ENROLLED
H. B. 4048
(By Delegates Craig, Amores, Mahan, Morgan, Pethtel, Stemple,
Caputo, Armstead, Schadler, Hamilton and Azinger)
[Passed March 11, 2006; in effect ninety days from passage.]
AN ACT to amend and reenact §16-18-3, §16-18-6 and §16-18-8 of
the Code of West Virginia, 1931, as amended; and to amend
said code by adding thereto a new section, designated §16-
18-6a; and to amend and reenact §54-1-2 of said code; and to
further amend said code by adding thereto an new section
designated §54-1-2a, all relating to limiting the use of
eminent domain;
creating definitions for certain terms;
prohibiting use of eminent domain for economic development
and providing for limited exceptions; establishing a
procedure for municipal urban renewal authorities to use
eminent domain for properties only in blighted areas;
requiring notice of public hearing and rights of property
owners related to proposed condemnation of property;
requiring municipal urban renewal authority to consider
other alternatives to condemnation; requiring municipal
urban renewal authority to show property is blighted or
necessary for the redevelopment plan; requiring municipal
urban renewal
authority meet additional requirements before proceeding with condemnation of nonblighted property;
creating right for property owner to appeal the
condemnation; requiring municipal authority to prove all
statutory criteria have been met; protecting property owners
right to relocation assistance; prohibiting use of eminent
domain for economic development that would result in private
economic gain; and requiring
a good faith offer prior to
condemnation.
Be it enacted by the Legislature of West Virginia:
That §16-18-3, §16-18-6 and §16-18-8 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto a new section, designated §16-18-
6a, and that §54-1-2 be amended and reenacted; and that said code
be amended by adding thereto a new section, designated §54-1-2a,
all to read as follows:
CHAPTER 16. PUBLIC HEALTH
ARTICLE 18. SLUM CLEARANCE.
§16-18-3. Definitions.
The following terms, wherever used or referred to in this
article, shall have the following meanings, unless a different
meaning is clearly indicated by the context:
(a) "Area of operation" means
in the case of a municipality,
the area within such municipality and the area within five miles of
the territorial boundaries thereof, except that the area of
operation of a municipality under this article shall not include
any area which lies within the territorial boundaries of another municipality unless a resolution shall have been adopted by the
governing body of such other municipality declaring a need
therefor; and in the case of a county, the area within the county,
except that the area of operation in such case shall not include
any area which lies within the territorial boundaries of a
municipality unless a resolution shall have been adopted by the
governing body of such municipality declaring a need therefor; and
in the case of a regional authority, shall mean the area within the
communities for which such regional authority is created:
Provided, That a regional authority shall not undertake a
redevelopment project within the territorial boundaries of any
municipality unless a resolution shall have been adopted by the
governing body of such municipality declaring that there is a need
for the regional authority to undertake such development project
within such municipality. No authority shall operate in any area of
operation in which another authority already established is
undertaking or carrying out a redevelopment project without the
consent, by resolution, of such other authority.
(b) "Authority", "slum clearance and redevelopment authority"
or "urban renewal authority" means a public body, corporate and
politic, created by or pursuant to section four of this article or
any other public body exercising the powers, rights and duties of
such an authority as hereinafter provided.
(c) "Blighted area" means
an area, other than a slum area,
which by reason of the predominance of defective or inadequate
street layout, faulty lot layout in relation to size, adequacy, accessibility or usefulness, insanitary or unsafe conditions,
deterioration of site improvement, diversity of ownership, tax or
special assessment delinquency exceeding the fair value of the
land, defective or unusual conditions of title, improper
subdivision or obsolete platting, or the existence of conditions
which endanger life or property by fire and other causes, or any
combination of such factors, substantially impairs or arrests the
sound growth of the community, retards the provision of housing
accommodations or constitutes an economic or social liability and
is a menace to the public health, safety, morals, or welfare in its
present condition and use.
(d) "Blighted property" means a tract or parcel of land that,
by reason of abandonment, dilapidation, deterioration, age or
obsolescence, inadequate provisions for ventilation, light, air or
sanitation, high density of population and overcrowding,
deterioration of site or other improvements, or the existence of
conditions that endanger life or property by fire or other causes,
or any combination of such factors, is detrimental to the public
health, safety or welfare.
(e) "Bonds" means
any bonds, including refunding bonds, notes,
interim certificates, debentures, or other obligations issued by an
authority pursuant to this article.
(f)
"Community" means
any municipality or county in the state.
(g) "Clerk" means
the clerk or other official of the
municipality or county who is the custodian of the official records
of such municipality or county.
(h) "Federal government" is the United States of America or
any agency or instrumentality, corporate or otherwise, of the
United States of America.
(i) "Governing body" means
the council or other legislative
body charged with governing the municipality or the county court or
other legislative body charged with governing the county.
(j) "Mayor" means
the officer having the duties customarily
imposed upon the executive head of a municipality.
(k)
"Municipality" means
any incorporated city, town or
village in the state.
(l) "Obligee" means
any bondholder, agents or trustees for any
bondholders, or lessor demising to the authority property used in
connection with a redevelopment project, or any assignee or
assignees of such lessor's interest or any part thereof, and the
federal government
when it is a party to any contract with the
authority.
(m) "Person" means
any individual, firm, partnership,
corporation, company, association, joint stock association, or body
politic; and shall include any trustee, receiver, assignee, or
other similar representative thereof.
(n) "Public body" means
the state or any municipality, county,
township, board, commission, authority, district, or any other
subdivision or public body of the state.
(o) "Real property" includes all lands, including improvements
and fixtures thereon, and property of any nature appurtenant
thereto, or used in connection therewith, and every estate, interest and right, legal or equitable, therein, including terms
for years and liens by way of judgment, mortgage or otherwise and
the indebtedness secured by such liens.
(p) "Redeveloper" means
any person, partnership, or public or
private corporation or agency which shall enter or propose to enter
into a redevelopment
contract.
(q) "Redevelopment contract" means
a contract entered into
between an authority and a redeveloper for the redevelopment of an
area in conformity with a redevelopment plan
.
(r) "Redevelopment plan" means
a plan for the acquisition,
clearance, reconstruction, rehabilitation, or future use of a
redevelopment project area.
(s) "Redevelopment project" means
any work or undertaking:
(1) To acquire pursuant to the limitations contained in
subdivision (11), section two, article one, chapter fifty-four slum
areas or blighted areas or portions thereof, including lands,
structures, or improvements the acquisition of which is necessary
or incidental to the proper clearance, development or redevelopment
of such slum or blighted areas or to the prevention of the spread
or recurrence of slum conditions or conditions of blight;
(2) To clear any such areas by demolition or removal of
existing buildings, structures, streets, utilities or other
improvements thereon and to install, construct, or reconstruct
streets, utilities, and site improvements essential to the
preparation of sites for uses in accordance with a redevelopment
plan;
(3) To sell, lease or otherwise make available land in such
areas for residential, recreational, commercial, industrial or
other use or for public use or to retain such land for public use,
in accordance with a redevelopment plan; and
(4) Preparation of a redevelopment plan, the planning, survey
and other work incident to a redevelopment project and the
preparation of all plans and arrangements for carrying out a
redevelopment project.
(t) "Slum area" means
an area in which there is a predominance
of buildings or improvements or which is predominantly residential
in character, and which, by reason of dilapidation, deterioration,
age or obsolescence, inadequate provision for ventilation, light,
air, sanitation, or open spaces, high density of population and
overcrowding, or the existence of conditions which endanger life or
property by fire and other causes, or any combination of such
factors, is conducive to ill health, transmission of disease,
infant mortality, juvenile delinquency and crime, and is
detrimental to the public health, safety, morals or welfare.
(u) "Unblighted property" means a property that is not a
blighted property.
§16-18-6. Preparation and approval of redevelopment plans.
(a) An authority shall not acquire real property for a
redevelopment project unless the governing body of the community in
which the redevelopment project area is located has approved the
redevelopment plans, as prescribed in subsection (i) below.
(b) An authority shall not prepare a redevelopment plan for a redevelopment project area unless the governing body of the
community in which such area is located has, by resolution,
declared such area to be a slum or blighted area in need of
redevelopment.
(c) An authority shall not recommend a redevelopment plan to
the governing body of the community in which the redevelopment
project area is located until a general plan for the development of
the community has been prepared.
(d) The authority may itself prepare or cause to be prepared
a redevelopment plan or any person or agency, public or private,
may submit such a plan to an authority. A redevelopment plan shall
be sufficiently complete to indicate its relationship to definite
local objectives as to appropriate land uses, improved traffic,
public transportation, public utilities, recreational and community
facilities and other public improvements and the proposed land uses
and building requirements in the redevelopment project area, and
shall include without being limited to:
(1) The boundaries of the redevelopment project area, with a
map showing the existing uses and conditions of the real property
therein;
(2) A land use plan showing proposed uses of the area;
(3) Information showing the standards of population densities,
land coverage and building intensities in the area after
redevelopment;
(4) A statement of the proposed changes, if any, in zoning
ordinances or maps, street layouts, street levels or grades, building codes and ordinances;
(5) A site plan of the area; and
(6) A statement as to the kind and number of additional public
facilities or utilities which will be required to support the new
land uses in the area after redevelopment.
(e) Prior to recommending a redevelopment plan to the
governing body for approval, an authority shall submit such plan to
the planning commission of the community in which the redevelopment
project area is located for review and recommendations as to its
conformity with the general plan for the development of the
community as a whole. The planning commission shall submit its
written recommendations with respect to the proposed redevelopment
plan to the authority within thirty days after receipt of the plan
for review. Upon receipt of the recommendations of the planning
commission or, if no recommendations are received within said
thirty days, then without such recommendations, an authority may
recommend the redevelopment plan to the governing body of the
community for approval.
(f) Prior to recommending a redevelopment plan to the
governing body for approval, an authority shall consider whether
the proposed land uses and building requirements in the
redevelopment project area are designed with the general purpose of
accomplishing, in conformance with the general plan, a coordinated,
adjusted and harmonious development of the community and its
environs which will, in accordance with present and future needs,
promote health, safety, morals, order, convenience, prosperity and the general welfare, as well as efficiency and economy in the
process of development; including, among other things, adequate
provision for traffic, vehicular parking, the promotion of safety
from fire, panic and other dangers, adequate provision for light
and air, the promotion of the healthful and convenient distribution
of population, the provision of adequate transportation, water,
sewerage and other public utilities, schools, parks, recreational
and community facilities and other public requirements, the
promotion of sound design and arrangement, the wise and efficient
expenditure of public funds, the prevention of the recurrence of
insanitary or unsafe dwelling accommodations, slums, or conditions
of blight, and the provision of adequate, safe and sanitary
dwelling accommodations.
(g) The recommendation of a redevelopment plan by an authority
to the governing body shall be accompanied by the recommendations,
if any, of the planning commission concerning the redevelopment
plan; a statement of the proposed method and estimated cost of the
acquisition and preparation for redevelopment of the redevelopment
project area and the estimated proceeds or revenues from its
disposal to redevelopers; a statement of the proposed method of
financing the redevelopment project; and a statement of a feasible
method proposed for the relocation of families to be displaced from
the redevelopment project area.
(h)
The governing body of the community shall hold a public
hearing on any redevelopment plan or substantial modification
thereof recommended by the authority, after public notice thereof by publication as a Class II legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this code,
and the publication area for such publication shall be the
community. Public notice shall also include notice by certified
letter, return receipt requested to each property owner of record
of all affected properties of the proposed project. The notice
shall include:
(1) Notice of the public hearing time, date and location;
(2) The right to have an inspection by the municipal authority
to determine if the property is blighted or unblighted;
(3) The inspection procedures; and
(4) The rights the property owner has pursuant to section
six-a of this article relating to unblighted properties in blighted
or slum areas.
The last publication shall be at least ten days prior to the
date set for the hearing. The notice shall describe the time, date,
place and purpose of the hearing and shall also generally identify
the area to be redeveloped under the plan. All interested parties
shall be afforded at such public hearing a reasonable opportunity
to express their views respecting the proposed redevelopment plan.
The municipal authority shall consider reasonable alternatives for
the redevelopment project that will minimize the use of eminent
domain against any properties that are not blighted.
(i) Following such hearing, the governing body may approve a
redevelopment plan if it finds that said plan is feasible and in
conformity with the general plan for the development of the community as a whole: Provided, That if the redevelopment project
area is a blighted area, the governing body must also find that a
shortage of housing of sound standards and designs, adequate for
family life, exists in the community; the need for housing
accommodations has been or will be increased as a result of the
clearance of slums in other areas under redevelopment; the
conditions of blight in the redevelopment project area and the
shortage of decent, safe and sanitary housing cause or contribute
to an increase in and spread of disease and crime and constitute a
menace to the public health, safety, morals or welfare; and that
the development of the blighted area for predominantly residential
uses is an integral part of and essential to the program of the
community for the elimination of slum areas. A redevelopment plan
which has not been approved by the governing body when recommended
by the authority may again be recommended to it with any
modifications deemed advisable.
(j) A redevelopment plan may be modified at any time by the
authority: Provided, That if modified after the lease or sale of
real property in the redevelopment project area, the modification
must be consented to by the redeveloper or redevelopers of such
real property or his successor, or their successors in interest
affected by the proposed modification. Where the proposed
modification will substantially change the redevelopment plan as
previously approved by the governing body the modification must
similarly be approved by the governing body.
§16-18-6a. Municipal non-blighted property in slum or blight areas.
(a) The municipal authority shall have the burden to show that
a property is blighted. If the property owner does not allow the
authority to conduct an inspection of the property to determine
whether it is appropriate to deem the property blighted or
unblighted, then it is a rebuttable presumption that the property
is blighted.
(b) When any area has been declared to be slum and blighted,
pursuant to the provisions of this article, if a private property
within that area is found to not be a blighted property, then to
condemn the property pursuant to article two, chapter fifty four of
the code, the municipal authority must demonstrate, in addition to
all other lawful condemnation requirements, that the project or
program requiring the clearance of the slum and blighted area:
(1) Cannot proceed
without the condemnation of the private
property at issue;
(2) That the private property shown not to be blighted cannot
be integrated into the proposed project or program once the slum
and blighted area surrounding such property is taken and cleared;
(3) That the condemnation of the unblighted property is
necessary for the clearance of an area deemed to be slum or
blighted;
(4) That other alternatives to the condemnation of the
unblighted property are not reasonably practical;
(5) That every reasonable effort has been taken to ensure that
the unblighted property and its owners have been given a reasonable
opportunity to be included in the redevelopment project or plan without the use of eminent domain;
(6) That no alternative site within the slum and blighted area
is available for purchase by negotiation that might substitute as
a site for the unblighted property;
(7) That the redevelopment project or plan could not be
restructured to avoid the taking of the unblighted property;
(8) That the redevelopment project or plan could not be
carried out without the use of eminent domain; and
(9) That there is specific use for the unblighted property to
be taken and a plan to redevelop and convert the unblighted
property from its current use to the stated specific use basically
exists.
(c) In any case when the municipal authority has decided to
pursue condemnation, the property owner shall have the right to
seek review in the circuit court within the county wherein the
property lies. Prior to authorizing condemnation as provided
pursuant to article two, chapter fifty-four of the code, the court
must find that the property is blighted, or if unblighted, that the
authority has met the requirements of subsection (b) of this
section.
(d) All of the rights and remedies contained in article three,
chapter fifty-four of this code concerning relocation assistance
are available to the private property owner whose unblighted
property is being condemned, and if the property to be condemned
contains a business owned by the property owner, the property owner
is entitled to the amount, if any, which when added to the acquisition cost of the property acquired by the condemning
authority, equals the reasonable cost of obtaining a comparable
building or property having substantially the same characteristics
of the property sought to be taken.
§16-18-8. Eminent domain.
(a) An authority shall have the right to acquire by the
exercise of the power of eminent domain, pursuant to the
limitations contained in subdivision (11), section two, article
one, chapter fifty-four, any real property which it may deem
necessary for a redevelopment project or for its purposes under
this article after the adoption by it of a resolution declaring
that the acquisition of the real property described therein is
necessary for such purposes. An authority may exercise the power
of eminent domain in the manner provided for condemnation
proceedings, in chapter fifty-four of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, or it may
exercise the power of eminent domain in the manner now or which may
be hereafter provided by any other statutory provisions for the
exercise of the power of eminent domain. Property already devoted
to a public use may be acquired in like manner: Provided, That no
real property belonging to the municipality, the county or the
state may be acquired without its consent.
(b) When an authority has found and determined by resolution
that certain real property described therein is necessary for a
redevelopment project or for its purposes under this article, the
resolution shall be conclusive evidence that the acquisition of such real property is necessary for the purposes described therein.
CHAPTER 54. EMINENT DOMAIN
ARTICLE 1. RIGHT OF EMINENT DOMAIN.
§54-1-2. Public uses for which private property may be taken or
damaged.
(a) The public uses for which private property may be taken or
damaged are as follows:
(1) For the construction, maintenance and operation of
railroad and traction lines (including extension, lateral and
branch lines, spurs, switches and sidetracks), canals, public
landings, wharves, bridges, public roads, streets, alleys, parks
and other works of internal improvement, for the public use;
(2) For the construction and maintenance of telegraph,
telephone, electric light, heat and power plants, systems, lines,
transmission lines, conduits, stations (including branch, spur and
service lines), when for public use;
(3) For constructing, maintaining and operating pipelines,
plants, systems and storage facilities for manufacturing gas and
for transporting petroleum oil, natural gas, manufactured gas, and
all mixtures and combinations thereof, by means of pipes, pressure
stations or otherwise, (including the construction and operation of
telephone and telegraph lines for the service of such systems and
plants), and for underground storage areas and facilities, and the
operation and maintenance thereof, for the injection, storage and
removal of natural gas in subterranean oil and/or gas bearing
stratum, which, as shown by previous exploration of the stratum sought to be condemned and within the limits of the reservoir
proposed to be utilized for such purposes, has ceased to produce or
has been proved to be nonproductive of oil and/or gas in
substantial quantities, when for public use, the extent of the area
to be acquired for such purpose to be determined by the court on
the basis of reasonable need therefor. Nothing in this subsection
shall be construed to interfere with the power of the state and its
political subdivisions to enact and enforce ordinances and
regulations deemed necessary to protect the lives and property of
citizens from the effects of explosions of oil or gas;
(4) For constructing, maintaining and operating, water plants
and systems, including lines for transporting water by any
corporate body politic, or private corporation, for supplying water
to the inhabitants of any city, town, village or community, for
public use, including lands for pump stations, reservoirs,
cisterns, storage dams, and other means of storing, purifying and
transporting water, and the right to take and damage lands which
may be flooded by the impounded waters, and to appropriate any
spring, stream and the surrounding property necessary to protect,
preserve and maintain the purity of any such spring, stream,
reservoir, cistern and water impounded by means of any storage dam;
(5) For the purpose of constructing, maintaining and operating
sewer systems, lines and sewage disposal plants, to collect,
transport and dispose of sewage. When in the interest of the
public welfare and the preservation of the public health, the
construction of a sewer line to serve a single building or institution shall be deemed a public use, and, for such purpose,
the right of eminent domain, if within a municipal corporation, may
be exercised in the name of a municipal corporation, and if not
within a municipal corporation, in the name of the county
commission of the county in which the property is located;
(6) For the reasonable use by an incorporated company engaged
in a public enterprise of which the state or any county or
municipality is the sole or a part owner;
(7) For courthouses and municipal buildings, parks, public
playgrounds, the location of public monuments, and all other public
buildings;
(8) For cemeteries, and the extension and enlargement of
existing cemeteries:
Provided, That no lands shall be taken for
cemetery purposes which lie within four hundred feet of a dwelling
house, unless to extend the boundaries of an existing cemetery, and
then only in such manner that the limits of the existing cemetery
shall not be extended nearer than four hundred feet of any dwelling
house distant four hundred feet or more from such cemetery, or
nearer than it was to any dwelling house which is within four
hundred feet thereof;
(9) For public schools, public libraries and public hospitals;
(10) For the construction and operation of booms (including
approaches, landings and ways necessary for such objects), when for
a public use;
(11) By the State of West Virginia for any and every other
public use, object and purpose not herein specifically mentioned, but in no event may "public use", for the purposes of this
subdivision, be construed to mean the exercise of eminent domain
primarily for private economic development.
For purposes of this subdivision, no private property may be
taken by the State of West Virginia or its political subdivisions
without the owner's consent when the primary purpose of the taking
is economic development that will ultimately result in ownership or
control of the property transferring to another private entity,
other than one having the power of eminent domain, whether by
purchase agreement, long-term lease agreement or any other
mechanism whereby ownership or control is effectively transferred:
Provided, That a municipal urban renewal authority may exercise a
right of eminent domain as to property only within an area
designated a slum area or blighted area under the provisions of
article eighteen, chapter sixteen of this code.
By the United States of America for each and every legitimate
public use, need and purpose of the government of the United
States, within the purview, and subject to the provisions of
chapter one of this code.
(12) For constructing, maintaining and operating pipelines,
plants, systems and storage facilities, for the transportation by
common carrier as a public utility of coal and its derivatives and
all mixtures and combinations thereof with any substance by means
of pipes, pressure stations or otherwise (including the
construction and operation of telephone and telegraph lines for the
service of such systems and plants), for public use: Provided, That the common carrier engages in some intrastate activity in this
state, if there is any reasonable demand therefor: Provided,
however, That in addition to all other requisites by federal or
state constitutions, statute or common law required for the taking
of private property for public use, a further prerequisite and
condition precedent to the exercise of such taking of or damage to
private property for public use as in this subsection hereinabove
provided, is that the Public Service Commission of this state, in
an appropriate hearing and proceeding on due notice to all
interested persons, firms or corporations, in accordance with the
procedure now or hereafter established by statute and the
regulations thereunder, shall have found that such pipeline
transportation of coal and its derivatives and all mixtures and
combinations thereof is required for the public convenience and
necessity, and that the Public Service Commission of this state
shall not extend a certificate of convenience and necessity or make
such finding of public convenience and necessity unless, in
addition to the other facts required to support such findings, it
shall have been established by the applicant therefor that the
patents and other similar rights under which the applicant proposes
to construct, maintain or operate such pipeline, plants, systems
and storage facilities shall be and shall remain equally available,
insofar as said subsequent applicant may determine such
availability, upon fair and reasonable terms, to other bona fide
applicants seeking a certificate of convenience and necessity and
finding of fact for any other pipeline in West Virginia; for the purpose of making the findings hereinbefore set forth the Public
Service Commission shall have and exercise jurisdiction, and that
the aforesaid findings in this proviso above set forth shall be
subject to judicial review as in other Public Service Commission
proceedings.
It is the intention of the Legislature in amending this
section by the addition of subdivision (12) to extend the right of
eminent domain to coal pipelines for public use; to provide for
regulation of such coal pipelines by the Public Service Commission
of this state or the Interstate Commerce Commission of the United
States of America, or both; to assure that such rights shall be
extended only to public utilities or common carriers as
distinguished from private carriers or contract carriers; to make
patents covering the same equally available to others on fair and
reasonable terms; and to prevent monopolistic use of coal pipelines
by any users thereof which would result in any appreciable economic
detriment to others similarly situated by reasons of any such
monopoly.
§54-1-2a. Notice; good faith purchase.
Prior to initiation of any condemnation proceeding pursuant to
slum and blight, the applicant must make a reasonable attempt to
notify all parties subject to a petition for condemnation provided
in section two of this article, and attempt to enter into
negotiations for purchase of the property with the owners. The
applicant shall make an offer in good faith for the purchase of the
property subject to the condemnation prior to initiation of the condemnation proceeding.