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Introduced Version House Bill 2006 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2019 regular session

Introduced

House Bill 2006

By Delegates Howell, Westfall, Rohrbach, Worrell, Summers, Hamrick, Ellington, Queen, Hill, Wilson and Criss

[Introduced January 15, 2019; Referred
to the Committee on Political Subdivisions then Government Organization. ]

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act, resolution, rule, or regulation enacted pursuant to the Municipal Home Rule Pilot Program shall continue until repealed; clarifying the authority of the Municipal Home Rule Board; allowing all municipalities to participate in the Municipal Home Rule Program; requiring notice prior to passing of an ordinance; clarifying the prohibition concerning 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 and waiver of the assessment; 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; allowing protest of certain ordinances, act, resolution, rule, regulations, or bonds 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, regulation, or bond 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 §8-1-5a(i) or §8-1-5a(j) of this code.

(c) Authorizing participation. --

(1) Commencing July 1, 2015 2019, thirty any Class I, Class II, and or 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, 2019, 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 for the operation and administration of the board. The annual assessment is due July 1, 2019, 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 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 2019 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.

(5) All costs and expenses lawfully incurred by the board, including administrative and legal, shall be paid from the Home Rule Board Operations Fund as authorized by the Chair. 

(6) 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. The board shall notify all participating municipalities of the suspension of the annual assessment prior to the end of the fiscal year and provide an estimate of when the payments will resume.

(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 municipality’s 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 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 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 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 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: Provided, however, That nothing in this subdivision may be construed to prohibit a municipality from imposing a hotel occupancy tax as prescribed in §7-18-1 et seq. of this code.

(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 and the total receipts and disbursements for each year 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 30 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 45 days after the enactment or amendment of an ordinance, act, resolution, rule, regulation, or bond, protest against the ordinance as enacted or amended, the ordinance, act, resolution, rule, regulation, or bond shall not be issued or 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.


 

NOTE: The purpose of this bill is to establish the Municipal Home Rule Pilot Program as a permanent program identified as the Municipal Home Rule Program. The bill providing that any ordinance, act, resolution, rule, or regulation enacted pursuant to the Municipal Home Rule Pilot Program shall continue until repealed. The bill clarifies the authority of the Municipal Home Rule Board. The bill allows all municipalities to participate in the Municipal Home Rule Program. The bill requires certain notice prior to passing of an ordinance. The bill clarifies the 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. The bill creates a Home Rule Board Operations Fund. The bill provides for annual assessment of participants and waiver of the assessment. The bill provides for fund expenditures. The bill proscribes fiscal year end funds not transfer to the General revenue Fund. The bill provides for petition procedures to protest enacted or amended ordinances. The bill allows protest of certain ordinances, act, resolution, rule, regulations, or bonds by the voters in a municipal election. The bill eliminates the automatic termination of the Municipal Home Rule Pilot Program on July 1, 2019.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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