H. B. 4589
(By Delegate Manuel)
[Introduced February 26, 1998; referred to the
Committee on Political Subdivisions then Finance.]
A BILL to amend and reenact section three-a, article one, chapter
seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to construction,
maintenance and improvement projects by county commissions;
and reducing the current supermajority requirement of sixty
percent for petitions to a simple majority.
Be it enacted by the Legislature of West Virginia:
That section three-a, article one, chapter seven of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3a. Construction of waterworks; sewers and sewage disposal
plants; improvements of streets, alleys and
sidewalks; assessment of cost of sanitary sewers,
improved streets and maintenance of roads not in the state road system.
In addition to all other powers and duties now conferred by
law upon county commissions, such commissions are hereby
authorized and empowered to install, construct, repair, maintain
and operate waterworks, water mains, sewer lines and sewage
disposal plants in connection therewith within their respective
counties:
Provided, That the county commission of Webster County
is authorized to expend county funds in the opening of, and
upkeep of a sulphur well now situate on county property:
Provided, however, That such authority and power herein conferred
upon county commissions shall not extend into the territory
within any municipal corporation:
Provided further, That any
county commission is hereby authorized to enter into contracts or
agreements with any municipality within the county, or with a
municipality in an adjoining county, with reference to the
exercise of the powers vested in such commissions by this
section.
Considering the importance of public fire protection, any
county commission, public service district, public or private
utility which installs, constructs, maintains, or upgrades water
mains shall ensure that all new mains specifically intended to
provide fire protection are supplied by mains which are not less
than six inches in diameter. A permit or other written approval
shall be obtained from the department of health and human resources for each hydrant or group of hydrants installed in
compliance with section nine, article one, chapter sixteen of the
West Virginia code as amended:
Provided, That all newly
constructed water distribution systems transferred to a public or
private utility shall have mains at least six inches in diameter
where fire flows are desired or required by the public or private
utility:
Provided, however, That the utility providing service
has sufficient hydraulic capacity as determined by the department
of health and human resources.
In addition to the foregoing, the county commission shall
have the power to improve streets, sidewalks and alleys and lay
sewers and enter into contracts for maintenance of county roads
and subdivision roads used by the public but not in the state
road system as follows: Upon petition in writing duly verified,
of the persons, firms or corporations owning not less than
sixty
percent a majority of the frontage of the lots abutting on both
sides of any street or alley, between any two cross-streets, or
between a cross-street and an alley in any unincorporated
community, requesting the county commission so to do according to
plans and specifications submitted with such petition and
offering to have their property so abutting assessed not only
with their portion of the cost of such improvement abutting upon
their respective properties, but also offering to have their said
properties proportionately assessed with the total cost of paving, grading and curbing the intersections of such streets and
alleys, or the total cost of maintenance of county roads or
subdivision roads used by the public but not in the state road
system, the county commission may cause any such street or alley
to be improved or paved or repaved substantially with the
materials and according to such plans and specifications as
hereinafter provided:
Provided, That the county commission is
further authorized, if the said county commission so determines
by a unanimous vote of its constituted membership, that two or
more intersecting streets, sidewalks, alleys and sewers, should
be improved as one project, in order to satisfy peculiar problems
resulting from access as well as drainage problems, then, in that
event, the said county commission may order such improvements as
one single unit and project, upon petition in writing duly
verified of the persons, firms or corporations owning not less
than
sixty percent a majority of the frontage of the lots
abutting on both sides of all streets or alleys, or portions
thereof included by said county commission in said unit and
project.
The total cost including labor and materials, engineering,
and legal service of grading and paving, curbing, improving any
such road, street or alley (including the cost of the
intersections) and assessing the cost thereof shall be borne by
the owners of the land abutting upon such road, street or alley when the work is completed and accepted according to the
following plan, that is to say, payment is to be made by all
landowners on either side of such road, street or alley so paved
or improved in such proportion of the total cost as the frontage
in feet of each owner's land so abutting bears to the total
frontage of all the land so abutting on such road, street or
alley, so paved or improved as aforesaid, which computation shall
be made by the county engineer or surveyor and certified by him
to the clerk of said commission.
Upon petition in writing duly verified, of the persons,
firms or corporations owning not less than
sixty percent a
majority of the frontage of the lots abutting on one side of any
county or subdivision road or roads between any two cross-roads,
all used by the public but not in the state road system or street
between any two cross-streets or between a cross-street and an
alley in any unincorporated community requesting the county
commission so to do according to plans and specifications
submitted with such petition and offering to have their property
so abutting assessed with the total cost thereof, the county
commission may cause any sidewalk to be improved, or paved, or
repaved, substantially with such materials according to such
plans and specifications and the total cost including labor and
materials, engineering and legal service of improving, grading,
paving or repaving such sidewalk and assessing the cost thereof shall, when the work is completed and accepted, be assessed
against the owners of the lots or fractional part of lots
abutting on such sidewalk, in such portion of the total cost as
the frontage in feet of each owner's land so abutting bears to
the total frontage of all lots so abutting on such sidewalk so
paved or improved, as aforesaid, which computation shall be made
by the county engineer or surveyor and certified by him to the
clerk of said commission.
Upon petition in writing duly verified, of the persons,
firms or corporations owning not less than
sixty percent a
majority of the frontage of the lots abutting on both sides of
any street or alley, in any unincorporated community requesting
the county commission so to do according to plans and
specifications submitted with such petition and offering to have
their property so abutting assessed with the cost, as hereinafter
provided, the county commission may lay and construct sanitary
sewers in any street or alley with such materials and
substantially according to such plans and specifications and when
such sewer is completed and accepted, the county engineer or
surveyor shall report to the county commission, in writing, the
total cost of such sewer and a description of the lots and lands,
as to the location, frontage, depth and ownership liable for such
sewer assessment, so far as the same may be ascertained, together
with the amount chargeable against each lot and owner, calculated in the following manner: The total cost of constructing and
laying the sewer including labor, materials, legal and
engineering services shall be borne by the owners of the land
abutting upon the streets and alleys, in which the sewer is laid
according to the following plan: Payment is to be made by each
landowner on either side of such portion of a street or alley in
which such sewer is laid, in such proportions as the frontage of
his land upon said street or alley bears to the total frontage of
all lots so abutting on such street or alley. In case of a
corner lot, frontage is to be measured along the longest
dimensions thereof abutting on such street or alley in which such
sewer is laid. Any lot having a depth of two hundred feet or
more, and fronting on two streets or alleys, one in the front and
one in the rear of said lot, shall be assessed on both of said
streets or alleys if a sewer is laid in both such streets and
alleys. Where a corner lot has been assessed on the end it shall
not be assessed on the side for the same sewer and where it has
been assessed on the side it shall not be assessed on the end for
the same sewer.
If the petitioners request the improvement of any such
county road or subdivision road, street, alley or sidewalk in a
manner which does not require the permanent paving or repaving
thereof, the county commission shall likewise have authority to
improve such county road or subdivision road, street, alley or sidewalk, substantially as requested in such petition, and the
total cost thereof including labor, materials, engineering and
legal services shall be assessed against the abutting owners in
the proportion which the frontage of their lots abutting upon
such county road or subdivision road, street, alley or sidewalk
bears to the total frontage of all lots abutting upon such
street, alley or sidewalk so improved.
Upon the filing of such petition and before work is begun,
or let to contract, the county commission shall fix a time and
place for hearing protests and shall require the petitioners to
post notice of such hearing in at least two conspicuous places on
the county road or subdivision road, street, alley or sidewalk
affected, and to give notice thereof by publication of such
notice as a Class I 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 improvement is to be made. The hearing shall be held
not less than ten nor more than thirty days after the filing of
such petition.
At the time and place set for hearing protests the county
commission may examine witnesses and consider other evidence to
show that said petition was filed in good faith; that the
signatures thereto are genuine; and that the proposed
improvement, paving, repaving or sewering will result in special benefits to all owners of property abutting on said county road
or subdivision road, street, alley or sidewalk in an amount at
least equal in value to the cost thereof. The commission shall
within ten days thereafter enter a formal order stating its
decision and if the petition be granted shall proceed after due
advertisement, reserving the right to reject any or all bids, to
let a contract for such work and materials to the lowest
responsible bidder.
Any owner of property abutting upon said county road or
subdivision road, street, alley or sidewalk aggrieved by such
order shall have the right to review the same on the record made
before the county commission by filing within ten days after the
entry of such order a petition with the clerk of the circuit
court assigning errors and giving bond in a penalty to be fixed
by the circuit court to pay any costs or expenses incurred upon
such appeal should the order of the county commission be
affirmed. The circuit court shall proceed to review the matter
as in other cases of appeal from the county commission.
All assessments made under this section shall be certified
to the county clerk and recorded in a proper trust deed book and
indexed in the name of the owner of any lot or fractional part of
a lot so assessed. The assessment so made shall be a lien on the
property liable therefor, and shall have priority over all other
liens except those for taxes, and may be enforced by a civil action in the name of the contractor performing the work in the
same manner as provided for other liens for permanent
improvements. Such assessment shall be paid in not more than ten
equal annual installments, bearing interest at a rate not to
exceed twelve percent per annum, as follows: The first
installment, together with interest on the whole assessment,
shall be paid not later than one year from the date of such
assessment, and a like installment with interest on the whole
amount remaining unpaid each year thereafter until the principal
and all interest shall have been paid in full.
The county commission may issue coupon-bearing certificates
payable in not more than ten equal annual installments for the
amount of such assessment and the interest thereon, to be paid by
the owner of any lot or fractional part thereof, fronting on such
county road or subdivision road, street, alley or sidewalk which
has been improved, paved, or repaved or in which a sewer has been
laid, as aforesaid, and the holder of said certificate shall have
a lien having priority over all other liens except those for
taxes upon the lot or part of lot fronting on such county road or
subdivision road, street, alley or sidewalk, and such certificate
shall likewise draw interest from the date of assessment at a
rate not to exceed twelve percent per annum, and payment thereof
may be enforced in the name of the holder of said certificate by
proper civil action in any court having jurisdiction to enforce such lien.
Certificates authorized under this section may be issued,
sold or negotiated to the contractor doing the work, or to his
assignee, or to any person, firm or corporation:
Provided, That
the county commission in issuing such certificates shall not be
held as a guarantor, or in any way liable for the payment
thereof. Certificates so issued shall contain a provision to the
effect that in the event of default in the payment of any one or
more of said installments, when due, said default continuing for
a period of sixty days, all unpaid installments shall thereupon
become due and payable, and the owner of said certificates may
proceed to collect the unpaid balance thereof in the manner
hereinbefore provided.
In all cases where petitioners request paving or repaving,
or the laying of sewers under the provisions of this section, the
county commission shall let the work of grading, paving, curbing
or sewering to contract to the lowest responsible bidder. In
each such case the county commission shall require a bond in the
penalty of the contract price guaranteeing the faithful
performance of the work and each such contract shall require the
contractor to repair any defects due to defective workmanship or
materials discovered within one year after the completion of the
work.
Upon presentation to the clerk of the county commission of the certificates evidencing the lien, duly canceled and marked
paid by the holder thereof, or evidence of payment of the
assessment if no certificates have been issued, said clerk shall
execute and acknowledge a release of the lien which release may
be recorded, as other releases in the office of the clerk of the
county commission.
The owner of any lot or fractional part of a lot abutting
upon such county road or subdivision road, street, alley or
sidewalk so improved, paved, repaved, or sewered shall have the
right to anticipate the payment of any such assessment or
certificate by paying the principal amount due, with interest
accrued thereon to date of payment, and also to pay the entire
amount, without interest at any time, within thirty days
following the date of the assessment.
Nothing in this section contained shall be construed to
authorize the county commissions of the various counties to
acquire any road construction, ditching or paving equipment. The
county commissions are hereby authorized to rent from the state
road commissioner or any other person, firm or corporation such
equipment as may be necessary from time to time, to improve any
county road or subdivision road used by the public but not in the
state road system, street or sidewalk which petitioners do not
desire to have paved in a permanent manner, and for such purpose
to employ such labor as may be necessary but no expense connected therewith shall be charged to any county funds.
No county commission shall be under any duty after the
paving, repaving or improvement of any county road or subdivision
road used by the public but not in the state road system, street,
alley or sidewalk or the laying of any sanitary sewer under the
provisions of this section, to maintain or repair the same, but
any such commission shall have authority upon petition duly
verified, signed by
at least sixty percent a majority of the
owners of property abutting upon any improvement made under this
section, to maintain or repair such improvement or sewer and to
assess the cost thereof against the owners of such abutting
property in the same manner as the cost of the original
improvement.
NOTE: The purpose of this bill is to change the percentage
requirements needed in order to have a county commission
undertake certain construction, maintenance and improvement
projects from sixty percent to a simple majority. For example,
present law requires that persons, firms or corporations owning
sixty percent of the frontage of the lots abutting both sides of
a road must petition the county commission requesting certain
road work; this bill would change that requirement to a majority
of the frontage of those lots abutting the road on both sides.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.