H. B. 2781
(By Delegates Wysong, Tansill, Tabb and Doyle)
[Introduced
March 1, 2005
; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §8-6-1, §8-6-4 and §8-6-5 of the Code
of West Virginia, 1931, as amended, all relating to annexation
of unincorporated territory; establishing a minimum of one
hundred fifty feet of contiguity for annexation by minor
boundary adjustment; requiring a minimum of forty persons to
petition for annexation without election; and allowing any
freeholder who owns twenty-five acres or more to opt out of
any annexation.
Be it enacted by the Legislature of West Virginia:
That §8-6-1, §8-6-4 and §8-6-5 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 6. ANNEXATION.
PART I. GENERAL.
§8-6-1. Annexation of unincorporated territory.
(a) Unincorporated territory may be annexed to and become part of a municipality contiguous thereto only in accordance with the
provisions of this article.
(b) Any farmlands or operations as described in article
nineteen, chapter nineteen of this code which may be annexed into
a municipality shall be protected in the continuation of
agricultural use after being annexed.
(c) Any new imposition of a tax or any increase in the rate of
tax upon any business, occupation or privilege following annexation
shall be applied in accordance with the provisions of section five,
article thirteen, chapter eight of this code.
(d) Any freeholder who owns twenty-five acres or more in an
area being annexed may choose not to take part in the annexation.
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:
Provided, That in no event shall an annexation proceed
when less than forty persons have petitioned 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 county wherein the municipality or the major portion of the
territory thereof, including the additional territory, is located.
The 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
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 county wherein the municipality or the major
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 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 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
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,
for a minimum of one hundred fifty feet,
either 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:
Provided, That
such separation may not go further in length than in width in
applying the one hundred fifty foot minimum length requirement;
(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 county commission denies the application for
annexation by minor boundary adjustment, the commission may allow
the municipality to modify the proposed annexation to meet the commissions' objections. The commission must order another public
hearing if significant modifications are proposed.
(h) The final order of the 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 commission's final order to 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 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 establish a minimum of
150 feet of contiguity for annexation by minor boundary adjustment;
require a minimum of forty persons to petition for annexation
without election; and allow any freeholder who owns 25 acres or
more to opt out of any annexation.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.