Bill Text: WV HB4158 | 2018 | Regular Session | Comm Sub
Bill Title: Relating to municipal home rule
Spectrum: Partisan Bill (Republican 9-0)
Status: (Introduced - Dead) 2018-03-10 - On 2nd reading, House Calendar [HB4158 Detail]
Download: West_Virginia-2018-HB4158-Comm_Sub.html
WEST virginia legislature
2018 regular session
Committee Substitute
for
House Bill 4158
By Delegates Westfall, Ambler, Maynard, Wagner, Atkinson, Lane, Ward, Higginbotham and Hamrick
[Originating in the Committee on Government Organization; February 21, 2018]
A BILL to amend and reenact §8-1-5a of the Code of West Virginia, 1931, as amended, relating to municipal home rule; establishing the Municipal Home Rule Pilot Program as a permanent program identified as the Municipal Home Rule Program; providing that any ordinance, act, resolution, rule or regulation enacted pursuant to the Municipal Home Rule Pilot Program shall continue until repealed; clarifying the authority of the Municipal Home Rule Board; allowing all municipalities to participate in the Municipal Home Rule Program; requiring certain notice prior to passing of an ordinance; prohibiting municipalities participating in the Municipal Home Rule Program from passing an ordinance, act, resolution, rule or regulation that is contrary to certain laws governing the professional licensing or certification of public employees; creating a Home Rule Board Operations Fund; providing for annual assessment of participants; providing for fund expenditures; proscribing fiscal year end funds not transfer to the General revenue Fund; providing for petition procedures to protest enacted or amended ordinances; requiring ratification of certain ordinances by the voters in a municipal election; and eliminating the automatic termination of the Municipal Home Rule Pilot Program on July 1, 2019.
Be it enacted by the Legislature of West Virginia:
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 Program as a permanent program available to all
municipalities statewide is in the public interest; and
(7) Increasing the powers and duties of the Municipal
Home Rule Board 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 pilot plans. – The Municipal Home Rule Pilot Program is hereby established as a permanent program and shall be identified as the Municipal Home Rule Program. Any ordinance, act, resolution, rule or regulation enacted by a participating municipality under the provisions of this section before or during the period of the Municipal Home Rule Pilot Program shall continue in full force and effect until repealed: Provided, That municipalities that are participants in the Municipal Home Rule Program shall update their ordinances, acts, resolutions, rules, and regulations to comply with any additions or modifications to subsection (i) or subsection (j) of this section.
(c) Authorizing participation. --
(1) Commencing July 1, 2015 2018, thirty
any Class I, Class II and Class III municipalities and four Class IV
municipalities that are municipality that is current in payment of
all state fees may apply to participate in the Municipal Home Rule Pilot
Program pursuant to the provisions of this section. Beginning July 1, 2018,
up to four applications from Class IV municipalities may be approved annually by
the board for participation in the Municipal Home Rule Program: Provided,
That the Class IV municipality is current in the payment of all state fees.
(2) The municipalities participating in the 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
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) All municipalities currently participating in the Home Rule Pilot Program and all participants in the Municipal Home Rule Program shall pay an annual assessment of $2,000.00 for the operation and administration of the Board. The annual assessment is due July 1, 2018 and every July 1 thereafter. Any participating municipality that fails to timely remit its assessment when due may be assessed a penalty of an additional $2,000.00 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 shall not revert to the General Revenue Fund, but remain in the special revenue account to be used by the Board only in a manner consistent with this section. All costs and expenses lawfully incurred by the Board, including administrative and legal, shall be paid from the Home Rule Board Operations Fund. 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
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 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 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 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
municipalities ability to manage the costs or potential liabilities associated
with its proposed application or amendment may be rejected by the board;
(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 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 or a
written amendment to its existing 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 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 amendment to its existing plan, to the board, the municipality shall:
(1) Hold a public hearing on the written plan or the amendment to the approved plan;
(2) Provide notice of the public hearing at least thirty days prior to the public hearing by a Class II legal advertisement: Provided, however, That on or before the first day of publication, a copy of the notice shall be sent by 1st class mail to the Chairman of the Municipal Home Rule Board and the Cabinet Secretary of any state agency identified in the application or amendment, whether by name of the state agency 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 thirty 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 an approved plan to the Municipal Home Rule Board after the proposed ordinance has been read two times.
(h) Selection of municipalities. -- On or
after June 1, 2015, 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 related 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 §18-12-5a 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 or including those
governing crimes and punishment;
(11) §60A-1-1 et seq. and §61-1-1 et seq
and 62-1-1 et seq. of this code or 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: 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 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 may 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 professional licensing or certification, including the administration and oversight of those laws, by state agencies to the extent required by law; and
(19) Federal laws, regulations or standards related to transportation that would materially affect the states required compliance or result in the loss of 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;
(3) Imposes duties on another governmental entity unless the performance of the duty is part of a legally executed agreement between the municipality and the other governmental entity, or otherwise permitted by state law; or
(4) Prohibits or effectively limits the rental of a property, in whole or in part, or regulates the duration, frequency, or location of such rental, in whole or in part. A municipality may regulate activities that arise when a property is used as a rental, provided that such regulation applies uniformly to all properties, without regard to whether such properties are used as a rental .
(k) Amendments to written plans. -- A
municipality participating in the Municipal Home Rule Pilot Program may
amend its written plan at any time.
(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 or any approved amendment thereto,
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 written progress 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
(n) In the event thirty percent of the qualified voters of the municipality that voted in the previous municipal election, by petition duly signed by them in their own handwriting and filed with the recorder of the municipality within forty-five days after the enactment or amendment of an ordinance, act, resolution, rule or regulation, protest against the ordinance as enacted or amended, 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. Voting shall not take place until after notice of the submission is given by publication as a Class II legal advertisement in compliance with the provisions of §59-3-1 et seq 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 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 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.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
