COMMITTEE SUBSTITUTE
FOR
H. B. 2781
(By Delegates Wysong, Tansill, Tabb and Doyle)
(Originating in the Committee on the Judiciary)
[March 28, 2005]
A BILL to amend and reenact §8-6-1, §8-6-4 and §8-6-5 of the Code
of West Virginia, 1931, as amended, all relating to annexation
of unincorporated territory; providing additional requirements
for petitions for annexation; defining the term additional
territory; providing that upon annexation the municipality
shall provide public services within five years; requirements
for the application for annexation for minor boundary
adjustment; and consideration of non-contiguous territory for
annexation.
Be it enacted by the Legislature of West Virginia:
That §8-6-1, §8-6-4 and §8-6-5 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 6. ANNEXATION.
PART I. GENERAL.
§8-6-1. Annexation of unincorporated territory.
(a) Unincorporated territory may be annexed to and become part
of a municipality contiguous thereto only in accordance with the
provisions of this article.
(b) Any farmlands or operations as described in article
nineteen, chapter nineteen of this code which may be annexed into
a municipality shall be protected in the continuation of
agricultural use after being annexed.
(c) Any new imposition of a tax or any increase in the rate of
tax upon any business, occupation or privilege following annexation
shall be applied in accordance with the provisions of section five,
article thirteen, chapter eight of this code.
PART III. ANNEXATION WITHOUT ELECTION.
§8-6-4. Annexation without an election.
(a) The governing body of a municipality may, by ordinance,
provide for the annexation of additional territory without ordering
a vote on the question if: (1) A majority of the qualified voters
of the additional territory file with the governing body a petition
to be annexed; and (2) a majority of all freeholders of the
additional territory, whether they reside or have a place of
business therein or not, file with the governing body a petition to
be annexed:
Provided, That no annexation shall proceed when less
than twenty qualified voters and freeholders of the additional
territory have petitioned to be annexed: Provided however, That if
the number of qualified voters when added to the majority of all
freeholders in the additional territory is less than twenty, no annexation shall proceed unless all qualified voters and a majority
of freeholders petition to be annexed, excluding the roadway as a
qualified voter or freeholder.
(b) For purposes of this section:
the
(1) The term "qualified voter of the additional territory"
includes firms and corporations in the additional territory
regardless of whether the firm or corporation is a freeholder. A
firm or corporation may sign a petition by its manager, president
or executive officer duly designated in writing by the firm or
corporation. In any instance where a freeholder leases or rents
real property to a firm or corporation the freeholder and the firm
or corporation shall determine which entity will be entitled to
sign a petition relating to the proposed annexation;
and
(2) The term "additional territory" means that territory
which, without regards to roads, is not more than three air miles
from the nearest point of the municipal boundary of the
municipality proposing annexation unless the property is owned by
the municipality prior to the time of annexation or unless the
municipality and county agree: Provided, That for those
municipalities located within counties that have enacted the Local
Powers Act, additional territory means that territory which,
without regards to roads, is not more than three air miles from the
nearest point of the municipal boundary, in effect on the first day
of July, two thousand one, of the municipality proposing to annex
the additional territory: Provided however, That if the additional territory to be annexed is not contiguous to the corporate limits
of the municipality, then the additional territory to be annexed
cannot exceed twenty percent, in any calendar year, of the combined
area of the corporate limits of the municipality if the
municipality is located within a county that has enacted the Local
Powers Act, the corporate limits of the municipality in effect on
the first day of July, two thousand one, and the additional
territory to be annexed unless the municipality and the county
mutually agree otherwise.
(c) The determination that the requisite number of petitioners
have filed the required petitions shall be reviewable by the
circuit court of the county in which the municipality or the major
portion of the territory thereof, including the area proposed to be
annexed is located, upon certiorari to the governing body in
accordance with the provisions of article three, chapter
fifty-three of this code.
(d) A qualified voter of the additional territory who is also
a freeholder of the additional territory may join only one petition
of the additional territory.
(e) It shall be the responsibility of the governing body to
enumerate and verify the total number of eligible petitioners, in
each category, from the additional territory. In determining the
total number of eligible petitioners, in each category, a
freeholder or any other entity that is a freeholder shall be
limited to one signature on a petition as provided in this section. There shall be allowed only one signature on a petition per parcel
of property and any freehold interest that is held by more than one
individual or entity shall be allowed to sign a petition only upon
the approval by the majority of the individuals or entities that
have an interest in the parcel of property.
(f) If all of the eligible petitioners are qualified voters,
only a voters' petition is required.
(g) If satisfied that the petition is sufficient in every
respect, the governing body shall enter that fact upon its journal
and forward a certificate to that effect to the county commission
of the county wherein the municipality or the major portion of the
territory thereof, including the additional territory, is located.
The county commission shall thereupon enter an order as described
in the immediately preceding section of this article. After the
date of the order, the corporate limits of the municipality shall
be as set forth therein
and the municipality shall provide all
authorized public services within the corporate limits of the
municipality set forth by the order as were provided within the
corporate limits of the municipality existing prior to the entry of
the order with five years unless a state agency makes compliance
within five years impossible.
PART IV. ANNEXATION BY MINOR BOUNDARY ADJUSTMENT.
§8-6-5. Annexation by minor boundary adjustment.
(a) In the event a municipality desires to increase its
corporate limits by making a minor boundary adjustment, the governing body of the municipality may apply
: to the county
commission of the county wherein the municipality or the major
portion of the territory thereof, including the territory to be
annexed,(1) The county commission wherein the major portion of the
municipality lies; and (2) every county commission where the
territory to be annexed is located for permission to effect
annexation by minor boundary adjustment. The municipality shall
pay the costs of all proceedings before the commission.
(b) In addition to any other annexation configuration, a
municipality may incorporate by minor boundary adjustment: (i)
Territory that consists of a street or highway as defined in
section thirty-five, article one, chapter seventeen-c of this code
and one or more freeholders; or (ii) territory that consists of a
street or highway as defined in section thirty-five, article one,
chapter seventeen-c of this code which does not include a
freeholder but which is necessary for the provision of emergency
services in the territory being annexed.
(c) A county commission may develop a form application for
annexation for minor boundary adjustment. An application for
annexation by minor boundary adjustment shall include, but not be
limited to:
(1) The number of businesses located in and persons residing
in the additional territory;
(2) An accurate map showing the metes and bounds of the
additional territory;
(3) A statement setting forth the municipality's plan for
providing the additional territory with all applicable public
services such as police and fire protection, solid waste
collection, public water and sewer services and street maintenance
services, including to what extent the public services are or will
be provided by a private solid waste collection service or a public
service district;
(4) A statement of the impact of the annexation on any private
solid waste collection service or public service district currently
doing business in the territory proposed for annexation in the
event the municipality should choose not to utilize the current
service providers;
(5) A statement of the impact of the annexation on fire
protection and fire insurance rates in the territory proposed for
annexation;
(6) A statement of how the proposed annexation will affect the
municipality's finances
and services including increased public
service costs resulting from the municipality providing authorized
public services to the territory to be annexed; and
(7) A statement that the proposed annexation meets the
requirements of this section.
(d) Upon receipt of a complete application for annexation by
minor boundary adjustment, the county commission shall determine
whether the application meets the threshold requirements for
consideration as a minor boundary adjustment, including whether the annexation could be efficiently and cost effectively accomplished
under section two or four of this article.
(e) If the application meets the threshold requirements, the
county commission shall order publication of a notice of the
proposed annexation to the corporate limits and of the date and
time set by the commission for a hearing on the proposal.
Publication shall be as in the case of an order calling for an
election, as set forth in section two of this article. A like
notice shall be prominently posted at not less than five public
places within the area proposed to be annexed.
(f) In making its final decision on an application for
annexation by minor boundary adjustment, the county commission
shall, at a minimum, consider the following factors:
(1) Whether the territory proposed for annexation is
contiguous to the corporate limits of the municipality. For
purposes of this section, "contiguous" means that at the time the
application for annexation is submitted, the territory proposed for
annexation either abuts directly on the municipal boundary or is
separated from the municipal boundary by an unincorporated street
or highway, or street or highway right-of-way, a creek or river, or
the right-of-way of a railroad or other public service corporation,
or lands owned by the state or the federal government:
Provided,
That if the territory to be annexed is not contiguous to the
corporate limits of the municipality, then the territory to be
annexed cannot exceed twenty percent, in a calendar year, of the combined area of the corporate limits of the municipality, or if
the municipality is located within a county that has enacted the
Local Powers Act, the corporate limits of the municipality in
effect on the first day of July, two thousand one, and the
territory to be annexed unless the municipality and county mutually
agree otherwise.
(2) Whether the proposed annexation is limited solely to a
division of highways right-of-way or whether the division of
highways holds title to the property in fee;
(3) Whether affected parties of the territory to be annexed
oppose or support the proposed annexation. For purposes of this
section, "affected parties" means freeholders, firms, corporations
and qualified voters in the territory proposed for annexation and
in the municipality and a freeholder whose property abuts a street
or highway, as defined in section thirty-five, article one, chapter
seventeen-c of this code, when: (i) The street or highway is being
annexed to provide emergency services; or (ii) the annexation
includes one or more freeholders at the end of the street or
highway proposed for annexation;
(4) Whether the proposed annexation consists of a street or
highway as defined in section thirty-five, article one, chapter
seventeen-c of this code and one or more freeholders;
(5) Whether the proposed annexation consists of a street or
highway as defined in section thirty-five, article one, chapter
seventeen-c of this code which does not include a freeholder but which is necessary for the provision of emergency services in the
territory being annexed;
(6) Whether another municipality has made application to annex
the same or substantially the same territory; and
(7) Whether the proposed annexation is in the best interest of
the county as a whole.
(g) If the county commission denies the application for
annexation by minor boundary adjustment, the commission may allow
the municipality to modify the proposed annexation to meet the
commissions' objections. The commission must order another public
hearing if significant modifications are proposed.
(h) The final order of the commission shall include the
reasons for the grant or denial of the application.
(i) The municipality applying for annexation or any affected
party may appeal the commission's final order to the circuit court
of the county in which the municipality or the major portion
thereof, including the area proposed to be annexed, is located.
The county commission may participate in any appeal taken from its
order in the same manner and to the same extent as a party to the
appeal. The order may be reviewed by the circuit court as an order
of a county commission ordering an election may be reviewed under
section sixteen, article five of this chapter.