Senate Bill No. 672
(By Senator Tomblin, Mr. President, By Request)
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[Introduced February 23, 2004; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §8-18-22 of the code of West Virginia,
1931, as amended; to amend and reenact §8-19-12a of said code;
to amend and reenact §8-20-10 of said code; and to amend and
reenact §16-13-16 of said code, all relating to
municipalities; public utility services; modifying deposit;
providing refund of deposit with interest; and requiring
owners of property abutting municipal sewer to pay municipal
sewer fees regardless of connection.
Be it enacted by the Legislature of West Virginia:
That §8-18-22 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that §8-19-12a of said code be amended
and reenacted; that §8-20-10 of said code be amended and reenacted;
and that §16-13-16 of said code be amended and reenacted, all to
read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 18. ASSESSMENTS TO IMPROVE STREETS, SIDEWALKS, AND
SEWERS; SEWER CONNECTIONS AND BOARD OF HEALTH;
ENFORCEMENT OF DUTY TO PAY FOR SERVICE.
PART XII - CONNECTION TO SEWERS; BOARD OF HEALTH; ENFORCEMENT OF
DUTY TO PAY FOR SERVICE.
§8-18-22. Connection to sewers; board of health; penalty.
Regardless of whether a lot or parcel is within any
municipality?s geographical limits, the owner or owners of any lot
or parcel of land abutting on any street, alley, public way or
easement on which a municipal sewer is now located or may hereafter
be constructed and laid (whether constructed and laid under the
provisions of this article or any other provisions of law) upon
which lot or parcel of land any business or residence building is
now located or may hereafter be erected, not connected with a
public sewer, may be required and compelled by the municipality or
by the board of health to connect any such building with such
sewer. Notice so to connect shall be given by the municipality or
by the board of health to the owner and to the lessee or occupant
of such building.
Each day?s failure to comply with such notice
and connect with such sewer by such owner or owners, after thirty
days from the receipt of such notice, shall be a misdemeanor and a
separate and new offense under this section, and each such offense
shall be punishable by a fine of not less than five nor more than
twenty five dollars. Jurisdiction to hear, try, determine and sentence for any violation of this section is hereby vested in the
police or municipal court thereof when the lot or parcel of land is
within the municipality, or, where no police court or municipal
court exists, in the mayor thereof: Provided, That if said lot or
parcel is located outside of the municipality, then jurisdiction
shall be vested in the circuit court of the county wherein the lot
or parcel is situated. The owner or owners shall connect to the
municipal sewer within thirty days after notice to connect has been
sent by the municipality. Regardless of whether the owner or
owners connect to such sewer, the municipality may bill the owner
or owners of the lot or parcel and the owner or owners shall pay
the municipality?s charge based on the actual water consumption on
the lot or parcel. If the lot or parcel is not metered, the
municipality?s charge shall be based on the municipality?s good
faith estimate of the consumption on the lot or parcel.
ARTICLE 19. MUNICIPAL AND COUNTY WATERWORKS AND ELECTRICAL POWER
SYSTEMS.
Part IV - Revenue Bond Financing.
§8-19-12a. Deposit required for new customers; lien for delinquent
service rates and charges; failure to cure
delinquency; civil actions; deferral of filing fees
and costs in magistrate court action; limitations
with respect to foreclosure.
(a)
(1) Whenever any rates and charges for water services or facilities furnished remain unpaid for a period of
thirty twenty
days after the same become due and payable, the property and the
owner thereof, as well as the user of the services and facilities
provided, shall be delinquent and the owner, user and property
shall be held liable at law until such time as all such rates and
charges are fully paid.
When a payment has become delinquent, the
municipality may utilize any funds held as a security deposit to
satisfy the delinquent payment. All new applicants for service
shall indicate to the municipality or governing body whether they
are an owner or tenant with respect to the service location.
(2) The municipality or governing body, but only one of them,
may collect from all new applicants for service a deposit of fifty
dollars or two twelfths of the average annual usage of the
applicant?s specific customer class, whichever is greater, to
secure the payment of water service rates, fees and charges in the
event they become delinquent as provided in this section. In any
case where a deposit is forfeited to pay service rates, fees and
charges which were delinquent and the user?s service is
disconnected or terminated, no reconnection or reinstatement of
service may be made by the municipality or governing body until
another deposit equal to fifty dollars or a sum equal to two
twelfths of the average usage for the applicant?s specific customer
class, whichever is greater, is remitted to the municipality or
governing body. After twelve months of prompt payment history, the municipality or governing body shall return the deposit to the
customer or credit the customer?s account with interest at a rate
as the public service commission may prescribe: Provided, That
where the customer is a tenant, the municipality or governing body
is not required to return the deposit until the time the tenant
discontinues service with the municipality or governing body.
Whenever any rates, fees, rentals or charges for services or
facilities furnished remain unpaid for a period of twenty days
after the same become due and payable, the user of the services and
facilities provided is delinquent and the user is liable at law
until all rates, fees and charges are fully paid. The municipality
or governing body may, under reasonable rules promulgated by the
public service commission, shut off and discontinue water services
to a delinquent user of either water facilities ten days after the
water services become delinquent regardless of whether the
municipality or governing body utilizes the security deposit to
satisfy any delinquent payments.
(b) All rates or charges for water service whenever delinquent
as provided by ordinance of the municipality, shall be liens of
equal dignity, rank and priority with the lien on such premises of
state, county, school and municipal taxes for the amount thereof
upon the real property served, and the municipality shall have
plenary power and authority from time to time to enforce such lien
in a civil action to recover the money due for such services rendered plus court fees and costs and a reasonable attorney?s fee:
Provided, That an owner of real property may not be held liable for
the delinquent rates or charges for services or facilities of a
tenant, nor shall any lien attach to real property for the reason
of delinquent rates or charges for services or facilities of a
tenant of such real property, unless the owner has contracted
directly with the municipality to purchase such services or
facilities.
(c) Municipalities are hereby granted a deferral of filing
fees or other fees and costs incidental to the bringing and
maintenance of an action in magistrate court for the collection of
the delinquent rates and charges. If the municipality collects the
delinquent account, plus fees and costs, from its customer or other
responsible party, the municipality shall pay to the magistrate
court the filing fees or other fees and costs which were previously
deferred.
(d) No municipality may foreclose upon the premises served by
it for delinquent rates or charges for which a lien is authorized
by this section except through the bringing and maintenance of a
civil action for such purpose brought in the circuit court of the
county wherein the municipality lies. In every such action, the
court shall be required to make a finding based upon the evidence
and facts presented that the municipality had exhausted all other
remedies for the collection of debts with respect to such delinquencies prior to the bringing of such action. In no event
shall foreclosure procedures be instituted by any municipality or
on its behalf unless such delinquency had been in existence or
continued for a period of two years from the date of the first such
delinquency for which foreclosure is being sought.
ARTICLE 20. COMBINED WATERWORKS AND SEWERAGE SYSTEMS.
Part III - Revenue Bond Financing.
§8-20-10. Power and authority of municipality to enact ordinances
and make rules and fix rates, fees or charges; deposit
required for new customers; change in rates, fees or
charges; failure to cure delinquency; delinquent
rates, fees or charges as liens; civil action for
recovery thereof; deferral of filing fees and costs in
magistrate court action; limitations with respect to
foreclosure.
(a)
(1) The governing body of any municipality availing itself
of the provisions of this article shall have plenary power and
authority to make, enact and enforce all needful rules
and
regulations for the repair, maintenance and operation and
management of the combined system of such municipality and for the
use thereof, and shall also have plenary power and authority to
make, enact and enforce all needful rules
and regulations and
ordinances for the care and protection of any such system, which
may be conducive to the preservation of the public health, comfort and convenience and to rendering the water supply of such
municipality pure, the sewerage harmless insofar as it is
reasonably possible so to do, and if applicable properly collecting
and controlling the stormwater as is reasonably possible so to do:
Provided, That no municipality may make, enact or enforce any rule,
regulation or ordinance regulating any highways, road or drainage
easements or storm water facilities constructed, owned or operated
by the West Virginia division of highways except in accordance with
chapter twenty-nine-a of this code.
(2) Any municipality shall have plenary power and authority to
charge the users for the use and service of combined system and to
establish
required deposits, rates, fees or charges for such
purpose. Separate
deposits, rates, fees or charges may be fixed
for the water and sewer services respectively, and, if applicable,
the stormwater services, or combined rates, fees or for the
combined water and sewer services, and, if applicable, the storm
water services. Such
deposits, rates, fees or charges, whether
separate or combined, shall be sufficient at all times to pay the
cost of repair, maintenance and operation of the combined system,
provide an adequate reserve fund and adequate depreciation fund and
pay the principal of and interest upon all revenue bonds issued
under this article.
Deposits, rates, fees or charges shall be
established, revised and maintained by ordinance and become payable
as the governing body may determine by ordinance, and such rates, fees or charges shall be changed from time to time as needful,
consistent with the provisions of this article.
(3) All new applicants for service shall indicate to the
municipality or governing body whether they are an owner or tenant
with respect to the service location.
(4) The municipality or governing body, but only one of them,
may collect from all new applicants for service a deposit of one
hundred dollars or two twelfths of the average annual usage of the
applicant?s specific customer class, whichever is greater, to
secure the payment of water and sewage service rates, fees and
charges in the event they become delinquent as provided in this
section. In any case where a deposit is forfeited to pay service
rates, fees and charges which were delinquent and the user?s
service is disconnected or terminated, no reconnection or
reinstatement of service may be made by the municipality or
governing body until another deposit equal to one hundred dollars
or a sum equal to two twelfths of the average usage for
the
applicant?s specific customer class, whichever is greater, is
remitted to the municipality or governing body. After twelve
months of prompt payment history, the municipality or governing
body shall return the deposit to the customer or credit the
customer?s account with interest at a rate as the public service
commission may prescribe: Provided, That where the customer is a
tenant, the municipality or governing body is not required to return the deposit until the time the tenant discontinues service
with the municipality or governing body. Whenever any rates,
fees, rentals or charges for services or facilities furnished
remain unpaid for a period of twenty days after the same become due
and payable, the user of the services and facilities provided is
delinquent and the user is liable at law until all rates, fees and
charges are fully paid. The municipality or governing body may,
under reasonable rules promulgated by the public service
commission, shut off and discontinue water services to a delinquent
user of either water or sewage facilities, or both, ten days after
the water or sewage services become delinquent regardless of
whether the governing body utilizes the security deposit to satisfy
any delinquent payments.
(b) Whenever any rates, fees or charges for services or
facilities furnished remain unpaid for a period of thirty twenty
days after the same become due and payable, the user of the
services and facilities provided shall be delinquent and the
municipality or governing body may apply any deposit against any
delinquent fee and the user shall be held liable at law until such
time as all rates, fees and charges are fully paid.
(c) All rates, fees or charges for water service, sewer
service, and, if applicable, stormwater service, whenever
delinquent, as provided by ordinance of the municipality, shall be
liens of equal dignity, rank and priority with the lien on such premises of state, county, school and municipal taxes for the
amount thereof upon the real property served, and the municipality
shall have plenary power and authority from time to time to enforce
such lien in a civil action to recover the money due for services
rendered plus court fees and costs and a reasonable attorney?s fee:
Provided, That an owner of real property may not be held liable for
the delinquent rates, fees or charges for services or facilities of
a tenant, nor shall any lien attach to real property for the reason
of delinquent rates, fees or charges for services or facilities of
a tenant of the real property, unless the owner has contracted
directly with the municipality to purchase such services or
facilities.
(d) Municipalities are hereby granted a deferral of filing
fees or other fees and costs incidental to the bringing and
maintenance of an action in magistrate court for the collection of
the delinquent rates and charges. If the municipality collects the
delinquent account, plus fees and costs, from its customer or other
responsible party, the municipality shall pay to the magistrate
court the filing fees or other fees and costs which were previously
deferred.
(e) No municipality may foreclose upon the premises served by
it for delinquent rates, fees or charges for which a lien is
authorized by this section except through the bringing and
maintenance of a civil action for the purpose brought in the circuit court of the county wherein the municipality lies. In
every such action, the court shall be required to make a finding
based upon the evidence and facts presented that the municipality
had exhausted all other remedies for the collection of debts with
respect to such delinquencies prior to the bringing of the action.
In no event shall foreclosure procedures be instituted by any
municipality or on its behalf unless the delinquency had been in
existence or continued for a period of two years from the date of
the first delinquency for which foreclosure is being sought.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13. SEWAGE WORKS OF MUNICIPAL CORPORATIONS AND SANITARY
DISTRICTS.
§16-13-16. Rates for service; deposit required for new customers;
change or readjustment; hearing; lien and recovery;
discontinuance of services.
The governing body shall have power, and it shall be its duty,
by ordinance, to establish and maintain just and equitable rates,
fees or charges for the use of and the service rendered by:
(a) Sewerage works, to be paid by the owner of each and every
lot, parcel of real estate or building that is connected with and
uses such works by or through any part of the sewerage system of
the municipality, or that in any way uses or is served by such
works; and
(b) Stormwater works, to be paid by the owner of each and every lot, parcel of real estate, or building that in any way uses
or is served by such stormwater works or whose property is improved
or protected by the stormwater works or any user of such
stormwater works.
(c) The governing body may change and readjust such rates,
fees or charges from time to time. However, no rates, fees or
charges for stormwater services may be assessed against highways,
road and drainage easements and/or stormwater facilities
constructed, owned and/or operated by the West Virginia division of
highways.
(d) All new applicants for service shall indicate to the
governing body whether they are an owner or tenant with respect to
the service location.
(e) The governing body may collect from all new applicants for
service a deposit of fifty dollars or two twelfths of the average
annual usage of the applicant?s specific customer class, whichever
is greater, to secure the payment of service rates, fees and
charges in the event they become delinquent as provided in this
section. In any case where a deposit is forfeited to pay service
rates, fees and charges which were delinquent at the time of
disconnection or termination of service, no reconnection or
reinstatement of service may be made by the governing body until
another deposit equal to fifty dollars or a sum equal to two
twelfths of the average usage for the applicant?s specific customer class, whichever is greater, is remitted to the governing body.
After twelve months of prompt payment history, the governing body
shall return the deposit to the customer or credit the customer?s
account with interest at a rate as the public service commission
may prescribe: Provided, That where the customer is a tenant, the
governing body is not required to return the deposit until the time
the tenant discontinues service with the governing body. Whenever
any rates, fees, rentals or charges for services or facilities
furnished remain unpaid for a period of twenty days after the same
become due and payable, the user of the services and facilities
provided is delinquent and the user is liable at law until all
rates, fees and charges are fully paid. The governing body may,
under reasonable rules promulgated by the public service
commission, shut off and discontinue water services to a delinquent
user of sewer facilities ten days after the sewer services become
delinquent regardless of whether the governing body utilizes the
security deposit to satisfy any delinquent payments.
(f) Such rates, fees or charges shall be sufficient in each
year for the payment of the proper and reasonable expense of
operation, repair, replacements and maintenance of the works and
for the payment of the sums herein required to be paid into the
sinking fund. Revenues collected pursuant to this section shall be
considered the revenues of the works.
(g) No such rates, fees or charges shall be established until after a public hearing, at which all the users of the works and
owners of property served or to be served thereby and others
interested shall have an opportunity to be heard concerning the
proposed rates, fees or charges.
(h) After introduction of the ordinance fixing such rates,
fees or charges, and before the same is finally enacted, notice of
such hearing, setting forth the proposed schedule of such rates,
fees or charges, shall be given by publication as a Class II-O
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 municipality. The first
publication shall be made at least ten days before the date fixed
in such notice for the hearing.
(i) After such hearing, which may be adjourned from time to
time, the ordinance establishing rates, fees or charges, either as
originally introduced or as modified and amended, shall be passed
and put into effect. A copy of the schedule of such rates, fees
and charges so established shall be kept on file in the office of
the board having charge of the operation of such works, and also in
the office of the clerk of the municipality, and shall be open to
inspection by all parties interested. The rates, fees or charges
so established for any class of users or property served shall be
extended to cover any additional premises thereafter served which
fall within the same class, without the necessity of any hearing or notice.
(j) Any change or readjustment of such rates, fees or charges
may be made in the same manner as such rates, fees or charges were
originally established as hereinbefore provided:
Provided, That if
such change or readjustment be made substantially pro rata, as to
all classes of service, no hearing or notice shall be required.
The aggregate of the rates, fees or charges shall always be
sufficient for such expense of operation, repair and maintenance
and for such sinking fund payments.
(k) All rates, fees or charges, if not paid when due, shall
constitute a lien upon the premises served by such works. If any
service rate, fees or charge so established is not paid within
thirty twenty days after the same is due, the amount thereof,
together with a penalty of ten percent, and a reasonable attorney?s
fee, may be recovered by the board in a civil action in the name of
the municipality, and in connection with such action said lien may
be foreclosed against such lot, parcel of land or building, in
accordance with the laws relating thereto:
Provided, That where
both water and sewer services are furnished by any municipality to
any premises the schedule of charges may be billed as a single
amount or individually itemized and billed for the aggregate
thereof.
(l) Whenever any rates, rentals, fees or charges for services
or facilities furnished shall remain unpaid for a period of
thirty twenty days after the same shall become due and payable, the
property and the owner thereof, as well as the user of the services
and facilities shall be delinquent until such time as all rates,
fees and charges are fully paid.
When any payment for rates,
rentals, fees or charges becomes delinquent, the governing body may
use the security deposit to satisfy the delinquent payment.
(m) The board collecting such rates, fees or charges shall be
obligated under reasonable rules
and regulations, to shut off and
discontinue both water and sewer services to all delinquent users
of either water facilities, or sewer facilities or both, and shall
not restore either water facilities or sewer facilities, to any
delinquent user of either until all delinquent rates, fees or
charges for both water facilities, and sewer facilities, including
reasonable interest and penalty charges, have been paid in full.
Note: This bill has two purposes. First, the amendments to
W. Va. Code §8-18-12 allow municipalities to charge a sewer fee to
the occupants of any business or residence that abuts a municipal
sewer and has refused to connect to the public sewer regardless of
whether the business or residence is located within the
municipality. If the occupant?s property has a water meter then
the amount of the sewer fee will be based upon the amount of water
consumed by the occupant. If the occupant?s property is not
metered then the sewer fee will be based upon the municipality?s
good faith estimate of the consumption on the lot or parcel.
Second, the amendments to W. Va. Code §§ 8-19-12a, 8-20-10,
and 16-13-16 allow municipalities to collect a deposit from all new
applicants for water or sewer service. The amount of the deposit
shall be fifty dollars per service or two twelfths of the average
usage for the applicant?s specific customer class, whichever is greater. The deposit shall only be applied against delinquent fees
for services rendered by a municipality. The deposit, plus
interest, will be returned to property owners once they have timely
paid their water and sewer bills for one year. The deposit, plus
interest, will be returned to tenants when they cancel service.
These amendments will place municipalities on equal footing with
public service districts. Public service districts obtained the
right to collect an identical deposit during the 2003 legislative
session.
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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