H. B. 4600
(By Delegates Michael and Proudfoot)
[Introduced February 24, 2004; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §7-1-3i of the code of West Virginia,
1931, as amended; and to amend and reenact §8-6-2, §8-6-3, §8-
6-4 and §8-6-5 of said code, all relating to limiting
annexation authority of municipalities; requiring county
commission approval of a plan for annexation by election by a
municipality; authorizing county commissions to hold a public
hearing on any petition for annexation filed by a
municipality; requiring certain population density in election
and petition methods of annexation; providing that the
question of whether territory proposed to be annexed conforms
with certain criteria is reviewable by a circuit court in
certain cases; modifying the standard of review for elections
held pursuant to the election method of annexation; requiring
municipality considering annexation without election to
provide notice to county commission; requiring municipality
considering annexation without election to hold a public
hearing; providing a procedure for municipal boundary
adjustments for municipalities located in more than one county; and prohibiting annexation by minor boundary
adjustment in certain circumstances.
Be it enacted by the Legislature of West Virginia:
That §7-1-3i of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that §8-6-2, §8-6-3, §8-6-4 and §8-6-
5 of said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3i. County commission may cooperate with other governmental
units.
(a) Any county commission may join together in the exercise
of any of its powers, duties and responsibilities, or otherwise
cooperate with any other county or counties, municipality or
municipalities, the government of this state or of the United
States in carrying out any lawful purpose not in conflict with the
constitution of West Virginia:
Provided, That the county
commission of any county sharing a common border with any other
state is hereby empowered to enter into reciprocal agreements with
governmental subdivisions or agencies of such other state for the
protection of people and property from fire and for emergency
medical services and for the reciprocal use of county equipment and
personnel for such purpose.
(b) Before a municipality may hold an election pursuant to
section two, article six, chapter eight of this code, the county
commission must approve the plan for annexation. A county
commission may hold a public hearing on any petition for annexation
filed by any governing body within the county, to determine the impact on the provision of public services, including utilities,
maintenance, police protection, and response to fire and flood.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 6. ANNEXATION.
PART II. ANNEXATION BY ELECTION.
§8-6-2. Petition for annexation.
(a) Five percent or more of the freeholders of a municipality
desiring to have territory annexed thereto may file a petition in
writing with the governing body thereof setting forth the change
proposed in the metes and bounds of the municipality and asking
that a vote be taken upon the proposed change. The petition shall
be verified and shall be accompanied by an accurate survey map
showing the territory to be annexed to the corporate limits by the
proposed change.
(b) The petitioners shall obtain a surety bond in an amount
set by the governing body sufficient to cover the cost of the
election. The bond shall be forfeited if a majority of the votes
cast are against the proposed annexation.
(c) The governing body shall, upon receipt of the bond, order
a vote of the qualified voters of the municipality to be taken upon
the proposed annexation on a
scheduled in conformity with all
voting requirements of article three, chapter three of this code,
including the absentee voting requirements, and at a time and place
to be named in the order. not less than twenty nor more than thirty
days from the date thereof.
of all of the qualified voters of the additional territory and of
all of the freeholders of the additional territory whether they
reside or have a place of business therein or not, to be taken upon
the question on the same day at some convenient place in or near
the additional territory:
Provided, That the additional territory
to be included shall conform to the requirements of section one,
article two of this chapter: Provided, however, That the
population density requirements of subdivision (3), subsection (a),
section one, article two of this chapter shall not apply and
one-half of the population density requirements of subdivision (2),
subsection (a), section one of this article shall be applied on a
pro-rata basis to the territory proposed to be annexed regardless
of the size of the territory to be annexed: Provided further, That
the determination that the additional territory does so conform
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, as an order
of any municipality ordering an election may be reviewed under
section sixteen, article five of this chapter.
(e) The governing body shall cause the order for the election
to be published, at the cost of the municipality, as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code. The publication area is
the municipality and the additional territory. The first
publication must be at least fourteen days prior to the date upon
which the vote is to be taken. The order for the election shall
contain an accurate description by metes and bounds of the additional territory proposed to be annexed to the corporate limits
by the proposed change, a summary of the municipality's plan for
providing services to the additional territory and, if practicable,
shall also contain a popular description of the additional
territory.
(f) The election shall be held, superintended and conducted
and the results thereof ascertained, certified, returned and
canvassed in the same manner by the same individuals as elections
for municipal officers. The election is reviewable by 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 order may be reviewed by the circuit court as an order of a
county commission municipality ordering an election may be reviewed
under section sixteen, article five of this chapter.
(g) The ballots, or ballot labels where voting machines are
used, shall have written or printed on them the words:
/ / For Annexation
/ / Against Annexation
(h) Any freeholder which is a firm or corporation may vote by
its manager, president or executive officer duly designated in
writing by the firm or corporation.
(i) An individual who is a qualified voter and freeholder of
the municipality or the additional territory shall be entitled to
vote only once.
(j) For purposes of this section, the term "qualified voter of
the additional territory" includes a firm or corporation in the additional territory regardless of whether the firm or corporation
is a freeholder. A firm or corporation may vote by its manager,
president, or any
executive other authorized 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 vote in the annexation
election.
(k) When an election is held in any municipality in accordance
with the provisions of this section, another election relating to
the same proposed change or any part thereof shall not be held for
a period of one year.
(l) If a majority of all of the legal votes cast in the
municipality and a majority of all the legal votes cast in the
territory are in favor of the proposed annexation, then the
governing body shall proceed as specified in the immediately
succeeding section of this article.
§8-6-3. Governing body of municipality to certify annexation;
order.
The governing body of such municipality shall enter the
results of such election in its minutes, and, when the annexation
proposed is adopted, as provided in the immediately preceding
section of this article, shall forward a certificate to such effect
to the county
court commission of the county wherein the
municipality or the major portion of the territory thereof,
including the annexed territory, is located; and
such court the
commission shall thereupon enter an order in substance as follows:
"A certificate of the governing body of the municipality of
............................ was this day filed showing that an
annexation has been made, in the manner required by law, to the
corporate limits thereof, and that by such annexation the said
corporate limits are as follows:
"Beginning at (here recite the boundaries as changed). It is,
therefore, ordered that such annexation to said corporate limits
be, and the same is hereby approved and confirmed, and the clerk of
this
court commission is directed to deliver to the said governing
body a certified copy of this order as soon as practicable after
the rising of this
court commission."
After the date of such order, the corporate limits of the
municipality shall be as set forth therein.
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 the additional territory to be included
shall conform to the requirements of section one, article two of
this chapter: Provided, however, That the population density
requirements of subdivision (3), subsection (a), section one,
article two of this chapter shall not apply and one half of the population density requirements of subdivision (2), subsection (a),
section one of this article shall be applied on a pro-rata basis to
the territory proposed to be annexed regardless of the size of the
territory to be annexed.
(b) The governing body of a municipality must provide notice,
by certified mail, return receipt requested, to each member of the
county commission in a county where the proposed annexation will
occur.
(b) (c) 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 any other
authorized 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) (d) The determination that the requisite number of
petitioners have filed the required petitions and that the
additional territory conforms with the provisions of this section
shall be is 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) (e) 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) (f) 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) (g) If all of the eligible petitioners are qualified
voters, only a voters' petition is required.
(g) (h) Upon receipt of a petition, the governing body shall
conduct a public hearing to receive public comments on the
petition.
(i) 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 shall 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 (1) The county commission wherein the major portion of the
municipality lies; and (2) every county commission where to
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 affected
county commissions.
(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:
Provided, That when
annexing a street or highway the municipality must also annex
territory that borders on at least one side of the street or
highway: Provided, however, That a municipality may not annex
territory that is or will become contiguous to the municipality
through the annexation of a street or highway connecting the municipality to the territory sought to be 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 a 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
a 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 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;
(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 a county commission denies the application for
annexation by minor boundary adjustment, the a county commission may allow the municipality to modify the proposed annexation to
meet the commissions objections. The A commission must order
another public hearing if significant modifications are proposed.
(h) The final order of the a 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 a commission's final order to the circuit
court of the that county. in which the municipality or the major
portion thereof, including the area proposed to be annexed, is
located. The A 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 limit the annexation
authority of municipalities. It authorizes county commissions to
hold public hearings on proposed municipal annexations of territory
within the county before annexation of territory by a municipality.
It prohibits municipalities from annexing territory that is
contiguous to the municipality only through a street or highway
sought to be annexed by the municipality. It provides a procedure
for municipal boundary adjustments for municipalities located in
more than one county. And the bill adjusts the population density
requirements for annexation of a territory by a municipality.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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