H. B. 4412
(By Delegates R. Thompson and Perdue)
[Introduced February 5, 2002; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact sections two, four and five, article
six, chapter eight of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, all relating to
municipalities generally and requiring approval of the county
commission of every county in which territory proposed to be
annexed by a municipality is located before a municipality may
annex property in that county.
Be it enacted by the Legislature of West Virginia:
That sections two, four and five, article six, chapter eight
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 6. ANNEXATION.
PART II. ANNEXATION BY ELECTION.
§8-6-2. Petition for annexation.
(a) Five percent or more of the freeholders of a municipality
desiring to have territory annexed thereto may file a petition in
writing with the governing body thereof setting forth the change
proposed in the metes and bounds of the municipality and asking
that a vote be taken upon the proposed change. The petition shall
be verified and shall be accompanied by an accurate survey map
showing the territory to be annexed to the corporate limits by the
proposed change.
(b) The petitioners shall obtain a surety bond in an amount
set by the governing body sufficient to cover the cost of the
election. The bond shall be forfeited if a majority of the votes
cast are against the proposed annexation.
(c) The governing body shall, upon receipt of the bond,
petition the county commission of every county in which the
territory proposed to be annexed is located for authority to annex
the territory in that county by election and if granted, order a
vote of the qualified voters of the municipality to be taken upon
the proposed annexation on a date and at a time and place to be
named in the order, not less than twenty nor more than thirty days
from the date thereof.
(d) The governing body shall, at the same time, order a vote
of all of the qualified voters of the additional territory and of
all of the freeholders of such additional territory whether they
reside or have a place of business therein or not, to be taken upon
the question on the same day at some convenient place in or near
the additional territory.
(e) The governing body shall cause the order for the election
to be published, at the cost of the municipality, as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code. The publication area is the
municipality and the additional territory. The first publication
must be at least fourteen days prior to the date upon which the
vote is to be taken. The order for the election shall contain an
accurate description by metes and bounds of the additional
territory proposed to be annexed to the corporate limits by the
proposed change, a summary of the municipality's plan for providing
services to the additional territory and, if practicable, shall
also contain a popular description of the additional territory.
(f) The election shall be held, superintended and conducted
and the results thereof ascertained, certified, returned and
canvassed in the same manner by the same individuals as elections for municipal officers. The election is reviewable by the circuit
court of the county in which the municipality or the major portion
thereof, including the area proposed to be annexed, is located.
The order may be reviewed by the circuit court as an order of a
county commission ordering an election may be reviewed under
section sixteen, article five of this chapter.
(g) The ballots, or ballot labels where voting machines are
used, shall have written or printed on them the words:
/ / For Annexation
/ / Against Annexation
(h) Any freeholder which is a firm or corporation may vote by
its manager, president or executive officer duly designated in
writing by such firm or corporation.
(i) An individual who is a qualified voter and freeholder of
the municipality or the additional territory shall be entitled to
vote only once.
(j) For purposes of this section, the term "qualified voter of
the additional territory" includes a firm or corporation in the
additional territory regardless of whether the firm or corporation
is a freeholder. A firm or corporation may vote 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 vote in the annexation election.
(k) When an election is held in any municipality in accordance
with the provisions of this section, another election relating to
the same proposed change or any part thereof shall not be held for
a period of one year.
(l) If a majority of all of the legal votes cast both in the
municipality and in the territory are in favor of the proposed
annexation, then the governing body shall proceed as specified in
the immediately succeeding section of this article.
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.
(b) For purposes of this section, the term "qualified voter of
the additional territory" includes firms and corporations in the
additional territory regardless of whether the firm or corporation
is a freeholder. 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.
(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 any county wherein the municipality or
the major any portion
of the territory thereof
including the additional territory, is
located.
The Each affected 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,
except for any portion of territory lying in a
county in which the county commission fails to enter an order
required by this section, be as set forth therein.
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 any county wherein the municipality or
the major
any portion of the territory thereof, including 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 any affected county 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; 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 a 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
a 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;
(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 a county commission denies the application for
annexation by minor boundary adjustment,
the a county commission
may allow the municipality to modify the proposed annexation to
meet the commissions objections.
The A commission must order another public hearing if significant modifications are proposed.
(h) The final order of
the a 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 a commission's final order to the circuit
court of the county in which the municipality or
the major any
portion thereof, including the area proposed to be annexed, is
located.
The A 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.
NOTE: The purpose of this bill is to
require approval of the
county commission of every county in which territory proposed to be
annexed by a municipality is located before a municipality may
annex territory in that county.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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