Senate Bill No. 783
(By Senators Helmick, Sharpe, Plymale, Chafin, Prezioso
Edgell, Love, Bailey, Bowman, McCabe, Unger, Sypolt,
Fanning, Facemyer, Boley, Sprouse and Guills)
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[Originating in the Committee on Finance;
reported February 22, 2008.]
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A BILL to amend and reenact §7-22-3, §7-22-5, §7-22-7 and §7-22-16
of the Code of West Virginia, 1931, as amended, all relating
to modifying the County Economic Opportunity Development Act
to promote development of municipal areas which are unusable
without extraordinary expenditures.
Be it enacted by the Legislature of West Virginia:
That §7-22-3, §7-22-5, §7-22-7 and §7-22-16 of the Code of
West Virginia, 1931, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 22. COUNTY ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§7-22-3. Definitions.
For purposes of this article, the term:
(1) "County commission" means the governing body of a county
of this state;
(2) "Development expenditures" means payments for governmental functions, programs, activities, facility construction,
improvements and other goods and services which a district board is
authorized to perform or provide under section five of this
article;
(3) "Remediation" means measures undertaken to bring about the
reconditioning or restoration of property located within the
boundaries of a county economic opportunity development district
project that has been affected by exploration, industrial
operations or solid waste disposal and which measures, when
undertaken, will eliminate or ameliorate the existing state of such
property and enable the property to be commercially developed.
(3) (4) "District" means an economic opportunity development
district created pursuant to this article;
(4) (5) "District board" means a district board created
pursuant to section ten of this article; and
(5) (6) "Eligible property" means any taxable or exempt real
property located in a district established pursuant to this
article.
§7-22-5. Development expenditures.
Any county commission that has established an economic
opportunity development district under this article may make, or
authorize to be made by a district board and other public or
private parties, development expenditures as will promote the
economic vitality of the district and the general welfare of the county, including, but not limited to, expenditures for the
following purposes:
(1) Beautification of the district by means such as
landscaping and construction and erection of fountains, shelters,
benches, sculptures, signs, lighting, decorations and similar
amenities;
(2) Provision of special or additional public services such as
sanitation, security for persons and property and the construction
and maintenance of public facilities, including, but not limited
to, sidewalks, parking lots, parking garages and other public
areas;
(3) Making payments for principal, interest, issuance costs,
any of the costs described in section twenty of this article and
appropriate reserves for bonds and other instruments and
arrangements issued or entered into by the county commission for
financing the expenditures of the district described in this
section and to otherwise implement the purposes of this article;
(4) Providing financial support for public transportation and
vehicle parking facilities open to the general public, whether
physically situate within the district's boundaries or on adjacent
land;
(5) Acquiring, building, demolishing, razing, constructing,
repairing, reconstructing, refurbishing, renovating,
rehabilitating, expanding, altering, otherwise developing, operating and maintaining real property generally, parking
facilities, commercial structures and other capital improvements to
real property, fixtures and tangible personal property, whether or
not physically situate within the district's boundaries:
Provided,
That the expenditure directly benefits the district;
(6) Developing plans for the architectural design of the
district and portions thereof and developing plans and programs for
the future development of the district;
(7) Developing, promoting and supporting community events and
activities open to the general public that benefit the district;
(8) Providing the administrative costs for a district
management program;
(9) Providing for the usual and customary maintenance and
upkeep of all improvements and amenities in the district as are
commercially reasonable and necessary to sustain its economic
viability on a permanent basis;
(10) Providing any other services that the county commission
or district board is authorized to perform and which the county
commission does not also perform to the same extent on a countywide
basis;
(11) Making grants to the owners or tenants of economic
opportunity development district for the purposes described in this
section;
(12) Acquiring an interest in any entity or entities that own any portion of the real property situate in the district and
contributing capital to any entity or entities;
(13) Remediation of publicly or privately owned landfills,
solid waste facilities or hazardous waste sites to facilitate
commercial development which would not otherwise be economically
feasible; and
(13) (14) To do any and all things necessary, desirable or
appropriate to carry out and accomplish the purposes of this
article notwithstanding any provision of this code to the contrary.
§7-22-7. Application to development office for approval of an
economic opportunity development district project.
(a)
General. -- The development office shall receive and act
on applications filed with it by county commissions pursuant to
section six of this article. Each application must include:
(1) A true copy of the notice described in section six of this
article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to
complete the project;
(4) A general description of the capital improvements,
additional or extended services and other proposed development
expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the
development expenditures, together with a description of the reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the
optimum economic viability of the district following its inception:
Provided, That the amounts of the reserves shall not exceed the
amounts that would be required by ordinary commercial capital
market considerations;
(6) A description of the sources and anticipated amounts of
all financing, including, but not limited to, proceeds from the
issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property
taxes and fees;
(7) A description of the financial contribution of the county
commission to the funding of development expenditures;
(8) Identification of any businesses that the county
commission expects to relocate their business locations from the
district to another place in the state in connection with the
establishment of the district or from another place in this state
to the district:
Provided, That for purposes of this article, any
entities shall be designated "relocated entities";
(9) Identification of any businesses currently conducting
business in the proposed economic opportunity development district
that the county commission expects to continue doing business there
after the district is created;
(10) A good faith estimate of the aggregate amount of consumers sales and service tax that was actually remitted to the
Tax Commissioner by all business locations identified as provided
in subdivisions (8) and (9) of this subsection with respect to
their sales made and services rendered from their then current
business locations that will be relocated from, or to, or remain in
the district, for the twelve full calendar months next preceding
the date of the application:
Provided, That for purposes of this
article, the aggregate amount is designated as "the base tax
revenue amount";
(11) A good faith estimate of the gross annual district tax
revenue amount;
(12) The proposed application of any surplus from all funding
sources to further the objectives of this article;
(13) The Tax Commissioner's certification of: (i) The amount
of consumers sales and service taxes collected from businesses
located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the
application will be submitted to the development office; (ii) the
estimated amount of economic opportunity district excise tax that
will be collected during the first twelve months after the month in
which the Tax Commissioner would first begin to collect that tax;
and (iii) the estimated amount of economic opportunity district
excise tax that will be collected during the first thirty-six
months after the month in which the Tax Commissioner would first begin to collect that tax:
Provided, That for county economic
opportunity development district projects involving remediation,
the period shall be forty-eight months. The development office may
not approve a project involving remediation authorized under
section five of this article unless the county commission submits
clear and convincing information, to the satisfaction of the
development office, that the proposed remediation expenditures to
be financed by the issuance of bonds or notes pursuant to section
sixteen of this article does not constitute more than twenty-five
percent of the total development expenditures associated with the
project; and
(14) Any additional information the development office may
require.
(b)
Review of applications. -- The development office shall
review all project proposals for conformance to statutory and
regulatory requirements, the reasonableness of the project's budget
and timetable for completion and the following criteria:
(1) The quality of the proposed project and how it addresses
economic problems in the area in which the project will be located;
(2) The merits of the project determined by a cost-benefit
analysis that incorporates all costs and benefits, both public and
private;
(3) Whether the project is supported by significant private
sector investment and substantial credible evidence that, but for the existence of sales tax increment financing, the project would
not be feasible;
(4) Whether the economic opportunity district excise tax
dollars will leverage or be the catalyst for the effective use of
private, other local government, state or federal funding that is
available;
(5) Whether there is substantial and credible evidence that
the project is likely to be started and completed in a timely
fashion;
(6) Whether the project will, directly or indirectly, improve
the opportunities in the area where the project will be located for
the successful establishment or expansion of other industrial or
commercial businesses;
(7) Whether the project will, directly or indirectly, assist
in the creation of additional long-term employment opportunities in
the area and the quality of jobs created in all phases of the
project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the
area, or part of the area, in which the economic opportunity
district is located;
(9) Whether the county commission has a strategy for economic
development in the county and whether the project is consistent
with that strategy;
(10) Whether the project helps to diversify the local economy;
(11) Whether the project is consistent with the goals of this
article;
(12) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(13) The ability of the county commission and the project
developer or project team to carry out the project:
Provided, That
no project may be approved by the development office unless the
amount of all development expenditures proposed to be made in the
first twenty-four months following the creation of the district
results in capital investment of more than fifty million dollars in
the district and the county submits clear and convincing
information, to the satisfaction of the development office, that
such investment will be made if the development office approves the
project and the Legislature authorizes the county commission to
levy an excise tax on sales of goods and services made within the
economic opportunity district as provided in this article.
(c)
Additional criteria. -- The development office may
establish other criteria for consideration when approving the
applications.
(d)
Action on the application. -- The executive director of
the development office shall act to approve or not approve any
application within thirty days following the receipt of the
application or the receipt of any additional information requested
by the development office, whichever is the later.
(e)
Certification of project. -- If the executive director of
the development office approves a county's economic opportunity
district project application, he or she shall issue to the county
commission a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the development office has determined with respect to
the district's application based on any investigation it considers
reasonable and necessary, including, but not limited to, any
relevant information the development office requests from the Tax
Commissioner and the Tax Commissioner provides to the development
office:
Provided, That in determining the net annual district tax
revenue amount, the development office may not use a base tax
revenue amount less than that amount certified by the Tax
Commissioner but, in lieu of confirmation from the Tax Commissioner
of the gross annual district tax revenue amount, the development
office may use the estimate of the gross annual district tax
revenue amount provided by the county commission pursuant to
subsection (a) of this section.
(f)
Certification of enlargement of geographic boundaries of
previously certified district. -- If the executive director of the development office approves a county's economic opportunity
district project application to expand the geographic boundaries of
a previously certified district, he or she shall issue to the
county commission a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the development office has determined with respect to
the district's application based on any investigation it considers
reasonable and necessary, including, but not limited to, any
relevant information the development office requests from the Tax
Commissioner and the Tax Commissioner provides to the development
office:
Provided, That in determining the net annual district tax
revenue amount, the development office may not use a base tax
revenue amount less than that amount certified by the tax
Commissioner but, in lieu of confirmation from the Tax Commissioner
of the gross annual district tax revenue amount, the development
office may use the estimate of the gross annual district tax
revenue amount provided by the county commission pursuant to
subsection (a) of this section.
(g)
Promulgation of rules. -- The executive director of the
development office may promulgate rules to implement the economic opportunity development district project application approval
process and to describe the criteria and procedures it has
established in connection therewith. These rules are not subject
to the provisions of chapter twenty-nine-a of this code but shall
be filed with the Secretary of State.
§7-22-16. Bonds issued to finance downtown redevelopment district
projects.
(a)
General. -- The county commission that established the
economic opportunity development district may issue bonds or notes
for the purpose of financing development expenditures, as described
in section five of this article, with respect to one or more
projects within the economic opportunity development district.
(b)
Limited obligations. -- All bonds and notes issued by a
county commission under the authority of this article are limited
obligations of the county.
(c)
Term of obligations. -- No county commission may issue
notes, bonds or other instruments for funding district projects or
improvements that exceed a repayment schedule of thirty years:
Provided That
the maximum repayment schedule of bonds issued to
finance remediation authorized under section five of this article
may not exceed twenty years.
(d)
Debt service. -- The principal and interest on the bonds
shall be payable out of the funds on deposit in the subaccount
established for the economic opportunity development district pursuant to section eight of this article, including, without
limitation, any funds derived from the special district excise tax
imposed by section twelve of this article or other revenues derived
from the economic opportunity development district to the extent
pledged for the purpose by the county commission in the resolution
authorizing the bonds.
(e)
Surplus funds. -- To the extent that the average daily
amount on deposit in the subaccount established for a district
pursuant to section eight of this article exceeds, for more than
six consecutive calendar months, the sum of: (1) One hundred
thousand dollars; plus (2) the amount required to be kept on
deposit pursuant to the documents authorizing, securing or
otherwise relating to the bonds or notes issued under this section,
then the excess shall be used by the district either to redeem the
bonds or notes previously issued or remitted to the general fund of
this state.
(f)
Debt not general obligation of county. -- Neither the
notes or bonds and any interest coupons issued under the authority
of this article shall ever constitute an indebtedness of the county
commission issuing the notes or bonds within the meaning of any
constitutional provision or statutory limitation and shall never
constitute or give rise to a pecuniary liability of the county
commission issuing the notes or bonds.
(g)
Debt not a charge general credit or taxing powers of county. -- Neither the bonds or notes, nor interest thereon, is a
charge against the general credit or taxing powers of the county
commission and that fact shall be plainly stated on the face of
each bond or note.
(h)
Issuance of bonds or notes. --
(1) Bonds or notes allowed under this section may be executed,
issued and delivered at any time and from time to time, may be in
a form and denomination, may be of a tenor, must be negotiable but
may be registered as to the principal thereof or as to the
principal and interest thereof, may be payable in any amounts and
at any time or times, may be payable at any place or places, may
bear interest at any rate or rates payable at any place or places
and evidenced in any manner and may contain any provisions therein
not inconsistent herewith, all as provided in the order or orders
of the county commission whereunder the bonds or notes are
authorized to be issued.
(2) The bonds may be sold by the county commission at public
or private sale at, above or below par as the county commission
authorizes.
(3) Bonds and notes issued pursuant to this article shall be
signed by the president of the county commission, or other chief
officer thereof, and attested by the county clerk and be under the
seal of the county.
(4) Any coupons attached to the bonds shall bear the facsimile signature of the president of the commission or other chief officer
thereof. In case any of the officials whose signatures appear on
the bonds, notes or coupons cease to be officers before the
delivery of the bonds or notes, their signatures shall,
nevertheless, be valid and sufficient for all purposes to the same
extent as if they had remained in office until the delivery.
(i)
Additional bonds or notes. -- If the proceeds of the bonds
or notes, by error of calculation or otherwise, are less than the
cost of the economic opportunity development district project, or
if additional real or personal property is to be added to the
district project or if it is determined that financing is needed
for additional development or redevelopment expenditures,
additional bonds or notes may, in like manner, be issued to provide
the amount of the deficiency or to defray the cost of acquiring or
financing any additional real or personal property or development
or redevelopment expenditures and, unless otherwise provided for in
the trust agreement, mortgage or deed of trust, are considered to
be of the same issue and shall be entitled to payment from the same
fund, without preference or priority, and shall be of equal
priority as to any security.
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