H. B. 2701
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
[By Request of the Executive]
[Introduced February 24, 1995; referred to the
Committee on Government Organization.]
A BILL to amend chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article five, relating to
the creation of the section of parks and recreation, within
the division of natural resources; the powers of the
director; the purpose of the section, parks and recreation;
utilization of former railroad subdivision for establishment
of Greenbrier River Trail and the North Bend Rail Trail; the
authority of the director to issue park development revenue
bonds; the reception of grants and gifts; tax exemption;
investment in notes, bonds and security interests;
liability; trustee for park development revenue bonds;
proceeds of park development revenue bonds, grants and
gifts; authority of director to pledge revenue from
recreational facilities as security; management and control
of project; provisions of Constitution and law observed;
restaurants and other facilities; contracts for operation of facilities; the correlation of projects and services; and
discounts.
Be it enacted by the Legislature of West Virginia:
That chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article five, to read as
follows:
ARTICLE 5. PARKS AND RECREATION.
§20-5-1. Section created; chief of section; existing obligation;
appropriations.
(a) There is hereby created within the division of natural
resources the section of parks and recreation, being the same
section previously organized within the former division of
tourism and parks, which was transferred to the division of
natural resources pursuant to an enactment of section twelve,
article one, chapter five-b. The section of parks and recreation
shall be under the control of a chief, to be appointed by the
director, who shall be qualified by reason of exceptional
training and experience in the field of public recreation
administration or natural resource management.
(b) The division of natural resources shall have the duty
and authority to administer those properties which are a part of
the state parks and public recreation system, to which legal
title has remained with the division of natural resources, while
the section of parks and recreation was part of the former
division of tourism and parks.
(c) All existing contracts and obligations of the section of
parks and recreation, including those in the name of the division
of tourism and parks administered on behalf of the section of
parks and recreation, shall remain in full force and effect, and
any existing contracts and obligations relating to parks and
recreation shall be performed by the division of natural
resources.
(d) The transfer, made pursuant to executive order, to the
division of natural resources of the unexpended balance existing
on the thirtieth day of June, one thousand nine hundred
ninety-five, in any appropriation originally made to the division
of tourism and parks is hereby ratified.
§20-5-2. Powers of the director with respect to the section of
parks and recreation.
The director of the division of natural resources shall be
responsible for the execution and administration of the
provisions herein as an integral part of the parks and recreation
program of the state and shall organize and staff the section of
parks and recreation for the orderly, efficient and economical
accomplishment of these ends. The director of the division of
natural resources may employ up to six additional unclassified
personnel to carry out the purposes of this article.
The director of the division of natural resources shall
further have the authority, power and duty to:
(a) Establish, manage and maintain the state's parks and
recreation system for the benefit of the people of this state, and do all things necessary and incidental to the development and
administration thereof;
(b) Acquire property for the state in the name of the
division of natural resources by purchase, lease or agreement, or
accept or reject for the state, in the name of the division,
gifts, donations, contributions, bequests or devises of money,
security or property, both real and personal, and any interest in
such property, including lands and waters, for state park or
recreational areas for the purpose of providing public
recreation: Provided, That any sale, exchange or transfer of
such property shall be subject to the procedures of article
one-a, chapter twenty of this code: Provided, however, That no
lands or waters which, on or before December thirty-first, one
thousand nine hundred eighty-five, were part of the state's
system of parks, or which were held or used for recreational
purposes, shall be subject to such sale, exchange or transfer, by
the division: Provided further, That nothing herein contained
shall be construed to prevent the division from selling,
transferring or conveying to any other division or agency of this
state any lands or waters to which it has title and which were
sold, conveyed or transferred to the division from the division
or agency to which it is being sold, conveyed or transferred.
Notwithstanding any provisions in this code to the contrary, no
privatization of any park may occur without statutory authority.
Insofar as is practical, the director shall maintain in their
natural condition lands that are acquired for and designated as state parks;
(c) Approve and direct the use of all revenue derived from
the operation of the state parks and public recreation system for
the operation, maintenance and improvement of the system, or for
the retirement of park development revenue bonds;
(d) Approve and direct the use of no less than twenty
percent of the: (i) Funds previously appropriated to the former
division of tourism and parks and as may be appropriated to its
successor agency for purposes of advertising and marketing
expenses related to the promotion and development of tourism,
pursuant to subsection (j), section eighteen, article twenty-two,
chapter twenty-nine of this code; and (ii) funds authorized for
expenditure from the tourism promotion fund by the commissioner
of the former division of tourism and parks, or its successor
agency, for purposes of direct advertising, pursuant to section
ten, article twenty-two-a, chapter twenty-nine and section nine,
article one, chapter five-b, to effectively promote and market
the state's parks, state forests, state recreation areas and
wildlife recreational resources;
(e) Issue park development revenue bonds as provided in this
article;
(f) Provide for the construction and operation of cabins,
lodges, resorts, restaurants and other developed recreational
service facilities;
(g) Promulgate rules to control uses of the parks, subject
to the provisions of chapter twenty-nine-a of this code: Provided, That the director shall not permit public hunting, the
exploitation of minerals or the harvesting of timber for
commercial purposes in any state park;
(h) Notwithstanding any provision of this code to the
contrary, the director may, for amounts less than two hundred
fifty dollars, exempt designated state parks from the requirement
that all payments must be deposited in a bank within twenty-four
hours; and
(i) The director of the division of natural resources shall
waive the use fee normally charged to an individual or group for
one day's use of a picnic shelter or one week's use of a cabin in
a state recreation area when the individual or group donates the
materials and labor for the construction of such the picnic
shelter or cabin: Provided, That the individual or group was
authorized by the director to construct the picnic shelter or
cabin and that it was constructed in accordance with the
authorization granted and the standards and requirements of the
division pertaining to such construction.
The individual or group to whom the waiver is granted may
use the picnic shelter for one reserved day or the cabin for one
reserved week during each calendar year until the amount of the
donation equals the amount of the loss of revenue from the waiver
or until the individual dies or the group ceases to exist,
whichever first occurs. The waiver is not transferable. The
director shall permit free use of picnic shelters or cabins to
individuals or groups who have contributed materials and labor for construction of picnic shelters or cabins prior to the
effective date of this section. The director shall promulgate a
legislative rule in accordance with the provisions of chapter
twenty-nine-a of this code governing the free use of picnic
shelters or cabins provided for in this section, the eligibility
for free use, determining the value of the donations of labor and
materials, the appropriate definitions of a group and the maximum
time limit for such use.
§20-5-3. Section of parks and recreation; purpose; powers and
duties generally.
The purposes of the section of parks and recreation shall be
to promote conservation by preserving and protecting natural
areas of unique or exceptional scenic, scientific, cultural,
archaeological or historic significance, and to provide outdoor
recreational opportunities for the citizens of this state and its
visitors. It shall be the duty of the section of parks and
recreation to have within its jurisdiction and supervision:
(a) All state parks and recreation areas, including all
lodges, cabins, swimming pools, motorboating and all other
recreational facilities therein, except the roads therein which,
by reason of section one, article four, chapter seventeen of this
code, are transferred to the state road system and to the
responsibility of the commissioner of highways with respect to
the construction, reconstruction and maintenance of the roads or
any future roads for public usage on publicly owned lands for
future state parks, state forests and public hunting and fishing areas;
(b) The authority and responsibility to do the necessary
cutting and planting of vegetation along road rights-of-way in
state parks and recreational areas;
(c) The administration of all laws and regulations relating
to the establishment, development, protection, use and enjoyment
of all state parks and state recreational facilities consistent
with the provisions of this article;
(d) The Berkeley Springs Sanitarium in Morgan County shall
be continued as a state recreational facility, to be known as
Berkeley Springs Historical State Park, under the jurisdiction
and supervision of the division of natural resources and shall be
managed, directed and controlled as prescribed in this article
and in article one, chapter twenty of this code;
(e) The Washington Carver Camp in Fayette County is hereby
transferred from the division of tourism and parks to the
director who shall have the jurisdiction and supervision over the
camp subject to the jurisdiction and authority of the division of
culture and history as provided under section thirteen, article
one, chapter twenty-nine of this code;
(f) The improved recreational areas of Camp Creek State
Forest in Mercer County, as delineated according to section
three, article one-a, chapter nineteen of this code, is named as
the Camp Creek State Park and under that name shall be managed as
a state recreational facility;
(g) The improved recreational areas of Moncove Lake public hunting and fishing area shall be named as the Moncove Lake State
Park and under that name shall be managed as a state recreational
facility;
(h) The approximately seventy-five miles of right-of-way
along the former Greenbrier subdivision of the Chessie Railroad
System between Caldwell in Greenbrier County and Cass in
Pocohontas County to be developed as the Greenbrier River Trail,
to be operated under the authority of the division of natural
resources as follows:
(1) The construction and maintenance of barriers for the
protection of the trail from motorized vehicular traffic and for
the protection of adjacent public and private property; and
(2) The development, construction, operation and maintenance
of bicycle and hiking trails, horseback trails, primitive camping
facilities and other compatible recreational facilities to be so
designated by the director; and
(i) The approximately sixty and fifty-seven one-hundredths
miles of right-of-way of the CS railway system between Walker in
Wood County and Wilsonburg in Harrison County to be developed as
the North Bend Rail Trail to be operated under the authority of
the division of natural resources as follows:
(1) The construction and maintenance of barriers for the
protection of the trail from motorized vehicular traffic and for
the protection of adjacent public and private property; and
(2) The development, construction, operation and maintenance
of bicycle and hiking trails, horseback trails, primitive camping facilities and other compatible recreational facilities to be so
designated by the director.
§20-5-4. Definitions; state parks and recreation system.
As used in this article, unless the context clearly requires
otherwise:
"Bonds" shall mean bonds issued by the director.
"Cost of project" shall embrace the cost of construction,
the cost of all land, property, material and labor which are
deemed essential thereto, cost of improvements, financing
charges, interest during construction and all other expenses,
including legal fees, trustees', engineers' and architects' fees
which are necessary or properly incidental to the project.
"Project" shall be deemed to mean collectively the
acquisition of land, the construction of any buildings or other
works, together with incidental approaches, structures and
facilities, reasonably necessary and useful in order to provide
new or improved recreational facilities.
"Recreational facilities" shall mean and embrace cabins,
lodges, swimming pools, golf courses, restaurants, commissaries
and other revenue producing facilities in any state park.
"Rent or rental" shall include all moneys received for the
use of any recreational facility.
§20-5-5. Authority of director to issue park development revenue
bonds; grants and gifts.
The director, with the approval of the governor, is hereby
empowered to raise the cost of any project, as defined in this article, by the issuance of park development revenue bonds of the
state, the principal of and interest on the bonds shall be
payable solely from the special fund herein provided for the
payment. The bonds shall be authorized by order of the director,
approved by the governor, which shall recite an estimate by the
director of the cost of the project, and shall provide for the
issuance of bonds in an amount sufficient, when sold as
hereinafter provided, to produce the cost, less the amount of any
grant or grants, gift or gifts received, or in the opinion of the
director expected to be received from the United States of
America or from any other source. The acceptance by the director
of any and all grants and gifts, whether in money or in land,
labor or materials, is hereby expressly authorized. All bonds
shall have and are hereby declared to have all the qualities of
negotiable instruments under the provisions of article eight,
chapter forty-six of this code. The director shall have the
power:
(a) To issue negotiable bonds, security interests or notes
and to provide for and secure the payment thereof, and to provide
for the rights of the holders thereof, and to purchase, hold and
dispose of any of its bonds, security interests or notes.
(b) To sell, at public or private sale, any bond or other
negotiable instrument, security interests or obligation of the
director in any manner and upon such terms as the director deems
would best serve the purposes set forth herein.
(c) To issue its bonds, security interests and notes payable solely from the revenues or funds available to the director
therefor; and the director may issue its bonds, security
interests or notes in such principal amounts as it shall deem
necessary to provide funds for any purposes herein including:
(i) The payment, funding or refunding of the principal of,
interest on, or redemption premiums on any bonds, security
interests or notes issued by it whether the bonds, security
interests, notes or interest to be funded or refunded have or
have not become due.
(ii) The establishment or increase of reserves to secure or
to pay bonds, security interests, notes or the interest thereon
and all other costs or expenses of the director incident to and
necessary or convenient to carry out its purposes and powers.
Any bonds, security interests or notes may be additionally
secured by a pledge of any revenues, funds, assets or moneys of
the special fund herein provided.
(d) To issue renewal notes, or security interests, to issue
bonds to pay notes or security interests and, whenever it deems
refunding expedient, to refund any bonds by the issuance of new
bonds, whether the bonds to be refunded have or have not matured
except that no such renewal notes shall be issued to mature more
than ten years from date of issuance of the notes renewed, and no
such refunding bonds shall be issued to mature more than
twenty-five years from the date of original issuance.
(e) To apply the proceeds from the sale of renewal notes,
security interests or refunding bonds to the purchase, redemption or payment of the notes, security interests or bonds to be
refunded.
(f) To accept gifts or grants or property, funds, security
interests, money materials, labor, supplies or services from the
United States of America or from any governmental unit or any
person, firm or corporation, and to carry out the terms or
provisions of, or make agreements with respect to, or pledge, any
gifts or grants, and to do any and all things necessary, useful,
desirable or convenient in connection with the procuring,
acceptance or disposition of gifts or grants.
(g) To the extent permitted under its contracts with the
holders of bonds, security interests or notes of the authority,
to consent to any modification of the rate of interest, time of
payment of any installment of principal or interest, security or
any other term of any bond, security interest, note or contract
or agreement of any kind to which the director is a party.
(h) The director shall determine the form of the bonds,
including coupons to be attached thereto to evidence the right of
interest payments, which bonds shall be signed by the director,
under the great seal of the state, attested by the secretary of
state, and the coupons attached thereto shall bear the facsimile
signature of the director. In case any of the officers whose
signatures appear on bonds or coupons shall cease to be officers
before the delivery of the bonds, the signatures shall
nevertheless be valid and sufficient for all purposes the same as
if they had remained in office until such delivery.
(i) The director shall fix the denominations of the bonds,
the principal and interest of which shall be payable at the
office of the treasurer of the state of West Virginia, at the
capitol of the state, or, at the option of the holder, at a place
and in such medium as may be determined by the director.
(j) The director may provide for the registration of the
bonds in the name of the owner as to principal alone, and as to
both principal and interest under such terms and conditions as
the director may determine, and shall sell the bonds in such
manner as he or she may determine to be for the best interest of
the state, taking into consideration the financial responsibility
of the purchaser, and the terms and conditions of the purchase
and especially the availability of the proceeds of the bonds when
required for payment of the cost of the project.
(k) The proceeds of the bonds shall be used solely for the
payment of the cost of the project, and shall be deposited and
withdrawn as provided by section thirteen-g of this article, and
under such further restrictions, if any, as the director may
provide.
(l) If the proceeds of such bonds, by error in calculation
or otherwise, shall be less than the cost of the project,
additional bonds may in like manner be issued to provide the
amount of the deficiency, and unless otherwise provided for 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 as the bonds before issued.
(m) If the proceeds of bonds issued for the project shall
exceed the cost thereof, the surplus shall be paid into a special
fund to be established for payment of the principal and interest
of the bonds as specified in the trust agreement provided for in
the following section. The fund may be used for the purchase of
any of the outstanding bonds payable from such fund at the market
price, but not exceeding the price, if any, which 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 director may,
under like restrictions, issue temporary bonds with or without
coupons, exchangeable for definitive bonds upon the issuance of
the latter. The 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 herein or by the Constitution of the state.
§20-5-6. Tax exemption.
The exercise of the powers granted to the director herein
will be in all respects for the benefit of the people of the
state, for the improvement of their health, safety, convenience
and welfare and for the enhancement of their recreational
opportunities and is a public purpose. As the operation and
maintenance of park development projects will constitute the
performance of essential government functions, the director shall
not be required to pay any taxes or assessments upon any park
development projects or upon any property acquired or used by the director or upon the income therefrom. The bonds and notes and
all interest and income thereon shall be exempt from all taxation
by this state, or any county, municipality, political subdivision
or agency thereof, except inheritance taxes.
§20-5-7. Investment in notes, bonds and security interests.
The notes, bonds and security interests of the director are
hereby made securities in which the state board of investments,
all insurance businesses, all banking institutions, trust
companies, building and loan associations, savings and loan
associations may invest and upon which notes, security interests
or bonds become subject to redemption plus accrued interest to
such date. Upon the purchase the notes, security interests or
bonds shall be canceled.
§20-5-8. Disclaimer of any liability of state of West
Virginia.
The state of West Virginia shall not be liable on notes,
security interests or bonds or other evidences of indebtedness of
the director and the notes, security interests of bonds or other
evidence of indebtedness shall not be a debt of the state of West
Virginia, and the notes, security interests or bonds or other
evidence of indebtedness shall contain on the face thereof a
statement to such effect.
§20-5-9. Trustee for holders of park development revenue
bonds.
The director may enter into an agreement or agreements with
any trust company, or with any bank having the powers of a trust company, either within or outside the state, as trustee for the
holders of bonds issued hereunder, setting forth therein the
duties of the state and of the director in respect to
acquisition, construction, improvement, maintenance, operation,
repair and insurance of the project, 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 bonds, as may be agreed upon with the original
purchasers of the bonds, and including therein provisions
restricting the individual right of action of bondholders as is
customary in trust agreements respecting bonds and debentures of
corporations, protecting and enforcing the rights and remedies of
the trustee and the bondholders, and providing for approval by
the original purchaser of the bonds of the appointment of
consulting architects, and of the security given by those who
contract to construct the project, and by any bank or trust
company in which the proceeds of bonds or rentals shall be
deposited, and for approval by the consulting architects of all
contracts for construction. All expenses incurred in carrying
out the agreement may be treated as a part of the cost of
maintenance, operation and repair of the project.
§20-5-10. Proceeds of park development revenue bonds, grants and
gifts.
The proceeds of all bonds sold for any park development
project and the proceeds of any grant or gift received by the
director for any project financed by the issuance of park development revenue bonds shall be paid to the treasurer of the
state of West Virginia, who shall not commingle the funds with
any other moneys, but shall deposit them in a separate bank
account or accounts. The moneys in the accounts shall be paid by
the treasurer on requisition of the director, or any other person
as the director may authorize to make such requisition. All
deposits of the moneys shall, if required by the treasurer or the
director, be secured by obligation of the United States, of the
state of West Virginia, or of the director, of a market value
equal at all times to the amount of the deposit, and all banking
institutions are authorized to give such deposits.
§20-5-11. Authority of director to pledge revenue from
recreational facilities as security.
The director, with the approval of the governor, shall have
authority to pledge all revenue derived from any project as
security for any bonds issued to defray the cost of the project.
In any case in which the director may deem it advisable, he or
she shall also have the authority to pledge the revenue derived
from any existing recreational facilities under his or her
control, or any state park or forest, as additional security for
the payment of any bonds issued under the provisions of this
article to pay the cost of any park development project.
§20-5-12. Management and control of project.
The division shall properly maintain, repair, operate,
manage and control the project, fix the rates of rental, and
establish bylaws and rules for the use and operation of the project, and may make and enter into all contracts or agreements
necessary and incidental to the performance of its duties and the
execution of its powers hereunder.
§20-5-13. Provisions of Constitution and law observed; what
approval required.
It shall not be necessary to secure from any officer or
board not named in this article any approval or consent, or any
certificate or finding, or to hold an election, or to take any
proceedings whatever, either for the construction of any project,
or the improvement, maintenance, operation or repair thereof, or
for the issuance of bonds hereunder, except as are prescribed by
these provisions or are required by the Constitution of this
state.
Nothing contained herein shall be so construed or
interpreted as to authorize or permit the incurring of state debt
of any kind or nature as contemplated by the provisions of the
Constitution of the state in relation to state debt.
§20-5-14. Restaurants and other facilities.
The director may, on all areas under his or her jurisdiction
and control, operate commissaries, restaurants and other
establishments for the convenience of the public. For these
purposes the director may purchase equipment, foodstuffs,
supplies and commodities, according to law.
§20-5-15. Contracts for operation of commissaries, restaura
nts,
recreational
faciliti
es and
other
establis
hments
limited
to ten
years'
duration;
renewal
at option
of
director;
terminat
ion of
contract
by the
director;
necessity
for prior
legislat
ive
approval
before
certain lodge,
cabin,
camping,
golf
facility,
including
pro shop
operatio
ns, ski
facility
or gift
shop
faciliti
es are
placed
under
contract.
When it is considered necessary by the director to enter
into a contract with a person, firm, corporation, foundation or
public agency for the operation of a commissary, restaurant,
recreational facility or other establishment within the state
parks and public recreation system, the contract shall be for a
duration not to exceed ten years, but the contract may provide
for an option to renew at the director's discretion for an
additional term or terms not to exceed ten years at the time of
renewal. Prior to initiating a contract for the operation of a state park lodge, cabin, campground, gift shop, golf facility,
including pro shop operations, or ski facility, the director
shall submit the specific location which would be subject to the
contract to the Legislature for its approval and authorization:
Provided, That for contracts for gift shops or golf facilities in
specific locations operated under contract on the effective date
of this section, and contracts for a duration of not more than
one year which provide for options to renew for not more than
five succeeding years, notice to the joint committee on
government and finance, but not specific legislative
authorization and approval, is required prior to execution of the
contract.
Any contract entered into by the director shall provide an
obligation upon the part of the operator that he or she maintain
a level of performance satisfactory to the director, and shall
further provide that any contact may be terminated by the
director in the event he or she determines that the performance
is unsatisfactory and has given the operator reasonable notice of
the termination.
§20-5-16. Correlation of projects and services.
The director of the division of natural resources shall
correlate and coordinate park and recreation programs, projects
and developments with the functions and services of other offices
and sections of the division and other agencies of the state
government so as to provide, consistent with the provisions of
this chapter, suitable and adequate facilities, landscaping, personnel and other services at and about all state parks and
public recreation facilities under his or her jurisdiction.
§20-5-17. Discounts for West Virginia residents over the age of
sixty-two.
The director shall provide to West Virginia citizens who are
sixty-two years of age or older, and who document residency and
age by a valid West Virginia driver's license, a fifty percent
reduction in campground rental fees for each campsite to be used
exclusively by said eligible camper: Provided, That the fifty
percent reduction in campground rental fees shall only apply to
those rentals occurring during the period of time beginning on
the day after Labor Day and ending four days prior to Memorial
day.
§20-5-18. Discounts for West Virginia residents who are
totally and
permanen
tly
disabled.
The director shall issue a discount card to West Virginia
residents who are totally and permanently disabled, which would
provide a fifty percent reduction in campground rental fees for
each campsite to be used exclusively by the eligible camper:
Provided, That in order to be eligible for the reduction, the
person shall document that he or she is a resident of this state
and that he or she has a total and permanent disability. The
director shall promulgate rules in accordance with article three, chapter twenty-nine of this code setting forth the documentation
which is necessary to prove residency and total and permanent
disability: Provided, however, That the fifty percent reduction
in campground rental fees applies only to those rentals occurring
during the period of time beginning on the day after Labor Day
and ending four days prior to Memorial Day.
NOTE: This bill creates a new article relating to the parks
and recreation section within the division of natural resources,
as previously transferred to the Division of Natural Resources
from Article 1, Chapter 5B - Tourism and Parks/Parks and
Recreation.
This article is new; therefore, strike-throughs and
underscoring have been omitted.