HB4158 HFA WESTFALL 2-26 #1
Delegate Westfall moves to amend the bill on page one, after the enacting clause, by striking out the remainder of the bill and inserting in lieu of the following:
ARTICLE 1. PURPOSE AND SHORT TITLE; DEFINITIONS; GENERAL PROVISIONS; CONSTRUCTION.
§8-1-5a. Municipal Home Rule Pilot Program.
(a) Legislative findings. -- The Legislature finds and declares that:
(1) The initial Municipal Home Rule Pilot Program brought innovative results, including novel municipal ideas that became municipal ordinances which later resulted in new statewide statutes;
(2) The initial Municipal Home Rule Pilot Program also brought novel municipal ideas that resulted in court challenges against some of the participating municipalities;
(3) The Municipal Home Rule Board was an essential part of the initial Municipal Home Rule Pilot Program, but it lacked some needed powers and duties;
(4) Municipalities still face challenges delivering services required by federal and state law or demanded by their constituents;
(5) Municipalities are sometimes restrained by state statutes, policies, and rules that challenge their ability to carry out their duties and responsibilities in a cost-effective, efficient, and timely manner;
(6) Continuing the Municipal Home Rule Pilot
Program is in the public interest Establishing the Municipal Home
Rule Pilot Program as a permanent program is in the public interest; and
(7) Increasing the powers and duties of the Municipal
Home Rule Board, subject to the limitations set forth herein, will
enhance the Municipal Home Rule Pilot Program.
(b) Continuance of pilot program. -- The
Municipal Home Rule Pilot Program is continued until July 1, 2019. The
ordinances enacted by the participating municipalities pursuant to the l Municipal
Home Rule Pilot Program may remain in effect, subject to the requirements of
this section, until the ordinances are repealed: Provided, That
any ordinance enacting a municipal occupation tax is hereby null and void.
(b) Establishment of a permanent program and continuation of plans previously enacted and approved pursuant to the pilot program. -- The Municipal Home Rule Pilot Program is hereby established as a permanent program and shall be identified as the Municipal Home Rule Program. Any plan or amendment to a plan approved by the Board during the period of the Municipal Home Rule Pilot Program is hereby continued. Any ordinance, act, resolution, rule or regulation enacted by a participating municipality under the provisions of this section during the period of the Municipal Home Rule Pilot Program shall continue in full force and effect unless and until repealed.
(c) Authorizing participation. --
(1) Commencing July 1, 2015 July
1, 2018, 30 any Class I, Class II, and or Class
III municipalities municipality that is and
four Class IV municipalities that arecurrent in payment of all state fees
may apply to participate in the Municipal Home Rule Pilot Program
pursuant to the provisions of this section. Also commencing July 1, 2018, up to four applications per year from
Class IV municipalities may be approved by the Board for participation in the
Municipal Home Rule Program pursuant to the provisions of this section,
provided the Class IV municipality is current in payment of all state fees.
(2) The municipalities participating in the pilot
program Municipal Home Rule Pilot Program on the effective
date of the amendment and reenactment of this section are hereby authorized to
continue in the pilot program Municipal Home Rule Program,
subject to the requirements of this section, and may amend current written
plans and/or submit new written plans in accordance with the provisions of this
section.
(3) On July 1, 2018, all municipalities currently participating in the Municipal Home Rule Program shall pay an annual assessment of $2,000 for the operation and administration of the Home Rule Board. On July 1 of each year thereafter, all municipalities participating in the Municipal Home Rule Program as of that date shall pay the annual assessment. Any participating municipality that fails to timely remit its assessment when due may be assessed a penalty of an additional $2,000 by the Board.
(4) There is hereby created the “Home Rule Board Operations Fund”. Expenditures are authorized from collections and are to be made in accordance with appropriation by the Legislature in accordance with the provisions of §12-3-1 et seq. of this code, and upon fulfillment of the provisions of §11B-2-1 et seq. of this code: Provided, That collections received during fiscal year 2018 may be expended upon receipt without prior Legislative appropriation. Any balance remaining in the fund at the end of any state fiscal year does not revert to the General Revenue Fund, but remains in the special revenue account and shall be used only in a manner consistent with this section. All costs and expenses lawfully incurred by the board, including administrative and legal expenses, shall be paid from those funds. At such time as the unencumbered balance in the fund at the end of a state fiscal year is $200,000 or more, the annual assessment shall be suspended until such time as the unencumbered balance in the fund will be insufficient to meet future operating and legal expenses.
(d) Municipal Home Rule Board. -- The
Municipal Home Rule Board is hereby continued. Effective July 1, 2015,
the The Municipal Home Rule Board shall consist of the
following five voting members:
(1) The Governor, or a designee, who shall serve as chair;
(2) The Executive Director of the West Virginia Development Office, or a designee;
(3) One member representing the Business and Industry Council, appointed by the Governor, with the advice and consent of the Senate;
(4) One member representing the largest labor organization in the state, appointed by the Governor with the advice and consent of the Senate; and
(5) One member representing the West Virginia Chapter of the American Institute of Certified Planners, appointed by the Governor with the advice and consent of the Senate.
The Chair of the Senate Committee on Government Organization
and the Chair of the House Committee on Government Organization shall continue
to be serve as ex-officio nonvoting members of the board.
(e) Board's powers and duties. -- The Municipal Home Rule Board has the following powers and duties:
(1) Review, evaluate, make recommendations, and approve or reject, for any lawful reason, by a majority vote of the board, each aspect of the written plan, or the written plan in its entirety, submitted by a municipality;
(2) By a majority vote of the board, select, based on
the municipality's written plan, new Class I, Class II, Class III, and/or Class
IV municipalities to participate in the Municipal Home Rule Pilot Program;
(3) Review, evaluate, make recommendations and approve or reject, for any lawful reason, by a majority vote of the board, the amendments to the approved written plans submitted by municipalities: Provided, That any new application or amendment that does not reasonably demonstrate the municipality’s ability to manage the costs or liabilities associated with its proposed amendment shall be rejected;
(4) Consult with any agency affected by the written plans or the amendments to the written plans; and
(5) Perform any other powers or duties necessary to effectuate the provisions of this section: Provided, That any administrative rules established by the Board for the operation of the Municipal Home Rule Program shall be published on the Municipal Home Rule’s website, and made available to the public in print upon request.
(f) Written plan. -- Any Class I, Class
II, Class III, or Class IV municipality desiring to participate in the
Municipal Home Rule Pilot Program, or any municipality
desiring to amend its existing approved Home Rule plan, shall submit a
written plan to the board stating in detail the following:
(1) The specific laws, acts, resolutions, policies, rules, or regulations which prevent the municipality from carrying out its duties in the most cost-efficient, effective, and timely manner;
(2) The problems created by the those laws,
acts, resolutions, policies, rules, or regulations;
(3) The proposed solutions to the problems, including all proposed changes to ordinances, acts, resolutions, rules, and regulations: Provided, That the specific municipal ordinance instituting the solution does not have to be included in the written plan; and
(4) A written opinion, by an attorney licensed to practice in West Virginia, stating that the proposed written plan does not violate the provisions of this section.
(g) Public hearing on written plan. -- Prior to submitting its written plan, or an amendment to an existing approved plan, to the board, the municipality shall:
(1) Hold a public hearing on the written plan or the amendment to the existing approved plan;
(2) Provide notice of the public hearing at least 30 days prior to the public hearing by a Class II legal advertisement: Provided, That on or before the first day of publication, a copy of the notice shall be sent by first-class mail to the Chairman of the Municipal Home Rule Board and the cabinet secretary of any state agency affected by the application or amendment, whether directly identified in the application or amendment or by inclusion of state law or rule directly overseen by that state agency;
(3) Make a copy of the written plan or amendment available for public inspection at least 30 days prior to the public hearing; and
(4) After the public hearing, adopt an ordinance
authorizing the municipality to submit a written plan or amendment to
the Municipal Home Rule Board, after provided the
proposed ordinance has been read two times, as required by §8-11-4 of
this code.
(h) Selection of municipalities. -- On
or after June 1, 2015, by By a majority vote, the
Municipal Home Rule Board may select from the municipalities that submitted
written plans and were approved by the board by majority vote, new Class I,
Class II, Class III, and/or Class IV municipalities to participate in the
Municipal Home Rule Pilot Program.
(i) Powers and duties of municipalities.
-- The municipalities participating in the Municipal Home Rule Pilot Program
have the authority to pass an ordinance, act, resolution, rule, or regulation,
under the provisions of this section, that is not contrary to:
(1) Environmental law;
(2) Laws governing bidding on government construction and other contracts;
(3) The Freedom of Information Act;
(4) The Open Governmental Proceedings Act;
(5) Laws governing wages for construction of public improvements;
(6) The provisions of this section;
(7) The provisions of §8-12-5a of this code;
(8) The municipality's written plan;
(9) The Constitution of the United States or the Constitution of the State of West Virginia;
(10) Federal law, including those governing or crimes
and punishment;
(11) Chapters 60A, 6,1 and 62 of this code or other code governing state crimes and punishment;
(12) Laws governing pensions or retirement plans;
(13) Laws governing annexation;
(14) Laws governing taxation: Provided, That
a participating municipality may enact a municipal sales tax up to one percent
if it reduces or eliminates its municipal business and occupation tax, Provided,
however, That if a municipality subsequently reinstates or raises the
municipal business and occupation tax it previously reduced or eliminated under
the Municipal Home Rule Pilot Program or the Municipal Home Rule Program, it
shall reduce or eliminate the municipal sales tax enacted
under the Municipal Home Rule Pilot Program or the Municipal Home Rule
Program in an amount comparable to the revenue estimated to be generated by the
reinstated tax: Provided further, That any municipality that
imposes a municipal sales tax pursuant to this section shall use the services
of the Tax Commissioner to administer, enforce and collect the tax in
the same manner as the state consumers sales and service tax and use tax under required
by the provisions of §11-15-1 et seq., §11-15A-1 et
seq. and §11-15B-1 et seq. of this code and all
applicable provisions of the Streamlined Sales and Use Tax Agreement: And
provided further, That such tax will shall not
apply to the sale of motor fuel or motor vehicles;
(15) Laws governing tax increment financing;
(16) Laws governing extraction of natural
resources; and
(17) Marriage and divorce laws;
(18) Laws governing the professional licensing or certification of employees;
(19) Laws, rules, or regulations governing the enforcement of building codes or fire codes; and
(20) Federal laws, regulations, or standards related to transportation that would affect the state’s required compliance or jeopardize federal funding.
(j) Municipalities may not pass an ordinance, act, resolution, rule, or regulation under the provisions of this section that:
(1) Affects persons or property outside the boundaries of the municipality: Provided, That this prohibition under the Municipal Home Rule Pilot Program does not limit a municipality's powers outside its boundary lines to the extent permitted under other provisions of this section, other sections of this chapter, other chapters of this code or court decisions; or
(2) Enacts an occupation tax, fee or assessment payable by a nonresident of a municipality; or
(3) Imposes duties on another governmental entity, unless the performance of the duties is part of a legally executed agreement between the municipality and the other governmental entity, or is otherwise permitted by state law.
(k) Amendments to written plans. -- A
municipality participating in the Municipal Home Rule Pilot Program
may amend its written plan at any time subject to the requirements of
this section.
(l) Amendments to ordinances, acts,
resolutions, rules, or regulations. -- A municipality participating in the
Municipal Home Rule Pilot Program may amend any ordinance,
act, resolution, rule, or regulation enacted pursuant to the municipality's
approved written plan at any time so long as any amendment is consistent with
the municipality's approved written plan, as modified by any amendments
adopted pursuant to this section, complies with the provisions of subsections
(i) and (j) of this section, and the municipality complies with all
applicable state law procedures for enacting municipal legislation.
(m) Reporting requirements. -- Commencing
On or before December 1, 2015, and of each
year thereafter, each participating municipality shall give a writtenprogress
report to the Municipal Home Rule Board, and commencing on
or before January 1, 2016, and of each
year thereafter, the Municipal Home Rule Board shall give a summary
report of all the participating municipalities to the Joint Committee on
Government and Finance.
(n) Termination of the pilot program. --
The Municipal Home Rule Pilot Program terminates on July 1, 2019. An ordinance,
act, resolution, rule or regulation enacted by a participating municipality
under the provisions of this section during the period of the Municipal Home
Rule Pilot Program shall continue in full force and effect until repealed
(o) (n) In the event thirty percent of the qualified voters of
the municipality, by petition duly signed by them in their own handwriting and
filed with the recorder of the municipality prior to adoption by the governing
body of the municipality or within five days after said adoption, protest any
ordinance, act, resolution, rule, or regulation proposed or adopted pursuant to
an approved Municipal Home Rule Program plan or amendment to an approved plan
authorized by this section, the ordinance, act, resolution, rule or regulation
shall not become effective until it is ratified by a majority of the legal
votes cast by the qualified voters of the municipality at a regular municipal
election or special municipal election, as the governing body directs, which
shall be conducted as required by Chapter 3 of this code.
(o)
Notwithstanding any other provision of this code to the contrary, on and
after the effective date of the enactment of this provision in 2015, no
distributee under the provisions of this section may seek from the Tax Division
of the Department of Revenue a refund of revenues or moneys collected by, or
remitted to, the Tax Division of the Department of Revenue, nor seek a change
in past amounts distributed, or any other retrospective adjustment relating to
any amount distributed, to the extent that the moneys in question have been
distributed by the Tax Division to another distributee,
regardless of whether those distributions were miscalculated, mistaken,
erroneous, misdirected or otherwise inaccurate or incorrect. For purposes of
this section, the term "distributee" means any municipality that
has enacted a sales and use tax under this section or as otherwise permitted by
law that receives or is authorized to receive a specific distribution
of revenues or moneys collected by, or remitted to, the Tax Division of the
Department of Revenue pursuant to this section.