition for appeal the state road commissioner shall promptly certify and file in such court a complete transcript of the record upon which the preliminary determination or objection complained of was made. The costs of such transcript shall be paid by the commissioner.
(c) The court sitting in lieu of a jury, or judge thereof in vacation, shall, after due notice, conduct a hearing on the issues presented by such appeal and shall permit argument, oral or written or both, by the parties. The court shall permit such pleadings, in addition to the pleadings before the state road commissioner, as it deems to be required. Evidence relating to the making of the objection or preliminary determination complained of and relating to the questions raised by the allegations of the pleadings or other questions pertinent in the proceeding may be offered by the parties to the proceeding.
(d) Upon such conditions as may be required and to the extent necessary to prevent irreparable injury, any circuit court to which an appeal has been made as provided in this section, may, after due notice to and hearing of the parties to the appeal, issue all necessary and appropriate process to postpone the effective date of the objection or final determination of the state road commissioner or to grant such other relief as may be appropriate pending final determination.
(e) A circuit court to which an appeal has been made as provided in this section, may affirm, annul or revise the objection or preliminary determination of the state road commissioner, or it may remand the proceeding to the state road commissioner for such further action as it directs.
(f) The decision of the circuit court on an appeal from the state road commissioner shall be final, subject only to review by the supreme court of appeals of West Virginia upon a petition for certiorari filed in such court within sixty days from the entry of an order and decision of the circuit court upon such appeal from the state road commissioner.
(b) The written authority given by the commissioner is no guarantee that the state is the owner of the land upon which a container is to be located and if any question exists concerning ownership of such land, the issuance of such written authority may not be granted until the county or municipality certifies that written permission to locate the container has been obtained from any person claiming an interest in the land if such person's whereabouts can be determined.
(c) Whenever any county or municipality fails to comply with the rules promulgated by the commissioner or of any order of the commissioner for the removal or relocation of a container, the permit for such container shall be revoked and, if not removed by the county or municipality, the commissioner may remove such container and charge the expense of removal to the county or municipality failing to comply with the rules or order of the commissioner.
The warden shall deliver and the road commissioner shall receive at the penitentiary, convicts selected by the warden to work on the road.
Under the supervision of the warden, or rules promulgated for the government and discipline of the state convict road force approved by him, such force, or so many thereof as appear eligible and trustworthy, shall be made trusties; but reasonable corrective measures may be taken against trusties who violate their privileges as such.
In any case of a prisoner taken from the penitentiary to a road convict camp the state road commissioner shall pay for the per diem cost of feeding, clothing and caring for such prisoners.
This article shall not impair any contracts now existing between the state commissioner of public institutions and any person, firm or corporation for the use of convict labor for manufacturing within the walls of the penitentiary, nor prevent the hiring of convicts either within or without the walls as otherwise provided by this article.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
The state road commissioner may also grant certificates of convenience and necessity and permits for the transportation of persons or property, or both, for compensation in interstate commerce and regulate such interstate commerce under the authority of and in accordance with the provisions of any statute that has been or hereafter may be enacted by the Congress of the United States, vesting in or delegating to the state road commissioner of West Virginia the authority, as an agency of the United States government, so to grant such certificates and permits, and so to regulate such commerce. If the Legislature shall by statute transfer from the state road commissioner to any other commission, board or officer, the authority to grant certificates of convenience and permits and to regulate intrastate transportation of persons or property, or both, for compensation, then the authority herein granted shall vest in such other commission, board or officer. The state road commissioner, or such other commission, board or officer, as the case may be, is hereby authorized to notify the proper department of the federal government of his or its assent to conform to the requirements, conditions and obligations of said statute of the Congress in regard to interstate commerce by motor vehicles.
All vehicles operating under the provisions of Class J, section nineteen shall operate from a stand or stands, and the state road commissioner shall have power to grant a permit to any applicant who operates from a stand or stands and who does not propose to operate upon a regular schedule, but who is privately employed for a specific trip and who will not solicit or receive patronage along a route for which a certificate of convenience has been granted by the state road commissioner for the operation of vehicles over a regular route or between fixed termini: Provided, however, That vehicles operating under Class J, or Class K may receive passengers or property along routes for which a certificate of convenience has been granted, but not at or within two hundred feet of any building owned or maintained as a designated stop: Provided further, That the charge made by such persons operating under Class J or Class K for such service, when rendered over a route for which a certificate of convenience has been granted, shall not be less than the rate charged by the holder of such certificate of convenience.
The state road commissioner shall have the power to issue to any applicant a certificate of convenience, or to refuse to issue the same, or issue it for the partial exercise only of the privileges sought, and may attach to the exercise of the rights given by such certificates such terms and conditions as in his judgment the public convenience and necessity may require. No such certificate of convenience shall be issued by the commissioner until it shall be established to the satisfaction of the commissioner, after a proper investigation, that the privilege so sought by the applicant is necessary or convenient for the public, and that the service so proposed to be rendered by the applicant is not being adequately performed at the time of such application by any other person, partnership or corporation. If a certificate of convenience be granted for service over a regular route or between fixed termini, the state road commissioner shall prescribe the route, territory, schedule, fare or tariff in connection with such service, and in all cases may make such other rules and regulations relative to the operation of such vehicle or vehicles as public justice may demand. When such certificate of convenience is issued for service over a regular route or between fixed termini, no change shall be made in the route, schedule, fares or tariffs of such vehicle or vehicles, without the express permission of the state road commissioner.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1939 Reg. Sess., Ch. 87. §31
Repealed.
Acts, 1939 Reg. Sess., Ch. 87 §31.
Repealed.
Acts, 1951. Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1939 Reg. Sess. Ch. 87 §31.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1933 Ex. Sess., Ch. 40.
Pursuant to section two, article four, this chapter, the county court shall upon the first day of July, nineteen hundred thirty-three, relinquish to the state road commission its authority over county-district roads, and shall thereafter neither construct, reconstruct nor maintain any road or bridge except as is specifically authorized by this article.
The state road commissioner may purchase or rent from any county court any or all road equipment and materials in their possession and shall give preference in the purchase of such machinery from the county courts that may be needed by the commission and not needed for the maintenance and repair of the roads, bridges and landings remaining under their control.
The county court shall also provide the clerk with a record book to be known as the "financial road record." It shall be in the form prescribed by the state road commissioner. The county court shall enter in it a record of county road bonds, county road funds and the road bonds and funds of the several districts. The record shall show the road upon which each item was spent, whether for construction or reconstruction and the kind thereof, or for maintenance, and the character of the road maintained, and shall show whether the construction and maintenance was upon bridges or upon the roadbed proper.
After such bids have been opened the county court shall publish immediately the names of all persons bidding on such contract, together with the itemized amount of their respective bids, designating the person to whom such contract was awarded, if awarded, together with the amount of his bid. Such information shall be published as a Class II 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.
The court may reject any and all bids, and may thereafter have the work done in any other manner that it may deem advisable. If there be two bids of the same amount for any section of road, or for any other improvement thereon, the court shall have the power to accept either of such bids.
The court may reserve from payment not more than twenty percent of the amount accruing on the contract until the work has been completed and approved.
Any person who shall open any of the bids at any other time or place than herein provided, or shall make known the name of the bidder, or the amount of his bid, otherwise than as herein provided, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty nor more than two hundred dollars, and be imprisoned in the county jail not less than one nor more than six months. Any member of the county court who shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction, shall in addition to the penalties provided above forfeit his office.
Any contract made by reason of any false statement or representation may be cancelled by order of the court.
When there is in the state sinking fund commission to the combined credit of all district road bonds in any county issued prior to November eight, one thousand nine hundred thirty-two, a sufficient amount to pay principal and interest on all such outstanding road bonds, the state sinking fund commission is authorized to apply from said balance a sufficient amount to pay all outstanding road bonds of said districts, together with the interest thereon to maturity, and to remit any balances remaining thereafter to the sheriff and treasurer of said county to be credited to the general fund of the county.
Repealed.
Acts, 1933 Ex. Sess., Ch. 40.
Repealed.
Acts, 1933 Ex. Sess., Ch. 40.
Repealed.
Acts, 1933 Ex. Sess., Ch. 40.
Repealed.
Acts, 1933 Ex. Sess., Ch. 40.
Repealed.
Acts, 1937 Reg. Sess., Ch. 79.
Repealed.
Acts, 1937 Reg. Sess., Ch. 79.
Acts, 2005 Reg. Sess., Ch. 178.
(1) Such person is at least eighteen years of age;
(2) Such person is physically and mentally sound and has not been exempted for medical reasons from such work by a licensed physician or other medical professional; and
(3) Such person is considered by the county commission, the sheriff or the executive director of the West Virginia regional jail authority or designee not to pose a threat to the community if released for work purposes.
(b) The work described in subsection (a) of this section shall be performed under the supervision, care and custody of the county commission, the executive director of the West Virginia regional jail authority or designee, the sheriff, his or her deputies, correctional officers or other persons charged with inmate supervision to perform maintenance or control litter in this state.
(c) In order to effectuate the provisions of this section, the county commission, the sheriff or the executive director of the West Virginia regional jail and correctional facility authority or designee shall promulgate rules for the safe and useful employment of inmate labor.
(d) Notwithstanding any provision of this code to the contrary, the county commission, its members and agents, the executive director of the West Virginia regional jail authority or designee its members or agents, the sheriff, his or her deputies, correctional officers and agents shall be immune from liability of any kind for accidents, injuries or death to such inmate except for accident, injury or death resulting directly from gross negligence or malfeasance.
(e) The sheriff of the county in which the work is to be performed, with the approval of the county commission or the executive director of the West Virginia regional jail authority or designee, may hire or appoint any personnel necessary for the supervision of inmate labor.
(f) Nothing in this section shall be construed to allow the use of inmate labor for private projects or as contract employees of for profit businesses.
(g) Any inmate who performs work pursuant to the provisions of this section shall receive, as sole and full compensation therefor, a reduction in his or her term of incarceration of not more than twenty-five percent of the original sentence excluding any other statutorily granted "good time." Each eight-hour period of approved work shall entitle an inmate to one day's sentence reduction: Provided, That any "good time" earned pursuant to the provisions of this section shall be in addition to any other reduction of sentence the inmate may accumulate.
(h) Any person being held as a detainee or for contempt may voluntarily participate in such labor as provided for in this section under the terms and conditions hereinbefore set forth.
The keeper of the jail shall file with the clerk of the county court a monthly statement showing the number of prisoners sentenced to work under this article, the number of prisoners who may volunteer and be allowed by the sheriff to work hereunder, and the number of days' work each prisoner has performed, and the allowance to the sheriff for their keep, food, maintenance and supplies, in accordance with the provisions of section twelve, article seven, chapter seven of the code of West Virginia.
Commitment by ............... for imprisonment for ............... sentence, fine and costs. State of West Virginia, County of .......... ss:
To the sheriff or any constable of said county, and to the jailer of said county:
Whereas, ............... was this day convicted of the crime of ............... and was sentenced to confinement in the county jail for the period of ..... days, or months, from this date, and to pay the State a fine of $ ..... and costs incurred, amounting to the sum of $ ..... itemized on the back hereof, and to labor on the roads and bridges under the control of the county court, or in the preparation of road materials, until said fine and costs are paid, as provided in article fifteen, chapter seventeen of the Code.
You (the said sheriff or constable), are hereby commanded, in the name of the said State, to receive and confine the said ............... in said jail, and to see that the said ............... labors according to law until his sentence, fine and costs have been satisfied, or until he is discharged according to law.
Given under my hand and seal this ..... day of ..... , 19 ...... ......................................... Clerk of court or justice of peace.
If at the trial such person is convicted and sentenced to imprisonment in the county jail, or to labor as specified in this article, he shall be credited on his term with the number of days already labored. If fined, he shall be credited on the fine and costs with one dollar per day for each day he has labored. If acquitted, he shall be paid out of the general county funds one dollar per day for each day he has labored.
Such obstructions so placed and left within the limits of such road are hereby declared to be public nuisances, and, in addition to other remedies provided in this chapter, the county court or the state road commission, as the case may be, may apply to the circuit court, or other court of competent jurisdiction of the county in which they may be, for an injunction to abate such nuisance.
It shall be the duty of all telephone, telegraph, electric railway or other electrical companies to remove and reset telephone, telegraph, trolley and other poles and the wire connected therewith when the same constitute obstructions to the use of a state or county-district road by the traveling public.
It shall be the duty of all pipeline companies whose lines have been laid across or along any state or county-district road in this state for the purpose of transporting natural gas, oils, water, or any other substance, to fill up all excavations made thereby and to make the road in all respects as good as it was before the excavation was made, and to keep the same in like good condition, and, when any such line has been laid along any such road on the right-of-way thereof and constitutes an obstruction to the traveling public, to relay or remove the same.
Such engineer or supervisor having charge of either state or county-district roads shall serve upon such owner, occupant or company a written notice stating that at the time and place specified therein, he or his agents will assess such costs against the owner, occupant or company neglecting to perform such duty. Such notice shall be served at least ten days prior to the time specified therein. If directed against a corporation, it may be served as other notices or process are served under chapter fifty-six of this code. At the time and place specified, he shall hear the parties interested and shall thereupon complete the assessment, stating therein the name of the owner, occupant or company, the amount assessed against him or it, and shall return such assessment to the state road commission or the county court of the county, as the case may be. Such assessment shall be made a matter or record by the commission or court, and the amount so assessed and fixed shall constitute a lien upon the property of such person, firm or corporation as a lien for taxes. The amount so assessed, fixed and levied may be placed in the hands of the sheriff of the county wherein such road is located and shall be collected by him as taxes levied and imposed are collected, and shall be paid into the state treasury to the credit of the state road fund, or the county treasury to the credit of the district road fund, as the case may be, to reimburse the fund from which such costs were defrayed.
A violation of any provision of this section shall be a misdemeanor, and the person or corporation violating the same shall, upon conviction thereof, be fined not less than twenty-five nor more than one hundred dollars for each offense.
Repealed.
Acts, 1949 Reg. Sess., Ch. 116.
(b) To be effective on July 1, 2010, the Governor shall appoint, by and with the advice and consent of the Senate:
(1) A public member representing the first congressional district for a term of five years; and
(2) A public member representing the first congressional district for a term of four years.
(c) The public member representing the third congressional district whose term expires in 2010 may be reappointed for a term of five years. The public member representing the second congressional district whose term expires in 2011 may be reappointed for a term of five years.
(d) To be effective on July 1, 2014, the Governor shall appoint, by and with the advice and consent of the Senate, a public member representing the second congressional district for a term of five years to replace the public member representing the third congressional district whose term expires in 2014.
(e) To be effective on July 1, 2015, the Governor shall appoint, by and with the advice and consent of the Senate, an at-large public member for a term of five years to replace one of the public members representing the third congressional district whose terms expire in 2015.
(f) Commencing July 1, 2015, the Authority shall consist of the following nine members:
(1) The Governor or a designee;
(2) The Secretary of the Department of Transportation or a designee;
(3) Two public members representing the first congressional district;
(4) Two public members representing the second congressional district;
(5) Two public members representing the third congressional district; and
(6) One at-large public member.
(g) After the initial appointment term, the term for the public members shall be five years. All public members' appointments shall be made by the Governor, by and with the advice and consent of the Senate.
(h) A public member may not serve more than two consecutive full five year terms. A public member may continue to serve until a successor has been appointed and has qualified.
(i) Each public member shall be a resident of this state during the appointment term and shall have been a qualified elector for a period of at least one year next preceding the appointment.
(j) A vacancy on the Authority shall be filled by appointment by the Governor for the unexpired term of the public member whose office is vacant and the appointment shall be made within sixty days of the vacancy.
(k) The Governor may remove any public member from the Authority for neglect of duty, incompetency or official misconduct.
(l) A public member immediately and automatically forfeits membership to the Authority if he or she is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.
(m) The Governor or designee shall serve as chair of the Authority. The Authority shall annually elect one of the public members as vice chair, and shall also elect a secretary and treasurer who need not be members of the Authority.
(n) The Governor shall appoint an Executive Director of the Authority, by and with the advice and consent of the Senate. The Executive Director serves at the will and pleasure of the Governor. The Executive Director is responsible for managing and administering the daily functions of the Authority and performing all other functions necessary to the effective operation of the Authority. The compensation of the Executive Director is annually set by the Governor.
(o) The public members of the Authority are not entitled to compensation for their services, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties in a manner consistent with guidelines of the Travel Management Office of the Department of Administration.
(p) Five members of the Authority constitutes a quorum and the vote of a majority of members present shall be necessary for any action taken by the Authority. No vacancy in the membership of the Authority shall impair the right of a quorum to exercise all the rights and perform all the duties of the Authority.
(q) The Authority shall meet at least monthly. The chair or any five members of the Authority may call a special meeting: Provided, That notice shall be given to all members of the Authority not less than ten days prior to any special meeting.
(r) Prior to commencing his or her duties as a member of the Authority, each public member shall take and subscribe to the oath required by section five, article IV of the Constitution of this state.
(s) Before the issuance of any revenue bonds or revenue refunding bonds under the provisions of this article, each public member of the Authority shall execute a surety bond in the penal sum of $25,000. The secretary and treasurer of the Authority shall execute a surety bond in the penal sum of $50,000. Each surety bond shall be conditioned upon the faithful performance of the duties of his or her office, shall be executed by a surety company authorized to transact business in West Virginia as a surety, shall be approved by the Governor and filed in the Office of the Secretary of State.
(t) All expenses incurred in carrying out the provisions of this article shall be paid solely from funds provided under this article and no liability or obligation shall be incurred by the Authority beyond the extent to which moneys shall have been provided under this article.
(a) The duties, powers and functions of the West Virginia turnpike commission are hereby transferred to the parkways authority.
(b) All obligations, indebtedness and other liabilities of, and all rights, assets and other property owned by or used in the administration of, the West Virginia turnpike commission as of the first day of June, one thousand nine hundred eighty-nine, and all personnel of said turnpike commission as of said date are hereby assumed by and transferred to the parkways authority, which is hereby constituted the successor in interest to said commission in all respects.
(c) All books, papers, maps, charts, plans, literature and other records in the possession of the West Virginia turnpike commission as of the first day of June, one thousand nine hundred eighty-nine, shall be delivered or turned over to the parkways authority.
(d) The unexpended balance of appropriations or other funds available for use of the West Virginia turnpike commission as of the first day of June, one thousand nine hundred eighty-nine, is hereby transferred to the parkways authority for the use of the parkways authority.
(a) "Cost" means the cost of construction, reconstruction, maintenance, improvement, repair and operation of the project, the cost of the acquisition of all land, rights-of-way, property, rights, easements and interests acquired by the Parkways Authority for such construction, reconstruction, maintenance, improvement and repair, the cost of all machinery, equipment, material and labor which are deemed essential thereto, the cost of improvements, the cost of financing charges, interest prior to and during construction and for one year after completion of construction, the cost of traffic estimates and of engineering, consultant, accounting, architects', trustees' and legal fees and expenses, plans, specifications, surveys, estimates of cost and of revenues, other costs and expenses necessary or incident to determining the feasibility or practicability of constructing any such project, administrative expenses and such other costs and expenses as may be necessary or incident to the construction of the project, the financing of such construction and the placing of the project in operation or to the operation of the project. Any obligation or expense hereafter incurred by the Department of Transportation with the approval of the Parkways Authority, regardless of whether the approval was authorized before or after the obligation or expense was incurred, for traffic surveys, borings, preparation of plans and specifications, and other engineering and consulting services in connection with the construction of a parkway project shall be regarded as a part of the cost of such project and may be reimbursed to the state out of the proceeds of parkway revenue bonds or revenue refunding bonds hereinafter authorized.
(b) "Department of Transportation" means the West Virginia Department of Transportation and each of its respective divisions and subordinate agencies, including, without limitation, the Division of Highways.
(c) "Economic development project" means any land or water site, structure, facility or equipment which the Parkways Authority may acquire, create, develop, construct, reconstruct, improve or repair under the provisions of this article to promote the agricultural, economic or industrial development of the state, together with all property rights, easements and interests which may be acquired by the Parkways Authority for the development, construction or operation of such project.
(d) "Expressway" means any road serving major intrastate and interstate travel, including federal interstate routes.
(e) "Feeder roads" means any road serving community to community travel or collects and feeds traffic to an expressway or turnpike.
(f) "Local service road" means any local arterialized and spur roads which provide land access and socioeconomic benefits to abutting properties.
(g) "Owner" means all individuals, co-partnerships, associations or corporations having any title or interest in any property, rights, easements and interests authorized to be acquired by this article.
(h) "Park and forest roads" means any road serving travel within state parks, state forests and public hunting and fishing areas.
(i) "Parkways Authority" or "Authority" means the West Virginia Parkways Authority, or if the Parkways Authority is abolished, the board, body, commission or authority succeeding to the principal functions thereof or to whom the powers given by this article to the Parkways Authority shall be given by law.
(j) "Parkway project" means any expressway, turnpike, bridge, tunnel, trunkline, feeder road, state local service road or park and forest road, or any portion or portions of any expressway, turnpike, trunkline, feeder road, state local service road or park and forest road, whether contiguous or noncontiguous to the West Virginia Turnpike or to any such portion or portions, which the Parkways Authority may acquire, construct, reconstruct, maintain, operate, improve or repair under the provisions of this article, which shall include for all purposes of this article, any acquisition, construction, reconstruction, maintenance, operation, improvement or repair that the authority may undertake by agreement with the Department of Transportation, or any expressway, turnpike or other road constructed by the West Virginia Turnpike Commission pursuant to the authority granted to it under the laws of this state prior to June 1, 1989, and shall embrace all bridges, tunnels, overpasses, underpasses, interchanges, entrance plazas, approaches, toll houses, service stations and administration, storage and other buildings, which the Parkways Authority may deem necessary for the operation of the parkway project, or which is used in the operation of a parkway project constructed prior to June 1, 1989, together with all property, rights, easements and interests which may be acquired by the Parkways Authority for the construction or the operation of the parkway project or which were acquired in connection with or are used in the operation of a parkway project constructed prior to June 1, 1989.
(k) "Project" or "projects" means a parkway project, economic development project or tourism project, or any combination thereof.
(l) "Transportation secretary" means the Secretary of the State Department of Transportation.
(m) "Tourism project" means:
(1) Any park or tourist facility and attraction which the Parkways Authority may create, develop, construct, reconstruct, improve, maintain or repair under the provisions of this article, and shall include all roads, interchanges, entrance plazas, approaches, service stations, administration, storage and any other buildings or service stations, structures which the Parkways Authority may deem necessary for the operation of the tourism project, together with all property rights, easements and interests which may be acquired by the Parkways Authority for the construction or operation of the tourism project; and
(2) The construction, reconstruction, improvement, maintenance and repair of any park or tourist facility and attraction owned by the state as of June 1, 1989.
(n) "Tourist facility and attraction" mean cabins, lodges, recreational facilities, restaurants, and other revenue producing facilities, any land or water site, and any information center, visitors' center or rest stop which the Parkways Authority determines may improve, enhance or contribute to the development of the tourism industry in the state.
(o) "Trunkline" means any road serving major city to city travel.
(p) "Turnpike" means the West Virginia Turnpike or any other toll road in the state.
(q) "West Virginia Turnpike Commission" means the State Turnpike Commission existing as of June 1, 1989.
(r) "West Virginia Turnpike" means the turnpike from Charleston to a point approximately one mile south of the intersection of Interstate 77 and U.S. Route 460 near Princeton in Mercer County, West Virginia, which road is presently a part of the federal interstate highway system.
(1) To adopt bylaws for the regulation of its affairs and the conduct of its business;
(2) To adopt an official seal and alter the same at pleasure;
(3) To maintain an office at such place or places within the state as it may designate;
(4) To sue and be sued in its own name, plead and be impleaded. Any and all actions against the Parkways Authority shall be brought only in the county in which the principal office of the Parkways Authority is located;
(5) To construct, reconstruct, improve, maintain, repair and operate projects, at such locations within the state as may be determined by the Parkways Authority subject to the provisions of section thirty of this article: Provided, That after July 1, 2010, the Parkways Authority is prohibited from constructing new tourism projects or new economic development projects, but this prohibition shall not prevent the Authority from entering into lease agreements, development agreements or other agreements with private businesses or companies allowing and providing for such private businesses or companies to acquire, develop, construct and operate motels, lodging facilities or other businesses and business facilities on land owned by the Authority and located adjacent to the Tamarack project and facilities at Exit 45 of the West Virginia Turnpike;
(6) To issue parkway revenue bonds of the State of West Virginia, payable solely from revenues, for the purpose of paying all or any part of the cost of any one or more parkway projects, which costs may include, with respect to the West Virginia Turnpike, such funds as are necessary to repay to the State of West Virginia all or any part of the state funds used to upgrade the West Virginia Turnpike to federal interstate standards;
(7) To issue parkway revenue refunding bonds of the State of West Virginia, payable solely from revenues, for any one or more of the following purposes:
(A) Refunding any bonds which shall have been issued under the provisions of this article or any predecessor thereof; and
(B) Repaying to the state all or any part of the state funds used to upgrade the West Virginia Turnpike to federal interstate standards;
(8) To fix and revise, from time to time, tolls for transit over each parkway project constructed or improved by it, by the Department of Transportation, or by the West Virginia Turnpike Commission;
(9) To fix and revise, rents, fees or other charges, of whatever kind or character, for the use of each tourism project or economic development project constructed by it or for the use of any building, structure or facility constructed by it in connection with a parkway project;
(10) To acquire, hold, lease and dispose of real and personal property in the exercise of its powers and the performance of its duties under this article;
(11) To acquire in the name of the state by purchase or otherwise, on such terms and conditions and in such manner as it may deem proper, or by the exercise of the right of condemnation in the manner hereinafter provided, such public or private lands, including public parks, playgrounds or reservations, or parts thereof or rights therein, rights-of-way, property, rights, easements and interests, as it may deem necessary for carrying out the provisions of this article. No compensation shall be paid for public lands, playgrounds, parks, parkways or reservations so taken, and all public property damaged in carrying out the powers granted by this article shall be restored or repaired and placed in its original condition as nearly as practicable;
(12) To designate the locations, and establish, limit and control such points of ingress to and egress from each project as may be necessary or desirable in the judgment of the Parkways Authority to ensure the proper operation and maintenance of such project, and to prohibit entrance to such project from any point or points not so designated;
(13) To make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under this article, and to employ consulting engineers, attorneys, accountants, architects, construction and financial experts, trustees, superintendents, managers and such other employees and agents as may be necessary in its judgment, and to fix their compensation. All such expenses shall be payable solely from the proceeds of parkway revenue bonds or parkway revenue refunding bonds issued under the provisions of this article, tolls or from revenues;
(14) To make and enter into all contracts, agreements or other arrangements with any agency, department, division, board, bureau, commission, authority or other governmental unit of the state to operate, maintain, or repair any project;
(15) To receive and accept from any federal agency grants for or in aid of the construction of any project, and to receive and accept aid or contributions from any source of either money, property, labor or other things of value, to be held, used and applied only for the purposes for which such grants and contributions may be made;
(16) To investigate and, if feasible, develop and implement a "single fee" program which would produce on an annual basis a sum of money equal to the total toll revenue received from all West Virginia drivers on West Virginia toll roads during the Authority's preceding fiscal year, divided into at least three classes based upon usage, size and number of axles. Said sum, plus an amount necessary to cover the expected costs of such program, shall be produced by adding to either the annual cost of vehicle registration or of vehicle inspection a single fee equal to the proportionate share of that vehicle owner of the total toll revenue needed to be produced from all vehicles within that class. A vehicle for which such fee has been paid shall be entitled to traverse all toll roads within the state without stopping to pay individual tolls during the effective period of said registration or said inspection: Provided, however, That if the single fee proposed to be charged under said program exceeds the standard round trip toll for that vehicle over the entire length of the West Virginia Turnpike, the Authority shall not implement such program without the prior approval of both Houses of the Legislature: Provided further, That any such program shall also include comparable provisions which would allow vehicles registered in other states to traverse West Virginia toll roads in like fashion to West Virginia vehicles as set forth in this section upon the payment of a single fee for each and every vehicle registered in such state, in accordance with the same classification system adopted for West Virginia vehicles.
(17) To do all acts and things necessary or convenient to carry out the powers expressly granted in this article; and
(18) To file the necessary petition or petitions pursuant to Title 11, United States Code, Sec. 401 (being section 81 of the Act of Congress entitled "An act to establish a uniform system of bankruptcy throughout the United States", approved July 1, 1898, as amended) and to prosecute to completion all proceedings permitted by Title 11, United States Code, Secs. 401-403 (being sections 81 to 83, inclusive, of said Act of Congress). The State of West Virginia hereby consents to the application of said Title 11, United States Code, Secs. 401-403, to the Parkways Authority.
(b) Nothing in this article shall be construed to prohibit the issuance of parkway revenue refunding bonds in a common plan of financing with the issuance of parkway revenue bonds.
If the parkways authority shall find it necessary to change the location of any portion of any public road or state highway, it shall cause the same to be reconstructed at such location as the parkways authority shall deem most favorable and of substantially the same type and in as good condition as the original road or highway. The cost of such reconstruction and any damage incurred in changing the location of any such road or highway shall be ascertained and paid by the parkways authority as a part of the cost of such project.
Upon the request of the parkways authority, the commissioner of the state department of highways shall relocate or discontinue any road or highway over which he has authority and control which is affected by the construction of any project.
In addition to the foregoing powers, the parkways authority and its authorized agents and employees may enter upon any lands, waters and premises in the state for the purpose of making surveys, soundings, drillings and examinations as it may deem necessary or convenient for the purposes of this article, and such entry shall not be deemed a trespass, nor shall an entry for such purposes be deemed an entry under any condemnation proceedings which may be then pending. The parkways authority shall make reimbursement for any actual damages resulting to such lands, waters and premises as a result of such activities.
The state of West Virginia hereby consents to the use of all lands owned by it, including lands lying under water, which are deemed by the parkways authority to be necessary for the construction or operation of any project.
The parkways authority is hereby authorized and empowered to acquire by purchase, whenever it shall deem such purchase expedient, any land, property, rights, rights-of-way, franchises, easements and other interests in lands as it may deem necessary or convenient for the construction or operation of any project upon such terms and at such price as may be considered by it to be reasonable and can be agreed upon between the parkways authority and the owner thereof, and to take title thereto in the name of the state.
(b) The bonds of each issue shall be dated, shall bear interest at a rate as may be determined by the Parkways Authority in its sole discretion, shall mature at a time not exceeding forty years from their date or of issue as may be determined by the Parkways Authority, and may be made redeemable before maturity, at the option of the Parkways Authority at a price and under the terms and conditions as may be fixed by the Parkways Authority prior to the issuance of the bonds.
(c) The Parkways Authority shall determine the form of the bonds, including any interest coupons to be attached thereto, and shall fix the denomination of the bonds and the place of payment of principal and interest, which may be at any bank or trust company within or without the state.
(d) The bonds shall be executed by manual or facsimile signature by the chair of the Parkways Authority, and the official seal of the Parkways Authority shall be affixed to or printed on each bond, and attested, manually or by facsimile signature, by the secretary and treasurer of the Parkways Authority. Any coupons attached to any bond shall bear the manual or facsimile signature of the chair of the Parkways Authority.
(e) In case any officer whose signature or a facsimile of whose signature appears on any bonds or coupons shall cease to be an officer before the delivery of the bonds, the signature or facsimile shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until delivery. In case the seal of the Parkways Authority has been changed after a facsimile has been imprinted on the bonds, then the facsimile seal will continue to be sufficient for all purposes.
(f) All bonds issued under the provisions of this article shall have all the qualities and incidents of negotiable instruments under the negotiable instruments law of the state. The bonds may be issued in coupon or in registered form, or both, as the Parkways Authority may determine, and provision may be made for the registration of any coupon bonds as to principal alone and also as to both principal and interest, and for the recorders into coupon bonds of any bonds registered as to both principal and interest.
(g) The Parkways Authority may sell the bonds at a public or private sale at a price it determines to be in the best interests of the state.
(h) The proceeds of the bonds of each issue shall be used solely for the payment of the cost of the parkway project or parkway projects for which the bonds were issued, and shall be disbursed in a manner consistent with the resolution authorizing the issuance of the bonds or in the trust agreement securing the bonds.
(i) If the proceeds of the bonds of any issue, by error of estimates or otherwise, shall be less than the cost, then additional bonds may in like manner be issued to provide the amount of the deficit. Unless otherwise provided in the resolution authorizing the issuance of the bonds or in the trust agreement securing the bonds, the additional bonds shall be deemed to be of the same issue and shall be entitled to payment from the same fund without preference or priority of the bonds first issued.
(j) If the proceeds of the bonds of any issue exceed the cost of the parkway project or parkway projects for which the bonds were issued, then the surplus shall be deposited to the credit of the sinking fund for the bonds.
(k) Prior to the preparation of definitive bonds, the Parkways Authority may, under like restrictions, issue interim receipts or temporary bonds, with or without coupons, exchangeable for definitive bonds when the bonds have been executed and are available for delivery. The Parkways Authority may also provide for the replacement of any bonds that become mutilated or are destroyed or lost.
(l) Bonds may be issued under the provisions of this article without obtaining the consent of any department, division, commission, board, bureau or agency of the state in accordance with this article: Provided, That the Parkways Authority shall comply with the provisions of section twenty-eight, article one, chapter five of this code.
(1) All or any part of the cost of the West Virginia Turnpike, which may include, but not be limited to, an amount equal to the state funds used to upgrade the West Virginia Turnpike to federal interstate standards;
(2) All or any part of the cost of any one or more parkway projects that involve improvements to or enhancements of the West Virginia Turnpike, including, without limitation, lane-widening on the West Virginia Turnpike and that are or have been recommended by the Parkways Authority's traffic engineers or consulting engineers or by both of them prior to the issuance of parkway revenue bonds for the project or projects; and
(3) To the extent permitted by federal law, all or any part of the cost of any related parkway project.
(b) For purposes of this section only, a "related parkway project" means any information center, visitors' center or rest stop, or any combination thereof, and any expressway, turnpike, trunkline, feeder road, state local service road or park and forest road which connects to or intersects with the West Virginia Turnpike and is located within seventy-five miles of the turnpike as it existed on June 1, 1989, or any subsequent expressway, trunkline, feeder road, state local service road or park and forest road constructed pursuant to this article: Provided, That nothing in this section shall be construed as prohibiting the Parkways Authority from issuing parkway revenue bonds pursuant to section ten of this article for the purpose of paying all or any part of the cost of any related parkway project: Provided, however, That none of the proceeds of the issuance of parkway revenue bonds under this section shall be used to pay all or any part of the cost of any economic development project, except as provided in section twenty-three of this article: Provided further, That nothing in this section shall be construed as prohibiting the Parkways Authority from issuing additional parkway revenue bonds to the extent permitted by applicable federal law for the purpose of constructing, maintaining and operating any highway constructed, in whole or in part, with money obtained from the Appalachian Regional Commission as long as the highway connects to the West Virginia Turnpike as it existed on June 1, 1989: And provided further, That, for purposes of this section, in determining the amount of bonds outstanding, from time to time, within the meaning of this section: Original par amount or original stated principal amount at the time of issuance of bonds shall be used to determine the principal amount of bonds outstanding, except that the amount of parkway revenue bonds outstanding under this section may not include any bonds that have been retired through payment, defeased through the deposit of funds irrevocably set aside for payment or otherwise refunded so that they are no longer secured by toll revenues of the West Virginia Turnpike: And provided further, That the authorization to issue bonds under this section is in addition to the authorization and power to issue bonds under any other section of this code: And provided further, That, without limitation of the authorized purposes for which parkway revenue bonds are otherwise permitted to be issued under this section, and without increasing the maximum principal par amount of parkway revenue bonds permitted to be outstanding, from time to time, under this section, the Authority is specifically authorized by this section to issue, at one time or from time to time, by resolution or resolutions under this section, parkway revenue bonds under this section for the purpose of paying all or any part of the cost of one or more parkway projects that:
(1) Consist of enhancements or improvements to the West Virginia Turnpike, including, without limitation, projects involving lane widening, resurfacing, surface replacement, bridge replacement, bridge improvements and enhancements, other bridge work, drainage system improvements and enhancements, drainage system replacements, safety improvements and enhancements, and traffic flow improvements and enhancements; and
(2) Have been recommended by the Authority's consulting engineers or traffic engineers, or both, prior to the issuance of the bonds.
(c) Except as otherwise specifically provided in this section, the issuance of parkway revenue bonds pursuant to this section, the maturities and other details of the bonds, the rights of the holders of the bonds, and the rights, duties and obligations of the Parkways Authority in respect of the bonds shall be governed by the provisions of this article insofar as the provisions are applicable.
(d) Notwithstanding any other provision of this code to the contrary, the Authority may not issue parkway revenue bonds under this section for projects on the West Virginia Turnpike after June 30, 2010: Provided, That the authority may issue revenue refunding bonds pursuant to sections twenty-one and twenty-two of this article.
(a)(1) The parkways authority is hereby authorized to fix,
revise, charge and collect tolls for the use of each parkway
project and the different parts or sections thereof and to fix,
revise, charge and collect rents, fees, charges and other revenues,
of whatever kind or character, for the use of each economic
development project or tourism project, or any part or section
thereof, and to contract with any person, partnership, association
or corporation desiring the use of any part thereof, including the
right-of-way adjoining the paved portion, for placing thereon
telephone, telegraph, electric light, power or other utility lines,
gas stations, garages, stores, hotels, restaurants and advertising
signs, or for any other purpose except for tracks for railroad or
railway use, and to fix the terms, conditions, rents and rates of
charges for such use. Such tolls, rents, fees and charges shall be
so fixed and adjusted in respect of the aggregate of tolls, or in
respect of the aggregate rents, fees and charges, from the project
or projects in connection with which the bonds of any issue shall
have been issued as to provide a fund sufficient with other
revenues, if any, to pay: (A) The cost of maintaining, repairing
and operating such project or projects; and (B) the principal of
and the interest on such bonds as the same shall become due and
payable and to create reserves for such purposes. Such tolls,
rents, fees and other charges shall not be subject to supervision or regulation by any other commission, board, bureau, department or
agency of the state. The tolls, rents, fees, charges and all other
revenues derived from the project or projects in connection with
which the bonds of any issue shall have been issued, except such
part thereof as may be necessary to pay the cost of maintenance,
repair and operation and to provide such reserves therefor as may
be provided in the resolution authorizing the issuance of such
bonds or in the trust agreement securing the same, shall be set
aside at regular intervals as may be provided in the resolution or
the trust agreement in a sinking fund which is hereby pledged to,
and charged with, the payment of: (i) The interest upon the bonds
as such interest shall fall due; (ii) the principal of the bonds as
the same shall fall due; (iii) the necessary charges of paying
agents for paying principal and interest; and (iv) the redemption
price or the purchase price of bonds retired by call or purchase as
therein provided. The use and disposition of moneys to the credit
of such sinking fund shall be subject to the provisions of the
resolution authorizing the issuance of the bonds or of the trust
agreement. Except as may otherwise be provided in the resolution
or the trust agreement, such sinking fund shall be a fund for all
bonds without distinction or priority of one over another. The
moneys in the sinking fund, less such reserve as may be provided in
the resolution or trust agreement, if not used within a reasonable
time for the purchase of bonds for cancellation as above provided,
shall be applied to the redemption of bonds at the redemption price then applicable.
(2)(A) In fiscal year one thousand nine hundred ninety-eight, after the parkways authority has met or provided for the satisfaction of each requirement imposed by the provisions of subdivision (1) of this subsection, the parkways authority shall pay two hundred fifty thousand dollars to the Hatfield-McCoy regional recreation authority from any remaining balance of revenues received from economic development projects and tourism projects.
(B) Upon the effective date of this act, the parkways authority shall seek authorization from the federal highway administration, the state department of transportation and the trustee under any trust indenture or agreement existing as the result of the issuance of any revenue bonds under the provisions of this article to issue additional revenue bonds in a total amount not to exceed six million dollars for the purpose of funding projects of the Hatfield-McCoy regional recreation authority. Upon the agreement of all of such entities that the parkways authority be authorized to do so, as certified to the parkways authority, the governor and the joint committee on government and finance, the parkways authority is authorized to issue additional revenue bonds in a total amount not to exceed six million dollars. The proceeds of the revenue bonds shall be used to fund projects of the Hatfield-McCoy regional recreation authority. Each issuance of such revenue bonds and the application of the proceeds thereof shall be subject to each condition, restriction or other provision of this article applicable to the issuance of parkway revenue bonds. In the event the agreement is not certified as required by this subsection, and until the same is certified, the parkways authority shall pay two hundred fifty thousand dollars to the Hatfield-McCoy regional recreation authority in the fiscal year ending the thirtieth day of June, two thousand, and in each fiscal year thereafter, for a total of nine consecutive years, for the purpose of funding projects of the Hatfield-McCoy regional recreation authority. These amounts shall be paid in quarterly installments from remaining balances in each fiscal year of revenues received from economic development projects and tourism projects as determined in the manner provided in paragraph (A) of this subdivision.
(b) The parkways authority shall cause, as soon as it is legally able to do so, all contracts to which it is a party and which relate to the operation, maintenance or use of any restaurant, motel or other lodging facility, truck and automobile service facility, food vending facility or any other service facility located along the West Virginia turnpike, to be renewed on a competitive bid basis. All contracts relating to any facility or services entered into by the parkways authority with a private party with respect to any project constructed after the effective date of this legislation shall be let on a competitive bid basis only. If the parkways authority receives a proposal for the development of a project, such proposal shall be made available to the public in a convenient location in the county wherein the proposed facility may be located. The parkways authority shall publish a notice of the proposal by a Class I legal advertisement in accordance with the provisions of article three, chapter fifty-nine of this code. The publication area shall be the county in which the proposed facility would be located. Any citizen may communicate by writing to the parkways authority his or her opposition to or approval to such proposal within a period of time not less than forty-five days from the publication of the notice. No contract for the development of a project may be entered into by the parkways authority until a public hearing is held in the vicinity of the location of the proposed project with at least twenty days' notice of such hearing by a Class I publication pursuant to section two of said article. The parkways authority shall make written findings of fact prior to rendering a decision on any proposed project. All studies, records, documents and other materials which are considered by the parkways authority in making such findings shall be made available for public inspection at the time of the publication of the notice of public hearing and at a convenient location in the county where the proposed project may be located. The parkways authority shall promulgate rules in accordance with chapter twenty-nine-a of this code for the conduct of any hearing required by this section. Persons attending any such hearing shall be afforded a reasonable opportunity to speak and be heard on the proposed project.
(1) Fix initial rates, tolls or charges along any portion of a parkway project, or approve any proposal or contract that would require the Parkways Authority to fix any initial rates, tolls or charges along any portion of a parkway project;
(2) Increase any rates, tolls or charges along any portion of the parkway project, or approve any proposal or contract that would result in or require an increase in any rates or tolls along any portion of the parkway project;
(3) Issue any refunding bond pursuant to sections twenty-one and twenty-two of this article which would require the Parkways Authority to increase rates, tolls or charges;
(4) Approve any contract or project which would require or result in an increase in the rates, tolls or charges along any portion of the parkway project; or
(5) Take any other action which would require or result in an increase in the rates, tolls or charges along any portion of the parkway project.
(b) The Parkways Authority shall publish notice of any proposed contract, project or bond which would require the Parkways Authority to fix any initial toll rates or charges, result in an increase of any toll rates or charges or extend any bond repayment obligation, along with the associated initial rate, rate increase or revised bond repayment period, by a Class II legal advertisement in accordance with the provisions of article three, chapter fifty-nine of this code, published and of general circulation in each county which borders the parkway project or proposed parkway project affected by the proposed contract, project or bond.
(c) Once notice has been provided in accordance with the provisions of this section, the Parkways Authority shall conduct a public hearing in each county which borders the parkway project or proposed parkway project affected by the proposed contract, project or bond, and any citizen may communicate by writing to the Parkways Authority his or her opposition to or approval of such proposal, initial rate or toll, rate or toll increase or amended bond terms. The public notice and written public comment period shall be conducted not less than forty-five days from the publication of the notice and the affected public must be provided with at least twenty days' notice of each scheduled public hearing.
(d) All studies, records, documents and other materials which were considered by the Parkways Authority before recommending the approval of any such project or recommending the adoption of any such initial rate or increase shall be made available for public inspection for a period of at least twenty days prior to the scheduled hearing at a convenient location in each county where a public hearing is held.
(e) At the conclusion of all required public hearings, the Parkways Authority shall render a final decision which shall include written findings of fact supporting its final decision on any proposed project which would result in or require initial rates, a rate increase, or prior to finally approving any proposed initial rate or toll or rate or toll increase, and such required findings and conclusions must reference and give due consideration to the public comments and additional evidence offered during the public hearings.
(f) On and after July 1, 2010, any final action taken by the Parkways Authority to approve or implement any proposed initial rate, rate increase, contract or project which would require or result in a proposed initial rate or toll or a proposed increase of any rate or tolls along any portion of the parkway project without first satisfying the public notice and hearing requirements of this section, shall be null and void.
(b) In lieu of payment by the parkways authority of county property taxes and other assessments on restaurant and gas service facilities owned by it, or upon any facility described in subsection (b) of section thirteen herein which is leased to any private person, corporation, or entity, the parkways authority shall make an annual payment as provided herein to the county commission of such county. Any parkways authority project which is leased and is exempt from taxation shall be subject to a payment in lieu of taxes. Said payment shall be made to the county commission of the county in which the project is located and shall be in an amount equal to the property taxes otherwise payable. The county commission receiving such in lieu of payment shall distribute such payment to the different levying bodies in that county in the same manner as are property taxes. Nothing contained herein may be construed to prohibit the parkways authority from collecting such in lieu payment from any private party by contract or otherwise.
All counties, cities, villages, townships and other political subdivisions and all public agencies and commissions of the state of West Virginia, notwithstanding any contrary provision of law, are hereby authorized and empowered to lease, lend, grant or convey to the parkways authority at its request upon such terms and conditions as the proper authorities of such counties, cities, villages, townships, other political subdivisions or public agencies and commissions of the state may deem reasonable and fair and without the necessity for any advertisement, order of court or other action or formality, other than the regular and formal action of the authorities concerned, any real property which may be necessary or convenient to the effectuation of the authorized purposes of the parkways authority, including public roads and other real property already devoted to public use.
Each project when constructed and opened to traffic or use shall be maintained and kept in good condition and repair by the parkways authority. The parkways authority and the superintendent of the department of public safety may by agreement provide that such project or projects shall be policed by members of such department under such terms and conditions as they may determine, excepting that all costs thereof, either direct or indirect, including overhead costs attributable thereto, shall be paid unto such department by the parkways authority at regular intervals not to exceed one year.
Whoever shall knowingly or intentionally defraud or attempt to defraud the parkways authority, any of its tolltakers or other employees in regard to the payment of tolls, rents, fees or charges established by the parkways authority for the use of any such project or evade or attempt to evade or whoever shall aid another to evade or attempt to evade the payment of such toll, rent, fee or charge or whoever shall intentionally and knowingly trespass upon any project shall be guilty of a misdemeanor; and for every such offense shall upon conviction thereof be fined not in excess of fifty dollars. Magistrate courts shall have jurisdiction of misdemeanors created by this paragraph concurrently with circuit courts.
Acts, 1989 Reg. Sess., Ch. 187.
(b) No later than the first day of February, one thousand nine hundred ninety, the parkways authority shall discontinue, remove and not relocate all toll collection facilities on the West Virginia Turnpike as the same existed on June first, one thousand nine hundred eighty-nine, except for the three main toll barriers and collection facilities and, provided solely that the provisions of section eighteen-a are complied with, the toll collection facilities at the intersection of U.S. Route 19 (Corridor "L") and said turnpike.
(1) The toll fee charges by the Parkways, Economic Development and Tourism Authority at its toll facilities located at the interchange of U.S. Route 19 (Corridor "L") and said turnpike shall not exceed those toll charges levied and collected by the authority at said interchange as of the first day of January, one thousand nine hundred ninety, and hereafter, no proposed increase in such toll fees shall be implemented by the parkways authority unless the authority shall have first complied with validly promulgated and legislatively approved rules pursuant to the applicable provisions of chapter twenty-nine-a of this code;
(2) The parkways authority shall maintain, advertise, implement and otherwise make generally available to all qualified members of the public, resident or nonresident, a system of commuter passes, in a form to be determined by the authority: Provided, That said system of commuter passes shall, at a minimum, permit the holder of such pass or passes, after paying the applicable fee to the authority, to travel through the U.S. Route 19 (Corridor "L") turnpike interchange and toll facilities on an unlimited basis, without additional charge therefor, for a period of one year after the issuance of said commuter pass or passes: Provided, however, That the cost for such commuter pass or passes shall in no event aggregate more than five dollars per year for a full calendar year of unlimited travel through the U.S. Route 19 (Corridor "L") turnpike interchange toll facilities. Applications for these commuter passes are to be made available by the Parkway Authority to every Division of Motor Vehicles office in the state.
To the extent required or necessary, the parkways authority is further hereby authorized and empowered, in addition to the extent previously authorized and empowered pursuant to section six and section thirteen-b, article sixteen-a of this chapter, to promulgate rules in accordance with chapter twenty-nine-a of this code with regard to the implementation of proposed future toll increases at the U.S. Route 19 (Corridor "L") turnpike toll facility;
(3) The system of commuter passes implemented in accordance with the provisions of subdivision (2), subsection (a), above, shall be available only for use when operating or traveling in a Class "A" motor vehicle as herein defined. Whoever shall knowingly or intentionally utilize any commuter pass issued in accordance with this section while operating other than a Class "A" motor vehicle, as herein defined, at the U.S. Route 19 (Corridor "L") turnpike toll facility, or any other toll facility at or upon which such pass may later be usable, shall be guilty of a misdemeanor, and for every such offense shall, upon conviction thereof, be punished in accordance with the provisions of section seventeen, article sixteen-a of this chapter; and the parkways authority shall hereafter be authorized and empowered to cancel any such commuter pass or passes improperly used in accordance with this section;
(4) In addition to the annual report required by section twenty-six of this article, the parkways authority will prepare and deliver to the Governor, the Speaker of the House of Delegates and the President of the Senate a separate annual report of toll revenues collected from the U.S. Route 19 (Corridor "L") turnpike toll facility. The report shall disclose separately the toll revenues generated from regular traffic and the commuter pass created herein. The reports shall include, but not be limited to, disclosing separately the expenditure of said toll revenues generated from the U.S. Route 19 (Corridor "L") turnpike toll facility including a description of the purposes for which such toll revenues are expended;
(5) In the event any court of competent jurisdiction shall issue an order which adjudges that any portion of subdivision (1), (2) or (3) subsection (a) of this section is illegal, unconstitutional, unenforceable or in any manner invalid, the parkways authority shall discontinue, remove and not otherwise relocate the U.S. Route 19 (Corridor "L") turnpike toll facility within three hundred sixty-five days after the date upon which said court order is final or all appeals to said order have been exhausted;
(6) For the purpose of this section, a Class "A" vehicle shall be defined as a motor vehicle of passenger type and truck with a gross weight of not more than 8,000 pounds and registered or eligible for registration as a Class "A" vehicle in accordance with section one, article ten, chapter seventeen-a of this code as the same is currently constituted; and
(7) Notwithstanding any other provisions of the this code to the contrary, the parkways authority may not promulgate emergency rules in accordance with section fifteen, article three, chapter twenty-nine-a of this code to increase or decrease toll fees or the commuter pass fee established herein.
(b) Nothing in this section is to be construed to apply to, regulate, or in any manner affect the operation of the three main line toll barriers and toll collection facilities currently located on the West Virginia Turnpike and operated by the parkways authority as Barrier A, Barrier B and Barrier C (I-64, I-77).
(b) All such expenses incurred by the Department of Transportation prior to the issuance of parkway revenue bonds or revenue refunding bonds under the provisions of this article shall be paid by the Department of Transportation and charged to the appropriate project or projects, and the Department of Transportation shall keep proper records and accounts showing each amount so charged.
(c) Upon the sale of parkway revenue bonds or revenue refunding bonds for any project or projects, the funds so expended by the Department of Transportation in connection with such project or projects may be reimbursed to the Department of Transportation from the proceeds of such bonds.
Acts, 1989 Reg. Sess., Ch. 187.
After the effective date of the amendments to this article enacted by the Legislature during the regular session in two thousand six, no issuance of a refunding bond may extend the maturity date of such bond being refunded and may not exceed the outstanding principal of such bond being refunded. Any refunding bond issued after the effective date of the amendments to this article enacted by the Legislature during the regular session in two thousand six shall be structured to provide for approximately level annual debt service savings each fiscal year through the final maturity or structured to approximate the level of debt service that would have been paid prior to the refunding, with a preponderance of the savings being deferred toward eliminating or reducing the most distant maturities. For purposes of this section, the outstanding principal is to be determined as of the date on which the revenue bond is refinanced.
(a) There is hereby created a special fund in the state treasury which shall be designated and known as the "West Virginia special highway fund." The special highway fund shall consist of (i) all funds allocated and disbursed to the state department of highways by the parkways authority, including without limitation the proceeds of any parkway revenue bonds or revenue refunding bonds issued by the parkways authority pursuant to sections eleven, twenty-one or twenty-two of this article, in repayment of the amount of state funds used to upgrade the West Virginia Turnpike to federal interstate standards, (ii) any appropriations, grants, gifts, contributions or other revenues received by the special highway fund from any source, and (iii) all interest earned on moneys held in the fund. When any funds are received by the state department of highways from the parkways authority pursuant to this section, they shall be paid into the state treasury by the commissioner of the department of highways and credited to the special highway fund, and shall be disbursed in the manner set forth in subsections (b) and (c) of this section. The special highway fund shall not be treated by the auditor and treasurer as part of the state road fund or as part of the general revenues of the state.
(b) The governor shall have the authority to transfer to the insurance fund created in section eight, article fifteen, chapter thirty-one of this code, on any date or dates after the enactment of this section, up to thirty-five million dollars of the funds received or earned by the special highway fund, which funds may be used and applied by the West Virginia economic development authority in the manner and to the extent set forth in article fifteen of said chapter thirty-one. On or before the thirty-first day of December, one thousand nine hundred ninety-four, the economic development authority shall retransfer to the special highway fund the thirty-five million dollars advanced to the insurance fund pursuant to this section. All interest earned on the thirty-five million dollars while being held in the insurance fund shall remain in, and be the property of, said insurance fund: Provided, That on and after the first day of July, one thousand nine hundred ninety-two, the governor shall have the authority to transfer six million dollars from the insurance fund created in section eight, article fifteen, chapter thirty-one of this code to a special fund hereby created in the state treasury and designated "the West Virginia economic development fund." Expenditures from the fund are to be made only in accordance with appropriations by the Legislature.
(c) Upon the transfer of thirty-five million dollars to the insurance fund as provided in subsection (b) of this section, the Legislature shall annually appropriate all or any part of the balance of the funds deposited in the special highway fund for the construction, reconstruction, improvement, maintenance or repair of any parkway project or projects: Provided, That all of such funds shall be appropriated to (i) the upgrading or addition of interchanges; (ii) the construction of expressways or feeder roads; or (iii) the upgrading or construction of information centers, visitors' centers, rest stops, or any combination thereof, and that all such feeder roads, expressways, interchanges, information centers, visitors' centers or rest stops shall connect to the West Virginia Turnpike and within seventy-five air miles of the West Virginia Turnpike as it existed on the effective date of this legislation, or any subsequent expressway, turnpike or feeder road constructed pursuant to this subsection. The appropriation of funds pursuant to this subsection shall be expended on more than one project.
This article shall be deemed to provide an additional and alternative method for the doing of the things authorized thereby, and shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing. The issuance of special obligation bonds under the provisions of this article need not comply with the requirements of any other law applicable to the issuance of bonds.
(a) In addition to all powers granted by the foregoing sections of this article, the parkways authority in connection with a proceeding prosecuted to completion under Title 11, United States Code, Secs. 401-403, as permitted by subdivision (17), section six of this article is hereby authorized to provide by resolution for the issuance of special obligation bonds of the state for the purpose of exchanging such special obligation bonds for all bonds then outstanding which shall have been issued under the provisions of this article. Special obligation bonds issued under the provisions of this section shall not be deemed to constitute a debt of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any such political subdivision, but such bonds shall be payable solely from the funds herein provided therefor from pledged property and income therefrom as provided in subdivision (1) of this subsection. All such special obligation bonds shall contain on the face thereof a statement in accordance with the preceding sentence. The issuance of such bonds, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties and obligations of the parkways authority in respect of the same shall be governed by the provisions of this article insofar as the same may be applicable with the following express exceptions:
(1) The principal of and the interest on such special obligation bonds shall not be payable from tolls, rents, fees, charges or revenues of any parkway project but shall be payable solely from such other property purchased and pledged as security therefor as the parkways authority shall determine together with the income derived therefrom which other property may include direct obligations of, or obligations the principal of and the interest on which are guaranteed by, the United States government or participation certificates or other obligations issued by or by authority of the United States government; and
(2) Following the issuance of such special obligation bonds there shall be no obligation to fix, revise, charge and collect tolls for the use of any parkway project and any parkway project shall be transferred to the state department of highways and shall thereafter be maintained by the state department of highways free of tolls. At such time as the special obligation bonds are issued, then section eighteen of this article shall be of no further force and effect.
(b) Financial, legal, engineering and feasibility consultants may be employed to perform such services as the parkways authority shall deem necessary or desirable in connection with the Title 11 proceedings mentioned above and the issuance and exchange of the special obligation bonds.
(c) The entire powers herein granted by this section to the parkways authority may be exercised by the state department of highways in which event the special obligation bonds herein authorized shall be executed by manual or facsimile signature by the governor and by the commissioner of the department of highways, and the official seal of the department of highways shall be affixed to or printed on each bond, and any coupons attached to such bonds shall bear the manual or facsimile signature of the commissioner of the state department of highways. In the event that the state department of highways shall elect to exercise the powers granted by this section, it shall file a statement to that effect in the office of the chairman of the parkways authority and in the office of the secretary of state, and upon the issuance of the special obligation bonds herein provided for, the state department of highways shall succeed immediately to the principal functions of the parkways authority and the parkways authority shall then be abolished.
(d) The state department of highways is hereby empowered to acquire by purchase the parkways authority and all its rights-of-way, equipment, facilities and any and all other rights or interest the parkways authority has or had in any project, fromany funds available to it, and to pay any expenses incident to such acquisition under the provisions of this article: Provided, That the contribution of the state department of highways in making such acquisition shall not exceed the sum of twenty million dollars from all sources of public moneys of the state of West Virginia, excluding any funds reimbursed or reimbursable or otherwise provided or to be provided by the federal government. No funds derived from the sale of the three hundred fifty million dollars bond issue authorized by the roads development amendment shall be included in the acquisition of the West Virginia Turnpike.
(b) Annually, the Parkways Authority shall file with the Legislative Auditor's office a full and complete accounting of its activities, including the collection of all revenues, expenditures, liabilities, assets, bonds and disbursement of funds. The Legislative Auditor shall conduct an annual audit of the information provided by the Parkways Authority and the audit report of the Legislative Auditor shall be provided to each member of the Legislature requesting a copy.
Consistent with applicable federal laws, rules and regulations, the parkways authority shall develop and prepare a uniform roadway sign identifying the availability of restaurants, gas stations, hotel accommodations and emergency services available off each exit of the West Virginia Turnpike. At every tourism project maintained or operated by the parkways authority and which is constructed after the effective date of this legislation, and, to the extent permitted under the terms of the applicable lease, at every currently existing service station, gas station, hotel or restaurant, garage or store maintained, operated or leased by the parkways authority, the parkways authority shall at no charge or cost permit the placement of, in a conspicuous place, all reasonably sized advertising literature prepared and delivered by hotels, restaurants and other tourist attractions, whether public or private, located within the state of West Virginia.
If any section, subsection, subdivision, subparagraph, sentence or clause of this article is adjudged to be unconstitutional or invalid, such adjudication shall not affect the validity of the remaining portions of this article, and, to this end, the provisions of this article are hereby declared to be severable.
(b) The Authority shall provide public notice and hold public hearings on any proposed discount program as required in section thirteen-a of this article prior to implementation of such program.
(c) Annually, the Parkways Authority shall hold at least one public informational session in each of the following counties: Kanawha, Fayette, Raleigh and Mercer counties. The Authority is to distribute educational materials and other information concerning the discount program for purchasers of West Virginia EZ Pass transponders described in this section.
(d) Upon the effective date of the amendments to this section enacted during the regular session of the Legislature in the year 2010, the Authority shall make available West Virginia EZ Pass transponders to the public without the payment of any monetary security deposit. The Authority shall credit any individual that has paid a security deposit for a West Virginia EZ Pass transponder prior to July 1, 2010, on the individual's next billing statement.
(e) For purposes of this section, a "West Virginia EZ Pass transponder" means a device sold by the Parkways Authority which allows the purchaser to attach the device to his or her motor vehicle and travel through a Parkways toll facility and be billed for such travel by the Authority.
The West Virginia public port authority is hereby continued and shall be under the supervision of the secretary of the department of transportation pursuant to the provisions of chapter five-f of this code.
(a) The governing and administrative powers of the authority shall be vested in a board of directors consisting of eleven members, including the transportation secretary, or his or her designee, who shall serve as the chairman of the public port authority, and ten individuals who shall be appointed by the governor with the advice and consent of the Senate: Provided, That no more than six members shall be members of the same political party.
All directors of the authority shall be residents of the state of West Virginia.
The directors shall annually elect one of their members as vice chairman. The directors shall appoint a person to serve as secretary and as treasurer. The person appointed as treasurer shall give a bond for the faithful performance of his or her duties as custodian of all funds, securities and other investments of the authority in an amount set by the board. The board may elect such other officers from its membership or from its staff as it deems proper, and prescribe their powers and duties. Appointments to fill a vacancy of one of the appointed members shall be made in the same manner as the original appointment.
(b) All appointed members of the board shall be from the private sector, with one member of the board from each congressional district of the state as of the effective date of this article, and shall represent the public interest generally. At least two members shall be appointed that have recognized ability and practical experience in transportation. At least two members may be appointed that have recognized ability and practical experience in banking and finance. At least one member may be appointed that has recognized ability and practical experience in international trade. At least one member may be appointed that has recognized ability and practical experience in business management, economics or accounting. Two members shall be appointed to represent the public at large.
One ex officio member of the board shall be the secretary of the department of commerce, labor and environmental resources or his or her designee.
One ex officio member of the board shall be the director of the governor's office of community and industrial development or his or her designee.
(c) Any member of the board of directors of the public port authority, appointed pursuant to the provisions of this section prior to amendment thereto, and any member of the board of directors of the wayport authority, appointed under the provisions of section two, article sixteen-c of this chapter, prior to repeal of that section, and confirmed by the Senate of West Virginia, and serving in such capacity on the effective date of amendment to this section, shall serve as a member of the board of directors of the public port authority for the duration of the appointed term. Thereafter, their respective successors shall be appointed for terms of three years. Each member shall serve until a successor is appointed and qualified.
(d) Each director, before entering upon the duties of the board, shall take and subscribe to the oath or affirmation required by the West Virginia constitution. A record of each such oath or affirmation shall be filed in the office of the secretary of state.
(e) Members of the board shall not be entitled to compensation for their services but shall be reimbursed for all necessary expenses actually incurred in connection with the performance of their duties as members.
(f) Six members of the board shall constitute a quorum and the affirmative vote of the majority of members present at a meeting of the board shall be necessary and sufficient for any action taken by the board, except that the affirmative vote of at least six members is required for the approval of any resolutionauthorizing the issuance of any bonds pursuant to this article.
(g) No vacancy in the membership of the board impairs the right of a quorum to exercise all rights and perform all duties of the board. Any action taken by the board may be authorized by resolution at any regular or special meeting and shall take effect upon the date the chairman certifies the action of the authority by affixing his or her signature to the resolution unless some other date is otherwise provided in the resolution.
(h) The board may delegate to one or more of its members or to its officials, agents or employees such powers and duties as it may deem proper.
(a) The board of directors shall appoint an executive director of the authority.
(b) The executive director shall be paid a salary to be determined by the board of directors. The executive director shall be responsible for managing and administering the daily functions of the authority and for performing any and all other functions necessary or helpful for the effective functioning of the authority, together with all other functions and powers as may be delegated to him by the board. The executive director may, with the authorization of the board of directors, employ support staff as deemed necessary to carry out the duties and responsibilities of the authority.
(c) The chairman of the board shall serve as temporary director of the authority until appointment of the executive director pursuant to this section.
Repealed.
Acts, 1991 Reg. Sess., Ch. 137.
As used in this article, the following words and terms shall have the following meanings, unless the context shall indicate another or different meaning or intent:
(a) The word "authority" means the West Virginia public port authority as created and continued by section one of this article.
(b) The words "operation fund" mean the special West Virginia public port authority operation fund as created by section seven of this article.
(c) The words "port" or "public port" mean ports, airports, wayports, terminals, buildings, roadways, rights-of-way, rails, rail lines, facilities for rail, water, highway or air transportation, and such structures, equipment, facilities or improvements as are necessary or incident thereto.
(d) The word "wayport" means an airport used primarily as a location at which passengers and cargo may be transferred between connecting flights of air carriers engaged in air commerce; but also allows passengers to initiate and terminate flights, and shipments of cargo to originate and terminate at said airport or similar type facility.
(e) The words "public port development" or "public port project" mean any activities which are undertaken with respect to public ports.
(a) The authority is granted the following powers and duties:
(1) The authority shall initiate meetings with political subdivisions of the state to assess specific transportation needs and shall determine the needs of the state as a whole in terms of transportation, as well as consider feasibility studies for the purpose of determining the best site locations for transportation centers, terminals, ports and harbors and foreign trade zones.
The authority shall give first consideration to selected high priority opportunities as set forth in the document entitled "Development of an Inland Port Authority", as submitted to the governor's office of community and industrial development on the second day of March, one thousand nine hundred eighty-nine.
(2) On or before the first day of December, one thousand nine hundred ninety-one, the authority shall prepare and file a comprehensive report with the governor and the Legislature setting forth the overall strategic plan both short term and long term for accomplishing the purposes set forth in this article.
(3) The public port authority shall coordinate with the West Virginia parkways, economic development and tourism authority or other parkways authority, established pursuant to article sixteen-a, chapter seventeen of this code, in the exercise of its powers and duties hereunder and development of appropriate intermodal transportation within the state.
(b) The authority has the following additional powers and duties:
(1) The powers of a body corporate, including the power to sue and be sued, to make contracts, and to adopt and use a common seal and to alter the same as may be deemed expedient;
(2) Acquire, purchase, install, lease, construct, own, hold, operate, maintain, equip, use and control ports, as defined herein, and such terminals, buildings, roadways, rights-of-way, rails and such structures, equipment, facilities or improvements as are necessary or incident to carry out the provisions of this article, and in connection therewith shall have the further right to lease, install, construct, acquire, own, maintain, control and use any and every kind or character of motive powers and conveyances or appliances necessary or proper to carry goods, wares and merchandise over, along, upon or through the railway, highway, waterway or airway or other conveyance of such transportation system, excluding pipelines;
(3) To apply for and accept loans, grants or gifts of money, property or service from any federal agency or the state of West Virginia or any political subdivision thereof or from any public or private sources available for any and all of the purposes authorized in this article, or imposed thereon by any such federal agency, the state of West Virginia, or any political subdivision thereof, or any public or private lender or donor, and to give such evidences of indebtedness as may be required;
(4) To act as agent for the United States of America, or any agency, department, corporation or instrumentality thereof, in any manner coming within the purposes or powers of the board;
(5) To initiate preservation of railroad, waterway, highway and airway facilities, to promote economic development and tourism of a specific nature in this state;
(6) To meet and cooperate with similar authorities or bodies of any of the several states contiguous with this state, whose purpose in their respective states is to establish an interstate or intermodal transportation network;
(7) To enter into agreements, contracts or other transactions with any federal, state, county, municipal agency or private entity;
(8) To report annually to the Legislature by the first day of December of each year on the status of projects, operations, financial condition and other necessary information relating to the statewide tourist intermodal transportation system and public port authority activities;
(9) To enter into agreements or contracts with the West Virginia railroad maintenance authority for the preservation, operation and use of railroad lines;
(10) The authority is hereby designated and empowered to act on behalf of the state on submitting siting proposals for public ports;
(11) The authority is empowered to take all steps appropriate and necessary to effect siting, development and operation of public ports within the state;
(12) To construct, reconstruct, improve, maintain, repair and operate infrastructure projects at the designated port sites as determined by the public port authority;
(13) To receive and accept from any federal agency grants for or in aid of the construction of any project, and to receive and accept aid or contributions from any sources of either money, property, labor or other things of value, to be held, used and applied only for the purposes for which such grants and contributions may be made;
(14) The authority is authorized and empowered to acquire by purchase, whenever it shall deem such purchase expedient, any land, property, rights, rights-of-way, franchises, easements and other interests in lands as it may deem necessary or convenient for the construction or operation of any project upon such terms and at such price as may be considered by it to be reasonable and to take title in the name of the state; and for the purpose of acquiring any lands, rights or easements deemed necessary or incidental for the purposes of the authority, the authority has the right of eminent domain to the same extent and to be exercised in the same manner as now or hereafter provided by law for such right of eminent domain by cities, incorporated towns, and other municipal corporations;
(15) The authority is hereby designated and empowered to act on behalf of the state and to represent the state in the planning, financing, development, construction and operation of any port project or any facility related to any such project, with the concurrence of the affected public agency. Other state agencies and local governmental entities in this state, including the West Virginia housing development fund, shall cooperate to the fullest extent the authority deems appropriate to effectuate the duties of the authority. If requested to do so by the authority, the West Virginia housing development fund shall, subject to the provisions of article eighteen, chapter thirty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, including, without limitation, the approval of its board of directors, issue or use its best efforts to issue, either in its own name or on behalf of the authority, such bonds and notes as may be required to finance the planning, development, construction and operation of any project or any facility related to any project. In the event such bonds or notes are issued by the West Virginia housing development fund, the authority shall enter into all such agreements as the West Virginia housing development fund may determine are necessary to pledge revenues from projects or other funds of the authority sufficient to pay such bonds and notes and to pay all related fees, costs and expenses;
(16) The authority shall initiate meetings with local and area port authority districts, committees and entities in the development of possible port site designations. The authority shall seek coordination, cooperation and feasibility studies from local and area port authority districts, committees and entities;
(17) The authority shall take affirmative steps to coordinate freely all aspects of the submission of a siting proposal for any port project, and to coordinate fully the development of any project or any facility related to any project with the federal government agency;
(18) To do any and all things necessary to carry out and accomplish the purposes of this article, including issuing revenue bonds or requesting other appropriate state agencies to issue and administer public port revenue bonds to finance projects;
(19) To assist and encourage the West Virginia railroadmaintenance authority to purchase railroad tracks being abandoned by any common carrier, and to financially assist the railroad maintenance authority in making such purchase;
(20) To collect reasonable fees and charges in connection with making and servicing loans, notes, bonds, obligations, commitments and other evidence of indebtedness, and in connection with providing technical, consultive and project assistance services; and
(21) To do any and all things necessary to carry out and accomplish the purposes of this article.
(c) Incidental to the development of a comprehensive strategic plan for intermodal transportation, the executive director and staff of the authority shall analyze the shipment of products through the ports of the state for the purpose of expediting such shipments, and shall be authorized to collect and analyze such information, which is maintained in the ordinary course of business by the person, firm or corporation providing such information, pertaining to the transportation of products which has been moved by rail, water, highway or air to and from points within and without this state:
(1) Any such information and data supplied to the executive director of the authority shall be for exclusive use of the executive director and the staff of the authority. Such information is deemed confidential and is not subject to disclosure under the freedom of information act. Neither the executive director nor any staff member of the authority shall publicly disclose this information and data to any member of the board of the authority, nor to any person, firm, corporation or agent. It shall be unlawful for any officer or employee of this state to divulge or make known in any manner any information obtained pursuant to this subsection or disclose information concerning the personal or business affairs of any individual or the business of any single firm or corporation, or disclose any particulars set forth or disclosed in any report or other information provided to the authority.
(2) Any officer or employee (or former officer or employee) of this state who violates this subsection shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars or imprisoned for not more than one year, or both, together with costs of prosecution.
(3) In carrying out the functions theretofore described, the authority shall be deemed to be performing an essential governmental function as an instrumentality of the state of West Virginia.
There is hereby established a special West Virginia public port authority operations fund which shall operate as a special revolving fund. All proceeds and revenues of the authority shall be credited to the fund by the state treasurer on a monthly basis. At the end of each fiscal year, any unexpended funds in this account shall be reappropriated and available for expenditure for the subsequent fiscal year. On the effective date of the amendment to this section, the West Virginia wayport authority operations fund heretofore created shall be transferred and combined with the West Virginia public port authority operations fund.
(a) Upon application by a local governmental entity, groups of local governmental entities, or joint venture of local government entity or entities and private industry, the board may grant authority for the creation of a local inland port authority district. In so authorizing such entities, political subdivisions of this state are authorized to join with other political subdivisions of this and sister states to form a local port authority. In deciding on a local port district designation, consideration shall be given to the following:
(1) Areas which have entered into a joint venture with private industry;
(2) Areas for which the political subdivision(s) seeking designation has made or will make the greatest effort, both financially and otherwise, to encourage the establishment of facilities to enhance the efficiency and cost of the movement of goods and services to and from markets in West Virginia, or will make the greatest effort to encourage the construction and completion of infrastructure projects, including all types of transportation systems.
(b) A local port authority district provided for in this article has the authority to establish a local board of directors, and has powers only as provided for by the state board of directors. In no event shall the powers of a local port authority district supersede the powers of the state authority.
Any board of directors of a port authority district shall prepare or cause to be prepared a plan for the future development, construction and improvement of its services and facilities.
(a) The authority or local port authority districts shall foster and encourage the participation of private enterprise in the development of the port facilities to the fullest extent it deems practicable in the interest of limiting the necessity of construction and operation of such facilities by the port authority. In this respect, the authority or local port authority districts may upon its own motion or upon the written request of any other party, advertise and solicit for the construction, operations and/or maintenance of any facility included in the development plan in accordance to plans, specifications and regulations therefor prepared by the board of directors.
(b) It is further provided that in the event the board of directors of the port authority or the local port authority districts deem it advisable and practicable, said board may cause certain facilities included in the development plan to be installed by private enterprise and leased back to the authority or local port authority districts on an installment contract or option to purchase: Provided, That any such lease back arrangement must be financially feasible and any bonds or loans utilized to enter into such lease bank arrangement shall be repayable in full from the expected rentals to be generated by such facility.
The authority is empowered and directed to develop, maintain and operate foreign trade zones, free trade zones, ports of entry and customs zones under such terms and conditions as are or may be prescribed by federal law, and to keep foreign trade zone status for, and to assist in the applications for foreign trade zone status of political subdivisions and eligible private corporations under federal law.
(a) The authority may assist business in the formation of joint venture to function as an export trading company. The authority may conduct feasibility studies to ascertain the feasibility of such a joint venture.
(b) The authority shall study whether the formation of such an entity would aid and assist West Virginia businesses in the export of goods. In the event that such company is financially feasible, the authority is authorized to create a quasi-public corporation, under the authority's control, to perform such function. The authority may advance seed money to such corporation to get it established: Provided, That the obligations of such quasi-public corporation shall not be considered obligations of the authority.
(c) The authority is authorized to promulgate rules and regulations to establish the duties, powers and obligations of any export trading company to be established under this section.
(a) The division of tourist trains and transportation shall develop a plan to assess the feasibility, financial and otherwise, of establishing a statewide intermodal network of tourist transportation, so as to coordinate, link and supervise the various means of transportation including highway, rail, waterway and air and such plan shall also include, if feasible, the development of a comprehensive strategy and state plan for tourist transportation.
(b) The division shall cooperate and assist the efforts of public and private groups, agencies and political subdivisions in establishing components of the tourist transportation plan.
(c) The division shall specifically work to establish a pilot project for the purpose of creating a tourist train network in the area from Bluefield, West Virginia, to Bramwell, West Virginia, to Matoaka, West Virginia, and to Pocahontas, Virginia.
The state of West Virginia is not liable on notes or other evidences of indebtedness of the public port authority and such notes or other evidences of indebtedness are not a debt of the state of West Virginia, and such notes or other evidences of indebtedness shall contain on the face thereof a statement to such effect.
(a) No part of the funds of the public port authority may inure to the benefit of or be distributable to its directors, employees, officers or other private persons except that the public port authority may pay reasonable compensation to its officers and employees for services rendered and to make loans and exercise its other powers as previously specified in furtherance of its corporate purposes: Provided, That no such loans may be made, and no property may be purchased or leased from, or sold, leased to or otherwise disposed of, to any director or officer of the public port authority.
(b) No officer, member or employee of the authority may be financially interested, directly or indirectly, in any contract of any person with the authority, or in the sale of any property, real or personal, to or from the authority during such person's employment with the authority or for a period of twelve months after termination of such person's employment with the authority. This section does not apply to contracts or purchases of property, real or personal, between the authority and any governmental agency. Any officer, member or employee of the authority who has such financial interest in a contract or sale of property prohibited hereby is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars, or imprisoned in the county jail not more than one year, or both fined and imprisoned.
The public port authority is hereby authorized to provide by resolution at one time or from time to time, for the issuance of public port revenue bonds of the state for the purpose of paying all or any part of the cost of one or more port projects. The principal of and the interest on such bonds shall be payable solely from the funds herein provided for such payment. The bonds of each issue shall be dated, shall bear interest at such rate or rates as may be determined by the authority in its sole discretion, shall mature at such time or times not exceeding forty years from their date or dates, as may be determined by the authority, and may be made redeemable before maturity, at the option of the public port authority, at such price or prices and under such terms and conditions as may be fixed by the public port authority prior to the issuance of the bonds. The public port authority shall determine the form of the bonds, including any interest coupons to be attached thereto, and shall fix the denomination or denominations of the bonds and the place or places of payment of principal and interest, which may be at any bank or trust company within or without the state. The bonds shall be executed by manual or facsimile signature by the governor and by the chairman of the public port authority, and the official seal of the public port authority shall be affixed to or printed on each bond, and attested, manually or by facsimile signature, by the secretary of the public port authority, and any coupons attached to any bond shall bear the manual or facsimile signature of the chairman of the public port authority. In case any officer whose signature or a facsimile of whose signature appears on any bonds or coupons shall cease to be such officer before the delivery of such bonds, such signature or facsimile shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until such delivery; and in case the seal of the public port authority has been changed after a facsimile has been imprinted on such bonds, such facsimile seal will continue to be sufficient for all purposes. All bonds issued under the provisions of this article shall have and are hereby declared to have all the qualities and incidents of negotiable instruments under the negotiable instruments law of the state. The bonds may be issued in coupon or in registered form, or both, as the public port authority may determine, and provision may be made for the registration of any coupon bonds as to principal alone and also as to both principal and interest, and for the reconversion into coupon bonds of any bonds registered as to both principal and interest. The public port authority may sell such bonds in such manner, either at public or at private sale, and for such price as it may determine to be in the best interests of the state.
The proceeds of the bonds of each issue shall be used solely for the payment of the cost of the public port authority project or projects for which such bonds shall have been issued, and shall be disbursed in such manner and under such restrictions, if any, as the public port authority may provide in the resolution authorizing the issuance of such bonds or in the trust agreement hereinafter mentioned securing the same. If the proceeds of the bonds of any issue, by error of estimates or otherwise, shall be less than such cost, additional public port bonds may in like manner be used to provide the amount of such deficit, and unless otherwise provided in the resolution authorizing the issuance of such bonds or in the trust agreement securing the same, shall be deemed to be of the same issue and shall be entitled to payment from the same fund without preference or priority of the bonds first issued. If the proceeds of the bonds of any issue shall exceed the cost of the project or projects for which the same shall have been issued, the surplus shall be deposited to the credit of the sinking fund for such bonds.
Prior to the preparation of definitive bonds, the public port authority may, under like restrictions, issue interim receipts or temporary bonds, with or without coupons, exchangeable for definitive bonds when such bonds shall have been executed and are available for delivery. The public port authority may also provide for the replacement of any bonds which shall become mutilated or shall be destroyed or lost. Bonds may be issued under the provisions of this article without obtaining the consent of any department, division, commission, board, bureau or agency of the state, and without any other proceedings or the happening of any other conditions or things than those proceedings, conditions or things which are specifically required by this article.
In the discretion of the public port authority any public port bonds issued under the provisions of this article may be secured by a trust agreement by and between the public port authority and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without the state. Any such trust agreement may pledge or assign the tolls, rents, fees, charges and other revenues to be received, but shall not convey or mortgage any project or any part thereof. Any such trust agreement or any resolution providing for the issuance of such bonds may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the public port authority in relation to the acquisition of property and the construction, reconstruction, improvement, maintenance, repair, operation and insurance of the project or projects in connection with which such bonds shall have been authorized, and the custody, safeguarding and application of all moneys, and provisions for the employment of consulting engineers in connection with the construction or operation of such project or projects. It shall be lawful for any bank or trust company incorporated under the laws of the state which may act as depository of the proceeds of bonds or of revenues to furnish such indemnifying bonds or to pledge such securities as may be required by the public port authority. Any such trust agreement may set forth the rights and remedies of the bondholders and of the trustee, and may restrict the individual right of action by bondholders as is customary in trust agreements securing bonds and debentures of corporations. In addition to the foregoing, any such trust agreement may contain such other provisions as the public port authority may deem reasonable and proper for the security of the bondholders. All expenses incurred in carrying out the provisions of any such trust agreement may be treated as a part of the cost of the operation of the project or projects to which the trust agreement applies.
(a) The public port authority is hereby authorized to fix, revise, charge and collect tolls for the use of each public port project and the different parts or sections thereof, and to fix, revise, charge and collect rents, fees, charges and other revenues, of whatever kind or character, for the use of each port, public port, economic development project or tourism project, or any part or section thereof, and to contract with any person, partnership, association or corporation desiring the use of any part thereof, including the right-of-way adjoining the paved portion, for placing thereon telephone, telegraph, electric light, power or other utility lines, gas stations, garages, stores, hotels, restaurants and advertising signs, or for any other purpose, and to fix the terms, conditions, rents and rates of charges for such use. Such tolls, rents, fees and charges shall be so fixed and adjusted in respect of the aggregate of tolls, or in respect of the aggregate rents, fees and charges, from the project or projects in connection with which the bonds of any issue shall have been issued as to provide a fund sufficient with other revenues, if any, to pay: (A) The cost of maintaining, repairing and operating such project or projects; and (B) the principal of and the interest on such bonds as the same shall become due and payable, and to create reserves for such purposes. Such tolls, rents, fees and other charges shall not be subject to supervision or regulation by any other commission, board, bureau, department or agency of the state. The tolls, rents, fees, charges and all other revenues derived from the project or projects in connection with which the bonds of any issue shall have been issued, except such part thereof as may be necessary to pay such cost of maintenance, repair and operation and to provide such reserves therefor as may be provided for in the resolution authorizing the issuance of such bonds or in the trust agreement securing the same shall be set aside at such regular intervals as may be provided in such resolution or such trust agreement in a sinking fund which is hereby pledged to, and charged with, the payment of: (1) The interest upon such bonds as such interest shall fall due; (2) the principal of such bonds as the same shall fall due; (3) the necessary charges of paying agents for paying principal and interest; and (4) the redemption price or the purchase price of bonds retired by call or purchase as therein provided. The use and disposition of moneys to the credit of such sinking fund shall be subject to the provisions of the resolution authorizing the issuance of such public port bonds or of such trust agreement. Except as may otherwise be provided in such resolution or such trust agreement, such sinking fund shall be a fund for all such bonds without distinction or priority of one over another. The moneys in the sinking fund, less such reserve as may be provided in such resolution or trust agreement, if not used within a reasonable time for the purchase of bonds for cancellation as above provided, shall be applied to the redemption of bonds at the redemption price then applicable.
All moneys received pursuant to the authority of this article, whether as proceeds from the sale of bonds or as revenues, shall be deemed to be trust funds, to be held and applied solely as provided in this article. The resolution authorizing the issuance of bonds of any issue of the trust agreement securing such bonds shall provide that any officer to whom, or any bank or trust company to which, such moneys shall be paid shall act as trustee of such moneys and shall hold and apply the same for the purposes hereof, subject to such regulations as this article and such resolution or trust agreement may provide.
Any holder of bonds issued under the provisions of this article or any of the coupons appertaining thereto, and the trustee under any trust agreement, except to the extent the rights herein given may be restricted by such trust agreement, may either at law or in equity, by suit, action, mandamus or other proceeding, protect and enforce any and all rights under the laws of the state or granted hereunder or under such trust agreement or the resolution authorizing the issuance of such bonds, and may enforce and compel the performance of all duties required by this article or by such trust agreement or resolution to be performed by the public port authority or by any officer thereof, including the fixing, charging and collecting of tolls, rents, fees and charges.
(a) The exercise of the powers granted by this article will be in all respects for the benefit of the people of the state, for the increase of their commerce and prosperity, and for the improvement of their health and living conditions, and as the operation and maintenance of projects by the public port authority will constitute the performance of essential governmental functions, the public port authority shall not be required to pay any taxes or assessments upon any project or any property acquired or used by the public port authority under the provisions of this article or upon the income therefrom, and the bonds issued under the provisions of this article, their transfer and the income therefrom (including any profit made on the sale thereof) shall at all times be free from taxation within the state.
(b) In lieu of payment by the public port authority of county property taxes and other assessments on facilities owned by it, or upon any facility which is leased to any private person, corporation, or entity, the public port authority shall make an annual payment as provided herein to the county commission of such county. Any public port authority project which is leased and is exempt from taxation shall be subject to a payment in lieu of taxes. Said payment shall be made to the county commission of the county in which the project is located and shall be in an amount equal to the property taxes otherwise payable. The county commission receiving such in lieu of payment shall distribute such payment to the different levying bodies in that county in the same manner as are property taxes. Nothing contained herein may be construed to prohibit the public port authority from collecting such in lieu of payment from any private party by contract or otherwise.
The secretary of transportation is hereby authorized, in his or her discretion, to expend out of any funds available for the purpose, such moneys as may be necessary for the study of any public port economic development or tourism project or projects and to use the division of highway's engineering and other forces, including consulting engineers and traffic engineers, for the purpose of effecting such study and to pay for such additional engineering and traffic and other expert studies as he may deem expedient; and all such expenses incurred by the state department of transportation and the state division of highways prior to the issuance of public port revenue bonds or revenue refunding bonds under the provisions of this article shall be paid by the state division of highways or the state department of transportation and charged to the appropriate project or projects, and the state division of highways and the state department of transportation shall keep proper records and accounts showing each amount so charged. Upon the sale of public port revenue bonds or revenue refunding bonds for any public port project or projects, the funds so expended by the state division of highways or the state department of transportation in connection with such project or projects shall be reimbursed to the state division of highways and the state department of transportation from the proceeds of such bonds.
The public port authority is hereby authorized to provide by resolution for the issuance of public port revenue refunding bonds of the state for the purpose of refunding any bonds then outstanding which shall have been issued under the provisions of this article, including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such bonds; and if deemed advisable by the public port authority, for the additional purpose of constructing improvements, extensions or enlargements of the project or projects in connection with which the bonds to be refunded shall have been issued.
The public port authority is further authorized to provide by resolution for the issuance of public port refunding revenue bonds of the state for the combined purpose of two or more of the following: (a) Refunding any public port bonds then outstanding which shall have been issued under the provisions of this article, including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such bonds; and (b) paying all or any part of the cost of any additional public port project or projects.
The issuance of such bonds, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties and obligations of the public port authority in respect of the same, shall be governed by the provisions of this article insofar as the same may be applicable.
The division of public transit is hereby created and is under the supervision of the secretary of transportation pursuant to the provisions of chapter five-f of this code.
The department of transportation through the division of public transit is hereby designated as the agency of this state responsible for administering all federal and state programs relating to public transportation.
The division has the power to:
(a) Assist in the development of improved public transportation facilities, services, equipment, techniques and methods, with the cooperation of transportation carriers, both public and private;
(b) Enhance the mobility of all residents of the state, particularly those who by age, income or physical limitation experience serious transportation disadvantages;
(c) Manage publicly funded transportation resources in a cost effective manner and endeavor to achieve an increased ridership with available resources;
(d) Establish a system to adequately coordinate and distribute publicly funded transportation services within the state, including, but not limited to, transportation services for senior citizens, for participants in head start programs, for disabled citizens and for private nonprofit organizations and to establish a pilot project or projects as an initial part of implementing a system of coordination and distribution;
(e) Maintain a cooperative working relationship with public and private transportation providers, private nonprofit organizations, local planning and development councils, other state agencies and the federal government;
(f) Coordinate and assist various public and private transportation entities in strengthening their development and operation of public transportation facilities and services;
(g) Coordinate with other states and the federal government the planning, construction, operation and maintenance of public transportation facilities in the state having an interstate impact;
(h) Acquire, plan, hold, construct, improve, maintain and operate, own or lease, either in the capacity of lessor or lessee, all facilities necessary or incidental thereto for the operation of public transportation systems in the state;
(i) Apply for and receive from the federal government or from any other person, corporation, association or other entity, any grants in aid or gifts to be used for public transportation related purposes;
(j) Provide financial assistance to local transportation agencies to the extent authorized by the Legislature and federal grants: Provided, That no county or local government may reduce the level of funding for transportation services in place upon the effective date of this section and be eligible to receive financial assistance pursuant to this section;
(k) Enter into contracts with other agencies of the state, other public bodies, private firms or individuals to provide technical services or public transportation related services;
(l) Exercise or perform any power, duty, responsibility or function in carrying out public transportation related activities which are essential to the completion of the projects;
(m) Insure local matching funds with state or local money, or both, for federal assistance projects; and
(n) Implement rules necessary to accomplish its assigned duties.
There is hereby created the West Virginia public transit advisory council which shall consist of eleven members, selected by the governor, who shall serve for two-year terms commencing on the first day of April, one thousand nine hundred ninety-two, and who shall serve at the will and pleasure of the governor. The membership of the council shall be broadly representative of those groups affected by the implementation of this article: Provided, That no more than four of the members of the council shall reside in the same congressional district. No more than six members may be of the same political party. The members of the council shall serve without compensation and without provision for their expenses related to the work of the council. The council shall provide consultation, on an advisory basis, to the division of public transit on matters related to the implementation of the pilot program or programs referred to in subdivision (d), section three of this article.
Notwithstanding any other provision of this code to the contrary, at the division's request and as mutually agreed upon, other state departments, divisions or agencies may enter into agreements with the division to assist or undertake projects that are beneficial to public transportation. All expenses and other requirements connected with the projects remain the responsibility of the division of public transit.
Acts, 1991 Reg. Sess., Ch. 137.
Acts, 1991 Reg. Sess., Ch. 137.
Acts, 1991 Reg. Sess., Ch. 137.
Acts, 1991 Reg. Sess., Ch. 137.
Acts, 1991 Reg. Sess., Ch. 137.
Acts, 1991 Reg. Sess., Ch. 137.
Acts, 1991 Reg. Sess., Ch. 137.
Acts, 1991 Reg. Sess., Ch. 137.
Acts, 1991 Reg. Sess., Ch. 137.
Acts, 1991 Reg. Sess., Ch. 137.
Acts, 1991 Reg. Sess., Ch. 137.
Any corporation heretofore or hereafter formed for the purpose of bridging the Great Kanawha or Big Sandy Rivers, or any railroad corporation constructing such bridge, shall have all the privileges accorded by this section to corporations formed for the purpose of bridging the Ohio River: Provided, however, That every bridge erected across the Great Kanawha River at and above the United States government lock number six, and between said lock number six and the United States government lock number three, shall have at least one channel span, the center of which shall be in the middle of the channel usually run by descending coal fleets in high towing stages; such channel span to have a clear opening of four hundred feet at low waterline, and be at least sixty-five feet above low water: Provided further, That every bridge erected across the Kanawha River at and above the United States government lock number three, and below a point six hundred feet below the intersection at low watermark of Nancy's branch with the Great Kanawha River -- said point being approximately the head of the slack water pool formed by the United States government dam number two -- shall have at least one channel span, the center of which shall be in the middle of the channel usually run by descending coal fleets in high water towing stages; such channel span to have a clear opening of four hundred feet at low water line, and be at least sixty-five feet above low water, except in cases where the United States government may authorize the construction of a bridge of a less height, not, however, to be below the minimum of sixty feet above low water; and said Great Kanawha River may be bridged by any such corporation at or above such point six hundred feet below the intersection at low watermark of Nancy's branch with the Kanawha River, subject only to such terms and conditions, if any, as the United States government acting through its authorized officers may prescribe.
The benefits of this section shall not inure to any corporation whose corporate rights have lapsed, been forfeited or become forfeitable.
All mortgages or trust deeds heretofore made by any bridge company incorporated under the laws of this state, whether the same shall have been executed by virtue of a resolution adopted by a vote of the stockholders, or shall have been executed by virtue of a resolution adopted by the board of directors of such corporation without any action on the part of the stockholders thereof, which purport to grant and convey the property and franchises of the granting company owned and possessed at the time of making the mortgage or trust deed, or such property and franchises, together with property or franchises, or both, of such company which it may have acquired subsequently to the making of such mortgage or trust deed, shall be as valid and effectual for the purpose of effecting such granting and conveyance, and make the same as effectually, as if this section had been in full force before and at the time of the execution of such mortgages or trust deeds; and purchasers at any sales thereunder shall have the same rights, powers and privileges as are by this section conferred upon the purchasers at sales made under mortgages and trust deeds executed by such companies after this code takes effect.
Repealed.
Acts, 1932 Ex. Sess., Ch. 1 § 1.
The proceeds of such bonds shall be used solely for the payment of the cost of the bridges, and shall be checked out by the commissioner and under such further restrictions, if any, as the commissioner may provide. If the proceeds of such bonds, by error or calculation or otherwise, shall be less than the cost of the bridge or bridges, additional bonds may in like manner be issued to provide the amount of such deficit, and, unless otherwise provided in the trust agreement hereinafter mentioned, shall be deemed to be of the same issue and shall be entitled to payment from the same fund, without preference or priority of the bonds first issued for the same bridge or bridges. If the proceeds of bonds issued for any bridge or bridges shall exceed the cost thereof, the surplus shall be paid into the fund hereinafter provided for payment of the principal and interest of such bonds. Such fund may be used for the purchase of any of the outstanding bonds payable from such fund at the market price, butat not exceeding the price, if any, at which such bonds shall in the same year be redeemable, and all bonds redeemed or purchased shall forthwith be canceled and shall not again be issued.
Prior to the preparation of definitive bonds, the commissioner may under like restrictions issue temporary bonds with or without coupons, exchangeable for definitive bonds upon the issuance of the latter. Such revenue bonds may be issued without any other proceedings or the happening of any other conditions or things than those proceedings, conditions and things which are specified and required by this article or by the constitution of the state.
Any bridge or bridges constructed or acquired by purchase, eminent domain, or otherwise, or reconstructed, repaired or improved, under the provisions of this article and forming a connecting link between two or more state highways, or providing a river crossing for a state highway, are hereby adopted as a part of the state road system, but no such bridge or bridges shall be constructed or acquired by purchase, eminent domain, or otherwise, or reconstructed, repaired or improved, under the provisions of this article without the approval in writing of the state road commissioner and the governor. If there be in the funds of the state sinking fund commission an amount insufficient to pay the interest and sinking fund on any bonds issued for the purpose of constructing or acquiring by purchase, eminent domain,or otherwise, or reconstructing, repairing or improving, such bridge or bridges, the state road commissioner is authorized and directed to allocate to said commission, from the state road fund, an amount sufficient to pay the interest on said bonds and/or the principal thereof, as either may become due and payable.
Except as otherwise provided in section thirty-five of this article, when the particular bonds issued for any bridge or bridges and the interest thereon shall have been paid, or a sufficient amount shall have been provided for their payment and shall continue to be held for that purpose, and there are no operating or maintenance expenses outstanding, and any advances made from the state road fund toward the construction, operation and maintenance of such bridge or bridges shall have been repaid, the authority operating such bridge or bridges shall cease the collection of tolls for the use thereof: Provided, That the commissioner may, in his discretion, continue thereafter tolls for a period sufficient to accumulate sufficient funds to pay for major maintenance and repairs foreseeable as being needed on such bridge or bridges in the immediate future: Provided, however, That tolls may be imposed or reimposed on any such bridge or bridges in the manner provided in section twenty-three-b of this article. Thereafter, and as long as the cost of maintaining, repairing and operating such bridge or bridges is being provided for through means other than tolls, no tolls shall be charged for transit thereover and such bridge or bridges shall be free: Provided further, That notwithstanding any other provision of law, if any portion of the cost of construction of a toll bridge is financed, with the aid of federal funds under federal-aid road legislation and the share of the cost of such bridge borne by the state or its subdivisions shall have beenrepaid from tolls, or a fund sufficient for such repayment shall have been provided or set aside for that purpose, tolls for the use of such bridge shall cease and such bridge shall thereafter be maintained and operated as a free bridge.
When the particular bonds issued for any bridge or bridges, and the interest thereon, shall have been paid, or a sufficient amount shall have been provided for the payment thereof and held for that purpose as in this article provided, and there remain in said fund a sum or sums of money accumulated from tolls on such bridge or bridges, such money shall be used first for the conversion of such bridge or bridges from a toll bridge or bridges to a free bridge or bridges; and if, after paying the cost of such conversion there remain any sum or sums in such fund, the same shall, upon the determination in writing by the commissioner to the state auditor that such conversion has been completed, and that there are no outstanding claims against such bridge or bridges by reason of the same and having been operated as toll bridge or bridges, such remaining sum or sums of money shall be transferred to the state secondary road fund.
The commissioner is hereby authorized and empowered to combine any two or more bridges, including existing bridges and bridges to be constructed or acquired by purchase, eminent domain or otherwise and to pledge all or any part of the revenue derived from such combined bridges to the payment of interest and sinking fund requirements of any bonds issued in respect of said combined bridges, or either of them, pursuant to this section.
The commissioner is hereby authorized to impose or reimpose tolls or other charges on any existing bridge or bridges which shall be combined, pursuant to this section, with any other bridge, either existing or to be constructed or acquired and the tolls and other charges fixed by the commissioner for the bridges so combined, pursuant to this section, shall be fixed and adjusted in respect to the aggregate of tolls from the bridges so combined, so as to be sufficient to pay all expenses of operating, maintaining and repairing the combined bridges and the interest and sinking fund requirements of any bonds issued in respect of said combined bridges, or either of them, pursuant to this section: Provided, however, That no such tolls or other charges shall be imposed or reimposed on any existing bridge unless the imposition or reimposition thereof shall have, first, been approved by a resolution duly adopted by the council or other governing body of the municipality in which such existing bridge is situate, or, if such existing bridge is not situate within the limits of a municipality, then the imposition or reimposition of such tolls or other charges shall be first approved by an order duly adopted by the county court of the county or counties in which such existing bridge is situate. In either case, a certified copy of the resolution or order shall be filed with the commissioner.
The tolls and other charges from bridges so combined pursuant to this section, for which bonds are issued pursuant to this section, except such part thereof as may be necessary to pay the cost of maintaining, repairing, and operating such bridges during any period in which such cost is not otherwise provided for (during which period the tolls may be reduced accordingly), shall be transmitted each month to the state sinking fund commission and by it placed in a special fund which is hereby pledged to and charged with the payment of the principal of such bonds and the interest thereon, and to the redemption or repurchase of such bonds, such special fund to be a fund for all such bonds without distinction or priority of one over another. The moneys in such special fund, less a reserve for payment of interest and sinking fund requirements, if not used by the sinking fund commission within a reasonable time for the purchase of bonds for cancellation at a price not exceeding the market price and not exceeding the redemption price, shall be applied to the redemption of bonds by lot at the redemption price then applicable.
The commission may pay the cost, as hereinbefore in this article defined, of construction or acquisition by purchase, eminent domain or otherwise of any bridge or bridges combined with any other bridge or bridges pursuant to this section and/or the cost of modernization, improvement, repair and reconstruction of any existing bridge so combined with any other bridge or bridges pursuant to this section, including modernization, improvement, repair, reconstruction, construction and acquisition of approaches thereto, by the issuance of bridge revenue bonds of the state. Any such bridge revenue bonds shall be issued in the manner and in accordance with the procedure for the issuance of bridge revenue bonds hereinbefore set forth in this article: Provided, however, That nothing in this article shall be construed to permit any combination of an existing toll bridge with any other bridge at any time when there are bonds on such existing toll bridge unpaid or when any such toll bridge bonds,either the principal or interest thereon, are in default.
Wherever the words "bridge,""toll bridge" or "highway toll bridge" are used in sections thirty-one, thirty-two, thirty-three or thirty-four of this article, or any of the other provisions of this article, the same shall be deemed to include bridges or tunnels, or any combinations thereof, together with any causeways, fills, or approaches necessary therefore.
(b) The municipality shall make the improvements to the bridge that are determined to be necessary by the commissioner. The commissioner may make periodic inspections during construction of improvements and at the completion of any improvement project. The commissioner shall report on each inspection to the municipality and include identification of any deficiencies with recommended action to correct the deficiencies. The municipality shall reimburse the commissioner for inspections and reports.
(c) The municipality shall establish a separate fund,designated as the "bridge maintenance fund". Proceeds in the fund shall be expended for the purpose of improvements and maintenance of the bridge in a safe and efficient condition for use by the public. Upon the initial inspection of the bridge by the commissioner pursuant to subsection (a) of this section, the municipality shall deposit in the fund an amount equal to the estimate of the commissioner for the costs of the initial improvements to the bridge made pursuant to subsection (a) of this section. Upon completion of the initial improvements, the municipality shall maintain an adequate balance of moneys in the fund sufficient to maintain the bridge annually, as determined by the commissioner pursuant to subsection (a) of this section.
"Commissioner" means the West Virginia commissioner of highways.
"Cost," when used with respect to any surface transportation improvement, means any and all costs of acquiring, constructing, reconstructing, replacing, completing or repairing any surface transportation improvement, including without limiting the generality of the foregoing, land, property, rights, franchises, materials, labor and services, contractors' fees, planning and engineering expenses, financing costs, legal fees, trustees' or paying agents' fees and interest on obligations issued under this article.
"Note" means any note or other obligation issued pursuant to this article.
"Outstanding note" means a note which has been issued pursuant to this article and has not been repaid, but does not include notes which are to be paid from designated moneys or securities which are irrevocably held in trust solely for such purpose.
"Surface transportation improvement" means any interstate or other highway, secondary road, bridge and toll road construction, reconstruction, improvement or repair, as to which all or a portion of the cost thereof is to be reimbursed to the state under federal legislation.
Except in the case of renewal notes, the proceeds of such notes shall be used solely for the payment of the cost of the surface transportation improvements which they were issued to finance, which shall be verified by the commissioner and under such further restrictions, if any, as may be provided. If the proceeds of such notes, by error or calculation or otherwise, shall be less than the cost of the related surface transportation improvements, additional notes may in like manner be issued to provide the amount of such deficit, and unless otherwise provided in the trust agreement hereinafter mentioned, shall be deemed to be of the same issue and shall be entitled to payment from the same sources, without preference or priority of the notes first issued for the same related surface transportation improvements. If the proceeds of notes issued for any related surface transportation improvements shall exceed the cost thereof, the surplus shall be applied to the payment, purchase or redemption of such notes.
Such notes shall be executed by the governor and the commissioner, under the great seal of the state, attested by the facsimile signature of the secretary of state, and the coupons, if any, attached thereto shall be authenticated by the facsimile signature of the commissioner. The governor and the commissioner may execute such notes by their facsimile signatures, but, unless provision has been made for the authentication thereof by a trustee determined to be responsible by the commissioner, each note shall bear at least one manual signature.
Prior to the preparation of definitive notes, the governor and the commissioner may under like restrictions issue temporary notes with or without coupons, exchangeable for definitive notes upon the issuance of the latter. Such notes may be issued without any other proceedings, or the happening of any other conditions or things than those proceedings, conditions and things which are specified and required by this article or by the constitution of the state.
The notes of an issue described in any such declaration shall be sold in such manner, at such price or prices and on such terms and conditions as no less than three members of the five- member group, comprised of the treasurer, the auditor, the commissioner of finance and administration, the tax commissioner and the commissioner, determines to be in the best interest of the state, taking into account the financial responsibility of the purchaser and the terms and conditions of purchase and especially the availability of the proceeds of the notes when needed to pay the cost of the related surface transportation improvements. Such five-member group shall serve as financial advisor and upon the determination of no less than three members, as aforesaid, may retain professional financial assistance for such purpose.
(a) Any amounts to be received from the United States of America, or any agency or instrumentality thereof, as reimbursements of the costs incurred in connection with the surface transportation improvements to be financed by such notes, together with the rights and interests of the state with respect to such reimbursement;
(b) Any amounts in the state road fund which may properly be applied to the reimbursements of any such costs pursuant to article three of this chapter;
(c) The proceeds of any such notes pending their use or of notes which may be issued to renew or refund such notes;
(d) The proceeds of any insurance or letters of credit or similar arrangements undertaken in connection with the acquisition, construction or financing of such surface transportation improvements;
(e) The proceeds of any tolls, or portions of tolls, charged and collected pursuant to the provisions of sections five-a and five-b of this article that are designated by the commissioner as security for the payment of the principal of or interest on notes issued for the purposes described in section five-a of this article; and
(f) Any other amounts specifically designated for the purpose of paying any such costs, but only to the extent appropriated by the Legislature and paid from general revenues prior to such pledge or dedicated for such purpose by the Legislature from proprietary revenues of the state.
Any such pledge or assignment shall be valid and binding from the time it is made, and the lien of such pledge or assignment shall be enforceable and need not be perfected by delivery or any filing or further act. Such lien shall be valid against all parties having claims of any kind in tort, contract or otherwise, irrespective of whether such parties have notice of the lien of such pledge or assignment.
The commissioner may enter into an agreement or agreements with any trust company or with any bank having the power of a trust company, either within or outside of the state, as trustee for the holders of notes issued hereunder, setting forth therein such duties of the state and of the commissioner in respect of the acquisition and construction of surface transportation improvements, the conservation and application of all moneys, the insurance of moneys on hand or on deposit, and the rights and remedies of the trustee and the holders of the notes, as may be agreed upon with the original purchasers of such notes, and including therein provisions restricting the individual right of action of holders as is customary in such trust agreements to protect and enforce the rights and remedies of the trustee and the holders. All expenses incurred in carrying out such agreement may be treated as a part of the cost of construction of the surface transportation improvements affected by the agreement.
(1) The road is a fully controlled access, four lane highway; and
(2) The road extends from the border of West Virginia and is a continuation of a fully controlled access four lane highway in the adjacent state; and
(3) The adjacent state charges tolls on its portion of the highway immediately adjacent to West Virginia; and
(4) The West Virginia portion of the highway connects to another fully controlled access four lane highway in West Virginia.
(b) Not less than one hundred eighty days prior to the final decision of the commissioner to charge tolls on any road described in subsection (a) of this section, the commissioner shall provide a report to the joint committee on government and finance setting forth:
(1) The location and a description of the road;
(2) The provisions of any special obligation notes intended by the commissioner to be secured, in whole or in part, by tolls charged on the road and any related trust agreements;
(3) The anticipated amount of tolls to be charged and the duration of time the commissioner expects tolls to be charged on the road; and
(4) Such other information that may be required by the joint committee on government and finance.
The holder of any note, or the trustee therefor, shall have the right to bring suit for the payment of such note or to compel the enforcement of any agreement securing such note to the extent therein provided. Such notes shall be special obligations of the state, payable solely from the sources herein provided, and shall not be a general obligation debt or liability of the state or constitute any claim on its general revenues or taxing power. Neither the commissioner nor any other officer of the state executing notes or other agreements hereunder shall have any personal liability thereon or be subject to personal accountability therefor.
The notes and the income therefrom shall at all times be exempt from taxation, except for death and gift taxes, taxes on transfers, sales taxes, real property taxes and business and occupation taxes.
Repealed.
Acts, 1985 Reg. Sess., Ch. 152.
Any person violating this section, whether as principal, agent, or employee, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than twenty-five nor more than one hundred dollars; and such person shall be deemed guilty of a separate offense for each day during any portion of which any violation of this section is committed or continued. Every such prohibited sign or other marking is hereby declared to be a public nuisance. Upon receiving notice of any violation of this section, the commissioner shall cause the prohibited sign or other marking to be removed within ten days and shall cause the appearance of the property on which it was affixed to be restored, as near as may be practicable, to its condition immediately before such violation occurred. The commissioner shall, in the name of the state, recover from the persons who hereafter violate this section the amounts expended by the state in removing the sign or other marking and in restoring the appearance of the property on which it was affixed.
The commissioner is empowered to remove any such prohibited sign or other marking in place upon or over any road taken over by him for construction or maintenance.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
The term "public road," as used in this section, shall include any street, alley or public highway.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
Repealed.
Acts, 1961 Reg. Sess., Ch. 133.
(1) Memorial markers may be placed near to where a fatal accident occurred, considering available space, property owner complaints or other constraints; and
(2) Decorations, flowers or other memorial ornaments or tributes may be placed on the right-of-way by family members.
(b) Notwithstanding any provision of the rules to the contrary, the commissioner may direct or cause the removal of any memorial marker or tribute from a state highway right-of-way , without notice, upon the determination by the commissioner that the removal is necessary for construction, maintenance, safety or other purpose. The state of West Virginia, its agencies and subdivisions, and their officers and employees shall not be liable for any claims arising as a result of the removal of a marker or tribute.
Repealed.
Acts, 1951 Reg. Sess., Ch. 129.
The Legislature further finds and declares that fiscal actualities reflect that the people of the State of West Virginia would suffer economically if the state failed to participate fully in the allocation and apportionment of federal-aid highway funds, more specifically that a reduction in federal-aid highway funds would necessitate increased local taxation to support and maintain the highway program and system, and that it is the intention of this bill, among other things, to provide a statutory basis for regulation of outdoor advertising consistent with the public policy relating to areas adjacent to federal-aid interstate and primary highways declared by the Congress of the United States, in Title 23, United States Code, and that the economic benefit resulting from full participation in the federal highway program would constitute a benefit to the community as a whole.
The word "sign" shall mean any structure erected for advertising purposes upon which any poster, bill, printing, writing, drawing, painting, or advertising material of any kind or character whatsoever, may be placed, posted, painted, tacked, nailed, glued or otherwise fastened, affixed or displayed.
The word "display" shall mean any poster, bill, printing, writing, drawing, painting, or advertising material of any kind or character whatsoever, designed and intended to draw the attention of the public to any goods, merchandise, property, real or personal, business service, entertainment or amusement, produced, bought, sold, conducted, furnished, or dealt in by any person, which is placed, posted, painted, tacked, nailed, glued or otherwise affixed or fastened to any advertising sign or structure, or otherwise displayed outdoors.
The word "device" shall mean any card, cloth, paper, metal or wooden advertising emblem or sign of any kind or character, which is posted, stuck, glued, tacked, nailed, painted or otherwise fastened or affixed to or upon any fence, post, tree or thing other than an advertising sign or structure.
"Person" shall include an individual, partnership, association, or corporation.
(1) No advertising sign shall be erected or maintained which involves rapid motion or rotation of the structure or any part thereof: Provided, That an advertising sign that does involve motion or rotation which is not rapid to effect changeable messages shall be permitted in accordance with legislative rules to be proposed by the division of highways of the department of transportation in accordance with the provisions of article three, chapter twenty-nine-a of this code;
(2) No advertising display or device shall use the word "stop" or "danger" or present or imply the need or requirement of stopping or the existence of danger;
(3) No advertising sign, display or device shall be a copy or imitate a traffic sign or other official sign;
(4) No advertising display or device shall attempt or purport to direct traffic;
(5) No advertising sign shall contain lighting which is not shielded and any lighting shall be of such low intensity as not to cause glare or impair the vision of the operator of any motor vehicle;
(6) No advertising display or device shall be illuminated by any rapid flashing, intermittent light or lights;
(7) No advertising display or device shall be painted, affixed or attached to any natural feature;
(8) No advertising sign, display or device shall hinder the clear, unobstructed view of approaching or merging traffic or obscure from view any traffic sign or other official sign;
(9) No advertising sign, display or device shall be so located as to obscure the view of any connecting road or intersection;
(10) No advertising sign, display or device shall be erected, outside of any municipality, within five hundred feet of any church, school, cemetery, public park, public reservation, public playground or state or national forest except markers for underground utility facilities;
(11) No advertising sign, the permit for which has been applied for subsequent to the thirty-first day of December, two thousand three, that is composed of stacked sign faces, one on top of the other, on the same structure, facing the same direction, each having more than three hundred square feet is permitted;
(12) No advertising device which is composed of separate sign faces in a side by side formation, on the same structure, facing the same direction, each having an area of more than three hundred square feet is permitted;
(13) No advertising device, the permit for which has been applied for subsequent to the thirty-first day of December, two thousand three, which contains a sign facing a single direction may have an area greater than six hundred seventy-two square feet: Provided, That cutouts and extensions which expand the area may be allowed to the extent the area is expanded by no more than thirty percent of its original permitted configuration;
(14) No more than one sign structure is permitted at a location.
The commissioner may, after thirty days' notice in writing to the licensee, make and enter an order revoking any license granted by him or her upon repayment of a proportionate part of the license fee, in any case where he or she finds that any material information required to be given in the application for the license is knowingly false or misleading or that the licensee has violated any of the provisions of this article, unless the licensee, before the expiration of said thirty days, corrects the false or misleading information and complies with the provisions of this article. The order shall be accompanied by findings of fact and conclusions of law upon which the order was made and entered. Any person adversely affected by an order made and entered by the commissioner is entitled to judicial review of the order. The judicial review shall be in the circuit court for the county in which the owner of the sign has his or her principal place of business in this state, or in the circuit court of Kanawha County if all parties agree. The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals of West Virginia. Legal counsel and services for the commissioner in appeal proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General or his or her assistants, and in appeal proceedings in any circuit court by the prosecuting attorney of the county as well, all without additional compensation. The commissioner may employ special counsel to represent the commissioner in a particular proceeding.
(b) A separate application for a permit shall be made for each separate advertising sign, display or device, on a form furnished by the commissioner, the application shall be signed by the applicant or his or her representative duly authorized in writing to act for him or her and shall describe and set forth the size, shape and the nature of the proposed advertising sign, display or device and its actual or proposed location with sufficient accuracy to enable the commissioner to locate and identify it. Every application for a changeable message sign shall be accompanied by a fee of five hundred dollars, which shall be retained by the commissioner if the permit is issued. Every application for all other signs shall be accompanied by a fee of twenty dollars for each advertising sign, display or device, which shall be retained by the commissioner if the permit is issued. In addition, a nonrefundable inspection fee of seventy-five dollars shall be charged for each proposed location along interstate and federal-aid primary highways. A nonrefundable inspection fee of twenty-five dollars shall be charged for each proposed location along all other public roads. An annual permit renewal fee, not to exceed sixty dollars per permit, shall be charged for renewal of each changeable message sign. Permit renewal fees for all other signs shall be established by legislative rule not to exceed twenty-five dollars per permit annually. Each portion of an advertising sign upon which a display is posted or exhibited constitutes a separate advertising sign for purposes of this section. If the permit is refused, the commissioner shall make and enter an order to that effect and shall cause a copy of the order to be served on the applicant by certified mail, return receipt requested, and shall refund one-half the fee to the applicant. The order shall be accompanied by findings of fact and conclusions of law upon which the order was made and entered. Each application shall be accompanied by an affidavit of the applicant or his or her agent that the owner or other person in control or possession of the real property upon which the advertising sign, display or device is to be constructed, erected, operated, used or maintained has consented to having the advertising sign, display or device on his or her property. Application shall be made in like manner for a permit to operate, use or maintain any existing advertising sign, display or device. Permits issued under this section expire on the thirtieth day of June of each year and shall not be prorated and may be renewed upon the payment of a renewal fee as provided in this section. No application is required for a renewal of a permit.
(c) For all signs other than changeable message signs, if more than one side of an advertising sign is used for advertising, a permit application or renewal fee for each side is required. One permit application or renewal fee shall be charged for each changeable message sign. Advertisements sculptured in the round shall be treated as using three sides.
(d) The holder of a permit, during the term of the permit, has the right to change the advertising copy of the structure or sign for which it was issued without payment of any additional fee.
(e) The commissioner may, after thirty days' notice in writing to the permittee, make and enter an order revoking any permit issued by him or her under this section upon repayment of a proportionate part of the fee in any case where it shall appear to the commissioner that the application for the permit contains knowingly false or misleading information or that the permittee has violated any of the provisions of this article, unless the permittee shall, before the expiration of the thirty days, correct the false or misleading information and comply with the provisions of this article. The order shall be accompanied by findings of fact and conclusions of law upon which the order was made and entered. If the construction, erection, operation, use or maintenance of any advertising sign, display or device for which a permit is issued by the commissioner and the permit fee has been paid as provided for in this section is prevented by any zoning board, commission or other public agency which also has jurisdiction over the proposed advertising sign, display or device, or its site, the fee for the advertising sign, display or device shall be returned by the commissioner and the permit revoked. But one-half the fee shall be considered to have accrued upon the erection of an advertising sign or structure or the display of advertising material followed by any inspection by the commissioner or his or her representatives.
(f) Any person adversely affected by an order made and entered by the commissioner refusing to grant or revoking a permit is entitled to judicial review of the order. The judicial review shall be: (1) In the county in which the person applying for the permit has his or her principal place of business in this state; or (2) in the circuit court for the county in which the sign for which the permit is sought is to be located; or (3) in the circuit court of Kanawha County if all parties agree. The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals of West Virginia. Legal counsel and services for the commissioner in appeal proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the attorney general or his or her assistants, and in appeal proceedings in any circuit court by the prosecuting attorney of the county as well, all without additional compensation. The commissioner may employ special counsel to represent the commissioner in a particular proceeding.
The provisions of this section shall not be deemed to prevent the payment of just compensation for signs, displays or devices required to be removed under sections three, five, six and eight of this article.
(a) "Abandoned salvage yard" means any unlicensed salvage yard or any salvage yard that was previously licensed but upon which the license has not been renewed for more than one year.
(b) "Commissioner" means the Commissioner of the West Virginia Division of Highways.
(c) "Fence" means an enclosure, barrier or screen constructed of materials or consisting of plantings, natural objects or other appropriate means approved by the commissioner and located, placed or maintained so as effectively to screen at all times salvage yards and the salvage therein contained from the view of persons passing upon the public roads of this state.
(d) "Occupied private residence" means a private residence which is occupied for at least six months each year.
(e) "Owner or operator" includes an individual, firm, partnership, association or corporation or the plural thereof.
(f) "Residential community" means an area wherein five or more occupied private residences are located within any one thousand-foot radius.
(g) "Salvage" means old or scrap brass, copper, iron, steel, other ferrous or nonferrous materials, batteries or rubber and any junked, dismantled or wrecked machinery, machines or motor vehicles or any parts of any junked, dismantled or wrecked machinery, machines or motor vehicles.
(h) "Salvage yard" means any place which is maintained, operated or used for the storing, keeping, buying, selling or processing of salvage, or for the operation and maintenance of a motor vehicle graveyard: Provided, That no salvage yard shall accept, store or process more than one hundred waste tires unless it has all permits necessary to operate a monofill, waste tire processing facility or solid waste facility. Any salvage yard which currently has on its premises more than one hundred waste tires not on a vehicle must establish a plan in conjunction with the Department of Environmental Protection for the proper disposal of the waste tires.
(i) "Waste tire" means any continuous solid or pneumatic rubber covering designed to encircle the wheel of a vehicle but which has been discarded, abandoned or is no longer suitable for its original, intended purpose nor suitable for recapping, or other beneficial use, as defined in section two, article fifteen-a, chapter twenty-two of this code, because of wear, damage or defect. A tire is no longer considered to be suitable for its original intended purpose when it fails to meet the minimum requirements to pass a West Virginia motor vehicle safety inspection. Used tires located at a commercial recapping facility or tire dealer for the purpose of being reused or recapped are not waste tires.
(j) "Waste tire monofill or monofill" means an approved solid waste facility where waste tires not mixed with any other waste are placed for the purpose of long term storage for eventual retrieval for marketing purposes.
(k) "Waste tire processing facility" means a solid waste facility or manufacturer that accepts waste tires generated by sources other than the owner or operator of the facility for processing by such means as cryogenics, pyrolysis, pyroprossing cutting, splitting, shredding, quartering, grinding or otherwise breaking down waste tires for the purposes of disposal, reuse, recycling or marketing.
The license of any salvage yard duly issued under the former provisions of this article, which salvage yard or any part thereof on the effective date of this article, is: (1) Within one thousand feet of the nearest edge of the right-of-way of any road within the state road system designated and classified or redesignated and reclassified as expressway, trunkline or feeder, or any road within the state road system designated and classified or redesignated and reclassified for purposes of allocation of federal highway funds as part of the federal-aid interstate or primary systems; or is (2) within five hundred feet of the nearest edge of the right-of-way of any state local service road; or is (3) within one thousand feet of the nearest occupied private residence or within five thousand feet of the nearest occupied private residence which is part of a residential community, may be renewed only if the view of the said salvage yard and all parts thereof are effectively screened from the adjacent road by natural objects, plantings, fences or otherappropriate means or a waiver is obtained from the owner of an occupied private residence. The provisions of this paragraph, as amended, shall apply only to salvage yards licensed after the first day of April, one thousand nine hundred eighty-eight.
Any salvage yard which, on the effective date of this article, is duly licensed under the former provisions of this article may be established or continue to be operated and maintained without screening by natural objects, plantings, fences or other appropriate means so long as any part of such salvage yard is: (1) Not located within one thousand feet of any road within the state road system designated and classified or redesignated and reclassified as expressway, trunkline or feeder, or any road within the state road system designated and classified or redesignated and reclassified for the purposes of allocation of federal highway funds as part of the federal-aid interstate or primary systems; or is (2) not located within five hundred feet of the nearest edge of the right-of-way of any state local service road; or is (3) not located within one thousand feet of the nearest residence or within five thousand feet of the nearest occupied private residence which is part of a residential community. Notwithstanding any other provision of this section to the contrary, ownership of a salvage yard duly licensed under the former provisions of this article and continuously maintained and licensed since the first day of July, one thousand nine hundred eighty-eight, may be sold or otherwise transferred, and the salvage yard shall be eligible for relicensureand may continue to be operated under the same legal requirements that would have been applicable had the change in ownership not occurred.
On or after the first day of July, one thousand nine hundred eighty-four, any owner or operator establishing, operating or maintaining a salvage yard for which a license is required under the provisions of this article is hereby required to first obtain an approval permit from the county planning commission, or if the county does not have a county planning commission, from an appropriate office or agency designated by the county commission, in which the salvage yard is located. The county planning commission or designated agency or office shall promulgate such reasonable rules including, but not limited to, determining the effect of the proposed salvage yard on residential, business or commercial property investment and values, establishing a quota for the number of salvage yards in the county, and the social, economic and environmental impact on community growth and development in utilities, health, education, recreation, safety, welfare and convenience, if any, before issuing such approval permit. These rules shall conform to guidelines established in rules promulgated by the commissioner. The fee for the approval permit shall be twenty-five dollars, payable upon the filing of the application on forms to be designated and approved by the county planning commission or designated office or agency.
Upon the granting of an approval permit by the county planningcommission, the owner or operator shall then apply to the commissioner for a license to operate. The commissioner may issue a license to the applicant, but only after an approval permit has issued in the first instance and the location of the salvage yard is in compliance with the location requirements of section four of this article. The approval permit requirement of this section does not apply to any owner or operator who has established, or is operating or maintaining, a salvage yard prior to the first day of July, one thousand nine hundred eighty-four.
If any salvage yard at any location is terminated under the provisions of this section or by court order as provided in section nine of this article, the commissioner shall not thereafter license any salvage yard at any such location if such location or any part thereof is (1) within one thousand feet of the nearest edge of the right-of-way of any road within the state road system designated and classified or redesignated and reclassified as expressway, trunkline or feeder, or any road within the state road system designated and classified or redesignated and reclassified for purposes of allocation of federal highway funds as part of the federal-aid interstate or primary systems or (2) within five hundred feet of the nearest edge of the right-of-way of any state local service road unless and until the view of such salvage yard or any part thereof from such state local service road is screened by fences as provided in this article.
Any person violating any provision of this article, whether as principal, agent or employee, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars; and such person shall be guilty of a separate offense for each month during a portion of which any violation of this article is committed, continued or permitted: Provided, however, That in the event of an appeal from any such conviction, the period between the date a notice of appeal is filed and the date of the final order of the court last considering the appeal shall not be considered a period of continuing in violation of this article.
The provisions of section seven, article twelve, chapter eleven, and article thirteen-a, chapter eleven of this code, shall not apply to salvage yards covered by the provisions of this article.
If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other provisions or applications of this article, and to this end the provisions of this article are declared to be severable.
Acts, 2005 Reg. Sess., Ch. 199.
Acts, 2005 Reg. Sess., Ch. 199.
Acts, 2005 Reg. Sess., Ch. 199.
Acts, 2005 Reg. Sess., Ch. 199.
Acts, 2005 Reg. Sess., Ch. 199.
Acts, 2005 Reg. Sess., Ch. 199.
Acts, 2005 Reg. Sess., Ch. 199.
Acts, 2005 Reg. Sess., Ch. 199.
Acts, 2005 Reg. Sess., Ch. 199.
Acts, 2005 Reg. Sess., Ch. 199.
(1) "Commissioner" means the Commissioner of the Division of Highways or his or her designee.
(2) "Abandoned household appliance" means a refrigerator, freezer, range, stove, automatic dishwasher, clothes washer, clothes dryer, trash compactor, television set, radio, air conditioning unit, commode, bed springs, mattress or other furniture, fixtures or appliances to which no person claims ownership and which is not in an enclosed building, a licensed salvage yard or the actual possession of a demolisher.
(3) "Abandoned motor vehicle" means any motor vehicle, or major part thereof, which is inoperative and which has been abandoned on public property for any period over five days, other than in an enclosed building or in a licensed salvage yard or at the business establishment of a demolisher; or any motor vehicle, or major part thereof, which has remained on private property without consent of the owner or person in control of the property for any period over five days; or any motor vehicle, or major part thereof, which is unattended, discarded, deserted and unlicensed and is not in an enclosed building, a licensed salvage yard or the actual possession of a demolisher Provided, That a motor vehicle, or major part thereof, is not an abandoned motor vehicle if: (a) The owner of the motor vehicle is storing the motor vehicle on the owner's property; (b) the motor vehicle is being stored for the purpose of using its parts on other motor vehicles owned by the owner; (c) the owner owns other motor vehicles similar to the motor vehicle being stored; and (d) the owner is a business licensed to do business in the State of West Virginia and not in the primary business of offering motor vehicles or parts thereof for sale.
(4) "Demolisher" means any person licensed by the Commissioner of the Division of Highways whose business, to any extent or degree, is to convert a motor vehicle or any part thereof or an inoperative household appliance into processed scrap or scrap metal or into saleable parts or otherwise to wreck or dismantle vehicles or appliances.
(5) "Enclosed building" means a structure surrounded by walls or one continuous wall and having a roof enclosing the entire structure and includes a permanent appendage thereto.
(6) "Enforcement agency" means any of the following or any combination of the following:
(a) Public law-enforcement officers of this state, including natural resources police officers;
(b) Public law-enforcement officers of any county, city or town within this state; and
(c) The Commissioner of the Division of Highways, his or her duly authorized agents and employees.
(7) "Inoperative household appliance" means a refrigerator, freezer, range, stove, automatic dishwasher, clothes washer, clothes dryer, trash compactor, television set, radio, air conditioning unit, commode, bed springs, mattress or other furniture, fixture or appliance which by reason of mechanical or physical defects can no longer be used for its intended purpose and which is either not serving a functional purpose or use or is not in an enclosed building, a licensed salvage yard or the actual possession of a demolisher.
(8) "Junked motor vehicle" means a motor vehicle, or any part thereof which: (a) Is discarded, wrecked, ruined, scrapped or dismantled; (b) cannot pass the state inspection required by article sixteen, chapter seventeen-c of this code; and (c) is either not serving a functional purpose or use or is not in an enclosed building, a licensed salvage yard or the actual possession of a demolisher: Provided, That a motor vehicle, or major part thereof, is not a junked motor vehicle if: (a) The owner of the motor vehicle is storing the motor vehicle on the owner's property; (b) the motor vehicle is being stored for the purpose of using its parts on other motor vehicles owned by the owner; (c) the owner owns other motor vehicles similar to the motor vehicle being stored; and (d) the owner is a business licensed to do business in the State of West Virginia and not in the primary business of offering motor vehicles or parts thereof for sale.
(9) "Licensed salvage yard" means a salvage yard licensed under article twenty-three of this chapter.
(10) "Motor vehicle" means a vehicle which is or was self-propelled, including, but not limited to, automobiles, trucks, buses and motorcycles.
(11) "Person" means a natural person, corporation, firm, partnership, association or society and the plural as well as the singular.
(b) No person may, within this state, place or abandon any inoperative household appliance upon the right-of-way of any public highway or upon any other public property; nor may any person, within this state, place or abandon any inoperative household appliance upon any private property unless it be at a licensed salvage yard, solid waste facility, other business authorized to accept solid waste or at the business establishment of a demolisher. Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be sentenced and fined as set forth below.
(c) Any person who is guilty of a misdemeanor as described in this section and the abandoned motor vehicle, junked motor vehicle, or inoperative household appliance does not exceed one hundred pounds in weight or twenty-seven cubic feet in size is subject to a fine of not less than $50 nor more than $1,000 or, in the discretion of the court, sentenced to perform community service by cleaning up litter from any public highway, road, street, alley or any other public park or public property or waters of the state, as designated by the court, for not less than eight nor more than sixteen hours, or both.
(d) Any person who is guilty of a misdemeanor as described in this section and the abandoned motor vehicle, junked motor vehicle or inoperative household appliance is greater than one hundred pounds in weight or twenty-seven cubic feet in size, but less than five hundred pounds in weight or two hundred sixteen cubic feet, is subject to a fine of not less than $500 nor more than $2,000 or, in the discretion of the court, may be sentenced to perform community service by cleaning up litter from any public highway, road, street, alley or any other public park or public property or waters of the state, as designated by the court, for not less than sixteen nor more than thirty-two hours, or both.
(e) Any person who is guilty of a misdemeanor as described in this section and the abandoned motor vehicle, junked motor vehicle or inoperative household appliance is greater than five hundred pounds in weight or two hundred sixteen cubic feet in size is subject to a fine not less than $2,500 or not more than $25,000 or confinement in jail for not more than one year, or both. In addition, the violator may be guilty of creating or contributing to an open dump as defined in section two, article fifteen, chapter twenty-two of this code and subject to the enforcement provisions of section fifteen of said article.
(f) Any person convicted of a second or subsequent violation of this section is subject to double the authorized range of fines and community service for the subsection violated.
(g) The sentence of litter cleanup shall be verified by natural resources police officers from the Division of Natural Resources or environmental inspectors from the Department of Environmental Protection. Any defendant receiving the sentence of litter cleanup shall provide within a time to be set by the court written acknowledgment from a natural resources police officer or environmental inspector that the sentence has been completed and the litter has been disposed of lawfully.
(h) Any person who has been found by the court to have willfully failed to comply with the terms of a litter cleanup sentence imposed by the court pursuant to this section is subject to, at the discretion of the court, double the amount of the original fines and community service penalties.
(a) The enforcement agency which takes into custody and possession an abandoned motor vehicle or junked motor vehicle shall, within fifteen days after taking custody and possession thereof, notify the last-known registered owner of the motor vehicle and all lienholders of record that the motor vehicle has been taken into custody and possession, the notification to be by registered or certified mail, return receipt requested. The notice shall:
(1) Contain a description of the motor vehicle, including the year, make, model, manufacturer's serial or identification number or any other number which may have been assigned to the motor vehicle by the Commissioner of Motor Vehicles and any distinguishing marks;
(2) Set forth the location of the facility where the motor vehicle is being held and the location where the motor vehicle was taken into custody and possession;
(3) Inform the owner and any lienholders of record of their right to reclaim the motor vehicle within ten days after the date notice was received by the owner or lienholders, upon payment of all towing, preservation and storage charges resulting from taking and placing the motor vehicle into custody and possession; and
(4) State that the failure of the owner or lienholders of record to exercise their right to reclaim the motor vehicle within the ten-day period shall be deemed a waiver by the owner and all lienholders of record of all right, title and interest in the motor vehicle and of their consent to the sale or disposal of the abandoned motor vehicle or junked motor vehicle at a public auction or to a licensed salvage yard or demolisher.
(b) If the identity of the last registered owner of the abandoned motor vehicle or junked motor vehicle cannot be determined or if the certificate of registration or certificate of title contains no address for the owner or if it is impossible to determine with reasonable certainty the identity and addresses of all lienholders, notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, the publication area shall be the county wherein the motor vehicle was located at the time the enforcement agency took custody and possession thereof and the notice shall be sufficient to meet all requirements of notice pursuant to this article. Any notice by publication may contain multiple listings of abandoned motor vehicles and junked motor vehicles. The notice shall be published within fifteen days after the motor vehicle is taken into custody and possession and shall have the same contents required for a notice pursuant to subsection (a) of this section, except that the ten-day period shall run from the date the notice is published as aforesaid.
(c) An enforcement agency which hires any person or entity to take into custody and possession an abandoned motor vehicle or junked motor vehicle pursuant to this section shall notify the person or entity hired of the name and address of the registered owner of the motor vehicle, if known, and all lienholders of record, if any, within fifteen days after the vehicle is taken into custody and possession: Provided, That the requirements of this subsection shall not apply to motor vehicles for which the registered owner cannot be ascertained by due diligence or investigation.
(d) The person or entity hired by an enforcement agency to take into custody or possession an abandoned motor vehicle or junked motor vehicle shall, within thirty days after the possession, notify the registered owner of the vehicle and all lienholders of record, if any, as identified by the enforcement agency pursuant to subsection (c) of this section, by registered mail, return receipt requested, that the motor vehicle has been taken into custody and possession. The notice shall have the same contents required for a notice pursuant to subsection (a) of this section, including the ten-day period the owner or lienholder has to reclaim the motor vehicle. Upon the issuance of the notice, the identified owner of the motor vehicle is liable and responsible for all costs for towing, preservation and storage of the motor vehicle: Provided, That failure to issue the notice required by this subsection within thirty days after possession of the motor vehicle relieves the identified owner of the motor vehicle of any liability for charges for towing, preservation and storage in excess of the sum of the first five days of the charges: Provided, however, That the requirements of this subsection do not apply to motor vehicles for which the registered owner thereof cannot be ascertained by due diligence or investigation.
(e) For an abandoned motor vehicle or junked vehicle having a loan value of $7,500 or less, as ascertained by values placed upon motor vehicles using a standard industry reference book, a person or entity hired by an enforcement agency to tow the abandoned motor vehicle or junked motor vehicle may, if the motor vehicle is not claimed by the owner or a lienholder after notice within the time set forth in subsection (d) of this section or if the identity of the last registered owner of the abandoned motor vehicle or junked motor vehicle cannot be determined or if the certificate of registration or certificate of title contains no address of the owner or if it is impossible to determine with reasonable certainty the identity and address of all lienholders after publication as set forth in subsection (b) of this section, file an application with the Division of Motor Vehicles for a certificate of title and registration which, upon payment of the appropriate fees, shall be issued. The person or entity may then sell the motor vehicle at private sale or public auction.
(f) For an abandoned motor or junked motor vehicle having a loan value of $7,500 or less, as ascertained by values placed upon motor vehicles using a standard industry reference book, a licensed motor vehicle dealer, as defined in section one, article one, chapter seventeen-a of this code, a motor vehicle repair facility or a towing company registered with the Public Service Commission pursuant to section two-a, article two, chapter twenty-four-a of this code may, if a motor vehicle is abandoned on the property or place of business of the dealer or a motor vehicle repair facility or towing company and is not claimed by the owner or a lienholder after notice within the time set forth in subsection (d) of this section or if the identity of the last registered owner of the abandoned motor vehicle cannot be determined or if the certificate of registration or certificate of title contains no address of the owner or if it is impossible to determine with reasonable certainty the identity and address of all lienholders after publication as set forth in subsection (b) of this section, file an application with the Division of Motor Vehicles for a certificate of title and registration which, upon payment of the appropriate fees, shall be issued. The dealer or motor vehicle repair facility or towing company may then sell the motor vehicle at private sale or public auction.
(g) For purposes of this section motor vehicle repair
facilities and towing companies are not used motor vehicle dealers
as that term is defined by subdivision (2), subsection (a), section
one, article six, chapter seventeen-a of this code.
(b) When an enforcement agency has in its custody and possession inoperative or abandoned household appliances collected in accordance with section seven of this article it shall sell the property from time to time at public auction or to a licensed salvage yard or demolisher.
Any remainder from the proceeds of the sale of an abandoned motor vehicle or junked motor vehicle after payment of expenses shall be held for the last registered owner of the motor vehicle or any lienholder for ninety days, after which time, if no owner or lienholder claims the remainder, it shall be deposited in the state road fund.
The Legislature hereby finds that the continued and future success of the coal industry is greatly dependent upon a quality network of roads and highways. Critical market forces make it imperative for such a road system to be constructed and maintained. It is the responsibility of the state and all industry to form a partnership to accomplish this goal. "Industrial roads," for the purposes of this article, may be construed to include a single bridge or combination of bridges.
(a) "Company" means an individual, partnership or corporation licensed under the laws of the state of West Virginia and engaged in any industrial business.
(b) "Industrial road" means a public road of ten miles or less in length which is vital to transporting of coal, or a road, which upon the designation of the commissioner, is determined to be vital to one or more companies.
(c) "Commissioner" means the commissioner of the department of highways.
(d) "Cost" means all funds needed to do engineering, right-of-way acquisition, construction or upgrading. Upgrading does not mean normal routine maintenance.
(e) "Department" means the department of highways.
(f) "Upgrading" means any work on a highway or bridge which is not routine maintenance.
Any company may apply to the commissioner to have a certain road designated an industrial road. The commissioner shall develop an application form. In such application the company shall agree to pay to the department one half of the amount of money needed to bring such road up to the standards needed to become an industrial road. All construction or upgrading to be performed under this article shall be bid out to an independent contractor in such a manner as prescribed in this code. Upon approval of the application by the commissioner the company shall transfer to a special revenue account for the department of highways in the state treasury as set forth in this article a sum equal to one half of costs needed to upgrade or construct the road to standard or the company shall deliver to the commissioner an irrevocable letter of credit drawn on a bank chartered by the state of West Virginia or the federal government in an amount equal to such cost: Provided, That the company shall transfer the moneys before any construction or upgrading is contracted for.
The department shall then begin the process as outlined in this code to upgrade or construct such public road.
The commissioner shall promulgate rules establishing a program for designating industrial public roads in the state. The criteria for such designation shall include:
(a) The economic impact of such road on the coal or other companies which use such public road;
(b) The impact on the citizens which use the road in their daily business; and
(c) The cost of any improvements which would be necessary to bring the road up to standard versus the benefits.
The commissioner shall publicize the program and allow any company to make such application.
The commissioner shall establish standards for construction and upgrading of industrial roads. In the design of these standards, he shall consult with representatives or organizations which represent companies. The standards shall provide for:
(a) Each road to be at least sixteen feet in width in addition to any berms or shoulders;
(b) Design and construction to handle the weight of coal and other industrial trucks and equipment as transported by the companies;
(c) Giving the citizens of the area a better road to travel;
(d) Having adequate drainage; and
(e) Any other feature which the commissioner determines is necessary to carry out the goals of this article.
There shall be created in the state treasury a special revenue fund to be known as the "Industrial Road Construction Fund." The fund shall receive all funds contributed by companies for the construction of approved roads. Only moneys needed to pay the costs of the roads shall be withdrawn, however, the commissioner may use any moneys generated by any earned interest to offset his administrative costs in administering this article.
In addition to all other powers conferred upon the commissioner under other provisions of this code, the commissioner shall have all powers necessary to carry out the construction, planning or development of any industrial road provided for by this article.
This article shall expire on the thirty-first day of December, one thousand nine hundred ninety-two, unless reauthorized by the Legislature of the state of West Virginia: Provided, That if the governor feels the continuation of this article, before the above mentioned date, would cause a hardship, he may cancel the program. However, any project which is approved by the commissioner shall be completed.
The commissioner shall have the authority to promulgate rules to effectuate this article.
The provisions of this article are severable and if any of its provisions shall be held unconstitutional, the decision of the court shall not impair the remaining provisions of this article. This article shall be construed liberally.
For purposes of this article:
(a) "Commissioner" means the West Virginia commissioner of highways continued pursuant to section one, article two-a of this chapter;
(b) "Amendment" means the amendment to the constitution of this state entitled "Safe Roads Amendment of 1996" as approved by referendum in the month of November, one thousand nine hundred ninety-six;
(c) "State road bond" means any bond or bonds issued by the state pursuant to section two of this article;
(d) "Division" means the West Virginia division of highways established under section one, article two-a, of this chapter, or any successor to all or any substantial part of its powers and duties; and
(e) "Secretary" means the secretary of the West Virginia department of transportation.
Bonds of the state of West Virginia, under authority of the "Safe Roads Amendment of 1996" of the par value not to exceed in the aggregate five hundred fifty million dollars, are hereby authorized to be issued and sold for matching available federal funds for highway construction and for general highway construction or improvements in each of the fifty-five counties in this state, as provided for by the constitution and the provisions of this article. During the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-eight, the amount of one hundred ten million dollars in bonds may be sold. That same amount is authorized to be sold in each of the next four following fiscal years: Provided, That any amount not sold in a fiscal year may be carried forward and sold in the next fiscal year.
These bonds may be issued by the governor upon resolution passed by the Legislature authorizing the same. The bonds shall bear the date and mature at the time, bear interest at the rate, be in amounts, be in denominations, be in the registered form, carry registration privileges, be due and payable at the time and place and in amounts, and subject to terms of redemption as the resolution may allow.
Both the principal and interest of the bonds shall be payable in the lawful money of the United States of America and the bonds and the interest thereon shall be exempt from taxation by the stateof West Virginia, or by any county, district or municipality thereof, which fact shall appear on the face of the bonds as part of the contract with the holder of the bond.
The bonds shall be executed on behalf of the state of West Virginia, by the manual or facsimile signature of the state treasurer, under the great seal of the state or a facsimile of the great seal, and countersigned by the manual or facsimile signature of the auditor of the state.
All funds deposited to the credit of the safe road bond debt service fund shall be kept by the treasurer of the state in a separate account and all money belonging to the fund shall be deposited in the treasury to the credit of the fund.
The fund shall be applied by the treasurer of the state for payments on the principal and interest on bonds sold pursuant to this article as it becomes due and payable. The remainder of the fund, if any, shall be invested by the state board of investments in the manner authorized under article six, chapter twelve of this code.
No part of the proceeds from the sale of bonds under this article may inure to the benefit of or be distributable to the officers, employees of the state except to pay reasonable compensation for services rendered to the state. Any person violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in jail not more than one year, or both fined and imprisoned.
(a) There shall be dedicated an annual amount from the collections of the tax imposed pursuant to section three, article fourteen, chapter eleven of this code, sufficient to pay the principal and interest of any state road bonds issued pursuant to this article.
(b) Beginning in the month of July, in the fiscal year in which bonds are first issued, and monthly thereafter, there shall be deposited into the safe road bond debt service fund an amount equal to one tenth of the projected annual principal, interest requirements, as certified by the commissioner, on all bonds issued pursuant to this article, of the tax collected pursuant to article fourteen, chapter eleven of this code.
(1) That there is a public need for timely acquisition or construction of and improvements to transportation facilities within the state that are compatible with state and local transportation plans;
(2) That public need may not be wholly satisfied by existing ways in which transportation facilities are acquired, constructed or improved;
(3) That authorizing private entities to acquire, construct or improve one or more transportation facilities may result in the availability of transportation facilities to the public in a more timely or less costly manner, thereby serving the public health, safety, convenience and welfare and the enhancement of the residential, agricultural, recreational, economic, commercial and industrial opportunities;
(4) That providing a mechanism for the solicitation, receipt and consideration of proposals submitted by private entities for the purposes described in this section serves the public purpose of this article to the extent that the action facilitates the timely acquisition or construction of or improvement to a qualifying transportation facility or the continued operation of a qualifying transportation facility; and
(5) That providing for the expansion and acceleration of transportation financing using innovative financing mechanisms, including, but not limited to, design-build contracting and financing arrangements, will add to the convenience of the public and allow public and private entities to have the greatest possible flexibility in contracting with each other for the provision of the public services which are the subject of this article.
(1) "Comprehensive agreement" means the comprehensive agreement by and between a developer and the division required by section nine of this article.
(2) "Department" means the Department of Transportation.
(3) "Developer" means the private entity that is responsible for the acquisition, construction or improvement of a qualifying transportation facility.
(4) "Division" means the Division of Highways.
(5) "Material default" means any default by the developer in the performance of its duties under subsection (f), section eight of this article that jeopardizes adequate service to the public from a qualifying transportation facility and remains unremedied after the division has provided notice to the developer and a reasonable cure period has elapsed.
(6) "Private entity" means any natural person, corporation, limited liability company, partnership, joint venture or other private business entity.
(7) "Public entity" means the State of West Virginia or any political subdivision thereof.
(8) "Qualifying transportation facility" means one or more transportation facilities acquired, constructed or improved by a private entity pursuant to this article.
(9) "Revenues" mean the user fees or service payments generated by a qualifying transportation facility.
(10) "Service contract" means a contract entered into between a public entity and a developer pursuant to section six of this article.
(11) "Service payments" mean payments to the developer of a qualifying transportation facility pursuant to a service contract.
(12) "State" means the State of West Virginia.
(13) "Transportation facility" means any public inland waterway port facility, road, bridge, tunnel, overpass or existing airport used for the transportation of persons or goods, and the structures, equipment, facilities or improvements necessary or incident thereto.
(14) "User fees" mean the rates, tolls, fees or other charges imposed by the developer of a qualifying transportation facility for use of all or a portion of the qualifying transportation facility pursuant to the comprehensive agreement.
(1) Undertake one level of review for each proposal submitted by a private entity in accordance with this article. The review shall consist of the review by the division of the conceptual proposal: Provided, That expenses of the division incurred for review of proposal shall be paid by the private entity submitting the proposal. The division shall take into account at all times the needs and funding capabilities of the state as a whole in terms of transportation;
(2) Enter into agreements, contracts or other transactions with any agency that is part of the department, any federal, state, county, municipal agency or private entity;
(3) Act on behalf of the state and represent the state in the planning, financing, development and construction of any transportation facility for which solicited proposals have been received in accordance with the provisions of this article, with the concurrence of the affected public entity. Other public entities in this state shall cooperate to the fullest extent with what the division considers appropriate to effectuate the duties of the division;
(4) Exempt from disclosure any sensitive business, commercial or financial information that is not customarily provided to business competitors that is submitted to the division for final review and approval;
(5) Exempt from disclosure any documents, communications or information described in this section including, but not limited to, the project's design, management, financing and other details in accordance with the provisions of article one, chapter twenty-nine-b of this code; and
(6) Do any and all things necessary to carry out and accomplish the purposes of this article.
(1) A statement of the private entity's qualifications and experience;
(2) A description of the proposed transportation facility;
(3) A description of the financing for the transportation facility; and
(4) A statement setting forth the degree of public support for the proposed transportation facility, including a statement of the benefits of the proposed transportation facility to the public and its compatibility with existing transportation facilities.
(b) Following review by the division, the division shall submit to the Commissioner of Highways the conceptual proposals and priority ranking for review for final selection.
(c) The conceptual proposal shall be accompanied by the following material and information unless waived by the division with respect to the transportation facility or facilities that the private entity proposes to develop as a qualifying transportation facility:
(1) A topographic map (1:2,000 or other appropriate scale) indicating the location of the transportation facility or facilities;
(2) A description of the transportation facility or facilities, including the conceptual design of the facility or facilities and all proposed interconnections with other transportation facilities;
(3) The projected total life-cycle cost of the transportation facility or facilities and the proposed date for acquisition of or the beginning of construction of, or improvements to, the transportation facility or facilities;
(4) A statement setting forth the method by which the developer proposes to secure all property interests required for the transportation facility or facilities: Provided, That with the approval of the division, the private entity may request that the comprehensive agreement assign the division with responsibility for securing all property interests, including public utility facilities, with all costs, including costs of acquiring the property, to be reimbursed to the division by the private entity. The statement shall include the following information regarding the property interests or rights, including, but not limited to, rights to extract mineable minerals:
(A) The names and addresses, if known, of the current owners of the property needed for the transportation facility or facilities;
(B) The nature of the property interests to be acquired;
(C) Any property that the division may expect to condemn; and
(D) The extent to which the property has been or will be subjected to the extraction of mineable minerals.
(5) Information relating to the current transportation plans, if any, of each affected local jurisdiction;
(6) A list of all permits and approvals required for acquisition or construction of or improvements to the transportation facility or facilities from local, state or federal agencies and a projected schedule for obtaining the permits and approvals: Provided, That the acquisition, construction, improvement or operation of a qualifying transportation facility that includes the extraction of mineable minerals is required to obtain all necessary permits or approvals from all applicable authorities in the same manner as if it were not a qualifying transportation facility under this article;
(7) A list of public utility facilities, if any, that will be crossed or affected by or as the result of the construction or improvement of the public port transportation facility or facilities and a statement of the plans of the developer to accommodate the crossings or relocations;
(8) A statement setting forth the developer's general plans for financing and operating the transportation facility or facilities;
(9) The names and addresses of the persons who may be contacted for further information concerning the request;
(10) Information about the developer, including, but not limited to, an organizational chart of the developer, capitalization of the developer, experience in the operation of transportation facilities and references and certificates of good standing from the Tax Commissioner, Insurance Commissioner and the Division of Unemployment Compensation evidencing that the developer is in good standing with state tax, workers' compensation and unemployment compensation laws, respectively; and
(11) Any additional material and information requested by the Commissioner of Highways.
(d) The division, with approval of the Commissioner of Highways, may solicit proposals from private entities for the acquisition, construction or improvement of transportation facilities in a form and with the content determined by the division.
(e) The division may solicit any proposal for the acquisition, construction or improvement of the transportation facility or facilities as a qualifying transportation facility if it is determined that it serves the public purpose of this article. The division may determine that the acquisition, construction or improvement of the transportation facility or facilities as a qualifying transportation facility serves a public purpose if:
(1) There is a public need for the transportation facility of the type the private entity proposes to operate as a qualifying transportation facility;
(2) The transportation facility and the proposed interconnections with existing transportation facilities and the developer's plans for development of the qualifying transportation facility are reasonable and compatible with the state transportation plan and with the local comprehensive plan or plans;
(3) The estimated cost of the transportation facility or facilities is reasonable in relation to similar facilities;
(4) The acquisition, construction, improvement or the financing of the transportation facilities does not involve any moneys from the State Road Fund unless those moneys from the State Road Fund serve as a required match for federal funds specifically earmarked in a federal authorization or appropriation bill for a transportation facility to be acquired, constructed or equipped pursuant to this article: Provided, That the dedication of State Road Fund moneys in any fiscal year as state required match for the federal earmark does not exceed four percent of the immediate preceding three fiscal years average of division's construction contracts awarded under the competitive bid process: Provided, however, That the moneys from the General Revenue Fund may also be used if so designated and approved by the Legislature.
(5) The use of federal funds in connection with the financing of a qualifying transportation facility has been determined by the division to be compatible with the state transportation plan and with the local comprehensive plan or plans; and
(6) The private entity's plans will result in the timely acquisition or construction of or improvements to the transportation facility for their more efficient operation and that the private entity's plans will result in a more timely and economical delivery of the transportation facility than otherwise available under existing delivery systems.
(f) Notwithstanding any provision of this article to the contrary, the recommendation of the division to the Commissioner of Highways is subject to:
(1) The private entity's entering into a comprehensive agreement with the division; and
(2) With respect to transportation facilities, the requirement that public information dissemination with regard to any proposal under consideration comply with the division's policy on the public involvement process, as revised.
(g) In connection with its approval of the development of the transportation facility as a qualifying transportation facility, the division shall establish a date for the acquisition of or the beginning of construction of or improvements to the qualifying transportation facility. The division may extend that date.
(h) Selection by the Commissioner of Highways.
(1) Upon presentations of proposals received by the division, the commissioner shall make his or her decision for the project.
(2) The commissioner shall notify the division and the public of the final selection for the project.
(b) The developer may own, lease or acquire any other right to facilitate the development of the qualifying transportation facility.
(c) Any financing of the qualifying transportation facility may be in the amounts and upon terms and conditions determined by the developer. The developer may issue debt, equity or other securities or obligations, enter into sale and leaseback transactions and secure any financing with a pledge of, security interest in, or lien on, any or all of its property, including all of its property interests in the qualifying transportation facility.
(d) Subject to applicable permit requirements, the developer may cross any canal or navigable watercourse as long as the crossing does not unreasonably interfere with the current navigation and use of the waterway.
(e) In developing the qualifying transportation facility, the developer may:
(1) Make classifications according to reasonable categories for assessment of user fees; and
(2) With the consent of the division, make and enforce reasonable rules to the same extent that the division may make and enforce rules with respect to a similar transportation facility. The developer may, by agreement with appropriate law-enforcement agencies, arrange for video enforcement in connection with its toll collection activities.
(f) The developer shall:
(1) Acquire, construct or improve the qualifying transportation facility in a manner that meets the engineering standards of:
(A) The authority for facilities operated and maintained by the division, in accordance with the provisions of the comprehensive agreement; and
(B) The division, in accordance with the provisions of the comprehensive agreement;
(2) Keep the qualifying transportation facility open for use by the members of the public at all times after its initial opening upon payment of the applicable user fees or service payments: Provided, That the qualifying transportation facility may be temporarily closed because of emergencies or, with the consent of the division, to protect the safety of the public or for reasonable construction or maintenance procedures;
(3) Contract for the performance of all maintenance and operation of the transportation facility through the division, using its maintenance and operations practices, until the date of termination of the developer's duties as defined in the comprehensive agreement;
(4) Cooperate with the division in establishing any interconnection with the qualifying transportation facility requested by the division;
(5) Remain in compliance with state tax, workers' compensation and unemployment compensation laws; and
(6) Comply with the provisions of the comprehensive agreement and any service contract.
(1) Delivery of performance or payment bonds in connection with the construction of or improvements to the qualifying transportation facility, in the forms and amounts satisfactory to the division;
(2) Review and approval of the final plans and specifications for the qualifying transportation facility by the division;
(3) Inspection of the construction of or improvements to the qualifying transportation facility to ensure that they conform to the engineering standards acceptable to the division;
(4) Maintenance of a policy or policies of public liability insurance or self-insurance, in a form and amount satisfactory to the division and reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the qualifying transportation facility: Provided, That in no event may the insurance impose any pecuniary liability on the state, its agencies or any political subdivision of the state. Copies of the policies shall be filed with the division accompanied by proofs of coverage;
(5) Monitoring of the maintenance and operating practices of the developer by the division and the taking of any actions the division finds appropriate to ensure that the qualifying transportation facility is properly maintained and operated;
(6) Itemization and reimbursement to be paid to the division for the review and any services provided by the division;
(7) Filing of appropriate financial statements on a periodic basis;
(8) A reasonable maximum rate of return on investment for the developer;
(9) The date of termination of the developer's duties under this article and dedication to the division; and
(10) That a transportation facility shall accommodate all public utilities on a reasonable, nondiscriminatory and completely neutral basis and in compliance with the provisions of section seventeen-b, article four, chapter seventeen of this code.
(b) The comprehensive agreement may require user fees established by agreement of the parties. Any user fees shall be set at a level that, taking into account any service payments, allows the developer the rate of return on its investment specified in the comprehensive agreement: Provided, That the schedule and amount of the initial user fees to be imposed and any increase of the user fees must be approved by the Commissioner of the Division of Highways. A copy of any service contract shall be filed with the division. A schedule of the current user fees shall be made available by the developer to any member of the public on request. In negotiating user fees under this section, the parties shall establish fees that are the same for persons using the facility under like conditions and that will not unreasonably discourage use of the qualifying transportation facility. The execution of the comprehensive agreement or any amendment to the comprehensive agreement constitutes conclusive evidence that the user fees provided in the comprehensive agreement comply with this article. User fees established in the comprehensive agreement as a source of revenues may be in addition to, or in lieu of, service payments.
(c) In the comprehensive agreement, the division may agree to accept grants or loans from the developer, from time to time, from amounts received from the state or federal government or any agency or instrumentality of the state or federal government.
(d) The comprehensive agreement shall incorporate the duties of the developer under this article and may contain any other terms and conditions that the division determines serve the public purpose of this chapter. Without limitation, the comprehensive agreement may contain provisions under which the division agrees to provide notice of default and cure rights for the benefit of the developer and the persons specified in the comprehensive agreement as providing financing for the qualifying transportation facility. The comprehensive agreement may contain any other lawful terms and conditions to which the developer and the division mutually agree, including, without limitation, provisions regarding unavoidable delays or provisions providing for a loan of public funds to the developer to acquire, construct or improve one or more qualifying transportation facilities.
(e) The comprehensive agreement shall require the deposit of any earnings in excess of the maximum rate of return as negotiated in the comprehensive agreement in the Economic Development Project Bridge Loan Fund established pursuant to section eighteen-a, article twenty-two, chapter twenty-nine of this code.
(f) Any changes in the terms of the comprehensive agreement, agreed upon by the parties and subject to the requirements of subsection (h) of this section, shall be added to the comprehensive agreement by written amendment.
(g) Notwithstanding any provision of this article to the contrary, the division may not enter into any comprehensive agreements with a developer after the thirtieth day of June, two thousand thirteen.
(h) Notwithstanding any provision of this article to the contrary, the division may not enter into any comprehensive agreements with a developer after the thirtieth day of June, two thousand thirteen.
(i) Notwithstanding any provision of this article to the contrary, the division may not enter into a comprehensive agreement until the comprehensive agreement has been approved by the Legislature by the adoption of a concurrent resolution: Provided, That all voting on the floor of both houses on the question of the adoption of any concurrent resolution approving a comprehensive agreement shall be by yeas and nays to be entered on the Journals. If the Legislature approves the comprehensive agreement, the division shall submit the comprehensive agreement to the Governor for his or her approval or disapproval.
(1) To elect to take over the transportation facility or facilities and in that case it shall succeed to all of the rights, title and interest in the transportation facility or facilities, subject to any liens on revenues previously granted by the developer to any person providing financing for the facility or facilities and the provisions of subsection (c) of this section;
(2) To exercise the power of condemnation to acquire the qualifying transportation facility or facilities. Any person who has provided financing for the qualifying transportation facility and the developer, to the extent of its capital investment, may participate in the condemnation proceedings with the standing of a property owner;
(3) To terminate the comprehensive agreement and exercise any other rights and remedies that may be available to it at law or in equity, subject only to the express limitations of the terms of the comprehensive agreement; and
(4) To make or cause to be made any appropriate claims under the performance or payment bonds required by this article.
(b) In the event the division elects to take over a qualifying transportation facility pursuant to subdivision (1), subsection (a) of this section, the division may acquire, construct or improve the transportation facility, impose user fees for the use of the transportation facility and comply with any service contracts as if it were the developer. Any revenues that are subject to a lien shall be collected for the benefit of, and paid to, secured parties, as their interests may appear, to the extent necessary to satisfy the developer's obligations to secured parties, including the maintenance of reserves and the liens shall be correspondingly reduced and, when paid off, released. Remaining revenues, if any, after all payments to, or for the benefit of, secured parties shall be paid to the developer, subject to the negotiated maximum rate of return. The right to receive the payment, if any, shall be considered just compensation for the transportation facility or facilities. The full faith and credit of the division may not be pledged to secure any financing of the developer by the election to take over the qualifying transportation facility. Assumption of development of the qualifying transportation facility does not obligate the division to pay any obligation of the developer from sources other than revenues.
(b) Until the division has provided written certification as to the existence of a material default under subsection (a), section eleven of this article, the power of condemnation may not be exercised against a qualifying transportation facility.
(1) That a broad and unified system should be continued and persistently upgraded by state law for financing, planning, designing, constructing, expanding, improving, maintaining and operating the public road system and transportation facilities that together comprise the transportation infrastructure of this state;
(2) That, in addition to traditional means and methods of putting transportation infrastructure into place, a significant contribution to a system as described in subdivision one of this section can be made by public-private partnerships that will assist federal, state and local governments in their efforts to meet the evolving needs of governmental entities, industry, labor, commerce, and, most importantly, the citizens of this state;
(3) That available public funding necessary to provide for an adequate or more than adequate transportation infrastructure have not kept pace with the needs of the governmental entities that are charged with financing, developing and maintaining an optimal transportation infrastructure in this state;
(4) That investment in transportation infrastructure by private entities should be facilitated, and innovative financing mechanisms should be encouraged and developed, so as to utilize private capital and other funding sources to supplement governmental actions taken in support of transportation projects, to the end that the financial and technical expertise and other experience of private entities regarding the development of transportation facilities may be garnered and put into service on behalf of the state;
(5) That public and private entities should have a clear and well-designed statutory framework to work within that allows for flexibility in partnering with each other and developing transportation infrastructure projects; and
(6) This article should not be limited by any rule of strict construction, but should be liberally construed to effect the legislative purpose of conceiving and creating a modern transportation infrastructure under the leadership and guidance of governmental entities, with corresponding and cooperative assistance, under appropriate circumstances, by public-private partnerships, inuring to the benefit and prosperity of the state and the welfare of its citizens.
(1) "Affected local jurisdiction" means any county or incorporated municipality of this state in which all or any part of a transportation facility is or will be located, or any other local public entity, including, but not limited to, a public service district or highway authority or highway association that is directly affected by a transportation project.
(2) "Commissioner" means the Commissioner of Highways who is the chief executive officer of the Division of Highways.
(3) "Department" means the West Virginia Department of Transportation.
(4) "Division" refers to the Division of Highways, a division within the West Virginia Department of Transportation.
(5) "Governmental entity" means any county, municipality, or other governmental unit or political subdivision of the State.
(6) "Highway authority" or "highway association" means any entity created by the Legislature for the advancement and improvement of the state road and highway system, including, but not limited to, the New River Parkway Authority, Midland Trail Scenic Highway Association, Shawnee Parkway Authority, Corridor G Regional Development Authority, Coalfields Expressway Authority, Robert C. Byrd Corridor H Highway Authority, West Virginia 2 and I-68 Authority, Little Kanawha River Parkway Authority, King Coal Highway Authority, Coal Heritage Highway Authority, Blue and Gray Intermodal Highway Authority and the West Virginia Eastern Panhandle Transportation Authority or, if an authority is abolished, any entity succeeding to the principal functions of the highway authority or to whom the powers given to the highway authority are given by law.
(7) "Private entity" means any natural person, corporation, general partnership, limited liability company, limited partnership, joint venture, business trust, public benefit corporation, nonprofit entity or other business entity.
(8) "Project costs" means capital costs, costs of financing, planning, designing, constructing, expanding, improving, maintaining or controlling a transportation facility, the cost of land, equipment, machinery, installation of utilities and other similar expenditures and all other charges or expenses necessary, appurtenant or incidental to the foregoing.
(9) "Sponsor" or "project sponsor" means a governmental entity proposing a transportation project.
(10) "Public-private partnership" means a consortium that includes the Division of Highways, a governmental entity, a highway authority or any combination thereof, together with a private entity or entities, which proposes to finance, acquire, plan, design, construct, expand, improve, maintain or control a transportation facility.
(11) "Public service district" means a public corporation or political subdivision of this state created pursuant to section two, article thirteen-a, chapter sixteen of this code.
(12) "Revenue" means all revenue, income, earnings, user fees, lease payments or other service payments arising out of or in connection with supporting the development or operation of a transportation facility, including, without limitation, money received as grants or otherwise from the United States of America, from any public entity or from any agency or instrumentality of the foregoing in aid of such transportation project, moneys generated by way of contract, pledge, donation, bequest or bonds and moneys generated by taxes which are authorized to be assessed and levied by the Legislature or another governmental entity.
(13) "Secretary" means the Cabinet Secretary of the West Virginia Department of Transportation.
(14) "Transportation facility" means a public highway, road, bridge, tunnel, overpass, building, structure, airport, vehicle parking facility, riverport facility, rail facility, or intermodal facility used for the transportation of persons or goods.
(15) "Transportation project" means any project to acquire, design, construct, expand, renovate, extend, enlarge, increase, equip, improve, maintain or operate a transportation facility in this state for which a governmental entity is permitted by law to expend public funds but does not include any project that would otherwise be under the authority of the Public Port Authority, the Aeronautics Commission or the Parkways, Economic Development and Tourism Authority.
(16) "User fee" means a rate, toll, or fee imposed by an operator for use of all or a part of a transportation facility authorized in section five of this article.
(17) "Utility" means a privately, publicly or cooperatively owned line, facility or system for producing, transmitting or distributing communications, cable television, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway drainage, or any other similar commodity, including fire or police signal system or street lighting system, which directly or indirectly serves the public.
(b) To implement and carry out the intent of this article, the commissioner shall propose legislative rules in accordance with article three, chapter twenty-nine-a of this code. The commissioner shall establish comprehensive, uniform guidelines in order to evaluate any transportation project plan. The guidelines shall address the following:
(1) The use of alternative sources of funding which could finance all or a portion of the transportation project;
(2) The transportation needs of the region;
(3) Project costs;
(4) Whether dedicated revenues from a project sponsor are offered for project costs;
(5) Available federal and state funds;
(6) The degree to which the transportation project impacts other infrastructure projects and implements cost-effective and efficient development of transportation projects with other infrastructure improvements;
(7) The cost effectiveness of the transportation project as compared with alternatives which achieve substantially the same economic development benefits;
(8) The project sponsor's ability to operate and maintain the transportation project or finance the continued operation and maintenance of the transportation project if approved;
(9) The degree to which the transportation project achieves other state or regional planning goals;
(10) The estimated date upon which the transportation project could commence if funding were available and the estimated completion date of the transportation project; and
(11) Other factors the commissioner considers necessary or appropriate to accomplish the purpose and intent of this article.
(c) The commissioner shall create a transportation project plan application form that is to be used by project sponsors requesting funding assistance from the state for transportation projects. The application must require a preliminary proposal that includes:
(1) The location of the transportation project and affected local jurisdictions;
(2) The estimated total project cost of the transportation project;
(3) The amount of funding assistance desired from the Division of Highways and the specific uses of the funding;
(4) Other sources of funding available for the transportation project;
(5) Information demonstrating the need for the transportation project and documentation that the proposed funding of the project is the most economically feasible alternative to completing the transportation project;
(6) A timeline for activities to be performed by the project sponsors;
(7) A statement setting forth the financing of the project costs, including the sources of the funds and identification of any dedicated revenues, proposed debt, tax increment financing plans, issuance of bonds or notes, in-kind services or equity investment of project sponsors;
(8) A list of utilities that can be constructed in coordination with the transportation project and a statement of the plans to accommodate those utilities;
(9) Project sponsor contact information;
(10) A statement of the projected availability and use of dedicated revenues from user fees, lease payments, taxes, and other service payments over time; and
(11) Other information as the commissioner considers necessary to enable the review of the transportation project.
(12) The commissioner may also require the submission of geographic information system mapping of the transportation project and electronic filing of the preliminary proposal.
(d) If a preliminary proposal is approved by the commissioner for detailed review, the division will advise the project sponsors of the estimated cost of a detailed review. The project sponsor must deposit a bond with the commissioner, irrevocable letter of credit or other acceptable instrument guaranteeing payment by the project sponsors of the actual costs incurred by the division to perform a detailed transportation project plan review, to the maximum of the estimated costs, before a detailed review may begin.
(e) In evaluating any transportation project, the commissioner may rely upon internal staff reports or the advice of outside advisors or consultants.
(f) The commissioner is to encourage collaboration among project sponsors, affected local jurisdictions and private entities through intergovernmental agreements and public-private partnerships including, without limitation, recommending the amounts and sources of funding which affected local jurisdictions or project sponsors may pursue, which state transportation or infrastructure agency or agencies may be consulted for appropriate investment of public funds and alternatives to carry out the intent of this article.
(g) After a detailed review, the commissioner may recommend to the Governor those transportation projects which are a prudent and resourceful expenditure of public funds. No proposal may be recommended or approved which is inconsistent with the division's twenty-year long range plans or other transportation plans.
(h) The commissioner must prepare and publish an annual report of activities and accomplishments and submit it to the Governor and to the Joint Committee on Government and Finance on or before December 15 of each year. The commissioner must also prepare and submit an annual report to the Governor and the Legislature outlining alternative road funding models and incentive packages. The report may also recommend legislation relating to third-party donation of funds, materials or services, federal credit instruments, secured loans, federal Transportation Infrastructure Finance and Innovation Act funds, state infrastructure banks (SIBS), private activity bonds or other matters respecting transportation considered by the commissioner to be in the public interest. The commissioner may consider alternatives to the current system of taxing highway use through motor vehicle fuel taxes including, without limitation, pilot programs for testing technology and methods for the collection of mileage fees.
(i) All documents maintained pursuant to this article shall be subject to the requirements of chapter twenty-nine-b of this code.
(1) To finance one or more transportation projects, or additions thereto, which shall be located within the county;
(2) To impose by ordinance reasonable user fees upon users of transportation facilities within a county to be collected in the manner specified in the ordinance, including, but not limited to, paying the costs of one or more transportation projects, the payment of debt service on any revenue bonds issued under section six of this article. The ordinance shall provide for the administration, collection and enforcement of the fee; and
(3) To establish a special transportation fund as a separate fund into which all user fees and other revenues designated by the county commission shall be deposited, and from which all transportation project costs shall be paid, which may be assigned to and held by a trustee for the benefit of bondholders if special transportation revenue bonds are issued by the county commission under section six of this article.
(b) No ordinance imposing a user fee authorized by this section is effective until it is ratified by a majority of the legal votes cast by the qualified voters of the county at a primary or general election. The ballot question must set forth the amount of the fee, the manner in which it will be imposed, the general use to which the proceeds of the fee will be put, a description of the transportation project to be financed with the fee, whether revenue bonds will be issued, and if bonds are to be issued, the estimated term and amount of the revenue bonds. The county commission may include additional information in the notice. Notice of the election shall be provided and the ballots shall be printed as set forth in subsection (c) of this section.
(c) On the election ballots shall be printed the following:
Shall the County Commission of (name of county) be authorized to adopt an ordinance to establish a fee for the use of the (transportation facility description) in accordance with section five, article twenty-eight, chapter seventeen of the code of West Virginia?
? Yes
? No
(d) If a majority of the legal votes cast upon the question be for the ordinance, the provisions of the ordinance become effective upon the date the results of the election are declared. If a majority of the legal votes cast upon the question be against the ordinance, the ordinance shall not take effect.
(e) Subject to the provisions of subsection (d) of this section, an election permitted by this section may be conducted at any regular primary or general election as the county commission in its order submitting the same to a vote may designate.
(f) Notice of an election pursuant to this section shall be given by publication of the order calling for a vote on the question 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 the publication shall be the county in which the election is to be conducted.
(g) Any election permitted by this section shall be held at the voting precincts established for holding primary or general elections. All of the provisions of the general election laws of this state applicable to primary or general elections not inconsistent with the provisions of this section shall apply to voting and elections authorized by this section.
(h) Before an election is held, the county commission shall obtain written confirmation from the commissioner approving the user fee and a transportation project plan within the county that was reviewed by commissioner under section four of this article.
(b) The transportation revenue bonds may be authorized and issued by the county commission to finance or refinance, in whole or in part, public transportation projects in an aggregate principal amount not exceeding the amount which the county commission determines can be paid as to both principal and interest and reasonable margins for a reserve therefor from user fee revenues. A county commission issuing transportation revenue bonds shall establish a fund to deposit user fee revenues. The county commission shall thereafter deposit all revenues pledged to the payment of principal and interest of transportation revenue bonds into the fund.
(c) The issuance of transportation revenue bonds may be authorized by an order of the county commission. The transportation revenue bonds shall: (1) Bear a date or dates; (2) mature at a time or times not exceeding forty years from their respective dates; (3) be in a denomination not more than a maximum denomination fixed by the county commission; (4) be in a registered form with exchangeability and interchangeability privileges; (5) be payable in a medium of payment and at a place or places within or without the state; (6) be subject to such terms and prices for redemption, if any, as approved by the county commission; (7) bear a rate of interest that is not more than a maximum rate fixed by the county commission; and (8) may have such other terms and provisions as determined by the county commission. The transportation revenue bonds shall be signed by the president of the county commission under the seal of the county commission, attested by the clerk of the county commission. Transportation revenue bonds may be sold in a manner as the county commission determines is for the best interests of the county.
(d) The county commission may enter into: (1) Trust agreements with banks or trust companies within or without the state and in trust agreements or orders authorizing the issuance of bonds; (2) valid and legally binding covenants with the holders of the transportation revenue bonds as to the custody, safeguarding and disposition of the proceeds of the transportation revenue bonds, the moneys in the user fee revenue fund, sinking funds, reserve funds or any other moneys or funds; as to the rank and priority, if any, or different issues of transportation revenue bonds by the county commission under the provisions of this section; (3) agreements as to such provisions as payment, term, security, default and remedy provisions as the county commission shall consider necessary or desirable; and (4) agreements as to any other matters or provisions which are considered necessary and advisable by the county commission in the best interests of the county and to enhance the marketability of such transportation revenue bonds.
(e) The transportation revenue bonds are negotiable instruments under the Uniform Commercial Code of this state and are not obligations or debts of the state or of the county issuing the bonds and the credit or taxing power of the state or county may not be pledged therefor, but the transportation revenue bonds may be payable only from the revenue pledged therefor as provided in this article.
(f) A holder of transportation revenue bonds has a lien against the user fee revenues and the user fee revenue fund for payment of the transportation revenue bond and the interest thereon and may bring suit to enforce the lien.
(g) A county commission may issue and secure additional bonds payable out of the user fee revenues and the user fee revenue fund which bonds may rank on a parity with, or be subordinate or superior to, other bonds issued by the county commission and payable from the user revenue fee fund.
(h) For the purposes of this section, a county commission is authorized to sue and be sued; make contracts and guarantees; incur liabilities; borrow or lend money for any time period considered advisable by the county commission; sell, mortgage, lease, exchange, transfer or otherwise dispose of its property; or pledge its property as collateral or security for any time period considered advisable by the commission. All sales, leases or other disposition of real property acquired with state road funds or federal funds, or of real property dedicated to the state road system, must be done in accordance with applicable federal and state law and may be done only with the approval of the commissioner. A county commission is also authorized to create trusts as will expedite the efficient management of transportation projects and other assets owned or controlled by the county commission. The trustee, whether individual or corporate, in any trust has a fiduciary relationship with the county commission and may be removed by the county commission for good cause shown or for a breach of the fiduciary relationship with the county commission. Nothing in this article effects a waiver of the sovereign, constitutional or governmental immunity of the state or its agencies.
(i) The powers conferred by this article are in addition and supplemental to any other powers conferred upon county commissions by the Legislature relating to streets, road maintenance or to construct and maintain transportation facilities.
(j) After the issuance of any transportation revenue bonds, the user fee pledged to the payment thereof may not be reduced as long as any of the bonds are outstanding and unpaid except under such terms, provisions and conditions as shall be contained in the order, trust, agreement or other proceedings under which the transportation revenue bonds were issued.
(1) Delivery of performance or payment bonds in connection with the construction of or improvements to the transportation facility, in the forms and amounts satisfactory to the division;
(2) Review and approval of the final plans and specifications for the transportation facility by the division;
(3) Inspection of the construction of or improvements to the transportation facility to ensure that they conform to the engineering standards acceptable to the division;
(4) Maintenance of a policy or policies of public liability insurance or self-insurance, in a form and amount satisfactory to the division and reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the transportation facility. However, in no event may the insurance impose any pecuniary liability on the state, its agencies or any political subdivision of the state. Copies of the policies must be filed with the division accompanied by proofs of coverage;
(5) Monitoring of the maintenance and operating practices of the sponsoring governmental entity by the division and the taking of any actions the division finds appropriate to ensure that the transportation facility is properly maintained and operated;
(6) Itemization and reimbursement to be paid to the division for the review and any services provided by the division;
(7) Filing of appropriate financial statements on a periodic basis;
(8) The date of termination of the sponsoring governmental entity's duties under this article and dedication to the division; and
(9) That a transportation facility must accommodate all public utilities on a reasonable, nondiscriminatory and completely neutral basis and in compliance with section seventeen-b, article four, chapter seventeen of this code.
(b) In the comprehensive agreement, the division may agree to accept grants or loans from the sponsoring governmental entity, from time to time, from amounts received from the state or federal government or any agency or instrumentality of the state or federal government.
(c) The comprehensive agreement is to incorporate the duties of the sponsoring governmental entity under this article and may contain any other terms and conditions that the division determines serve the public purpose of this chapter. Without limitation, the comprehensive agreement may contain provisions under which the division agrees to provide notice of default and cure rights for the benefit of the sponsoring governmental entity and the persons specified in the comprehensive agreement as providing financing for the qualifying transportation facility. The comprehensive agreement may contain any other lawful terms and conditions to which the sponsoring governmental entity and the division mutually agree.
(d) Any changes in the terms of the comprehensive agreement, agreed upon by the parties must be added to the comprehensive agreement by written amendment.
(b) All transportation projects that are accepted as part of the state road system, and all real property interests and appurtenances, are under the exclusive jurisdiction and control of the commissioner, who may exercise the same rights and authority as he or she has over other transportation facilities in the state road system. As a condition of acceptance of a transportation project into the state road system, the commissioner may require that the project sponsor provide a dedicated revenue source for the continued operation and maintenance of the transportation project.
(c) No state road funds may be used to finance a transportation project without the written approval of the commissioner.
(b) To coordinate and integrate the planning of transportation projects among local jurisdictions, all governing bodies, units of government, municipal utilities and public service districts within the affected local jurisdiction are to cooperate, participate, share information and give input when a project sponsor prepares a transportation project plan.
(c) Municipal utilities and public service districts may enter into agreements with any project sponsor for the purpose of constructing new infrastructure facilities or substantially improving or expanding infrastructure facilities in conjunction with a transportation project and dedicating revenue or contributing moneys to transportation project costs. Each agreement must contain, at a minimum, engineering and construction standards, terms regarding the revenue sources, allocation of project costs and confirmation that the agreement does not violate any existing bond covenants. Each agreement shall also comply and be consistent with the comprehensive agreement applicable to the transportation project. No infrastructure facilities may be located or relocated within a right-of-way in, or to be included within, the state road system except in accordance with transportation project plans approved by the commissioner.
(d) The rates charged by a municipal utility or public service district to customers in an affected local jurisdiction may include the additional cost borne by the municipal utility or public service district as a result of entering into an agreement with a project sponsor to contribute moneys or dedicate revenue to transportation project costs.
(e) This article may not be construed to affect the authority of the Department of Environmental Protection nor the authority of the Department of Health and Human Resources pursuant to this code.
(f) This article may not be construed to give the Public Service Commission authority to regulate or intervene in the approval and construction of any transportation project or any agreement between a project sponsor and a municipal utility or public service district under this article.
(b) Once the revenue bonds issued as provided in this article are no longer outstanding or a certified public accountant certifies that sufficient reserves have been or will be accumulated as of a specified date to pay all future debt service on the outstanding bonds, the user fee that is applicable to those specific bonds shall be discontinued. Termination of the user fee as provided in this section shall not bar or otherwise prevent the county commission from collecting user fees that accrued before the termination date.
Note: WV Code updated with legislation passed through the 2012 1st Special Session
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