ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 425
(Senators Kessler and McKenzie, original sponsors)
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[Passed March 10, 2007; in effect ninety days from passage.]
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AN ACT to
amend and reenact §16-13E-2, §16-13E-4, and §16-13E-6 of
the Code of West Virginia, 1931, as amended; and to amend and
reenact §22C-2-1 and §22C-2-5 of said code, all relating to
enhancement of existing public infrastructure funding sources;
adding water treatment and wastewater treatment as authorized
projects in community enhancement districts; expanding the
definition of "local entity" for purposes of eligibility for
funding from the Water Pollution Control Revolving Fund; and
authorizing the Water Development Authority to take security
or other interest in certain property to secure loans made
from the fund.
Be it enacted by the Legislature of West Virginia:
That §16-13E-2, §16-13E-4 and §16-13E-6 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that
§22C-2-1 and §22C-2-5 of said code be amended and reenacted, all to
read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13E. COMMUNITY ENHANCEMENT ACT.
§ 16-13E-2. Definitions.
For purposes of this article:
(a) "Assessment bonds" means special obligation bonds or notes
issued by a community enhancement district which are payable from
the proceeds of assessments.
(b) "Assessment" means the fee, including interest, paid by
the owner of real property located within a community enhancement
district to pay for the cost of a project or projects constructed
upon or benefitting or protecting such property and administrative
expenses related thereto, which fee is in addition to all taxes and
other fees levied on the property.
(c) "Board" means a community enhancement board created
pursuant to this article.
(d) "Code" means the Code of West Virginia, one thousand nine
hundred thirty-one, as amended.
(e) "Community enhancement district" or "district" means a
community enhancement district created pursuant to this article.
(f) "Cost" means the cost of:
(1) Construction, reconstruction, renovation and acquisition
of all lands, structures, real or personal property, rights,
rights-of-way, franchises, easements and interests acquired or to
be acquired by the district;
(2) All machinery and equipment, including machinery and equipment needed to expand or enhance county or city services to
the district;
(3) Financing charges and interest prior to and during
construction and, if deemed advisable by the district or governing
body, for a limited period after completion of the construction;
(4) Interest and reserves for principal and interest,
including costs of municipal bond insurance and any other type of
financial guaranty;
(5) Costs of issuance in connection with the issuance of
assessment bonds;
(6) The design of extensions, enlargements, additions and
improvements to the facilities of any district;
(7) Architectural, engineering, financial and legal services;
(8) Plans, specifications, studies, surveys and estimates of
costs and revenues;
(9) Administrative expenses necessary or incident to
determining to proceed with any project; and
(10) Other expenses as may be necessary or incident to the
construction, acquisition and financing of a project.
(g) "County commission" means the governing body of a county
as defined in section one, article one, chapter seven of this code.
(h) "Governing body" means, in the case of a county, the
county commission and in the case of a municipality, the mayor and
council together, the council or the board of directors as charged
with the responsibility of enacting ordinances and determining the
public policy of such municipality.
(i) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties;
municipalities; any watershed enhancement districts, soil
conservation districts, sanitary districts, public service
districts, drainage districts, school districts, urban renewal
authorities or regional governmental authorities established
pursuant to this code.
(j) "Municipality" means a municipality as defined in section
two, article one, chapter eight of this code.
(k) "Person" means an individual, firm, partnership,
corporation, voluntary association or any other type of entity.
(l) "Project" means the design, construction, reconstruction,
establishment, acquisition, improvement, renovation, extension,
enlargement, equipping, maintenance, repair (including
replacements) and start-up operation of water source of supply,
treatment, transmission and distribution facilities, sewage
treatment, collection and transmission facilities, stormwater
systems, police stations, fire stations, libraries, museums,
schools, other public buildings, hospitals, piers, docks,
terminals, drainage systems, culverts, streets, roads, bridges
(including approaches, causeways, viaducts, underpasses and
connecting roadways), motor vehicle parking facilities (including
parking lots, buildings, ramps, curb-line parking, meters and other
facilities deemed necessary, appropriate, useful, convenient or
incidental to the regulation, control and parking of motor
vehicles), public transportation, public recreation centers, public recreation parks, swimming pools, tennis courts, golf courses,
equine facilities, motor vehicle competition and recreational
facilities, flood protection or relief projects, or the grading,
regrading, paving, repaving, surfacing, resurfacing, curbing,
recurbing, widening, lighting or otherwise improving any street,
avenue, road, highway, alley or way, or the building or renewing of
sidewalks and flood protection; and the terms shall mean and
include any project as a whole, and all integral parts thereof,
including all necessary, appropriate, useful, convenient or
incidental appurtenances and equipment in connection with any one
or more of the above.
§16-13E-4. Petition for creation or expansion of community
enhancement district; petition requirements.
(a) The owners of at least sixty-one percent of the real
property, determined by acreage, located within the boundaries of
the area described in the petition, by metes and bounds or
otherwise in a manner sufficient to describe the area, may petition
a governing body to create or expand a community enhancement
district.
(b) The petition for the creation or expansion of a community
enhancement district shall include, where applicable, the
following:
(1) The proposed name and proposed boundaries of such district
and a list of the names and addresses of all owners of real
property within the proposed district;
(2) A detailed project description;
(3) A map showing the proposed project, including all proposed
improvements;
(4) A list of estimated project costs and the preliminary
plans and specifications for such improvements, if available;
(5) A list of nonproject costs and how they will be financed;
(6) A consultant study outlining the projected assessments,
setting forth the methodology for determining the assessments and
the methodology for allocating portions of an initial assessment
against a parcel expected to be subdivided in the future to the
various lots into which the parcel will be subdivided and
demonstrating that such assessments will adequately cover any debt
service on bonds issued to finance the project and ongoing
administrative costs;
(7) A development schedule;
(8) A list of recommended members for the board;
(9) If the project includes water, wastewater or sewer
improvements, written evidence from the utility or utilities that
will provide service to the district, if any, that said utility or
utilities:
(A) Currently has adequate capacity to provide service without
significant upgrades or modifications to its treatment, storage or
source of supply facilities
;
(B) Will review and approve all plans and specifications for
the improvements to determine that the improvements conform to the
utility's reasonable requirements and, if the improvement consists
of water transmission or distribution facilities, that the improvements provide for adequate fire protection for the district;
and
(C) If built in conformance with said plans and
specifications, will accept the improvements following their
completion, unless such projects are to be owned by the district;
(10) If the project includes improvements other than as set
forth in subdivision (9) of this subsection that will be
transferred to another governmental agency, written evidence that
such agency will accept such transfer, unless such projects are to
be owned by the district;
(11) The benefits that can be expected from the creation of
the district and the project; and
(12) A certification from each owner of real property within
the proposed district who joins in the petition that he or she is
granting an assessment against his or her property in such an
amount as to pay for the costs of the project and granting a lien
for said amount upon said property enforceable in accordance with
the provision of this article.
(c) After reviewing the petition presented pursuant to this
section, the governing body may by order or ordinance determine the
necessity and economic feasibility of creating a community
enhancement district and developing, constructing, acquiring,
improving or extending a project therein. If the governing body
determines that the creation of a community enhancement district
and construction of the project is necessary and economically
feasible, it shall set a date for the public meeting required under section five of this article and shall cause the petition to be
filed with the clerk of the county commission or the clerk or
recorder of the municipality, as the case may be, and be made
available for inspection by interested persons before the meeting.
(d) Notwithstanding any other provision of this article to the
contrary, nothing in this article shall modify:
(1) The jurisdiction of the public service commission to
determine the convenience and necessity of the construction of
utility facilities, to resolve disputes between utilities relating
to which utility should provide service to a district or otherwise
to regulate the orderly development of utility infrastructure in
the state; or
(2) The authority of the infrastructure and jobs development
council as to the funding of utility facilities to the extent that
loans, loan guarantees, grants or other funding assistance from a
state infrastructure agency are involved.
§16-13E-6. Creation of community enhancement district; community
enhancement district to be a public corporation and political
subdivision; powers thereof; community enhancement boards.
(a) Each community enhancement district shall be created by
adoption or enactment of an order or ordinance.
(b) From and after the date of the adoption or enactment of
the order or ordinance creating a community enhancement district,
it shall thereafter be a public corporation and political
subdivision of this state, but without any power to levy or collect ad valorem taxes. Each community enhancement district is hereby
empowered and authorized, in addition to any other rights, powers
and authorities conferred upon it in this article or elsewhere in
this code, to:
(1) Acquire, own and hold, in its corporate name, by purchase,
lease, right of eminent domain, gift or otherwise, such property,
both real and personal and other interests in real estate, or any
other property, whether tangible or intangible, as may be necessary
or incident to the planning, financing, development, construction,
acquisition, extension, improvement and completion of a project;
(2) Design, plan, finance, develop, construct, acquire,
extend, improve and complete one or more projects and assess the
cost of all or any portion of a project on real property located
within the community enhancement district;
(3) Sue or be sued;
(4) Establish a bank account or accounts in its name;
(5) Enter into agreements or other transactions with any
person or governmental agency necessary or incident to the
development, planning, construction, acquisition or improvement of
a project or for the operation, maintenance or disposition of a
project or for any other services required by a project;
(6) Annually, on or before the seventh day of June, certify to
the sheriff of the county in which the property is located the
assessments granted against all property in the district for
inclusion in the tax ticket;
(7) Expend funds to acquire, or construct part of a project on property located outside of a community enhancement district, and
for any work undertaken thereon, as may be necessary or incident to
the completion of a project;
(8) Enter into agreements with one or more counties,
municipalities, public service districts or community enhancement
districts to plan, develop, construct, acquire or improve a project
jointly;
(9) Accept appropriations, gifts, grants, bequests and devises
and use or dispose of the same to carry out its corporate purpose;
(10) Make and execute contracts, releases, assignments,
compromises and other instruments necessary or convenient for the
exercise of its powers, or to carry out its corporate purpose;
(11) Have a seal and alter the same;
(12) Raise funds by the issuance and sale of assessment bonds;
(13) Obtain options to acquire real property, or any interest
therein, by purchase, lease or otherwise, which is found by the
board to be suitable as a site, or part of a site, for the
construction of a project;
(14) Pledge funds generated by assessments in a district or
proceeds from the sale of assessment bonds to payment of debt
service on tax increment financing obligations issued under article
eleven-b, chapter seven of this code for the period of time
determined by the community enhancement board; and
(15) Take any and all other actions consistent with the
purpose of this article and not in violation of the constitution of
this state as may be necessary or incident to the construction and completion of a project.
(c) The powers of each community enhancement district shall be
vested in and exercised by a community enhancement board which
shall be composed of five members, four of whom shall be appointed
by the governing body of the county or municipality in which the
community enhancement district is located and one of whom shall be
the sheriff or his or her designee of the county or the treasurer
or his or her designee of the municipality (or such other person
serving in an equivalent capacity if there is no treasurer), as the
case may be, in which the community enhancement district is
located. At least three members of the board shall be residents of
the assessment district: Provided, That should less than three
persons reside within the boundaries of the community enhancement
district, then at least three members of the board shall be
residents of the county or municipality, as the case may be:
Provided, however, That if no persons reside within the boundaries
of the community enhancement district then at least three members
must be approved by the owner or owners of the land. No more than
three initial members of the board may be from the same political
party.
(d) The four members appointed by the governing body shall be
appointed for overlapping terms of four years each and thereafter
until their respective successors have been appointed and have
qualified. For the purpose of initial appointments, one member
shall be appointed for a term of four years; one member shall be
appointed for a term of three years; one member shall be appointed for a term of two years; and one member shall be appointed for a
term of one year. Members may be reappointed for any number of
terms. Before entering upon the performance of his or her duties,
each member shall take and subscribe to the oath required by
section five, article IV of the constitution of this state.
Vacancies shall be filled by appointment by the governing body of
the county or municipality creating the assessment district for the
unexpired term of the member whose office shall be vacant and such
appointment shall be made within thirty days of the occurrence of
such vacancy. Any such member may be removed by the governing body
which appointed such member in case of incompetency, neglect of
duty, gross immorality or malfeasance in office. Members shall be
entitled to no more than fifty dollars per meeting and reasonable
expenses associated with their services.
(e) The board shall organize within thirty days following the
first appointments and annually thereafter at its first meeting
after the first day of January of each year by selecting one of its
members to serve as chairman, one to serve as treasurer and one to
serve as secretary. The secretary, or his or her designee, shall
keep a record of all proceedings of the board which shall be
available for inspection as other public records and the treasurer,
or his or her designee, shall maintain records of all financial
matters relating to the community enhancement district, which shall
also be available for inspection as other public records.
Duplicate records shall be filed with the clerk or recorder, as the
case may be, of the county or municipality which created the community enhancement district and shall include the minutes of all
board meetings. The secretary and treasurer shall perform such
other duties pertaining to the affairs of the community enhancement
district as shall be prescribed by the board.
(f) The members of the board, and the chairman, secretary and
treasurer thereof, shall make available to the governing body
responsible for appointing the board, at all times, all of its
books and records pertaining to the community enhancement
district's operation, finances and affairs for inspection and
audit. The board shall meet at least semiannually.
(g) A majority of the members of the board constitutes a
quorum and meetings shall be held at the call of the chairman.
(h) Staff, office facilities and costs of operation of the
board may be provided by the county or municipality which created
the community enhancement district or by contract and said costs of
operations shall be funded from assessments collected within the
district.
(i) The chairman shall preside at all meetings of the board
and shall vote as any other members of the board, but if he or she
should be absent from any meeting the remaining members may select
a temporary chairman, and if the member selected as chairman
resigns as such or ceases for any reason to be a member of the
board, the board shall select one of its members as chairman to
serve until the next annual organizational meeting.
(j) The board shall, by resolution, determine its own rules of
procedure, fix the time and place of its meetings and the manner in which special meetings may be called. The members of the board
shall not be personally liable or responsible for any obligations
of the assessment district or the board but are answerable only for
willful misconduct in the performance of their duties.
(k) The official name of a community enhancement district
created under the provisions of this article may contain the name
of the county or municipality, as the case may be, in which it is
located.
(l) Notwithstanding any provision in this code to the contrary, the
power and authority hereby conferred on community enhancement
districts may extend within the territory of a public service
district created under section two, article thirteen-a of this
chapter.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES,
COMMISSIONS AND COMPACTS.
ARTICLE 2. WATER POLLUTION CONTROL REVOLVING FUND ACT.
§22C-2-1. Definitions.
Unless the context in which used clearly requires a different
meaning, as used in this article:
(a) "Authority" means the Water Development Authority provided
for in section four, article one of this chapter.
(b) "Cost" as applied to any project financed under the
provisions of this article means the total of all costs incurred by
a local entity that are reasonable and necessary for carrying out
all works and undertakings necessary or incident to the accomplishment of any project including:
(1) Developmental, planning and feasibility studies, surveys,
plans and specifications;
(2) Architectural, engineering, financial, legal or other
special services;
(3) Acquisition of land and any buildings and improvements on
the land or buildings, including the discharge of any obligations
of the sellers of the land, buildings or improvements;
(4) Site preparation and development, including demolition or
removal of existing structures, construction and reconstruction,
labor, materials, machinery and equipment;
(5) The reasonable costs of financing incurred by the local
entity in the course of the development of the project, carrying
charges incurred before placing the project in service, interest on
funds borrowed to finance the project to a date subsequent to the
estimated date the project is to be placed in service, necessary
expenses incurred in connection with placing the project in service
and the funding of accounts and reserves which the authority may
require; and
(6) Other items that the Department of Environmental
Protection determines to be reasonable and necessary.
(c) "Fund" means the State Water Pollution Control Revolving
Fund provided for in this article as it may be expanded or
modified, from time to time, pursuant to the Clean Water Act, 33 U.
S. C. §1251,
et seq., as amended, the Federal Safe Drinking Water
Act 42 U. S. C. §300f through §300j-26, inclusive, as amended, or by the executive order of the Governor issued to comply with
federal laws relating to the acts.
(d) "Instrumentality" means the Department of Environmental
Protection or the agency designated by an order of the Governor as
having the primary responsibility for administering the fund
pursuant to the Clean Water Act, 33 U. S. C. §1251,
et seq., as
amended, and the Federal Safe Drinking Water Act 42 U. S. C. §300f
through §300j-26, inclusive, as amended, or other federal laws.
(e) "Local entity" means any county, city, town, municipal
corporation, authority, district, public service district,
commission, banking institution, political subdivision, regional
governmental authority, state government agency, interstate agency
or not-for-profit association or corporation in West Virginia.
(f) "Project" means any water or wastewater treatment facility
located or to be located in or outside this state by a local entity
and includes:
(1) Sewage and wastewater collection, treatment and disposal
facilities;
(2) Public water transportation, treatment and distribution
facilities;
(3) Drainage facilities and projects;
(4) Administrative, maintenance, storage and laboratory
facilities related to the facilities delineated in subdivisions
(1), (2) and (3) of this subsection;
(5) Interests in land related to the facilities delineated in
subdivisions (1), (2), (3) and (4) of this subsection; and
(6) Other projects allowable under federal law.
§22C-2-5. Collection of money due to the fund.
(a) In order to ensure the timely payment of all sums due and
owing to the fund under a revolving fund loan agreement between the
state and a local entity, and notwithstanding any provisions of
this code to the contrary, the authority has and may, at its
option, exercise the following rights and remedies in the event of
any default by a local entity under a loan agreement:
(1) The authority may directly impose, in its own name and for
its own benefit, service charges upon all users of a project funded
by a loan distributed to a local entity pursuant to this article
and may proceed directly to enforce and collect the service
charges, together with all necessary costs of the enforcement and
collection.
(2) The authority may exercise, in its own name or in the name
of and as the agent for a particular local entity, all of the
rights, powers and remedies of the local entity with respect to the
project or which may be conferred upon the local entity by statute,
rule, regulation or judicial decision, including all rights and
remedies with respect to users of the project funded by the loan
distributed to that local entity pursuant to this article.
(3) The authority may, by civil action, mandamus or other
judicial or administrative proceeding, compel performance by a
local entity of all of the terms and conditions of the loan
agreement between the state and that local entity including:
(A) The adjustment of service charges as required to repay the loan or otherwise satisfy the terms of the loan agreement;
(B) The enforcement and collection of service charges; and
(b) The enforcement by the local entity of all rights and
remedies conferred by statute, rule, regulation or judicial
decision. The rights and remedies enumerated in this section are
in addition to rights and remedies conferred upon the authority by
law or pursuant to the loan agreement.
(c) For loans made for projects defined in subdivision (6),
subsection (f), section one of this article, at the direction of
the Department of Environmental Protection, the authority shall
take a security or other interest in real or personal property with
the right to foreclose upon a default to secure loans made from the
fund.
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