H. B. 4455
(By Delegates Fleischauer, Marshall, Beach and Shook)
[Introduced February 7, 2008; referred to the
Committee on Political Subdivisions then Finance.]
A BILL to amend and reenact §7-20-3, §7-20-6, §7-20-11 and §7-20-12
of the Code of West Virginia, 1931, as amended, all relating
to fees and expenditures for county development.
Be it enacted by the Legislature of West Virginia:
That §7-20-3, §7-20-6, §7-20-11 and §7-20-12 of the Code of
West Virginia, 1931, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 20. FEES AND EXPENDITURES FOR COUNTY DEVELOPMENT.
§7-20-3. Definitions.
(a) "Capital improvements" means the following public
facilities or assets that are owned, supported or established by
county government:
(1) Water treatment and distribution facilities;
(2) Wastewater treatment and disposal facilities;
(3) Sanitary sewers;
(4) Storm water, drainage, and flood control facilities;
(5) Public primary and secondary school facilities;
(6) Public road systems and rights-of-way;
(7) Parks and recreational facilities; and
(8) Police, emergency medical, rescue, and fire protection
facilities.
"Capital improvements" as defined herein is limited to those
improvements that are treated as capitalized expenses according to
generally accepted governmental accounting principles and that have
an expected useful life of no less than three years. "Capital
improvement" does not include costs associated with the operation,
repair, maintenance, or full replacement of capital improvements.
"Capital improvement" does include reasonable costs for planning,
design, engineering, land acquisition, and other costs directly
associated with the capital improvements described herein.
(b) "County services" means the following: (1) Services
provided by administration and administrative personnel, law
enforcement and its support personnel; (2) street light service;
(3) fire-fighting service; (4) ambulance service; (5) fire hydrant
service; (6) roadway maintenance and other services provided by
roadway maintenance personnel; (7) public utility systems and
services provided by public utility systems personnel, water; and
(8) all other direct and indirect county services authorized by
this code.
(c) "Direct county services" means those public services
authorized and provided by various county agencies or departments.
(d) "Indirect county services" means those public services
authorized and provided by commissioned agents, agencies or departments of the county.
(e) "Growth county" means any county within the state with an
averaged population growth rate in excess of one percent per year
as determined from the most recent decennial census counts and
forecasted, within decennial census count years, by official
records of government or generally approved standard statistical
estimate procedures:
Provided, That once "growth county" status is
achieved it is permanent in nature and the powers derived hereby
are continued.
(f) "User" means any member of the public who uses or may have
occasion to use county facilities and services as defined herein.
(g) "Impact fees" means any charge, fee, or assessment levied
as a condition of the following: (1) Issuance of a subdivision or
site plan approval; (2) issuance of a building permit;
and or(3)
approval of a certificate of occupancy, or other development or
construction approval when any portion of the revenues collected is
intended to fund any portion of the costs of capital improvements
for any public facilities or county services not otherwise
permitted by law. An impact fee does not include charges for
remodeling, rehabilitation, or other improvements to an existing
structure or rebuilding a damaged structure, provided there is no
increase in gross floor area or in the number of dwelling units
that result therefrom.
(h) "Proportionate share" means the cost of capital
improvements that are reasonably attributed to new development less
any credits or offsets for construction or dedication of land or capital improvements, past or future payments made or reasonably
anticipated to be made by new development in the form of user fees,
debt service payments, taxes or other payments toward capital
improvement costs.
(i) "Reasonable benefit" means a benefit received from the
provision of a capital improvement greater than that received by
the general public located within the county wherein an impact fee
is being imposed.
(j) "Plan" means a county, comprehensive, general, master or
other land use plan as described herein.
(k) "Program" means the capital improvements program described
herein.
(l) "Unincorporated area" and "total unincorporated area"
means all lands and resident estates of a county that are not
included within the corporate, annexed areas or legal service areas
of an incorporated or chartered municipality, city, town or village
located in the State of West Virginia.
§7-20-6. Criteria and requirements necessary to implement
collection of fees.
(a) As a prerequisite to authorizing counties to levy impact
fees related to population growth and public service needs,
counties shall meet
at least two of the following requirements:
(1) A demonstration that population growth rate history as
determined from the most recent base decennial census counts of a
county, utilizing generally approved standard statistical estimate
procedures, in excess of one percent annually averaged over a five-year period since the last decennial census count; or a
demonstration that a total population growth rate projection of one
percent per annum for an ensuing five-year period, based on
standard statistical estimate procedures, from the current official
population estimate of the county;
or a demonstration of job growth
rate of at least two percent annually averaged over a five-year
period since the last decennial census count;
(2) Adopting a countywide
or district comprehensive plan;
(3) Reviewing and updating any comprehensive plan at no less
than five-year intervals;
(4) Drafting and adopting a comprehensive zoning ordinance;
(5) Drafting and adopting a subdivision control ordinance;
(6) Keeping in place a formal building permit and review
system which provides a process to regulate the authorization of
applications relating to construction or structural modification.
The county shall adopt, pursuant to section three-n, article one of
this chapter, the state building code into any such building permit
and review system; and
(7) Providing an improvement program which shall include:
(A) Developing and maintaining a list within the county of
particular sites with development potential;
(B) Developing and maintaining standards of service for
capital improvements which are fully or partially funded with
revenues collected from impact fees; and
(C) Lists of proposed capital improvements from all areas,
containing descriptions of any such proposed capital improvements, cost estimates, projected time frames for constructing such
improvements and proposed or anticipated funding sources:
Provided, That a county that has begun the process of adopting a
comprehensive plan or that has adopted one or more district plans
may begin the collection of impact fees which are to be placed in
a separate, interest bearing account: Provided, however, That such
impact fees may only be disbursed after the completion and adoption
of all of the preceding requirements of this subsection.
(b) Capital improvement programs may include provisions to
provide for the expenditure of impact fees for any legitimate
county purpose
, including, but not limited to roads, mass transit
or nonmotorized transit facilities. This may include the
expenditure of fees for partial funding of any particular capital
improvement where other funding exists from any source other than
the county or exists in combination with other funds available to
the county:
Provided, That for such expenditures to be considered
legitimate, no county or other local authority may deny or withhold
any reasonable benefit that may be derived therefrom from any
development project for which such impact fee or fees have been
paid.
(c) Capital improvement programs for public elementary and
secondary school facilities may include provisions to spend impact
fees based on a computation related to the following: (1) The
existing local tax base; and (2) the adjusted value of accumulated
infrastructure investment, based on net depreciation, and any
remaining debt owed thereon. Any such computation must establish the value of any equity shares in the net worth of an impacted
school system facility, regardless of the existence of any need to
expand such facility. Impact fee revenues may only be used for
capital replacement or expansion.
(d) Additional development areas may be added to any plan or
capital improvements program provided for hereunder if a county
government so desires. The standards governing the construction or
structural modification for any such additional area shall not
deviate from those adopted and maintained at the time such addition
is made.
(e) The county may modify annually any capital improvements
plan in addition to any impact fee rates based thereon, pursuant to
the following:
(1) The number and extent of development projects begun in the
past year;
(2) The number and extent of public facilities existing or
under construction;
(3) The changing needs of the general population;
(4) The availability of any other funding sources; and
(5) Any other relevant and significant factor applicable to a
legitimate goal or goals of any such capital improvement plan.
§7-20-11. Additional powers.
(a) In addition to any other powers which a county may now
have and not withstanding the provisions of section six of this
article, each county, by and through its county commission, shall
have the following powers:
(1) To acquire, whether by purchase, construction, gift, lease
or otherwise, one or more infrastructure projects, or additions
thereto, which shall be located within the county;
(2) To lease, lease with an option to purchase, sell, by
installment sale or otherwise, or otherwise dispose of, to others
any infrastructure projects for such rentals or amounts and upon
such terms and conditions as the county commission may deem
advisable;
(3) To establish a special infrastructure fund as a separate
fund into which all special service fees and other revenues
designated by the county commission shall be deposited, and from
which all project costs shall be paid, which may be assigned to and
held by a trustee for the benefit of bondholders if special
infrastructure revenue bonds are issued by the county commission;
and
(4) To impose a countywide service fee to pay the costs of one
or more infrastructure projects, including, but not limited to, the
payment of debt service on any revenue bonds issued under section
thirteen of this article.
(b) For purposes of this section and its implementation and
use:
(1) "Capital improvements" means the following public
facilities or assets that are owned, supported or established by a
county commission:
(A) Water treatment and distribution facilities;
(B) Wastewater treatment and disposal facilities;
(C) Sanitary sewers;
(D) Storm water, drainage and flood control facilities; and
(E) Public road systems, including, but not limited to,
rights-of-way, lighting, sidewalks,
walking and biking paths,
permanent mass transit facilities and other amenities to improve
the safety of the public relating to transportation, and gutters.
"Capital improvements" as defined herein is limited to those
improvements that are treated as capitalized expenses according to
generally accepted governmental accounting principles and that have
an expected useful life of no less than three years. "Capital
improvement" does not include costs associated with the operation,
repair, maintenance or full replacement of capital improvements.
"Capital improvement" does include reasonable costs for planning,
design, engineering, land acquisition and other costs directly
associated with the capital improvements described herein, whether
incurred prior to or subsequent to imposition of a countywide
service fee. This includes costs incurred by a developer prior to
imposition of the countywide service fee that would have been
incurred by the county commission as part of the cost of capital
improvement, provided such costs were not incurred more than
thirty-six months before the county commission adopts the order
imposing the countywide service fee, or such shorter period, as
determined to be reasonable in the sole discretion of the county
commission.
(2) "Plan" means the plan for special infrastructure projects
that includes one or more capital improvements, as defined in this section that is adopted by a county commission in conformity with
the requirements of this article.
(c) Before commencing certain infrastructure projects, the
county commission shall obtain written confirmations from an
affected public utility or the West Virginia Department of
Transportation or other agency, as provided in this section:
(1) If the project includes water, wastewater or sewer
improvements, the county commission shall obtain from the utility
or utilities that provide service in the area or areas where the
improvements will be made that the utility or utilities:
(A) Currently has adequate capacity to provide service without
significant upgrades or modifications to its treatment, storage or
source of supply facilities;
(B) Will review and approve all plans and specifications for
the improvements to determine that the improvements conform to the
utility's reasonable requirements and, if the improvement consists
of water transmission or distribution facilities, that the
improvements provide for adequate fire protection for the district;
and
(C) If built in conformance with said plans and
specifications, will accept the improvements following their
completion, unless the project will continue to be owned by the
county commission.
(2) If the special infrastructure project includes
improvements other than as set forth in subdivision (1), subsection
(b) of this section that will be transferred to the West Virginia Department of Transportation or other governmental agency, written
evidence that the department or agency will accept the transfer if
the infrastructure project is built in conformance with
requirements of the Department of Transportation, or other agency,
pursuant to plans and specifications approved by the department or
other agency.
§7-20-12. Countywide service fees.
(a) Notwithstanding any provision of this code to the
contrary, every county shall have plenary power and authority to
impose a countywide service fee upon each employee and
self-employed individual for each week or part of a calendar week
the individual works within the county, subject to the following:
(1) No individual shall pay the fee more than once for the
same week of employment within the county.
(2) The fee imposed pursuant to this section is in addition to
all other fees imposed by the jurisdiction within which the
individual is employed.
(3) The fee imposed pursuant to this section may not take
effect until the first day of a calendar month, as set forth in the
order of the county commission establishing the fee, that begins at
least thirty days after a majority of the registered voters of the
county voting on the question approve imposition of the service
fee, in a primary, general or a special election held in the
county.
(4) In addition to imposing a weekly amount that is equal for
all employees, in the alternative, the county may impose a service fee upon employees, as defined in this section, in an amount not to
exceed one percent of yearly wages or other earned income. No
service fee shall be imposed upon employees who are not required to
pay federal or state income taxes.
(4) (5) The order of the county commission shall provide for
the administration, collection and enforcement of the service fee.
Employers who have employees that work in the county imposing the
service fee shall withhold the fee from compensation paid to the
employee and pay it over to the county as provided in the order of
the county commission. Self-employed individuals shall pay the
service fee to the county commission in accordance with the order
establishing the fee.
(5) (
6) The terms "employed", "employee", "employer" and
"self-employed" have the following meaning:
(A) "Employed" shall include an employee working for an
employer so as to be subject to any federal or state employment or
wage withholding requirement and a self-employed individual working
as a sole proprietor or member of a firm so as to be subject to
self-employment tax. An employee shall be considered employed in
a calendar week so long as the employee remains on the current
payroll of an employer deriving compensation for such week and the
employee has not been permanently assigned to an office or place of
business outside the county. A self-employed individual shall be
considered employed in a calendar week so long as such individual
has not permanently discontinued employment within the county.
(B) "Employee" means any individual who is employed at or physically reports to one or more locations within the county and
is on the payroll of an employer, on a full-time or part-time basis
or temporary basis, in exchange for salary, wages or other
compensation.
(C) "Employer" means any person, partnership, limited
partnership, limited liability company, association (unincorporated
or otherwise), corporation, institution, trust, governmental body
or unit or agency, or any other entity (whether its principal
activity is for-profit or not-for-profit) situated, doing business,
or conducting its principal activity in the county and who employs
an employee, as defined in this section.
(D) "Self employed individual" means an individual who
regularly maintains an office or place of business for conducting
any livelihood, job, trade, profession, occupation, business or
enterprise of any kind within the county's geographical boundaries
over the course of four or more calendar weeks, which need not be
consecutive, in any given calendar year.
(6) (7) All revenues generated by the county service fee
imposed pursuant to this section shall be dedicated to and shall be
exclusively utilized for the purpose or purposes set forth in the
referendum approved by the voters, including, but not limited to,
the payment of debt service on any bonds issued pursuant to section
thirteen of this article and any costs related to the
administration, collection and enforcement of the service fee.
(b) Any order entered by a county commission imposing a
countywide service fee pursuant to this part, or increasing or decreasing a countywide service fee previously adopted pursuant to
this part, shall be published 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 the publication shall be
the county. The order shall not become effective until it is
ratified by a majority of the lawful votes cast thereon by the
qualified voters of the county at a primary, general or special
election, as the county commission shall direct. Voting thereon
shall not take place until after notice of the referendum shall
have been given by publication as above provided for the
publication of the order after it is adopted by the county
commission. The notice of referendum shall at a minimum include:
(1) The date of the referendum; (2) the amount of countywide
service fee; (3) a general description of the capital improvement
or improvements included in the special infrastructure project to
be financed with the service fee; (4) whether revenue bonds will be
issued; and (5) if bonds are to be issued, the estimated term of
the revenue bonds. The county commission may include additional
information in the notice of referendum.
NOTE: The purpose of this bill is to allow for additional fees
and those fees for county development.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.