MUNICIPAL LAW
FLOYD “KIN” SAYRE, III
Bowles Rice McDavid Graff & Love LLP
101 South Queen Street
Martinsburg, West Virginia 25401
(304) 264-4226

Table of Contents

 
I. Introduction.
II. General Provisions, Chapter 8, Article 1.
III. Creation of Municipalities.
IV. The City Charter.
V. Election and Officers.
VI. Annexation.
VII. Decrease of Corporate Limits and-consolidation of Municipalities.
VIII. Proceedings of Governing Bodies.
IX. Power and Duties of Officers.
X. Ordinance Procedures.
XI. General and Specific Powers Duties and Relations of Municipalities.
XII. Taxation and Finance.
XIII. Police Departments.
XIV. Fire Departments.
XV. Civil Service for Member of Police and Fire Departments.
XVI. Public Works.
XVII. Assessments and Bonds.
XVIII. Retirement and Pensions.
XIX. Planning and Zoning.

 

I. INTRODUCTION

Municipal law in West Virginia is, to a great extent, governed by statute; many cases involving
municipal law are concerned with the interpretation of statute. For that reason, this chapter will
be structured along the lines of Chapter 8 of the West Virginia Code. Whether one is representing a
municipality, or a litigant opposed to a municipality in a civil action, there is no substitute for
a careful study of the relevant provisions of the West Virginia Code. Experienced municipal
practitioners are certainly aware of this, so an attorney involved in the occasional practice of
municipal law should make no assumption about the power and duties of municipalities without a
careful reference to the Code. Citations are to Chapter 9 ofthe West Virginia Code (1998
Replacement Vol.), except as indicated.

II. General Provisions, Chapter 8, Article 1.

A. Definitions §8-1-2

1. “Municipality” means any municipal corporation incorporated under the laws of West
Virginia.

2. “City”, refers to Class I, Class II or Class III city and “Town” or “Village” refers to a
Class IV town or Village.

3. “Governing Body” means the body of the municipality charges with the responsibility of enacting
ordinances and determining the public policy of the municipality.

4. “Mayor” means the individual called mayor unless the charter of a city designates a commissioner
or city manager as the principal or chief executive officer or chief administrator of the
municipality. However, a charter or ordinance may provide that a particular function is to be
discharged by the individual mayor even if that person is not the chief administrative office.

B. Classification ofMunicipal Corporations §8-1-3

1. A municipality with a population in excess of 50,000 is a Class I City.

2. A municipality with a population in excess of 10,000 but not in excess of 50,000 is a
Class II City.

3. A municipality with a population in excess of 2,000 but not in excess of 10,000 is a
Class Ill City.

4. A municipality with a population of2,000 or less is a Class IV town or village. C.
Construction of Powers and Authority Granted §8-1-7
The provision of the Code provides that powers and authorities enumerated and granted in Chapter 8
shall not operate to exclude the exercise of other powers and authority fairly

incidental to or reasonably applied and within the purposes of Chapter 8. The Provisions of
Chapter 8 are to be given full effect without regard to the common law rule of strict construction,
particularly when the powers and authority in question are exercised by charter provisions framed
and adopted or amended under Chapter 8. However, a charter provision or ordinance beyond the power
and authority of a municipality shall be of no force and effect.

An attorney should be cautious in relying upon incidental or implied authority and should look far
a specific grant of authority in Chapter 8 whenever possible.

III. Creation of Municipalities.

A. General Requirements- §8-2-1

A municipality that is to be created must: (1) be an area not within any municipality; (2) contain
at least 100 inhabitants or freeholders; (3) be urban in nature; (4) have an average of not less
that 500 inhabitants per square mile ifthe territory contains one square mile or more; (5) the
area incorporated must not include an amount of territory disproportionate to its number of
inhabitants.

The proponents shall provide to the county commission a proposal that shall include; (1) map; (i)
showing the boundaries of area to be incorporated and any nearby municipalities; (ii) proposed
extensions of utilities; (2) a statement that the area to be incorporated meets the applicable
requirements of the article; (3) a statement setting forth the plans for the providing of major
municipal services.

The creation of any new municipality will be prohibited if: (1) the area is within close proximity
to an existing municipality and the existing municipality is capable of more effectively and
efficiently providing services to the area; or (2) the creation is not in the best interest of the
county as a whole.

B. Procedure- §8-2-1 to §8-2-5

1. Petition- A petition to incorporate signed by at least 50% of the freeholders of the territory,
and verified by at least one petitioner, and accompanied by a map made by a professional engineer
shall be filed with the county commission of the county in which the territory, or greater part
thereof, is located. The map must be verified and a copy of said map must be available for
examination for at least ten days before the hearing on the petition at a residence or place of
business within the area to be incorporated.

2. Hearing- The county commission shall hold a hearing not sooner than 10 and not later that 30
days after the filing of the petition, and the petitioners must publish notice of the filing of the
petition and the date, time and place of the hearing as a Class II legal advertisement. If the
county commission determined that the foregoing requirements have not been met, it shall dismiss
the petition. Otherwise, the county commission takes a census and holds an election.

3. Census- The county commission appoints enumerators to enumerate all the inhabitants, visit
each house or dwelling, obtain the name of each resident, and determine which are qualified
electors. The report of the enumerators is to be filed with the county commission within 40 days
for a Class I City, 20 days for a Class II City, and 10 days for a Class III City or Class IV Town
or Village.

4. Election- The county commission must hold a special election within 30 days after
receipt of the report from the enumerators, with the ballot providing a choice for and
against incorporation. (In all cases of municipal elections, please refer to Chapter 3 of the
West Virginia Code.)

5. Certification- If a majority of legal voters on the question of incorporation is in favor of
incorporation and the other provisions of Article 2 have been satisfied, the county
commission shall enter an order providing a certificate of incorporation. If
the municipality is a city, it has no powers other than to frame and adopt a charter. If it is a
town or village, it has all of the corporate powers conferred upon towns and villages by
Chapter 8.

IV. The City Charter.

In the case of a Class I, II, or Ill city, the charter is the essential document providing the form
of government and the exercise of powers and duties permitted to municipalities.

A. The Charter Board- §8-3-1

In an election on the question of the incorporation of a city the voters also vote for a
charter board consisting of 11 members for a Class I or II city and 7 members for a Class III city.
Each member must have been a resident of the territory to be incorporated for at least two years
and qualified to vote for at least two years. Member are nominated by petition to the county
commission of not less than 200 qualified voters. The election of the members of the charter
board is non-partisan. A very unusual provision concerning the election of the charter board is
that the voters have cumulative voting and may cast their 7 or 11 votes for one candidate or
divide them among the candidates as they wish.

B. Form of Government §8-3-2

One of the most important duties of the charter board is determination of the form of city
government. These are as follows:

1. Mayor-Council Plan.

This involves an elected city council and elected mayor, with the mayor and council
being both the governing body and administrative authority.

2. Strong Mayor Plan.

The mayor and council are elected and the council is the governing body, with the mayor the
administrative authority.

 

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3. Commission Government.

A Commission of five members are elected by the voters, who elect a mayor from among their
membership. The commission is both the governing body and administrative authority.

4. Manager Plan.

A council of 5 to 11 members are elected, and council elects the mayor from among its membership as
its presiding officer and appoints the city manager. The council is the governing body, and the
manager is the administrative authority.

5. Manager-Mayor Plan.

Council and the mayor are elected by the voters. Council is the governing body, and the manager,
appointed by council is the administrative authority.

Under all except the Commission government, the council members may be elected at large, by wards,
or in combination.

C. Approval of the Charter §8-3-3 to §8-3-8

1. The charter board is certified to the Attorney General of West Virginia who must examine the
draft and advise whether it is consistent with the constitution and the laws of the state. He
must report to the charter board within 30 days of receipt of the proposed charter.

2. The charter board must conduct a public hearing after a Class I legal ad giving at least
10 days notice of the hearing and information as to where a draft of the charter may be obtained.
The hearing may be continued over a period not exceeding 14 days.

3. The charter board has 30 days after the hearing to make any changes in the charter draft and
certify the completed draft to the county clerk.

4. another special election must beheld between 30 and 90 days from the filing of the completed
charter. If approved by a majority of legal voters at the election the charter takes effect of
the first July at least 60 days from the date of the election. If rejected, the charter board can
reconvene to alter the draft of the rejected charter. However, 300 qualified voters may petition
the county clerk for election of a new charter board.

D. Revision of a Charter.

1. The easiest way to revise a city charter and one that should be attempted unless there is to be
wholesale revision of the charter, and. unless the municipality is certain that the revision will
be controversial, is provided in section §8-4-8. The procedure is as follows:

a. The governing body adopts an ordinance setting forth the proposed amendment in full.

b. The governing body sets a date, time and place for a public hearing.

c. The governing body publishes the proposed amendment and notice of the date, time and place
for the hearing as a Class 11-0 legal ad, noting that the proposed amendment will be considered
on a certain date, which must be not less than 30 days after the dated of the first publication.
The notice further provides that any qualified voter or freeholder may appear and file a
written objection, but if no objections are filed, the amendment will become operative on a
certain date fixed in the notice not less than 10 days from the date of the hearing. The easiest
way to accomplish this is to provide in the first ordinance all information required in the
public notice and published as the public notice.

d. If no objections are filed, the governing body must adopt a new ordinance adopting the
amendment as an amendment to the charter and cause a copy of the amendment ordinance and transcript
of the proceedings to be certified to the clerk of the house of delegates and also to be recorded
in the office of the county clerk.

e. If any written objections to the charter amendment are filed and not withdrawn with 10 days,
the governing body has the choice of abandoning the charter amendment or submitting
it to the voters at a regular or special municipal election.

E. Framing and Adopting a New Charter by a Government Already Organized.

a. This is a procedure is similar to the first adoption of a charter under Article 3. The
governing body provides by ordinance for submission to the voters the question, “Shall a charter
be framed by representatives of the people?” The ordinance also provides for election of
a charter board, similar to that elected under Article 3. However, the governing body
may nominate five candidates for a Class I or II City, or three candidates for a Class Ill
City, and other nominations are by petition of at least 200 voters. Cumulative voting
is used. The adoption of the new charter otherwise follows the provisions of Article 3.

b. Revising a Charter by Election

The governing body adopts an ordinance setting out in full the proposed amendment. to the
charter and provides for an election at which the amendment is to be considered. The election
is conducted in a similar manner to an election following the submission of a proposed
charter by a charter board.

V. Election and Officers.

A. The First Election Following Incorporation §8-5-1 to §8-5-4

1. In the case of a city, the charter provides that the officers be elected, and the
first persons to hold those positions are elected in the same election as that in which the charter
is adopted.

2. In the case of a town or village, the first election shall be held within 60 days from the date
of certification of incorporation.

B. Regular Elections Chapter 3, General §8-5-5 through §8-5-6

A complete discussion of elections is beyond the scope of this outline. It should be noted that
municipal elections generally are held on the second Tuesday in June, unless otherwise
provided in the charter of the city or special legislative charter of a town or village. A
municipal election date established by charter provision may fall on the same day as the
county-state primary or general election only when the voting precinct boundaries in the
municipality coincide with the voting precinct boundaries established by the county commission or
when the charter provides for separate registration books.

It is a common practice, and a considerable economy for municipalities to hold elections on the
same day as the state election day and to use the same voting precinct boundaries and the same
registration books as the county or counties in which the municipality is located. The
municipality and county may agree to use the county election officials. Typically, there is a
sharing in the cost of the administration of the election by agreement between the municipality and
the county.

C. Officers- §8-5-7 through §8-5-12

1. Unless the charter provides otherwise, the municipality should elect a mayor, a recorder, and
members of council, who must be residents of the municipality and must be qualified voters entitled
to vote for members of its governing body, who together form the governing body of the
municipality. If the municipality has not been divided into wards or election districts, there
shall be at least five councilmen. If it has been divided into wards, the governing body may,
by ordinance, determine the number of council members to be elected from each ward. A city
manager in a manager form of government need only be a resident of the city at the time of
appointment.

2. After the election or appointment of any officer, that officer shall take an oath within 20
days and before the officer enters upon the duties of the office. The oath and certificate of the
officer administering the oath shall be filed, recorded, and preserved in the office of the
recorder of the municipality, with a certified copy to be recorded in the office of the county
clerk.

3. Unless otherwise provided in the charter, terms commence on the first day of July, following the
election, and the officers serve for two or four years. All municipal officers hold their offices
until their successors are elected or appointed and qualified according to law, unless sooner
removed from office according to law.

4. Unless otherwise provided by charter or ordinance, a vacancy is filled by appointment by the
governing body from the residents of the municipality until the next succeeding regular election.

VI. Annexation.

There are three methods for annexation.

A. Annexation by Minor Boundary Adjustment

The municipality applies to the county commission, and the application contains map showing the
metes and bounds of the additional territory and the number of persons residing in the territory.
The county commission may develop an application which shall include; (1) number of business
located and persons in additional territory (2) an accurate survey map, showing metes and
bounds of the additional territory, showing the boundaries of area to be incorporated and any
nearby municipalities and proposed extensions of utilities; (3) a statement setting forth the plans
for the providing of the additional territory with all applicable public services; (4) a statement
impact on any private waste disposal services or public service districts, or fire
protection; (5) a statement of the impact on fire protection and fire insurance rates; (6) impact
on municipality’s finances and services; (7) a statement that the proposed annexation meets all of
the requirements of section 8-6-5.

Upon receipt of a complete application for annexation by minor boundary adjustment, the County
Commission shall determine whether the application meets the treashhold requirements for
consideration as a minor boundary adjustment including whether the annexation could be effeceintly
and cost effectively accomplished under an annexation by election or without election

If the county commission is satisfied that the proposed annexation is only a minor adjustment, it
orders publication of a notice as a Class 11-0 legal ad and require posting of the notice at least
five places in the area to be annexed. The county commission holds a public hearing, and if
the proposed annexation is “substantially opposed”, the commission dismisses the
application. If there is no substantial opposition, the commission may enter an order
changing the corporate limits of the municipality. The commission shall consider the following
when making its final decision:

(1) Whether the territory proposed for annexation is contiguous to the corporate limits of the
municipality. For purposes of this section, “contiguous” means that at the time the application
for annexation is submitted, the territory proposed for annexation either abuts directly on the
municipal boundary or is separated from the municipal boundary by an unincorporated street or
highway, or street or highway right-of-way, a creek or river, or the right-of-way of a railroad or
other public service corporation, or lands owned by the state or the federal government;

(2) Whether the proposed annexation is limited solely to a division of highways right-of­
way or whether the division of highways holds title to the property in fee;

(3) Whether affected parties of the territory to be annexed oppose or support the proposed
annexation. For purposes of this section, “affected parties” means freeholders, firms,
corporations and qualified voters in the territory proposed for annexation and in the municipality
and a freeholder whose property abuts a street or highway, as defined in section thirty-five,
article one, chapter seventeen-c of this code, when: (i) The street or highway is being annexed to
provide emergency services; or (ii) the annexation includes one or more freeholders at the end of
the street or highway proposed for annexation;

(4) Whether the proposed annexation consists of a street or highway as defined in section
thirty-five, article one, chapter seventeen-c of this code and one or more freeholders;

(5) Whether the proposed annexation consists of a street or highway as defined in section
thirty-five, article one, chapter seventeen-c of this code which does not include a
freeholder but which is necessary for the provision of emergency services in the territory being
annexed;

(6) Whether another municipality has made application to annex the same or substantially the same
territory; and

(7) Whether the proposed annexation is in the best interest of the county as a whole.

If the County Commission denies the application for annexation, the Commission may allow the
municipality to modify the proposed annexation to meet the commission objections. The
final order of the County Commission shall include the reason for the granting or denying the
application.

 

B. Annexation by Election §8-6-2

Five percent or more of the freeholders of a municipality desiring to have territory
annexed may petition the governing body for annexation, and, if the petitioners post a
sufficient bond to pay the cost of election, the governing body shall order a vote of the
qualified voters of the municipality and, at the same time, a vote of the qualified voters of the
additional territory and of all the freeholders of the additional territory. An election is held,
and the majority of all legal votes cast, both in the municipality and in the new territory,
must be in favor of the proposed annexation.

C. Annexation Without An Election – §8-6-4

A majority ofboth the qualified voters ofthe additional territory and of the freeholders of the
additional territory (whether or not they reside in the territory) may petition the
governing body for annexation). If the governing body is satisfied that these conditions are
met, and upon an affirmative vote of the governing body, it shall enter that fact in its journal
and forward a certificate to the county commission, and the county commission shall enter an
order providing for the annexation.

It should be noted that the county commission has broad discretion in the case of a minor boundary
adjustment and seems to act in a ministerial capacity in the other types of annexation.

VII. Decrease of Corporate Limits and Consolidation of Municipalities.

1. There are two methods for decreasing corporate limits

A. Minor Boundary Adjustment

The municipality applies to the county commission, and the application contains a map showing the
metes and bounds of the additional territory and the number of persons residing in the territory.
If the county commission is satisfied that the proposed area is only a minor adjustment, it orders
publication of a. notice as a Class 11-0 legal ad and requires posting of the notice at least five
places in the area to be deannexed. The county commission holds a public hearing, and if
the proposed decrease is “substantially opposed”, the commission dismisses the application. If
there is no substantial opposition, the county commission may enter an order changing the corporate
limits of the municipality.

B. Election §8-7-2

Five percent or more of the freeholders of a municipality desiring to decrease the
corporate limits may petition the governing body for deannexation, and, if the petitioners
post a sufficient. bond to pay the cost of election, the governing body shall order a vote
of the qualified voters of the municipality and, at the same time, a vote of the qualified
voters of the additional territory and of all the freeholders of the additional territory. An
election is held, and the majority of all legal votes cast, both in the municipality and in the new
territory, must be in favor of the proposed deannexation.

VIII. Proceedings of Governing Bodies.

A. Presiding Officer – §8-9-1

Unless the charter provides otherwise, the mayor presides over the meetings of the governing body.
In the mayor’s absence, the recorder presides; or in the absence of both the mayor and the
recorder, the majority of the members of the governing body select one of its members.

B. Quorum

A majority of the members of the governing body is necessary to constitute a quorum. C.
Conflict of Interest
No member of the governing body shall vote upon any ordinance or other matter in which he may be
interested other than as a citizen.

D. Mayor and Recorder Shall, Unless the Charter Provides Otherwise, Vote as Members of the
Governing Body

In case of a tie, the presiding officer votes, unless the presiding officer had previously voted.
It is not specified in the Code and typically depends on local practice as to whether the
presiding officer votes prior to a determination that there is a tie.

E. Records

The governing body must keep a record of all its proceedings and acts, fully indexed and open to
public inspection. At each meeting of the, governing body, the minutes of the previous meeting
should be read, corrected, and adopted. If the members have already received the minutes,
they may dispense, by majority vote, with the reading of the minutes.

F. Voting

A roll call vote may he taken upon the request of any member.

IX. Power and Duties of Officers.

A. TheMayor

The powers and duties of the mayor are set forth in §8-10-1. Please recall that the mayor may
refer to the city manager under that form of government, except that the mayor alone exercises
the duties of a magistrate unless the municipality provides for a police or municipal
court. The general duties of the mayor include that the mayor shall see that the ordinances,
orders, bylaws, acts, resolutions, rules, and regulations of the, governing body are faithfully
executed.

B. Police Court or Municipal Judge – §8-10-2

Any city may provide, by charter provision, and any municipality may provide, by
ordinance, for creation of a police or municipal court. The judge may be elected or
appointed, and the judge would have the judicial powers, authority, and duties otherwise exercised
by the mayor.

C. Powers and Duties ofRecorder- §8-10-3

The recorder keeps the minutes of the proceedings of the governing body and performs the duties
of mayor when the mayor is unable to perform those duties.

X. Ordinance Procedures.

A. Ordinances General §8-11-1

The governing body has authority to make all necessary ordinances, resolutions and other orders
not contrary to the constitution and laws of the state, and for violations of
ordinances, to prescribe reasonable penalties of fines and imprisonment for not more than
30 days. It may also collect Costs against the defendant.

B. Discretion – §8-11-2

Delegation of discretion to an officer does not necessarily invalidate an ordinance but
does not permit exercise of discretion in an arbitrary or discriminatory manner.

C. Cases Requiring An Ordinance- §8-11-3

Certain powers of the municipality cannot be exercised without the enactment of an ordinance.
These are taxes and fees, licenses to do business, offenses and penalties, bonds, and other
forms of indebtedness, public improvements, purchase or sale of property, laying out or
vacating public ways, planning and zoning matters, franchises to public utilities, contracts with
other jurisdictions, and anything else the charter may reqmre.

D. Ordinance Procedure §8-11-4

1. An ordinance shall be read by title at least two meetings, with one week intervening between
each meeting Municipal practice varies as to whether a vote is taken e time of the first reading of
the ordinance. Obviously, a vote is invariably taken at the second reading of an ordinance, if it
progresses to that point. In the case of a pressing public emergency making the delay required by
the second reading dangerous to the public health, safety, or morals, the governing body may adopt
the ordinance with only one reading by affirmative vote of two-thirds of its members, but it must
set out the nature of the emergency. This is a procedure that should not be abused, although some
municipalities have, during some periods of time, adopted all of their ordinances as emergency
measures. That is a questionable procedure and would subject the governing body to judicial
challenge.

2. If an ordinance has the principal object of raising revenue for the municipality, the governing
body shall publish a Class 1-0 legal ad at least five days before the meeting at which the
ordinance is to be finally adopted stating the subject matter and general title or titles of the
ordinance, the date, time, and place of the final vote, and the place where the ordinance may be
inspected. Please compare this procedure with that provided in section
8-13-13 concerning special charges for municipal services.

3. A proposed ordinance shall not be materially amended at the same meeting at which it is finally
adopted. A municipal practitioner will frequently be called upon to rule as to whether an
amendment is material.

4. Municipalities have authority to adopt, by ordinance, building and other technical codes dealing
with general public health, safety, or welfare. Before adopting any such code, it shall either be
printed or typewritten and presented in pamphlet form to the governing body at a regular meeting,
and copies. shall be made available for public inspection. The ordinance need not set out the
code in full but shall identify it and adopt it by reference. Similarly, the code itself need not
be transcribed and recorded in the ordinance book. Before final adoption of any such proposed
ordinance, notice shall be given by publication as provided for ordinances the principal object of
which is raising revenue for the municipality. Please see Section §8-12-13 concerning the
requirement that if a municipality votes to adopt a building code, it must be the state
building, code.

XI. General and Specific Powers Duties and Relations of Municipalities.

Article 12 contains the most specific grant of authority to municipalities.

A. General Powers- §8-12-1

These include to have and use a common seal, to contract, to be a party in any civil action, to
hold property within or without the corporate limits of the municipality, to acquire, by
condemnation, property for municipal purposes (pursuant to the provisions of Chapter 54 of the West
Virginia Code), to obtain property by gift, and to do all things necessary, useful, convenient, or
incidental to carry out the purpose of a gift.

B. Home Rule Powers – §8-12-2

Class I, II and III cities have powers to create and organize departments of Government, transact
the city’s business, incur the city’s obligations, settle claims against the city, manage the
city’s public ways, collect taxes as authorized, operate passenger transportation
services, furnish all local public services, protect the health and safety of persons and property,
adopt police, sanitary, and other regulations, impose penalties for the violations of provisions of
the charter and ordinances, provide by charter provision for a civil service system for
non-uniformed employees, and to investigate matters of concern.

C. Independent Boards- §8-12-3

A city may, by charter provision, withdraw any municipal public works from government and provide
one or more independent boards whose members shall be elected or appointed to manage
those public works. Please note that municipal public works are also governed by Article 16,
water works by Article 19, and sewage systems, by Article
20 of Chapter B.

D. Department of Development- §8-12-3a

A city may establish a department of development under Section §8-12-3a, which may include planning
functions of the city’s housing authority, as provided in Article 15 of Chapter 16; the urban
renewal authority of a city, as provided in Article 15 of Chapter 16; and any or all of the
planning functions of the planning commission, provided for in Article 24 of Chapter 8.

E. Initiative, Referendum, and Recall – §8-12-4

A city may, by charter provision, provide for initiative, requiring petition of not less than
10% of the qualified voters; referendum, again requiring petition of 10%; and recall, upon petition
of at least 20% of the voters, under Section 8-12-4. General Powers of every municipality and the
governing body thereof are listed in great detail in Section 8-12-5. This statute enumerates, at
present count, 57 specific types of powers, although several of them overlap.

F. Specific powers of Municipalities §8-12-5

(I) To lay off, establish, construct, open, alter, curb, recurb, pave or repave and keep in good
repair, or vacate, discontinue and close, streets, avenues, roads, alleys, ways,

sidewalks, drains and gutters, for the use of the public, and to improve and light the same, and
have them kept free from obstructions on or over them which have not been authorized
pursuant to the succeeding provisions of this subdivision; and, subject to such terms and
conditions as the governing body shall prescribe, to permit, without in any way limiting the
power and authority granted by the provisions of article sixteen of this chapter, any
person to construct and maintain a passageway, building or other structure overhanging or
crossing the airspace above a public street, avenue, road, alley, way, sidewalk or
crosswalk, but before any permission for any person to construct and maintain a passageway,
building or other structure overhanging or crossing any airspace is granted, a public hearing
thereon shall be held by the governing body after publication of a notice of the date, time, place
and purpose of the public hearing has been published as a Class I legal advertisement in
compliance with the provisions of article three, chapter fifty-nine of this code and the
publication area for the publication shall be the municipality: Provided, That any permit so
granted shall automatically cease and terminate in the event of abandonment and nonuse
thereof for the purposes intended for a period of ninety days, and all rights therein or
thereto shall revert to the municipality for its use and benefit;

(2) To provide for the opening and excavation of streets, avenues, roads, alleys, ways, sidewalks,
crosswalks and public places belonging to the municipality and regulate the conditions under which
any such opening may be made;

(3) To prevent by proper penalties the throwing, depositing or permitting to remain on any
street, avenue, road, alley, way, sidewalk, square or other public place any glass, scrap iron,
nails, tacks, wire, other litter or any offensive matter or anything likely to injure the feet of
individuals or animals or the tires of vehicles;

(4) To regulate the use of streets, avenues, roads, alleys, ways, sidewalks, crosswalks and
public places belonging to the municipality, including the naming or renaming thereof, and
to consult with local postal authorities, the division of highways and the directors of county
emergency communications centers to assure uniform, nonduplicative addressing on a permanent
basis;

(5) To regulate the width of streets, avenues and roads, and, subject to the provisions of
article eighteen of this chapter, to order the sidewalks, footways and crosswalks to be
paved, repaved, curbed or recurbed and kept in good order, free and clean, by the owners or
occupants thereof or of the real property next adjacent thereto;

(6) To establish; construct, alter, operate and maintain, or discontinue, bridges, tunnels
and ferries and approaches thereto;

(7) To provide for the construction and maintenance of water drains, the drainage of
swamps or marshlands and drainage systems;

(8) To provide for the construction, maintenance and covering over of watercourses;

(9) To control and administer the waterfront and waterways of the municipality and to
acquire, establish, construct, operate and maintain and regulate flood control works,

wharves and public landings, warehouses and all adjuncts and facilities for navigation and commerce
and the utilization of the waterfront and waterways and adjacent property;

(10) To prohibit the accumulation and require the disposal of garbage, refuse, debris, wastes,
ashes, trash and other similar accumulations whether on private or public property:
Provided, That, in the event the municipality annexes an area which has been receiving solid waste
collection services from a certificated solid waste motor carrier, the municipality and the
solid waste motor carrier may negotiate an agreement for continuation of the private solid
waste motor carrier services for a period of time, not to exceed three years, during which time the
certificated solid waste motor carrier may continue to provide exclusive solid waste collection
services in the annexed territory;

(11) To construct, establish, acquire, equip, maintain and operate incinerator plants and
equipment and all other facilities for the efficient removal and destruction of garbage, refuse,
wastes, ashes, trash and other similar matters;

(12) To regulate or prohibit the purchase or sale of articles intended for human use or consumption
which are unfit for use or consumption, or which may be contaminated or otherwise unsanitary;

(13) To prevent injury or annoyance to the public or individuals from anything
dangerous, offensive or unwholesome;

(14) To regulate the keeping of gunpowder and other combustibles; (15) To make regulations
guarding against danger or damage by fire;
(16) To arrest, convict and punish any individual for carrying about his or her person any
revolver or other pistol, dirk, bowie knife, razor, slingshot, billy, metallic or other false
knuckles or any other dangerous or other deadly weapon of like kind or character;

(17) To arrest, convict and punish any person for importing, printing, publishing, selling or
distributing any pornographic publications;

(18) To arrest, convict and punish any person for keeping a house of ill fame, or for letting to
another person any house or other building for the purpose of being used or kept as a house of ill
fame, or for knowingly permitting any house owned by him or her or under his or her control to be
kept or used as a house of ill fame, or for loafing, boarding or loitering in a house of ill fame,
or frequenting same;

(19) To prevent and suppress conduct and practices which are immoral, disorderly, lewd, obscene
and indecent;
(20) To prevent the illegal sale of intoxicating liquors, drinks, mixtures and preparations; (21)
To arrest, convict and punish any individual for driving or operating a motor vehicle
while intoxicated or under the influence of liquor, drugs or narcotics;

(22) To arrest, convict and punish any person for gambling or keeping any gaming tables, commonly
called “A, B, C,” or “E, 0,” table or faro bank or keno table, or table of like kind, under any
denomination, whether the gaming table be played with cards, dice or otherwise, or any person who
shall be a partner or concerned in interest, in keeping or exhibiting the table or bank, or keeping
or maintaining any gaming house or place, or betting or gambling for money or anything of value;

(23) To provide for the elimination of hazards to public health and safety and to abate or cause to
be abated anything which in the opinion of a majority of the governing body is a public nuisance;

(24) To license, or for good cause to refuse to license in a particular case, or in its
discretion to prohibit in all cases, the operation of pool and billiard rooms and the maintaining
for hire of pool and billiard tables notwithstanding the general law as to state licenses for any
such business and the provisions of section four, article thirteen of this chapter; and when the
municipality, in the exercise of its discretion, refuses to grant a license to operate a pool
or billiard room, mandamus may not lie to compel the municipality to grant the license
unless it shall clearly appear that the refusal of the municipality to grant a license is
discriminatory or arbitrary; and in the event that the municipality determines to license any
business; the municipality has plenary power and authority and it shall be the duty of its
governing body to make and enforce reasonable ordinances regulating the licensing and operation of
the businesses;

(25) To protect places of divine worship and to preserve peace and order in and about the premises
where held;

(26) To regulate or prohibit the keeping of animals or fowls and to provide for the impounding,
sale or destruction of animals or fowls kept contrary to law or found running at large;

(27) To arrest, convict and punish any person for cruelly, unnecessarily or needlessly beating,
torturing, mutilating, killing, or overloading or overdriving or willfully depriving of necessary
sustenance any domestic animal;

(28) To provide for the regular building of houses or other structures, for the making of division
fences by the owners of adjacent premises and for the drainage of lots by proper drains and
ditches;

(29) To provide for the protection and conservation of shade or ornamental trees, whether on public
or private property, and for the removal of trees or limbs of trees in a dangerous condition;

(30) To prohibit with or without zoning the location of occupied house trailers or mobile homes in
certain residential areas;

(31) To regulate the location and placing of signs, billboards, posters and similar advertising;

(32) To erect, establish, construct, acquire, improve, maintain and operate a gas system, a
waterworks system, an electric system or sewer system and sewage treatment and disposal system, or
any combination of the foregoing (subject to all of the pertinent provisions of articles
nineteen and twenty of this chapter and particularly to the limitations or
qualifications on the right of eminent domain set forth in articles nineteen and twenty),
within or without the corporate limits of the municipality, except that the municipality
may not erect any system partly without the corporate limits of the municipality to serve persons
already obtaining service from an existing system of the character proposed and where the system
is by the municipality erected, or has heretofore been so erected, partly within and partly
without the corporate limits of the municipality, the municipality has the right to lay and
collect charges for service rendered to those served within and those served without the
corporate limits of the municipality and to prevent injury to the system or the pollution of the
water thereof and its maintenance in a healthful condition for public use within the corporate
limits of the municipality;

(33) To acquire watersheds, water and. riparian rights, plant sites, rights-of-way and any and
all other property and appurtenances necessary, appropriate, useful, convenient or
incidental to any system, waterworks or sewage treatment and disposal works, as
aforesaid, subject to all of the pertinent provisions of articles nineteen and twenty of this
chapter;

(34) To establish, construct, acquire, maintain and operate and regulate markets and
prescribe the time of holding the same;

(35) To regulate and provide for the weighing of articles sold or for sale;

(36) To establish, construct, acquire, maintain and operate public buildings, municipal buildings
or city halls, auditoriums, arenas, jails, juvenile detention centers or homes, motor
vehicle parking lots or any other public works;

(37) To establish, construct, acquire, provide, equip, maintain and operate recreational
parks, playgrounds and other recreational facilities for public use and in this connection also
to proceed in accordance with the provisions of article two, chapter ten of this code;

(38) To establish, construct, acquire, maintain and operate a public library or museum or both for
public use;

(39) To provide for the appointment and financial support of a library board m
accordance with the provisions of article one, chapter ten of this code;

(40) To establish and maintain a public health unit in accordance with the provisions of
section two, article two, chapter sixteen of this code, which unit shall exercise its powers and
perform its duties subject to the supervision and control of the West Virginia board of health and
state bureau for public health;

(41) To establish, construct, acquire, maintain and operate hospitals, sanitaria
and dispensaries;

(42) To acquire, by purchase, condemnation or otherwise, land within or near the
corporate limits of the municipality for providing and maintaining proper places for the
burial of the dead and to maintain and operate the same and regulate interments therein upon
terms and conditions as to price and otherwise as may be determined by the governing
body and, in order to carry into effect the authority, the governing body may acquire any
cemetery or cemeteries already established;

(43) To exercise general police jurisdiction over any territory without the corporate limits
owned by the municipality or over which it has a right-of-way;

(44) To protect and promote the public morals, safety, health, welfare and good order;

(45) To adopt rules for the transaction of business and the government and regulation of its
governing body;

(46) Except as otherwise provided, to require and take bonds from any officers, when considered
necessary, payable to the municipality, in its corporate name, with such sureties and in
a penalty as the governing body may see fit, conditioned upon the faithful discharge of their
duties;

(47) To require and take from the employees and contractors such bonds in a penalty, with
such sureties and with such conditions, as the governing body may see fit;

(48) To investigate and inquire into all matters of concern to the municipality or
its inhabitants;

(49) To establish, construct, require, maintain and operate such instrumentalities, other
than free public schools, for the instruction, enlightenment, improvement, entertainment,
recreation and welfare of the municipality’s inhabitants as the governing body may
consider necessary or appropriate for the public interest;

(50) To create, maintain and operate a system for the enumeration, identification and
registration, or either, of the inhabitants of the municipality and visitors thereto, or the
classes thereof as may be considered advisable;

(51) To require owners, residents or occupants of factory-built homes situated in a
factory-built rental home community with at least ten factory-built homes, to visibly post the
specific numeric portion of the address of each factory-built home on the immediate premises of the
factory-built home of sufficient size to be visible from the adjoining street: Provided, That in
the event no numeric or other specific designation of an address exists for a factory-built home
subject to the authorization granted by this subdivision, the municipality has the authority to
provide a numeric or other specific designation of an address for the factory-built home and
require that it be posted in accordance with the authority otherwise granted by this section;

(52) To appropriate and expend not exceeding twenty-five cents per capita per annum for
advertising the municipality and the entertainment of visitors;

(53) To conduct programs to improve community relations and public relations generally and to
expend municipal revenue for such purposes;

(54) To reimburse applicants for employment by the municipality for travel and other reasonable
and necessary expenses actually incurred by the applicants in traveling to and from the
municipality to be interviewed;
(55) To provide revenue for the municipality and appropriate the same to its expenses; (56) To
create and maintain an employee benefits fund which may not exceed one tenth
of one percent of the annual payroll budget for general employee benefits and which is set
up for the purpose of stimulating and encouraging employees to develop and implement
cost-saving ideas and programs and to expend moneys from the fund for these purposes;

(57) To enter into reciprocal agreements with governmental subdivisions or agencies of any
state sharing a common border for the protection of people and property from fire and for emergency
medical services and for the reciprocal use of equipment and personnel for these purposes; and

(58) To provide penalties for the offenses and violations of law mentioned in this section,
subject to the provisions of section one, article eleven of this chapter, and such penalties may
not exceed any penalties provided in this chapter, and chapter sixty-one of this code for like
offenses and violations.

A specific limitation on municipalities’ powers is found in Section §8-12-5a, whereby there
is no power to limit the right to own firearms and ammunition. This does not prohibit
an arrest for the carrying of a weapon under Section 8-12-5(16).

G. Insurance -§8-12-7 and §8-12-8

A municipality may purchase insurance to indemnify its officers, agents, employees and may also
provide for the indemnification of such persons arising out of acts or omissions in the
performance of their official duties. A municipality may also provide group insurance
for its employees for life, health, hospital care, surgical or medical diagnosis, care,
treatment, etc.

H. Housing Discrimination – §8-12-9

A municipality may, by ordinance, prohibit discrimination with respect to housing, accommodations.

I. Competitive Bidding- §8-12-10

Municipality may provide, by ordinance, for competitive bidding. J. Leases-§8-12-11
A municipality may lease equipment or materials, and a lease agreement may also
provide that title vests in the municipality at or before the end of the term; but the least

agreement must have an option to terminate the agreement and return the equipment during
each fiscal year, an option to renew for a period not “to exceed one year; and, where the
municipality will take title, an option to prepay with an appropriate rebate.

K. Parking Facility- §8-12-12

A municipality may lease real property for an off-street parking facility and has authority to
establish, maintain, and operate such a parking facility. The lease does not create an
indebtedness of the municipality, but the expenses are to be paid from the revenues
derived from the parking facility, other parking facilities, and parking meters

L. Building Codes- §8-12-13

A municipality may adopt building, electrical, plumbing, and other codes, but all
municipal building codes other than the state building code are void; and if the
municipality votes to adopt a building code, it must be the state building code. Therefore, if a
municipality has a building code in effect, but it has not adopted the state building code, its
existing code will not be enforceable.

M. Building- Permit- §8-12-14

A municipality may require a permit as a condition precedent to work on any structure
regulated by state law or municipal ordinance.

N. Housing Standards- §8-12-16

A municipality may adopt ordinances regulating the repair, alteration, or improvement or the
vacating and closing and removal or demolition of dwellings or other buildings unfit for human
habitation. Section 8-12-16 provides for an enforcement agency, but there is a conflict between
this statute and the administrative provisions of the state building code, which includes an
existing structures code providing for enforcement by an administrator rather than an agency.

0. Lease ofUtility- §8-12-17

A municipality may sell or lease a municipal public utility upon adoption of ordinance and
approval of the qualified voters in a municipal election.

P. Disposal of Property- §8-12-18

A municipality may sell, lease, or dispose of municipal property.

1. Property may be sold to a state or federal agency for a public purpose for an adequate
consideration without consideration alone the present commercial or market value of the property.

2. In other cases of a sale, a municipality may sell real or personal property, but if the
property is worth more than $1,000.00; there must be a public auction with notice published as a Class II legal ad. This does not prevent a municipality from

trading property for the purchase of new property. The sale must be for a fair and adequate
consideration.

3. In the case of a lease, a municipality may lease any real or personal property for a fair and
adequate consideration for a term not exceeding 50 years. It must hold a public
hearing on the lease after publishing a Class I legal ad.

Q. Extraterritorial Authority- §8-12-19

Municipal powers and authorities may be exercised beyond the corporate limits of the municipality
to the extent necessary to the reasonable efficient exercise of the power, but not more than one
mile beyond the corporate limits, and not into the corporate limits of another municipality
without the consent thereof.

XII. Taxation and Finance.

A. Property Taxes – §8-13-1

A municipality may collect tax on real and personal property for any municipal purposes provided
in Chapters 11 and 11a of the Code. Said tax shall be collected by the county sheriff and then
distributed to municipalities.

B. Hotel Occupancy Tax- §8-13-3

Each Class I city may collect an excise tax on hotel occupancy. The tax is levied directly on the
hotel guest and collected by the hotel. The revenues must be used for the
establishment of convention, facilities, the payment of principal or interest on bonds for
convention facilities, and the promotion of conventions.

C. Municipal License and Tax When State License Is Required- §8-13-4

Whenever the state requires a license on an activity, the municipality may similarly
require a municipal license and impose a reasonable tax not to exceed the amount of the state
license tax if owner has a state license and pays the municipal license fee, the
issuance of the municipal license is mandatory rather than discretionary. A dispute may arise,
for example, where a business has a state liquor or beer license and the
municipality does not want to pen-nit the business. It may not deny a municipal liquor or beer
license if the business pays the appropriate tax.

D. Business and Occupation Tax- §8-13-5

Although the state no longer collects a business and occupation tax, a municipality may tax any
activity taxed by the state prior to July 1, 1987, it must provide exemptions as then provided by
the state. It must adopt procedures for the assessment and collection of the tax similar to the
B and 0 tax in Chapter 11, Article 13 in effect in 1978, or the procedures in Chapter 11, Article
10 of the Code.

E. Public Utility – §8-13-5a

A municipality may collect a public utilities tax not to exceed two percent of the gross amount of
a utility bill. The municipality must give 60 days written notice to any utility of the
effective date of the ordinance. This only applies to utilities regulated by the Public
Service Commission and not to coin-operated telephone calls or specific charges for
telephone calls to places outside the municipality.

F. Amusement Tax §8-13-6

A municipality may impose an amusement tax not to exceed two percent of the cost of admission.
This is levied directly on the customer and is collected by the seller.

G. Liquor and Wine Sales -§8-13-7

A municipality may collect a tax on the retail purchase of liquor and wine in an amount not to
exceed five percent of the purchase price. It may likewise collect a fee from any private club
licensee as provided in Section 60-7-7 of the code.

H. Horse and Dog Racing- §8-13-8

A municipality may collect a tax on horse racing and dog racing, not to exceed the
amount of the daily license tax in Article 23, Chapter 19 of the code. Please note that a
municipality may not collect B&O tax on the operations of the horse or dog track directly relating
to racing but may collect such a tax on, for example, non-racing concessions.

I. Motor Vehicle License – §8-13-9

A municipality may collect an annual motor vehicle license tax not to exceed $2.00. J.
Domestic Animals- §8-13-10
A municipality may collect a tax on the privilege of keeping, a domestic animal. K. General
Obligation Bonds- §8-13-12
A municipality may borrow money on its general faith and credit for a municipal purpose by the
issuance of general obligation bonds, upon the approval of a majority of the voters in a bond
election.

L. Service Charges – §8-13-13

A municipality may charge a fee for essential or special municipal services, such as
police or fire protection. There is a particular notice provision notwithstanding Section
8-11-4 for the adoption of any ordinance requiring such a fee, and the ordinance must be published
as a Class II legal ad, and in the event that 30% of the qualified voters file a petition within
15 days after the expiration of the publication, the ordinance shall not become effective
until ratified by the voters. Please note that the imposition of a fee

based upon the value of property may be considered an ad valorem tax, which may exceed the maximum
amount permitted under Article 10, Section I of the West Virginia Constitution and Section II
-8-6d,

M. Collection of Taxes §8-13-15

The treasurer, or such other individual as designated by ordinance or charter, collects the taxes,
fines, special assessments, and other money due the municipality. The municipality may provide
penalties for the violation of any ordinance concerning the collection of taxes or fees. The
treasurer shall promptly pay any money into the municipal treasury, but the treasurer may contract
with a bank for the purpose of receiving such money.

N. Payment Out of Municipal Treasure. §8-13-22

Such payment must be on order duly signed by the municipal officers authorized to sign such an
order. However, the signature may be by mechanical or electrical device.

0. Investments – §8-13-22a

All municipal funds, the investment of which is not, governed by other provisions of this code and
not required for the payment of current obligations and not otherwise prohibited, may be invested
and reinvested in:

1. Any direct obligation of, or obligation guaranteed as to the payment of both principal and
interest by, the United States of America.

2. Any evidence of indebtedness issued by any United States government its’ agency Guaranteed as to
the payment of both principal and interest, directly or indirectly, by the United States of America
including, but not limited to, the following; Government national mortgage association, federal
land banks, federal home loan banks, federal intermediate credit banks, banks for cooperatives,
Tennessee Valley Authority, United States Postal Service, Farmers Home Administration,
export-import bank, federal financing bank, federal home loan mortgage corporation, student
loan marketing association, and federal farm credit banks.

3. Any evidence of indebtedness issued by the federal national mortgage association to the extent
such indebtedness is guaranteed by the Government national mortgage association.

4. Any evidence of indebtedness that is secured by a first lien deed of trust or mortgage upon real
property situate within this state if the payment thereof is substantially insured or guaranteed by
the United States of America or any agency thereof.

5. Direct and general obligations of this State.

6. Any undivided interest in a trust, the corpus of which is restricted to mortgages on real
property and, unless all of such property is situate within the state and insured, such trust, at
the time of the acquisition of such undivided interest, is rated in one of the three highest

rating grades by an agency which IS nationally known m the field of rating pooled
mortgage trusts.

7. Any bond, note, debenture, commercial paper, or other evidence of indebtedness of any private
corporation or association: Provided, that any such security is, at the time of its acquisition,
rated in one of the three highest rating grades by an agency which is nationally known in the field
of rating corporate securities: Provided, however, that if any commercial paper or any such
security will mature within one year from the date of its issuance, it shall, at the time of
its acquisition, be rated in one of the two highest rating grades by any such nationally known
agency and commercial paper or other evidence of indebtedness of any private corporation or
association shall be purchased only upon written recommendation from an investment advisor
that has over three hundred million dollars in other funds under it’s management.

8. Negotiable certificates of deposit issued by any bank, trust company, national banking
association, or savings institution which mature in less than one year and are fully
collateralized.

9. Interest earning deposits including certificates of deposit, with any duly designated state
depository.

10. Mutual funds registered with the securities and exchange commission which have
assets in excess of three hundred million dollars.

XIII. Police Departments.

A. Police and Authority – §8-14-1

Every municipality has power and authority to protect person and property and preserve law and
order by establishment of a police department. The members of the department have all the
powers of a deputy sheriff of a county.

B. Payment of Police Wages- §8-14-2 and §8-14-2a

Any police officer under civil service who works over eight hours in a day or over 40 hours in a
week must not have his regular rate of pay reduced for overtime payment or compensatory time off.
If a police officer is required to work on a holiday or if the holiday falls on the
officer’s regular scheduled day off, the officer shall be allowed equal time off or paid at a
rate less than one and one-half times the regular rate of pay.

XIV. Fire Departments.

A. Power and Authority – §8-5-1 and §8-15-2

A municipality may establish a volunteer or paid fire department and may give
authority to officers to pull down structures if deemed necessary to. prevent the
spreading of a fire.

B. Fire Service Contract- §8-15-3

A municipality may enter into a fire service contract with persons residing, within three miles of
the municipality’s corporate limits. If it does not impose a fire service fee, it should charge
80% of the annual tax that would be leveled on the property were it within the municipality’s
boundaries. If it does impose such a fee, it should charge the fee plus at least 50% of the annual
tax on such a property.

C. Wages- §8-15-10 and §8-15-10a

Paid members of a municipal fire department have similar rights to overtime as do police officers.
Except, overtime is to be paid for every hour worked over 112 hours in a two-week period and every
hour worked over forty in a work week.

XV. Civil Service for Member of Police and Fire Departments.

A. Establishment

Every Class I and II city and any Class Ill city and Class IV town or village shall have a police
and fire civil service system. The rights of officers under such a system are the source of much
litigation, and far more case law will be found in this area than in most areas of municipal
practice.

B. The Civil Service Commission

A civil service commission is made up of three commissioners, one appointed by the mayor, one by
the local police or firefighters, organization, and one by the local chamber of commerce or
business association. At least two of the commissioners must have a general understanding of the
civil service system, and not more than two shall be adherents of the same political party.

C. The Appointment Procedure

It is the duty of the civil service commission to establish rules for examination of candidates to
appointment to the police or fire department. The examinations are to be practical in character
and fairly and fully test the comparative merit and fitness of the individuals examined In a Class
I or II city, there must be a medical examination of a candidate for appointment or promotion under
the supervision of a board composed of two doctors. Individuals have a night to review test
answers, and scores after the test and may seek review of the test.

D. Appointment From the Eligible List

The commission establishes a list of eligibles after its testing procedure. Whenever the
appointing officer of the municipality (presumably the mayor or manager) notifies the commission of
a vacancy, the commission certifies from the eligible list the names of the three individuals who
received the highest scores at the preceding competitive examination within a period of three
years. The appointing officer then makes an appointment from the three names so certified, with sole reference to the relative merit and

fitness of the candidates.

E. Promotion

Vacancies in a Class I or II city should be filled, so far as practicable, from.
promotions among individuals in the next lower grade, from individuals who have completed at
least two years of continuous service in that next lower grade. Promotions are
based upon merit and fitness to be ascertained by competitive examination provided by
the civil service commission. “Experience” has been defined generally to mean seniority.

F. Disciplinary Procedures

1. Under Sections 8-14a-1, et seq., prior to a disciplinary procedure, when a police officer or
firefighter is under investigation there must first be a hearing before a hearing board made
up of three members of the individuals department, one appointed by the chief, one appointed by
the officers of the department, and the third selected by the other two. The officer has
certain rights in the investigation, including that interrogation be conducted at a reasonable
hour, upon notice of the investigation, taping, and transcribing of the
interrogation; and, upon the filing of a formal, written statement of charges, the right to
representation by counsel. If the investigation results in recommendation of punitive
action, before taking the action, the department must give notice to the individual that the
individual is entitled to a hearing before the hearing board. If the officer is
adversely affected by the decision of the board, he has the right to appeal to the
civil service commission.

2. No member of a police or fire department subject to civil service may be removed,
discharged, suspended, or reduced in rank or pay except for just cause. In any such case, the
member has the option to have a public or closed hearing within 10 days of the filing of charges.
At that hearing before the civil service commission, the removing officer has the burden to show
just cause for the action. The member has a right to appeal to circuit court. If there is a
reduction of number of members for reasons of economy or other reasons, the reduction is by inverse
seniority.

XVI. Public Works.

A. Construction of Public Works

Municipalities have broad powers to establish public works, either through the governing body or
by a committee, board, or commission. More than one municipality can establish such a commission
for joint action.

B. Parking Facilities

In order to effectuate revenue bond financing for parking garages and similar facilities,
there are certain specific powers given to municipalities to establish such facilities. See
Section 8-16-4a.

C. Eminent Domain.

A municipality may acquire property through eminent domain for public works under the procedure
provided in Chapter 54 of the Code.

D. Revenue Bond Financing

Detailed provisions are provided for revenue bond financing for public works, through the
establishment of rates or charges for services rendered by the works, so that the principal and
interest of the bonds are paid from the revenues, rather than the general funds of the
municipality. In order for the bonds to be marketable, the municipality will ordinarily contract
with an attorney form a law firm specializing in municipal bonds, as well as an underwriter or
underwriters, to facilitate the sale. It is the duty of the municipality to establish just and
equitable rates and charges for the services rendered by the works in order to pay the operating
costs of the works, repair and replacement costs, and the payment of funds to the municipal bond
commission for the principal and interest on the bonds. This may cause controversy where the
governing body wishes to keep rates low, but higher rates may be necessary under the covenants
provided in the bond ordinance or resolution. Use of a consulting engineer or other professional
may be necessary to advise the governing body as to the necessary rates.

XVII. Assessments and Bonds.

Certain improvements, including street, sidewalks and sewers can be undertaken by a municipality
upon petition of the persons owning property abutting on the area to be improved.

A. Petition

The petition must be from persons owning the greater amount of frontage of property abutting on the
area for which public improvement is contemplated. The governing body may act without a petition,
by ordinance, but only upon a recorded vote of at least three-fourths of the member of the
governing body, after notice to the abutting property owners.

B. Notice

Notice is to be by service, as in- a civil case, or by a Class II legal ad indicating that the
municipality is considering the improvement and to assess the cost of the improvement on the
abutting property owners. The notice also states where the hearing will be held on the proposal and
gives any abutting owner or interested party an opportunity to be present and object.

C. Notice Authorizing Improvement and Assessment

After the hearing, the governing body, may, by ordinance or resolution, authorize the improvements
and assessments but must have plans, specifications, and cost estimates prepared by its engineer
prior to advertising for bids. The ordinance also must provide

for the payment by abutting property owners of the cost of the work in equal installments payable
over a period of not less than five nor more than ten years from the date of the assessment, with
interest not to exceed eight percent per year.

D. Report on completion

After the improvement is completed, the engineer must make a report showing the frontages abutting
on the improvement, the total cost, the respective amount chargeable upon each lot or parcel, and
proper amount to be assessed against each. The governing body then gives notice to the property
owners that on or after a date an assessment may be laid against the property so improved, which
notice is published as a Class II legal ad.

E. Liens

Thereafter, a notice of the liens ofthe assessments referring to the assessing ordinance or
resolution and setting forth a list of the property assessed, describing the amounts and ownership
of the property and shall be certified by the recorder to the county clerk for recording in the
appropriate deed of trust books.

XVIII. Retirement and Pensions.

A. Employees Covered

Pensions must be provided for police officers and firefighters in Class I, II and III Cities.
Pension benefits may be provided for all of the employees of any municipality participating in the
Consolidated Public Employees Retirement System. A city may choose not to participate in that
System and may establish its own retirement and benefit fund.

B. Police and Fire Pension Fund

1. Funding

The fund is maintained through an annual levy, an additional contribution from the municipality as
necessary, and contributions from the members. The fund must have regularly scheduled actuarial
valuation reports and must meet minimum standards for actuarial soundness.

2. Disability Pensions

Where a member is examined by at least two physicians at Marshall University, West Virginia
University-Morgantown or West Virginia University-Charleston, and certified as disabled the
member may be entitled to total and temporary benefits. If those physicians certify that the
member is permanently disabled as a proximate result of employment, or for any reason if the member
has been a member of the department for at least five years, the member receives a disability
pension. A disability pension is equal to 60% of the monthly salary at the time the member became
disabled or the sum of $500.00 per month, whichever is greater. There is a limitation that if the
member is receiving workers, compensation benefits, the total compensation cannot exceed 100% of the basic

compensation paid to a member holding the same position as the disabled member at the time of his
disability.

3. Retirement Pensions

A member of a police or fire department with 20 years of honorable service is entitled to a
retirement pension upon retirement or the member’s attaining the age of 50 years, whichever is
later. The pension is equal to 60% of the average annual salary during the three 12 consecutive
month periods of employment when the member received the highest salary or compensation as a
member of the department or $500.00 per month, whichever is more.

4. Death Benefits

The surviving spouse, child, or children under the age of 18 years, dependent father or mother,
dependent brothers or sisters under the age of 18 years, or a disabled child over the age of 18
years may be entitled to benefits in the case of the death of the member of the police or fire
department. If the member dies and no such person exists, the contributions of the member plus
six percent are returned to the named beneficiary.

5. Cost of Living Adjustment

After July 1, 1990, all retirees receive an annual cost of living adjustment based on the
percentage increase of the Consumer Price index.

XIX. Planning and Zoning.

Although planning and zoning are governed by statutes, considerable litigation has been generated
by land use disputes.

A. The Planning Commission Organization- §8-24-5

A planning commission consists of five to fifteen individuals, as specified by
ordinance, who are freeholders and residents of the municipality and qualified by knowledge and
experience in matters pertaining to development. They must include representatives of business,
industry, and labor. The members are nominated by the administrative authority and confirmed by
the governing body. At least three-fifths of the members must have been residents of the
municipality for at least one year. One member of the commission shall be a member of the
governing body and one member shall also be a member of the administration of the municipality.

B. The Comprehensive Plan- §8-24-16 to §8-24-17

One of the most important functions of the planning commission is the formulation and
recommendation to the governing body of a comprehensive plan for the development of the territory
of the municipality.

1. The comprehensive plan may include studies concerning existing conditions and the probable 

future growth of the municipality.

2. It should include maps, plats, charts and descriptive material concerning land use
infrastructure and other factors that are part of the physical, economic, or social situation
within the municipality.

3. It should include plans for the development of the municipality including longrange finance
planning.

C. Adoption of Comprehensive Plan – §8-24-18 to §8-24-27

There must be notice and public hearing by the planning commissiOn prior to recommendation of a
comprehensive plan. After the public hearing, the commission may adopt the plan and recommend an
ordinance adoptina, the plan to the governing body. If the governing body rejects or amends
the comprehensive plan, it must send the commission a written statement of the reasons for
its rejection or amendment. The commission then has 45 days to consider the rejection or
amendment and may approve the rejection or amendment or may disapprove it and report back to the
governing body. The governing body then reconsiders the comprehensive plan and ordinance, and its
action is final.

D. Subdivision control – §8-24-28 to §8-24-35

After the adoption of a comprehensive plan and an ordinance containing provision for subdivision
control, a plat of a subdivision must first be approved by the planning commission before it is
recorded by the county clerk. The planning commission shall consider coordination of subdivision
streets, the establishment of proper lots, distribution of population and traffic, common areas,
etc.

E. Zoning- §8-24-39 to §8-24-71

A municipality may adopt a zoning ordinance creating, districts designated as to use of property
and also specifying development standards for property within those districts.

1. The planning commission makes recommendations as to the boundaries of districts and rules,
regulations, and restrictions to be enforced therein. It must hold public preliminary hearings
and conferences as necessary to inform itself and aid in the preparation of the tentative report.
The governing body then considers the tentative report and returns it to the planning commission
for final report. Upon final report of the planning commission, the governing body holds a public
hearing upon 14 days’ notice as a Class II legal ad, holds a public hearing, and may adopt the
ordinance.

2. Election

If 15% of the voters at the last gubernatorial election residing in the area affected by the
proposed ordinance so petition, the zoning ordinance will not go into effect until ratified by a majority of qualified voters residing in the area within the jurisdiction of the

planning commission.
3. Amendments
A petition for amendment to the zoning ordinance may be made by the planning commission or the
owners of 50% or more of the real property to which the petition relates. If the proposed
ordinance amending the zoning ordinance does not originate from the planning commission, it shall
be referred to the planning commission for consideration and report. The planning commission must
hold a public hearing prior to submitting its report.

4. The Grandfather Clause

The zoning ordinance shall not prohibit the continuance of the use of any land, building, or
structure for the purpose for which it was used at the time the ordinance takes effect. Any
alteration to the land or structure for the purpose of carrying on a nonconforming use may be
prohibited, except for alterations to buildings or structures by any farm, industry, or
manufacturer required for the protection, continuing development, or expansion of any agricultural,
industrial, or manufacturing operation. If the nonconforming use has been abandoned, any future
use shall conform to the ordinance, but abandonment of a particular agricultural, industrial, or
manufacturing process does not mean that the entire use has been abandoned. Please note that the
grandfather provision applies to zoning and not to building, fire, or other codes. It
has been occasionally asserted that a change in a building code violates this provision. It does
not, and the true test of whether a new building code provision is improper is whether it is a
deprivation of property without due process of law, rather than a violation of the Grandfather
provision,

5. Board of Zoning Appeals

As part of the zoning ordinance, the governing body of the municipality must create a board of
zoning appeals, consisting of five members, to hear appeals from any determination of a zoning
officer and to grant variances as permitted in the zoning ordinance. Judicial review is available
by certiorari to the circuit court.

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