SB748 HFA Linville 4-11 #3
Casto 3264
Delegate Linville moved to amend the bill on page 4, section 4,immediately following line 39,
by inserting the following new subsections:
“(j) The counties participating in the Safer Communities Act may not pass an ordinance, act, resolution, rule, or regulation, under the provisions of this section, that is contrary to the following:
(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 county’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 crimes and punishment;
(11) Chapters 60A, 61, and 62 of this code or any other provisions of this code governing state crimes and punishment;
(12) Laws governing pensions or retirement plans;
(13) Laws governing annexation;
(14) Laws governing tax increment financing;
(15) Laws governing extraction of natural resources;
(16) Marriage and divorce laws;
(17) Laws, rules, or regulations governing the enforcement of state building or fire codes;
(18) Federal laws, regulations, or standards that would affect the state’s required compliance or jeopardize federal funding;
(19) Laws or rules governing procurement of architectural and engineering services;
(20) The provisions of chapter 17C of this code;
(21) Laws, rules, or regulations governing communication technologies or telecommunications carriers, as the term "telecommunications carrier" is defined by the Federal Communications Commission in 47 U.S.C. §153 or as determined by the Public Service Commission of West Virginia; or
(22) Laws governing the sale, transfer, possession, use, storage, taxation, registration, licensing, or carrying firearms, ammunition, or accessories thereof.
(k) The counties participating in the Safer Communities Act 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 county: Provided, That this prohibition under the Safer Communities Act does not limit a county’s powers outside its boundary lines to the extent permitted under other provisions of this code;
(2) Enacts an occupation tax, fee, or assessment payable by a nonresident of a county; or
(3) Imposes duties on another governmental entity, unless the performance of the duties is part of a legally executed agreement between the county and the other governmental entity, or is otherwise permitted by state law;”
AND
by inserting the following new sections:
§7-28-8. Safer Communities Act; appeals and grounds therefor; persons eligible to appeal; procedures for appeal.
(a) The validity, scope, or application of any ordinance, act, resolution, rule, or regulation enacted by a Safer Communities Act participating county alleged to be in violation of the provisions of this code may be appealed to the Intermediate Court of Appeals, who shall be the trier of fact in such appeals.
(b) Appeal may be had by any resident who is subject to any portion of the jurisdiction of a county participating in the Safer Communities Act; for purposes of this section, this includes any resident who pays any tax or fee to the participating county, including any user fee.
(c) There is created in the office of the State Treasurer a special revenue account fund to be known as the Safer Communities Act Appeal Escrow Fund. The collections required by the provisions of §7-28-8(d) of this code shall be deposited into the fund, and expenditures from the fund shall be made in accordance with appropriation of the Legislature under the provisions of this section.
(d) At the outset of any such appeal, the Intermediate Court of Appeals shall hold an evidentiary hearing, and if the Intermediate Court of Appeals finds by a preponderance of the evidence that the appellant is likely to prevail, revenue from the additional county sales tax of 1 percent shall be collected but shall be deposited in the Safer Communities Act Appeal Escrow Fund. If the county is found to be in violation of the provisions of this code in enacting an improper ordinance, then those revenues collected shall be deposited in the General Revenue Fund of the state. If the county is found to have not acted improperly, the funds will revert to the county.
(b) Unless specifically provided otherwise in this article, appeals of the following matters shall be made to the Intermediate Court of Appeals, which has appellate jurisdiction over such matters:
(1) Final judgments or orders of a circuit court in all civil cases, including, but not limited to, those in which there is a request for legal or equitable relief, entered after June 30, 2022: Provided, That the Supreme Court of Appeals may, on its own accord, obtain jurisdiction over any civil case filed in the Intermediate Court of Appeals;
(2) Final judgments or orders of a family court, entered after June 30, 2022, except for final judgments or final orders issued by a family court in any domestic violence proceeding pursuant to W. Va. Code §48-27-1 et seq. of this code, which appeals shall first be made to a circuit court;
(3) Final judgments or orders of a circuit court concerning guardianship or conservatorship matters entered after June 30, 2022, pursuant to §44A-1-1 et seq. of this code;
(4) Final judgments, orders, or decisions of an agency or an administrative law judge entered after June 30, 2022, heretofore appealable to the Circuit Court of Kanawha County pursuant to §29A-5-4 or any other provision of this code;
(5) Final orders or decisions of the Health Care Authority issued prior to June 30, 2022, in a certificate of need review, but transferred to the jurisdiction of the Intermediate Court of Appeals upon termination of the Office of Judges pursuant to §16-2D-16a of this code;
(6) Final orders or decisions issued by the Office of Judges after June 30, 2022, and prior to its termination, as provided in §16-2D-16 and §23-5-8a of this code; and
(7) Final orders or decisions of the Workers' Compensation Board of Review pursuant to §23-5-1 et seq. of this code, entered after June 30, 2022.
(c) In appeals properly filed pursuant to subsection (b) of this section, the parties shall be afforded a full and meaningful review on the record of the lower tribunal and an opportunity to be heard.
(d) The Intermediate Court of Appeals does not have appellate jurisdiction over the following matters:
(1) Judgments or final orders issued in any criminal proceeding in this state: Provided, That if the West Virginia Supreme Court of Appeals should adopt a policy of discretionary review of criminal appeals, then the Intermediate Court of Appeals shall have appellate jurisdiction of such judgments or final orders;
(2) Judgments or final orders issued in any juvenile proceeding pursuant to §49-4-701 et seq. of this code;
(3) Judgments or final orders issued in child abuse and neglect proceedings pursuant to §49-4-601 et seq. of this code;
(4) Orders of commitment, issued pursuant to §27-5-1 et seq. of this code;
(5) Any proceedings of the Lawyer Disciplinary Board;
(6) Any proceedings of the Judicial Investigation Commission;
(7) Final decisions of the Public Service Commission, issued pursuant to §24-5-1 of this code;
(8) Interlocutory appeals;
(9) Certified questions of law;
(10) Judgments or final orders issued in proceedings where the relief sought is one or more of the following extraordinary remedies: writ of prohibition, writ of mandamus, writ of quo warranto, writ of certiorari, writ of habeas corpus, special receivers, arrests in civil cases, and personal safety orders; and
(11) Judgments or final orders issued by circuit court upon its review of a family court judgment or final order in any domestic violence proceeding pursuant to §48-27-101 et seq. of this code.
Adopted
Rejected