sb409 intr

Senate Bill No. 409
(By Senators Wooton, Snyder, Unger and Ball)
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[Introduced February 4, 2000; referred to the Committee on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact section twenty-three, article eighteen, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto a new section, designated section twenty-three-a; to amend and reenact section twelve-a, article nineteen of said chapter; to amend and reenact section ten, article twenty of said chapter; to further amend said article by adding thereto a new section, designated section ten-a; to amend and reenact sections nine and nine-a, article thirteen-a, chapter sixteen of said code; and to further amend said article by adding thereto two new sections, designated sections nine-b and nine-c, all relating to municipal, county and public service district water and sewer services; providing that owners of property are given notice of user delinquencies and that they are not liable for the unpaid charges for services by users for more than one hundred eighty days unless the owner contracted directly with the provider for the services; providing for the filing of liens and foreclosure actions under certain circumstances; cooperation among utilities to discontinue services; and compelling property owners to connect to sewer service.

Be it enacted by the Legislature of West Virginia:

That section twenty-three, article eighteen, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto a new section, designated section twenty-three-a; that section twelve-a, article nineteen of said chapter be amended and reenacted; that section ten, article twenty of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section ten-a; that sections nine and nine-a, article thirteen-a, chapter sixteen of said code be amended and reenacted; and that said article be further amended by adding thereto two new sections, designated sections nine-b and nine-c, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 18. ASSESSMENTS TO IMPROVE STREETS, SIDEWALKS AND SEWERS; SEWER CONNECTIONS AND BOARD OF HEALTH; ENFORCEMENT OF DUTY TO PAY FOR SERVICE.

§8-18-23. Authority to require discontinuance of water service by provider utility for nonpayment of sewer service rates and charges.

~~(a)~~ When any municipality owns, maintains, operates or provides sewer facilities to its residents and customers and does not own, maintain, operate or provide water facilities to them when the same is provided by any other publicly or privately owned utility, municipality or public service district, the municipality providing sewer facilities may require the provider of water facilities to discontinue water service to any of its users who are delinquent in the payment of sewer service rates and charges to the municipality. The provider of water facilities is empowered and authorized hereby to discontinue water service upon demand of the municipality for this purpose; however, prior to discontinuance of any water service, the municipality shall contract with the provider of water facilities which contract shall provide that the municipality shall reimburse the provider of water facilities for all costs and expenses incurred in both the termination of water service to the delinquent user of sewer facilities and the subsequent resumption of water service to such user. The contract shall provide for reasonable methods and assurances so that the provider of water facilities will be protected and held harmless from claims and damages when water service is discontinued in error or in violation of the rights of the user through the fault of the municipality providing sewer facilities and making the demand for discontinuance of water service to the user of such sewer facilities. Any contract made for this purpose shall have the approval of the public service commission prior to its execution and performance. Any disconnection of water service must comply with all rules, regulations and orders of the public service commission.

(b) Whenever any rates and charges for services or facilities furnished remain unpaid for a period of thirty days after the same become due and payable, the user of the services and facilities provided shall be delinquent and the user shall be held liable at law until such time as all such rates and charges are fully paid.
(c) All rates and charges whenever delinquent, as provided by ordinance of the municipality, shall, when notice thereof is duly recorded in the office of the clerk of the county commission wherein the subject real property is situate, be liens of equal dignity, rank and priority with the lien on such premises of state, county, school and municipal taxes for the amount thereof upon the real property served, and the municipality shall have plenary power and authority from time to time to enforce such lien in a civil action to recover the money due for such services rendered plus court fees and costs and a reasonable attorney's fee: ~~Provided,~~ That an owner of real property may not be held liable for the delinquent rates or charges for services or facilities of a tenant, nor shall any lien attach to real property for the reason of delinquent rates or charges for services or facilities of a tenant of such real property, unless the owner has contracted directly with the municipality to purchase such services or facilities.
(d) Municipalities are hereby granted a deferral of filing fees or other fees and costs incidental to the bringing and maintenance of an action in magistrate court for the collection of the delinquent rates and charges. If the municipality collects the delinquent account, plus fees and costs, from its customer or other responsible party, the municipality shall pay to the magistrate court the filing fees or other fees and costs which were previously deferred.
(e) No municipality may foreclose upon the premises served by it for delinquent rates and charges for which a lien is authorized by this section except through the bringing and maintenance of a civil action for such purpose brought in the circuit court of the county wherein the municipality lies. In every such action, the court shall be required to make a finding based upon the evidence and facts presented that the municipality had exhausted all other remedies for the collection of debts with respect to such delinquencies prior to the bringing of such action. In no event shall foreclosure procedures be instituted by any municipality or on its behalf unless such delinquency has been in existence or continued for a period of two years from the date of the first such delinquency for which foreclosure is being instituted.
§8-18-23a. Delinquent service rates and charges; liens; civil action; deferral of filing fees and court costs; foreclosure actions.

(a) When rates or charges for water and sewer services or facilities remain unpaid for a period of thirty days after becoming due and payable, the user of the services and facilities provided is delinquent and shall be held liable at law until the time as all the rates and charges are fully paid. The user shall be given notice of each delinquency by certified mail, return receipt requested, stating in large, bold type that the municipality may shut off and discontinue the user's water and sewer services or facilities for rates or charges that remain delinquent for more than thirty days after becoming due and payable.

(b) The property owner is also liable at law and the property served subject to a lien for all delinquent rates and charges by the users of the services or facilities on the premises: Provided, That such liability shall not exceed one hundred eighty days of service rates and charges unless the owner contracts directly with the municipality to purchase the services or facilities for the property or the user. The property owner shall be given notice of each delinquency by certified mail, return receipt requested, stating in large, bold type that services and facilities provided to the property have been delinquent for more than thirty days after becoming due and payable. Further, the notice shall state that:

(1) The owner is liable and the property is subject to a lien for up to one hundred eighty days of delinquent rates and charges; and

(2) To limit the owner's liability, the owner may request in writing, by certified mail, return receipt requested, that the municipality immediately shut off and discontinue the user's services and facilities for such delinquencies. The owner and the property are not liable for rates and charges that accrue after the receipt by the municipality of the written request.

(c) The municipality may shut off and discontinue water services or facilities provided to the delinquent users when rates or charges for services or facilities remain unpaid for a period of thirty days after becoming due and payable. The services shall be shut off and discontinued no later than one hundred eighty days after becoming delinquent or upon receiving written request by the property owner.

(d) All delinquent rates and charges are liens on the real property served of equal dignity, rank and priority with liens for state, county, school and municipal taxes. The municipality has plenary power and authority to enforce liens for delinquent rates and charges by filing a civil action in the circuit court in the county where the municipality lies to recover the delinquent rates and charges plus court fees, costs and reasonable attorney fees. All fees and costs incidental to filing and maintaining such action shall be deferred until the municipality collects the delinquent account, fees and costs from the user or property owner.

(e) A municipality may foreclose upon the property served for delinquent rates or charges for which a lien is authorized by this section by filing and maintaining a civil action in the circuit court of the county wherein the municipality lies. The delinquency shall have existed or continued for a period of two years from the date of the first notice of delinquency to commence a foreclosure action in the circuit court. In every action, the court is required to find that the municipality exhausted all other remedies for the collection of the delinquent account prior to filing the action.

(f) The public service commission may promulgate rules to effectuate the provisions of this section.
ARTICLE 19. MUNICIPAL AND COUNTY WATERWORKS AND ELECTRIC POWER SYSTEMS.

§8-19-12a. Delinquent service rates and charges; liens; civil action; deferral of filing fees and court costs; foreclosure actions.

(a) When rates or charges for water services or facilities remain unpaid for a period of thirty days after becoming due and payable, the user of the services and facilities provided is delinquent and shall be held liable at law until the time as all the rates and charges are fully paid. The user shall be given notice of each delinquency by certified mail, return receipt requested, stating in large, bold type that the municipality or county commission may shut off and discontinue the user's water services or facilities for rates or charges that remain delinquent for more than thirty days after becoming due and payable.

(b) The property owner is also liable at law and the property served subject to a lien for all delinquent rates and charges by the users of the services or facilities on the premises: Provided, That such liability shall not exceed one hundred eighty days of services rates and charges unless the owner contracts directly with the municipality or county commission to purchase the services or facilities for the property or the user. The property owner shall be given notice of each delinquency by certified mail, return receipt requested, stating in large, bold type that services and facilities provided to the property have been delinquent for more than thirty days after becoming due and payable. Further, the notice shall state that:

(1) The owner is liable and the property is subject to a lien for up to one hundred eighty days of delinquent rates and charges; and

(2) To limit the owner's liability, the owner may request in writing, by certified mail, return receipt requested, that the municipality or county commission immediately shut off and discontinue the user's services and facilities for the delinquencies. The owner and the property are not liable for rates and charges that accrue after the receipt by the municipality or county commission of the written request.

(c) The municipality or county commission may shut off and discontinue water services or facilities provided to the delinquent users when rates or charges for services or facilities remain unpaid for a period of thirty days after becoming due and payable. The services shall be shut off and discontinued no later than one hundred eighty days after becoming delinquent or upon receiving written request by the property owner.

(d) All delinquent rates and charges are liens on the real property served of equal dignity, rank and priority with liens for state, county, school and municipal taxes. The municipality or county commission has plenary power and authority to enforce liens for delinquent rates and charges by filing a civil action in circuit court in the county where the municipality or county commission lie to recover the delinquent rates and charges plus court fees, costs and reasonable attorney fees. All fees and costs incidental to filing and maintaining the action shall be deferred until the municipality or county commission collect the delinquent account, fees and costs from the user or property owner.

(e) A municipality or county commission may foreclose upon the served property for delinquent rates or charges for which a lien is authorized by this section by filing and maintaining a civil action in the circuit court of the county wherein the municipality or county commission lie. The delinquency shall have existed or continued for a period of two years from the date of the first notice of delinquency to commence a foreclosure action in the circuit court. In every action, the court is required to find that the municipality or county commission exhausted all other remedies for the collection of the delinquent account prior to filing the action.

(f) The public service commission may promulgate rules to effectuate the provisions of this section.
ARTICLE 20. COMBINED WATERWORKS AND SEWERAGE SYSTEMS.

§8-20-10. Power and authority of municipality to enact ordinances; make rules; fix or change rates or charges.

(a) The governing body of a municipality availing itself of the provisions of this article shall make, enact and enforce all rules for the repair, maintenance, operation, management, care, protection and use of the combined waterworks and sewage systems of a municipality that are conducive to the preservation of public health, comfort and convenience and to rendering the water supply pure and the sewage harmless. The municipality shall establish rates and charges for the services and facilities it furnishes that are sufficient at all times to pay the cost of maintenance, operation and depreciation of the combined water and sewer systems, the principal of and interest on any bonds issued, the reserves or other payments provided for in the proceedings authorizing the issuance of any bonds, and other obligations incurred as provided for under the provisions of this article.

(b) Separate rates or charges may be established for water and sewer services respectively, or rates and charges may be combined for combined water and sewer services.

(c) The rates and charges, whether separate or combined, shall be established, revised and maintained as provided for by the provisions of this article. Such rates and charges shall become payable as the governing body may determine by ordinance.
§8-20-10a. Delinquent service rates and charges; liens; civil action; deferral of filing fees and court costs; foreclosure actions.

(1) The owner is liable and the property is subject to a lien for up to one hundred eighty days of delinquent rates and charges; and

(f) The public service commission may promulgate rules to effectuate the provisions of this section.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 13A. PUBLIC SERVICE DISTRICTS FOR WATER, SEWAGE AND GAS SERVICES.

§16-13A-9. Service rates and charges.

(a) The board shall make, enact and enforce all rules to effectuate the acquisition, construction, improvement, extension, management, maintenance, operation, care, protection and use of public service properties owned or controlled by the district. The board shall establish rates and charges for the services and facilities it furnishes that are sufficient at all times, notwithstanding any other provisions of law, to pay the cost of maintenance, operation and depreciation of the public service properties, the principal of and interest on any bonds issued, the reserves or other payments provided for in the proceedings authorizing the issuance of any bonds, and other obligations incurred as provided for under the provisions of this article.

(b) The schedule of rates and charges as established by the board shall be based upon:

(1) The consumption of water or gas on premises connected with the facilities, taking into consideration domestic, commercial, industrial and public use of water and gas; and

(2) Any other basis or classification that is fair and reasonable, taking into consideration the location of the premises served and the nature and extent of the services and facilities furnished.

(c) Water, sewer and gas services furnished to any one premises may be billed on a single bill specifying the charges for each service.

(d) The board shall require all users of services and facilities furnished by the district to designate on every application for services whether the applicant is a tenant or an owner of the premises to be served. When the applicant is a tenant, he or she shall state the name and address of the owner of the premises to be served by the district.

(e) All new applicants for services shall deposit a minimum of fifty dollars with the district to secure the payment of services in the event they are delinquent. In the case of a combined water and sewer public service district, the deposit shall be a minimum of one hundred dollars. When a deposit is forfeited to pay service rates and charges that are delinquent at the time of disconnection or termination of service, no reconnection or reinstatement of services shall be made by the district until another minimum deposit of fifty dollars, or one hundred dollars in the case of a combined water and sewer public service district, has been remitted to the district.

§16-13A-9a. Delinquent service rates and charges; liens; civil action; deferral of filing fees and court costs; foreclosure actions.

(a) When rates or charges for services or facilities remain unpaid for a period of thirty days after becoming due and payable, the user of the services and facilities provided is delinquent and shall be held liable at law until the time as all the rates and charges are fully paid. The user shall be given notice of each delinquency by certified mail, return receipt requested stating in large, bold type that the board may shut off and discontinue the user's water and gas services or facilities for rates or charges that remain delinquent for more than thirty days after becoming due and payable.

(b) The property owner is also liable at law and the property served subject to a lien for all delinquent rates and charges by the users of the services or facilities on the premises: Provided, That such liability shall not exceed one hundred eighty days of service rates and charges unless the owner contracts directly with the public service district to purchase the services or facilities for the property or the user. The property owner shall be given notice of each delinquency by certified mail, return receipt requested, stating in large, bold type that services and facilities provided to the property have been delinquent for more than thirty days after becoming due and payable. Further, the notice shall state that:

(1) The owner is liable and the property subject to a lien for up to one hundred eighty days of delinquent rates and charges; and

(2) To limit the owner's liability, the owner may request in writing, by certified mail, return receipt requested, that the board immediately shut off and discontinue the user's services and facilities for the delinquencies. The owner and the property are not liable for rates and charges that accrue after receipt by the district of such written request.

(c) The board may shut off and discontinue water or gas services or facilities provided to the delinquent users when rates or charges for services or facilities remain unpaid for a period of thirty days after becoming due and payable. The services shall be shut off and discontinued no later than one hundred eighty days after becoming due and payable or upon receiving written request by the owner.

(d) All delinquent rates and charges are liens on the real property served of equal dignity, rank and priority with liens for state, county, school and municipal taxes. The public service district has plenary power and authority to enforce liens for delinquent rates and charges by filing a civil action in circuit court in the county wherein the public service district lie to recover the delinquent rates and charges plus court fees, costs and reasonable attorney fees. All fees and costs incidental to filing and maintaining the action shall be deferred until the public service district collects the delinquent account, fees and costs from the user or property owner.

(e) A public service district may foreclose upon the property served for delinquent rates or charges for which a lien is authorized by this section by filing and maintaining a civil action in the circuit court of the county wherein the public service district lies. The delinquency shall have existed or continued for a period of two years from the date of the first notice of delinquency to commence a foreclosure action in the circuit court. In every such action, the court is required to find that the public service district exhausted all other remedies for the collection of the delinquent account prior to filing the action.

(f) The public service commission shall promulgate rules to effectuate the provisions of this section.

§16-13A-9b. Cooperation among utilities to discontinue service for delinquent accounts; and to share account information.

(a) In the event that any publicly or privately owned utility, city, incorporated town, other municipal corporation or other public service district included within the district owns and operates either water or sewer facilities, and the district owns and operates the other water or sewer facilities, then the district and the publicly or privately owned utility, city, incorporated town, other municipal corporation or other public service district shall covenant and contract to shut off and discontinue water or sewer services for the nonpayment of water or sewer service fees and charges. Any contracts entered into by a public service district pursuant to this section shall be submitted to the public service commission for approval.

(b) Any public service district providing water and sewer services to its customers has the right to terminate water services for delinquency in payment of either water or sewer rates and charges.

(d) When one public service district is providing sewer service and another public service district, or municipality included within the boundaries of the sewer district, is providing water service, and when the district providing sewer service experiences a delinquency in payment, then the district or the municipality providing water service shall terminate the water service to the delinquent user or property owner upon the request of the district providing sewer service. Any termination of water service shall comply with the rules and orders of the public service commission.

(e) The public service commission shall promulgate rules to effectuate the provisions of this section.

§16-13A-9c. Compelling property owners to connect to sewer service provided by a public service district.

(a) A district furnishing sewer facilities within the district may require or compel, by petition to the circuit court of the county where the property is located, or may require the division of health to compel all owners, users or occupants of all houses, dwellings and buildings located near any sewer facilities where sewage will flow by gravity or be transported by other methods approved by the division of environmental protection or the division of health including, but not limited to, vacuum and pressure systems approved under the provisions of section nine, article one, chapter sixteen of this code, to connect with and use the facilities when:

(1) The facilities can adequately serve the houses, dwellings and buildings; and

(2) The court finds that the mandatory use of the sewer facilities is necessary and essential for the health and welfare of the inhabitants and residents of the district and of the state.

(b) The circuit court shall adjudicate the merits of the petition to compel by summary hearing to be held within thirty days of service of the petition to the owners, users or occupants.

(c) Once compelled by the court, the owner, user or occupant shall cease to use any other means for the collection, treatment and disposal of sewage and waste material including, but not limited to, vacuum and pressure systems approved under the provisions of section nine, article one, chapter sixteen of this code.

(d) When the public service district mandates that the property owner connect to the sewer facilities, even when sewage from the dwellings does not flow to the main line by gravity and the property will require renovation to the existing dwellings' exterior plumbing in order to connect to the main sewer line, the board shall authorize the district to pay reasonable costs for the renovations to the exterior plumbing, including, but not limited to, installing, operating, maintaining and purchasing a pump or other renovation approved by the division of health. Maintenance and operation costs for the extra installation shall be reflected in the district's rates and charges subject to the approval of the public service commission.

(e) When a district makes a sewer facility available to an owner, user or occupant of a house, dwelling or building located near the sewer facility and the engineer for the district has certified that the sewer facilities are available to and are adequate to serve the owner, user or occupant and sewage will flow by gravity or be transported by any other methods approved by the division of environmental protection or the division of health from the house, dwelling or building into the sewer facilities, the district may charge and the owner, user or occupant shall be liable for the rates and charges for services as provided by this chapter only after the owner has received a thirty-day notice of the availability of the facilities.

(f) An establishment, as defined in section three, article eleven, chapter twenty-two of this code, now or hereafter operating its own sewage disposal system pursuant to a permit issued by the division of environmental protection as prescribed by section eleven, article eleven, chapter twenty-two of this code is exempt from the provisions of this section, anything in this chapter to the contrary notwithstanding.

(g) The public service commission shall promulgate rules to effectuate the provisions of this section.

NOTE: The purpose of this bill is to provide that owners of property are to be given notice of user delinquencies for water and sewer services by their tenants, and that they are not liable for the unpaid charges for services by users for more than one hundred eighty days

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§8-19-12a; §8-20-10; §16-13A-9 §16-13A-9a have been rewritten; therefore, strike-throughs and underscoring have been omitted.

§8-18-23a; §8-20-10a; §§16-13A-9b and 9c are new; therefore, strike-throughs and underscoring have been omitted.