H. B. 4270
(By Delegates Fleischauer, Manchin, Caputo,
Williams, Houston, Beach and Shaver)
[Introduced
February 3, 2004
; referred to the
Committee on Government Organization then Finance.]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated article §20-15-1,
§20-15-2, §20-15-3, §20-15-4, §20-15-5, §20-15-6, §20-15-7,
§20-15-8, §20-15-9 and §20-15-10,
all relating to creating the
north central West Virginia regional trails and recreation
authority; setting forth legislative findings; defining
certain terms; creating and appointing the north central West
Virginia regional trails and recreation authority
board;
setting forth the powers and duties of the board; providing
for the appointment of rangers; providing bonding authority;
establishing criminal penalties; l
imiting liability exposure
for landowners who allow easements, leases or other access to
their property for the
north central West Virginia regional
trails and recreation authority
recreation area or trail;
allowing rangers on duty on the
north central West Virginia
regional trails and recreation authority
recreation area or trail to carry firearms; allowing the
north central West
Virginia regional trails and recreation authority
to
promulgate emergency rules under certain circumstances; and
allowing the authority to set user fees for the
north central
West Virginia regional trails and recreation authority
recreation area and trail at its discretion.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §20-15-1, §20-15-2,
§20-15-3, §20-15-4, §20-15-5, §20-15-6, §20-15-7, §20-15-8,
§20-15-9 and §20-15-10,
all to read as follows:
ARTICLE 15. North central West Virginia regional trails and
recreation authority.
§20-15-1. Legislative findings.
The West Virginia Legislature finds that there is a
significant need within the state and throughout the eastern United
States for well-managed facilities for trail-oriented recreation,
walkers, joggers, off-highway vehicle enthusiasts, bicyclists,
equestrians and others. The Legislature further finds that under
an appropriate contractual and management scheme, well-managed,
trail-oriented, recreation facilities could exist on private
property without diminishing the landowner's interest, control or
profitability in the land and without increasing the landowner's
exposure to liability.
The Legislature further finds that, with the cooperation of
private landowners, there is an opportunity to provide
trail-oriented recreation facilities primarily on private property
in north central West Virginia and that the facilities will provide
significant economic and recreational benefits to the state and to
the communities in north central West Virginia through increased
tourism in the same manner as white-water rafting and snow skiing
benefit the state and communities surrounding those activities.
The Legislature further finds that the creation and empowering
of a statutory corporation to work with the landowners, county
officials and community leaders, state and federal government
agencies, recreational user groups and other interested parties to
enable and facilitate the implementation of the facilities will
greatly assist in the realization of these potential benefits.
The Legislature further finds that it is in the best interests
of the state to encourage private landowners to make available for
public use through the north central West Virginia regional trails
and recreation authority land for these recreational purposes by
limiting their liability for injury to persons entering thereon, by
limiting their liability for injury to the property of persons
entering thereon and by limiting their liability to persons who may
be injured or otherwise damaged by the acts or omissions of persons
entering thereon.
§20-15-2. Definitions.
Unless the context clearly requires a different meaning, the
terms used in this section have the following meanings:
(a) "Authority" means the north central West Virginia regional
trails and recreation authority;
(b) "Board" means the board of the north central West Virginia
regional trails and recreation authority;
(c) "Charge" means, for purposes of limiting liability for
recreational purposes set forth in this article, the amount of
money asked in return for an invitation to enter or go upon the
land, including a one-time fee for a particular event, amusement,
occurrence, adventure, incident, experience or occasion as set by
the authority: Provided, That the authority may set charges in
differing amounts for different categories of participants,
including, but not limited to, in-state and out-of-state
participants, as the authority sees fit;
(d) "North Central West Virginia Regional Trails and
Recreation Area" means a system of recreational trails and
appurtenant facilities, including trail head centers, parking
areas, camping facilities, picnic areas, recreational areas,
historic or cultural interpretive sites and other facilities that
are a part of the system;
(e) "Land" includes, but is not limited to, roads, water,
watercourses, private ways and buildings, structures and machinery
or equipment thereon when attached to the realty;
(f) "Owner" includes, but is not limited to, tenant, lessee,
occupant or person in control of the premises;
(g) "Recreational purposes" includes, but is not limited to,
any one or any combination of the following noncommercial
recreational activities: Hunting, fishing, swimming, boating,
camping, picnicking, hiking, pleasure driving, motorcycle or
all-terrain vehicle riding, bicycling, horseback riding, nature
study, water skiing, winter sports and visiting, viewing or
enjoying historical, archaeological, scenic or scientific sites or
otherwise using land for purposes of the user;
(h) "Participating agency" means any unit of federal, state or
local government in the north central part of this state and, with
the approval of the board, any other unit of federal, state or
local government where trails and other recreational facilities
relating to the north central West Virginia recreation area are
developed in the future.
§20-15-3. Creation; appointment of board; terms.
(a) There is hereby created the "North Central West Virginia
Regional Trails and Recreation Authority" which is a public
corporation and a government instrumentality existing for the
purpose of enabling and facilitating the development and
operation of a system of trail-oriented recreation facilities for
use by walkers, joggers, off-highway vehicle enthusiasts,
bicyclists, equestrians and others. This recreational trail system shall be located in north central West Virginia with significant
portions of the recreational trail system being located on private
property made available for use through lease, license, easement or
other appropriate legal form by a willing landowner.
(b) The authority shall be governed by a board of at least
seventeen members who shall be representative of the various
interests involved in the north central West Virginia regional
trails and recreation authority recreation area project in the
north central region of the state and who shall be appointed as
follows:
(1) The county commission of each participating county, as
defined in section two of this article, shall appoint two members
of the board as follows:
(A) One member who represents and is associated with a
corporation or individual landowner whose land is being used or is
expected to be used in the future as part of the north central West
Virginia regional trails and recreation authority recreation area
project. This member shall be appointed to a four-year term.
(B) One member who represents and is associated with travel
and tourism or economic development efforts within the county. The
initial appointment shall be for a two-year term, but all
subsequent appointments shall be for a four-year term.
(2) Each municipality participating in the north central West
Virginia regional trails and recreation authority project shall appoint two board members, at least one of whom represents and is
associated with recreational users of the north central West
Virginia regional trails and recreation authority area project.
These members shall serve three-year terms.
(3) The following three persons shall serve as nonvoting
members representing the state: The director of the division of
travel and tourism, the director of the division of natural
resources, and the director of the division of forestry, or their
respective designees.
Any appointed member whose term has expired shall serve until
his or her successor has been duly appointed and qualified. Any
person appointed to fill a vacancy shall serve only for the
unexpired term. Any appointed member is eligible for
reappointment. Members of the board are not entitled to
compensation for services performed as members but are entitled to
reimbursement for all reasonable and necessary expenses actually
incurred in the performance of their duties.
(c) Before the authority issues any revenue bonds or revenue
refunding bonds under the authority of this article, each appointed
voting member of the board shall execute a surety bond in the penal
sum of twenty-five thousand dollars and the officers and executive
director of the board shall each execute a surety bond in the penal
sum of fifty thousand dollars. Each surety bond shall be
conditioned upon the faithful performance of the duties of the member, officer or director, shall be executed by a surety company
authorized to transact business in this state as surety and shall
be approved by the governor and filed in the office of the
secretary of state. The authority shall pay premiums on the surety
bonds from funds accruing to the authority.
§20-15-4. Board; quorum; executive director; expenses.
The board is the governing body of the authority and the board
shall exercise all the powers given the authority in this article.
The board shall meet quarterly, unless a special meeting is
called by its chairman: Provided, That on the second Monday of
July of each even-numbered year, or as soon thereafter as feasible,
the board shall meet to elect a chairman, secretary and treasurer
from among its own members.
A majority of the members of the board constitutes a quorum,
and a quorum shall be present for the board to conduct business.
Unless the bylaws require a larger number, action may be taken by
majority vote of the members present.
The board shall prescribe, amend, and repeal bylaws and rules
governing the manner in which the business of the authority is
conducted and shall review and approve an annual budget.
The board shall appoint an executive director to act as its
chief executive officer, to serve at the will and pleasure of the
board. The board, acting through its executive director, may
employ any other personnel considered necessary and may appoint counsel and legal staff for the authority and retain such temporary
engineering, financial and other consultants or technicians as may
be required for any special study or survey consistent with the
provisions of this article. The executive director shall carry out
plans to implement the provisions of this article and to exercise
those powers enumerated in the bylaws. The executive director
shall prepare annually a budget to be submitted to the board for
its review and approval.
All costs incidental to the administration of the authority,
including office expenses, personal services expense and current
expense, shall be paid in accordance with guidelines issued by the
board from funds accruing to the authority.
All expenses incurred in carrying out the provisions of this
article shall be payable solely from funds provided under the
authority of this article and no liability or obligation may be
incurred by the authority under this article beyond the extent to
which moneys have been provided under the authority of this
article.
§20-15-5. Powers of authority.
The authority, as a public corporation and governmental
instrumentality exercising public powers of the state, may exercise
all powers necessary or appropriate to carry out the purposes of
this article, including, but not limited to, the power:
(1) To acquire, own, hold and dispose of property, real and personal, tangible and intangible;
(2) To lease property, whether as lessee or lessor, and to
acquire or grant through easement, license or other appropriate
legal form, the right to develop and use property and open it to
the use of the public;
(3) To mortgage or otherwise grant security interests in its
property;
(4) To procure insurance against any losses in connection with
its property, license or easements, contracts, including
hold-harmless agreements, operations or assets in such amounts and
from such insurers as the authority considers desirable;
(5) To maintain such sinking funds and reserves as the board
determines appropriate for the purposes of meeting future monetary
obligations and needs of the authority;
(6) To sue and be sued, implead and be impleaded and complain
and defend in any court;
(7) To contract for the provision of legal services by private
counsel and, notwithstanding the provisions of article three,
chapter five of this code, the counsel may, in addition to the
provisions of other legal services, represent the authority in
court, negotiate contracts and other agreements on behalf of the
authority, render advice to the authority on any matter relating to
the authority, prepare contracts and other agreements and provide
such other legal services as may be requested by the authority;
(8) To adopt, use and alter at will a corporate seal;
(9) To make, amend, repeal and adopt bylaws for the management
and regulation of its affairs;
(10) To appoint officers, agents and employees and to contract
for and engage the services of consultants;
(11) To make contracts of every kind and nature and to execute
all instruments necessary or convenient for carrying on its
business, including contracts with any other governmental agency of
this state or of the federal government or with any person,
individual, partnership or corporation to effect any or all of the
purposes of this article;
(12) Without in any way limiting any other subdivision of this
section, to accept grants and loans from and enter into contracts
and other transactions with any federal agency;
(13) To maintain an office at such places within the state as
it may designate;
(14) To borrow money and to issue its bonds, security
interests or notes and to provide for and secure the payment of the
bonds, security interests or notes and to provide for the rights of
the holders of the bonds, security interests or notes and to
purchase, hold and dispose of any of its bonds, security interests
or notes;
(15) To sell, at public or private sale, any bond or other
negotiable instrument, security interest or obligation of the authority in such manner and upon such terms as the authority
considers would best serve the purposes of this article;
(16) To issue its bonds, security interests and notes payable
solely from the revenues or other funds available to the authority,
and the authority may issue its bonds, security interests or notes
in such principal amounts as it considers necessary to provide
funds for any purpose under this article, including:
(A) 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;
(B) The establishment or increase of reserves to secure or to
pay bonds, security interests, notes or the interest on the bonds,
security interest or notes and all other costs or expenses of the
authority incident to and necessary or convenient to carry out its
corporate 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 authority from any source
whatsoever;
(17) To issue renewal notes or security interests, to issue
bonds to pay notes or security interests and, whenever it considers
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 renewal notes may be issued to mature more than ten
years from the date of issuance of the notes renewed and no
refunding bonds may be issued to mature more than twenty-five years
from the date of issuance;
(18) To apply the proceeds from the sale of renewal notes,
security interests of refunding bonds to the purchase, redemption
or payment of the notes, security interests or bonds to be
refunded;
(19) To accept gifts or grants of property, funds, security
interests, money, materials, labor, supplies or services from the
federal government 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;
(20) 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, contract or
agreement of any kind to which the authority is a party;
(21) To sell security interests in the loan portfolio of the
authority. The security interests shall be evidenced by instruments issued by the authority. Proceeds from the sale of
security interests may be issued in the same manner and for the
same purposes as bond and note venues;
(22) To promulgate legislative rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code as
necessary to implement and make effective the powers, duties and
responsibilities invested in the authority by the provisions of
this article and otherwise by law, including regulation of the
conduct of persons using the north central West Virginia regional
trails and recreation authority recreation area. Notwithstanding
any other provisions of this code to the contrary, until the
Legislature has authorized the rules, the authority may promulgate
emergency rules for those purposes pursuant to section fifteen,
article three, chapter twenty-nine-a of this code;
(23) To construct, reconstruct, improve, maintain, repair,
operate and manage the north central West Virginia regional trails
and recreation authority recreation area at the locations within
the state as may be determined by the authority;
(24) To exercise all power and authority provided in this
article necessary and convenient to plan, finance, construct,
renovate, maintain and operate or oversee the operation of the
north central West Virginia regional trails and recreation
authority recreation area at such locations within the state as may
be determined by the authority;
(25) To exercise such other and additional powers as may be
necessary or appropriate for the exercise of the powers conferred
in this section;
(26) To exercise all of the powers which a corporation may
lawfully exercise under the laws of this state;
(27) To provide for law enforcement within the north central
West Virginia regional trails and recreation authority recreational
area by appointing rangers as provided in section six of this
article;
(28) To develop, maintain and operate or to contract for the
development, maintenance and operation of the north central West
Virginia regional trails and recreation authority recreation area;
(29) To enter into contract with landowners and other persons
holding an interest in the land being used for its recreational
facilities to hold those landowners and other persons harmless with
respect to any claim in tort growing out of the use of the land for
public recreation or growing out of the recreational activities
operated or managed by the authority from any claim except a claim
for damages proximately caused by the willful or malicious conduct
of the landowner or other person or any of his or her agents or
employees;
(30) To assess and collect a reasonable fee from those persons
who use the trails, parking facilities, visitor centers or other
facilities which are part of the north central West Virginia regional trails and recreation authority recreation area and to
retain and utilize that revenue for any purposes consistent with
this article;
(31) To cooperate with the states of Kentucky and Virginia and
appropriate state and local officials and community leaders in
those states to connect the trails of the West Virginia portion of
the north central West Virginia regional trails and recreation
authority recreation area with similar recreation facilities in
those states;
(32) To enter into contracts or other appropriate legal
arrangements with landowners under which their land is made
available for use as part of the north central West Virginia
regional trails and recreation authority recreation area; and
(33) To directly operate and manage recreation activities and
facilities within the north central West Virginia regional trails
and recreation authority recreation area.
§20-15-6. North central West Virginia regional trails and
recreation authority recreation area rangers.
The board is hereby authorized to appoint bona fide residents
of this state to act as north central West Virginia regional trails
and recreation authority recreation area rangers upon any premises
which are part of the north central West Virginia regional trails
and recreation authority recreation area, subject to the conditions
and restrictions imposed by this section. Before performing the duties of ranger, each appointed person shall qualify for the
position of ranger in the same manner as is required of county
officers by the taking and filing of an oath of office as required
by section one, article one, chapter six of this code and by
posting an official bond as required by section one, article two,
chapter six of this code. To facilitate the performance of the
duties of a ranger, a ranger may carry a firearm or other dangerous
weapon while the ranger is on duty.
It is the duty of any person appointed and qualified to
preserve law and order on any premises which are part of the north
central West Virginia regional trails and recreation authority
recreation area, the immediately adjacent property of landowners
who are making land available for public use under agreement with
the authority and on streets, highways or other public lands
utilized by the trails, parking areas or related recreational
facilities and other immediately adjacent public lands. For this
purpose, the ranger shall be considered to be a law-enforcement
officer in accordance with the provisions of section one, article
twenty-nine, chapter thirty of this code and, as to offenses
committed within those areas, have and may exercise all the powers
and authority and are subject to all the requirements and
responsibilities of a law-enforcement officer. The assignment of
rangers to the duties authorized by this section may not supersede
in any way the authority or duty of other peace officers to preserve law and order on those premises.
The salary of all rangers shall be paid by the board. The
board shall furnish each ranger with an official uniform to be worn
while on duty and shall furnish and require each ranger while on
duty to wear a shield with an appropriate inscription and to carry
credentials certifying the person's identity and authority as a
ranger.
The board may at its pleasure revoke the authority of any
ranger. The executive director shall report the termination of
employment of a ranger by filing a notice to that effect in the
office of the clerk of each county in which the ranger's oath of
office was filed and in the case of a ranger licensed to carry a
gun or other dangerous weapon, by notifying the clerk of the
circuit court of the county in which the license for the gun or
other dangerous weapon was granted.
§20-15-7. Bonds not a debt of the state.
Revenue bonds and revenue refunding bonds of the north
central West Virginia regional trails and recreation authority
issued under the provisions of this article do not constitute a
debt of the state or of any political subdivision of the state or
a pledge of the faith and credit of the state or of any political
subdivision, but the bonds shall be payable solely from the funds
provided in this article from revenues resulting from the issuance
of bonds. All bonds shall contain on the face of the bond a statement to the effect that neither the state nor any political
subdivision of the state is obligated to pay the bond or the
interest on the bond except from revenues of the recreational
project or projects for which they are issued and that neither the
faith or credit nor the taxing power of the state or any political
subdivision of the state is pledged to the payment of the principal
or the interest on the bonds.
§20-15-8. Criminal penalties.
Any person who violates any of the rules promulgated by the
board under authority of this article is guilty of a misdemeanor
and, upon conviction thereof, shall for each offense be fined not
more than five hundred dollars.
§20-15-9. Limiting liability.
(a) Notwithstanding the provisions of section three, article
twenty-five, chapter nineteen, an owner of land used by or for the
stated purposes of the north central West Virginia regional trails
and recreation authority, whether with or without charge, owes no
duty of care to keep the premises safe for entry or use by others
for recreational purposes or to give any warning of a dangerous or
hazardous condition, use, structure or activity on the premises to
persons entering for those purposes.
(b) Notwithstanding the provisions of section three, article
twenty-five, chapter nineteen of this code, the landowner or lessor
of the property for recreational purposes does not thereby: (1) Extend any assurance that the premises are safe for any purpose; or
(2) confer upon such persons the legal status of an invitee or
licensee to whom a duty of care is owed; or (3) assume
responsibility for or incur liability for any injury to person or
property caused by an act or omission of these persons.
(c) Unless otherwise agreed in writing, an owner who grants a
lease, easement or license of land to the authority for
recreational purposes owes no duty of care to keep that land safe
for entry or use by others or to give warning to persons entering
or going upon the land of any dangerous or hazardous conditions,
uses, structures or activities thereon. An owner who grants a
lease, easement or license of land to the authority for
recreational purposes does not by giving a lease, easement or
license: (1) Extend any assurance to any person using the land
that the premises are safe for any purpose; (2) confer upon those
persons the legal status of an invitee or licensee to whom a duty
of care is owed; or (3) assume responsibility for or incur
liability for any injury to person or property caused by an act or
omission of a person who enters upon the leased land. The
provisions of this section apply whether the person entering upon
the land is an invitee, licensee, trespasser or otherwise.
(d) Nothing herein limits in any way any liability which
otherwise exists for deliberate, willful or malicious infliction of
injury to persons or property: Provided, That nothing herein limits in any way the obligation of a person entering upon or using
the land of another for recreational purposes to exercise due care
in his or her use of the land and in his or her activities thereon,
so as to prevent the creation of hazards or the commission of waste
by himself or herself: Provided, however, That equestrians who are
using the land upon which the north central West Virginia regional
trails and recreation authority recreation area is located but who
are not engaged in a commercial profit-making venture are exempt
from the provisions of subsection (d), section five, article four,
chapter twenty of this code.
§20-15-10. Insurance policies.
Any policy or contract of liability insurance providing
coverage for liability sold, issued or delivered in this state to
any owner of lands covered under the provisions of this article
shall be read so as to contain a provision or endorsement whereby
the company issuing such policy waives or agrees not to assert as
a defense on behalf of the policyholder or any beneficiary thereof,
to any claim covered by the terms of such policy within the policy
limits, the immunity from liability of the insured by reason of the
use of such insured's land for recreational purposes, unless such
provision or endorsement is rejected in writing by the named
insured.
NOTE: The purpose of this bill is to create the North Central
West Virginia Regional Trails and Recreation Authority to provide
trail-oriented recreation facilities and programs primarily on
private property in north central West Virginia
and to appoint a
North Central West Virginia Regional Trails and Recreation
Authority
board as a public corporation. The bill sets forth the
powers and duties of the board including providing for the
appointment of rangers and it gives the board bonding authority.
Criminal penalties are established and participating landowners are
protected from liability under the bill. The bill is patterned
after the Hatfield-McCoy Regional Recreation Authority legislation
and includes the same powers and authorities as are given the
Hatfield-McCoy Regional Recreation Authority board.
This article is new; therefore, strike-throughs and
underscoring have been omitted.