(a) Powers of city. The city is hereby authorized and empowered, in addition to any other rights or powers conferred upon it, upon the terms, conditions and in the manner hereinafter set forth, to grade, regard, pave or repave, surface or resurface, curb or recurb, streets and alleys, and to build or renew sidewalks, and to construct, provide or renew any of such improvements or other permanent public improvements in any streets, alleys, public ways or easements, or portions thereof, in the city, and, if deemed advisable, to construct storm and sanitary sewers, or all or a part of a sewer system in any streets, easement, public ways, or alleys, or portions thereof, independently or in conjunction with other of such improvements, and to assess the costs of any or all of such improvements on abutting property.
(b) Petition of abutting property owners; action of common council without petition. Upon the petition in writing of person owning the greater amount of frontage of property abutting upon both sides of any portion of a street, public way, alley, or easement, for any permanent improvement or reimprovement authorized in subsection (a) hereof the common council, by a lawful majority thereof, may, after giving notice to abutting property owners as in this section is provided, by resolution or ordinance declare the necessity or convenience of such improvement and order and cause such portions of such streets, alleys, public ways or easements to be graded, regarded, paved, repaved, surfaced, resurfaced, curbed, recurbed, sewered, resewered, permanently improved or reimproved with sidewalks or otherwise permanently improved or reimproved with suitable material, or any one or more of such improvements without the others, as may be determined by the common council, to be constructed therein or in such part or parts thereof as the common council may determine, and the common council may specially assess the entire cost of such improvements, or any part thereof, upon the property abutting on the portions of the streets, alleys, public ways or easements improved.
The common council may also adopt such resolution or ordinance of necessity or convenience and provide for such improvements and the assessing of the cost thereof upon abutting property without such a petition of property owners having first been received, when the resolution or ordinance providing for such improvement is adopted by the affirmative vote of at least three-fourths of the members of the common council by recorded vote, after having given notice to abutting property owners as hereinafter provided.
(c) Notice to abutting owners before authorizing improvement; form of notice; certificate of publication; notice to railroad or foreign corporation. Before the adoption of such resolution or ordinance of necessity or convenience, the common council shall cause notice to be given to owners of abutting property that such resolution or ordinance will be considered before adoption at a public meeting of the common council at a time and place named in the notice, and all person or corporations shall at that meeting, or an adjournment thereof, be given an opportunity to protest or be heard concerning the adoption or rejection of said resolution or ordinance. Such notice to owners of property abutting on the portion of the street, alley, public way or easement to be improved may be by personal service on owners at least ten days before said meeting. In lieu of personal service of such notice, the following described notice, or one in substantially the same form, may be given, and shall be deemed to have been served on all such owners of abutting property, by publication once a week for three successive weeks before said meeting in some newspaper of general circulation, but not necessarily published, in the city, as follows:
“NOTICE TO ALL PERSONS OR CORPORATIONS OWNING PROPERTY ABUTTING ON...............................(here describe the portion of the street, alley, public way or easement to be improved) IN THE CITY OF NEW MARTINSVILLE:
“Proposals have been made to the common council of the City of New Martinsville to permanently improve the portion of the street (alley, public way or easement) above described in the City of New Martinsville by..................................(grading, paving, constructing sanitary or storm sewers, constructing sidewalks, or other general description of the proposed improvements) as the common council may deem proper, and to assess the cost of such improvements on the property abutting said portion of said street (alley, public way or easement).
“The proposals to make such improvements, and the plans, specifications, profiles and estimates will be considered by the common council at a public meeting to be held on the ..............day of................20....., at...M. at............ . Any abutting owner or interested party will be given opportunity to protest or be heard at said meeting or an adjournment thereof.................(name of the recorder)..................(official position).”
A certificate of publication of the notice, made by the newspaper publisher, and a copy of the notice shall be made a part of the minutes of the common council and spread on its records of the meeting described in the notice. The service of said notice upon all persons, firms or corporations owning any interest in any property abutting any portion of said street, alley, public way or easement to be improved shall conclusively be deemed to have been given when such newspaper publication shall have been completed; provided, that where any foreign railroad or other foreign corporation is the owner of property abutting upon any street, alley, public way or easement sought to be improved under the provisions hereof, notice shall be given to such railroad or other foreign corporation as prescribed by section 1, article 10, chapter 8 of the Code of West Virginia of 1931, before the adoption of any ordinance or resolution relating to, and providing for, such improvements.
(d) Construction of sewers and sewer systems; assessments; corner lots, etc. The common council is authorized and empowered to order and cause to be constructed, in the city, or part within and part outside of the limits of the city, public, common, lateral, branch, trunk and combined sewers or public sewer systems, or both, by contract or direct by the city, for the benefit of the city or any part thereof, and to purchase lands or easements therein or to condemn lands or easements therein in the manner provided by law for such sewers or sewer systems. When the common council shall order and complete the construction of any such sewer or sewer system or any part thereof in the city, the property abutting on such sewer or abutting upon an avenue, street, alley, right-of-way or easement in which such sewer shall be constructed, or abutting on any avenue, street, alley, right-of-way or easement, in which any such sewer or part of a sewer is constructed and laid, may be charged with all or any part of the cost thereof, including the cost of such sewer or sewer system at and across intersections at avenues, streets, roads and alleys adjacent thereto.
A sewer system shall be deemed to include all the common sewers whether they be lateral, branch, trunk or combined sewers, which serve to drain a definite drainage area as specified in the order of the common council directing the work to be done.
In case of a corner lot, frontage which may be assessed is to be measured along the longest dimension thereof abutting on each street, alley, right-of-way or easement in which such sewer is laid, but if sewered on both sides then such corner lot is to be charged only with the side first sewered unless more than two hundred feet in depth. Any lot having a depth of two hundred feet or more and fronting on two streets, alleys, rights-of-way or easements, one in the front and one in the rear of said lot, shall be assessed on both of said streets, alleys, rights-of-way or easements, if a sewer is constructed on both such streets, alleys, rights-of-way or easements. Where a corner lot has been assessed on either or both ends, it shall not be assessed on the side, and where it has been assessed on the side, it shall not be assessed on the end.
In case of corner lots where the cost of sewering along one dimension is not assessed against the owner thereof, and in the case of lots less than two hundred feet deep abutting at each end on a street, alley, right-of-way or easement in which a sewer is laid, the cost of sewering along the dimension or end not assessed against the property owner shall in every case be apportioned and assessed against the other property abutting on the streets, alleys, easements and public ways being improved, in the manner of apportionment of the cost of improvements in intersections.
(e) What total cost to include. In ascertaining the total cost of the improvements in any project undertaken pursuant to this section, there shall be included the cost and expense of surveys, engineering and attorneys’ fees, the printing and publishing in relation thereto, and the cost and expense of all labor, work, supervision, inspection, equipment leased, and materials furnished and used in completing said improvements.
(f) Apportionment and assessment of cost. The cost of the entire project, including the cost of all improvements at and within intersections, shall be apportioned to, and assessed against and borne by the properties abutting upon the streets, public ways, alleys or easements upon which the improvements involved in the project shall have been made. Each lot or parcel of land so abutting shall be assessed with that portion of the total cost of the entire project which is represented by the proportion which the abutting frontage in feet of such lot or parcel bears to the total abutting frontage in feet of all the lots or parcels of land abutting on the streets, public ways, alleys or easements so improved; provided, however, that if the character of the improvements shall be substantially different upon different streets, public ways, easements or alleys, or portions thereof, the cost may be equitably apportioned to the respective streets, public ways, alleys, easements, or portions thereof, in proportion to the character and cost of the improvements respectively thereon; and as the part of the cost so apportioned to each respective street, public way, easement, or alley, or portion thereof, shall be apportioned to and assessed against the respective lots or parcels of land abutting thereupon in the proportion as hereinabove provided; provided, further, that if any part of the street, alley, easement or public way improved is used by a railway then the cost of the portion of the improvements between the rails and for two feet outside said rails shall be assessed against and wholly borne by the owner of the railway; provided, further, that if there be any land or other property abutting on the portion or the street or alley so improved which it has been determined by the common council, and shown in the ordinance or resolution authorizing the improvement, not to be specially benefited by the improvement, or for other reasons would not be liable to assessment for any of the cost of improvement, then the cost of the improvements abutting such part of said street or alley, as is so determined to be nonassessable shall be apportioned among, assessed and borne by the remaining property abutting upon the portion of the street, alley, public way or easement improved in proportion to the frontage of such remaining abutting property as hereinabove provided; provided, further, that if there be any land or other property abutting on the property of the street or alley so improved which it has been determined by the common council, and shown in the ordinance or resolution, not to be benefited to the extent of the cost of the improvement, then the cost of the improvements abutting such part of said street or alley shall be prorated. The property so benefited shall be assessed for only that part of the cost to the extent of which it has been benefited, and the remainder of the cost shall be apportioned among, assessed and borne by the remaining property abutting upon the portion of the street, alley, public way or easement improved in proportion to the frontage of such remaining abutting property as hereinabove provided; provided, further, that if such improvement includes the construction or reconstruction of sidewalks on only one side of a street, alley, public way or easement, then the cost of such sidewalk shall be assessed only on the property abutting on that side where the sidewalks are so constructed; provided, further, that in apportioning and assessing the cost of sewers or sewer systems the provisions of subsection (d) hereof shall be observed; provided, further, that if there be land or other property abutting the street; alley, easement or public way so improved which is owned by the United States of America, and, for that reason, not legally subject to assessment, then the city shall pay the proportionate part of the cost of the improvement which otherwise would be assessable against such federally owned land or property.
(g) Ordinance or resolution authorizing improvement; approval of plans, specifications and estimates; provisions for payment and cost and assessment certificates; advertisement for bids. After hearing held pursuant to notice as provided in subsection (c) hereof the common council, by resolution or ordinance, may authorize such improvement and the assessing of the total cost or any part thereof on abutting property has herein provided. In the same or subsequent resolutions or ordinances, but before advertising for bids from contractors, the common council shall cause to be prepared plans, specifications and estimates of the cost of the proposed improvements under the supervision of the engineer for the city. Such plans, specifications and estimates shall show the proposed grade and sufficient data for any owner of abutting property to calculate approximately when proportionate part of the estimated cost thereof might be assessed against his property, and shall be filed with the recorder and open to the inspection of interested persons before advertisement for bids of contractors and before the meeting at which such bids may be accepted or rejected. Before advertising for bids of contractors the common council shall consider said plans, specifications and estimates and may amend or modify them, and before advertising for bids shall by resolution or ordinance approve such plans, specifications and estimates as so amended and modified. Such resolution or ordinance before advertisement for bids shall also provide for advertisement for bids, for letting of contract or contracts for the work to the lowest responsible bidder, with right reserved to the common council to reject any and all bids and shall provide for supervision of such work by the mayor, city engineer or other person or committee designated by the common council. Such resolution or ordinance shall also provide for payment of the cost of the work when completed. The common council shall provide in such resolution or ordinance for the payment by abutting property owners of the cost thereof in equal installments payable over a period of not less than five years nor more than ten years from the date of assessment, with interest at the rate of six percent per annum from the date of assessment, and in said resolution or ordinance the common council shall fix the number of installments in which the amounts assessed shall be payable; provided, that each of said assessments or the installments thereof then remaining unpaid shall be payable at any time after assessment without interest after the date of payment; provided, further, that on failure of the owner of the property assessed to pay any installment as and when due, and such default continuing for sixty days, then at the option of the holder of the certificates evidencing such assessment, the entire balance due may be declared immediately due and payable and the holder of the certificates may forthwith proceed to enforce the collection thereof; provided, further, that if the amounts to be assessed against abutting property be less than two dollars for each abutting front foot of property, then the common council is authorized to make the same payable in one lump sum or in installments, with interest, over a period of less than five years from the date of assessment.
(h) Report on completion; notice to abutting owners of assessments; hearings; correcting and laying assessments. When the improvement of such street, alley, easement, or public way has been completed, the common council shall cause the engineer, or other person charged by the common council with the supervision of the work of improvement, to make a report showing the several frontages abutting thereon, and the total cost, and showing the respective amounts chargeable upon each lot or parcel of land assessed abutting thereon, and showing the proper amounts to be assessed against the respective abutting lots or parcels of land as provided herein, with a description of the abutting lots and lands as to ownership, frontage and location. The common council shall thereupon give notice to the owners of the property to be assessed that on or after a date named in said notice an assessment may be laid against the property so improved as embodied in said report. Said notice shall state that the owner or owners whose property is to be assessed, or other interested party, may on said date appear before the common council to move the revision or correction of such proposed assessment. Such notice shall be by publication once a week for two successive weeks in a newspaper of general circulation in the county, and said notice shall show the total cost of the improvement, the several frontages abutting thereon and the respective amounts to be assessed against the abutting property, with a description of the respective abutting lots and lands as to ownership, frontage and location. On or after the date so advertised, the common council may revise, amend, correct and verify the report and proceed by resolution or ordinance to lay the assessments as corrected and verified.
(i) Assessment certificates; issuance, sale and negotiation; recording assessing resolution or ordinance. Immediately on laying of the assessment against the abutting property, certificates shall be issued evidencing said assessment and each installment of principal and interest payable. Said certificates may be payable to the city or to the bearer and be signed by the mayor and recorder or other equivalent officers of the city, and shall refer to the ordinance or resolution laying the assessments; shall show the amount and date of the assessment and describe the property against which the assessment is laid, describe the same as to ownership, amount, frontage and briefly as to location. Said certificates shall also show the dates on which principal and interest payments are due, and shall contain a provision that in event of default in the payment of any one of such installments, and such default continuing for a period of sixty day, then all unpaid installments shall become due and payable at the election of the certificate holder and the holder may proceed to collect all of the unpaid balances of installments, with interest until paid. Said certificates may be issued to the contractor making the improvements in payment therefor, upon the contractor’s reimbursing the city for those items of the cost and expense advanced by the city and mentioned in subsection (e) hereof. Said certificates payable to the bearer shall be assignable by delivery of the certificates and be enforceable by the holder. The city shall not be held as guarantor or in any way liable for the payment of bearer certificates. A notice of the lien of said assessment, referring to the assessing ordinance or resolution, and setting forth a list of the property assessed, described respectively as to amounts of assessment, frontage, location and ownership of the property, shall be certified by the recorder of the city to the clerk of the county court. The county clerk shall record the same in a proper trust deed book and index the same in the name of each owner of abutting property assessed.
(j) Liens; suit for enforcement; priority; when service may be had by publication. The property abutting the portion of the street, alley, easement or public way improved shall be subject to a lien, from the date of the ordinance or resolution laying the assessment, for the payment of the costs of the improvements assessed against said property. From the date of the assessment the holder of the assessment certificates shall be the holder of said liens and entitled to enforce the same in his own name or the name of the city to the extent of the amount, principal and interest, provided in said certificates, and against the said property, as to any assessment not paid as and when due. Said assessment shall be and constitute liens in the hands of the holders of said certificates upon the respective lots and lands assessed and shall have priority over all other liens except those for land taxes due the state, county, and city, and except the liens for pre-existing special assessments. Said assessments and interest thereon shall be paid by the owner of the property assessed as and when the installments are due. The holder of any certificate may enforce the lien thereof in any proper suit, and when default in the payment, as and when due, of any certificate of principal or interest or installment certificate shall occur and such default may have continue for more than sixty days, the holder may at his option declare the whole unpaid balance due and payable and by proper suit in equity enforce the lien thereof, upon process issued and served according to law upon the owner or owners of the land subject to said lien at the time such suit may be brought as shown by the records of the clerk of the county court in which said land is located. Service by publication upon such owner may be had if, upon affidavit filed with the clerk of the court where each suit is brought, it appears that the owner of such land is a nonresident of the State of West Virginia. Service by publication may also be had upon such owner upon affidavit filed in said clerk's office that personal process issued to the sheriff of the county in which said land is located has been returned "not found" in said county and if said affidavit also states that the plaintiff in the suit does not know where the owner is resident.
(k) Assessment against property of public, charitable, eleemosynary, educational or religious institutions; duty of those in charge to cause assessments to be paid. When any of the lots or land abutting the portion of the streets, alley, easement or public way improved consist of property owned or controlled by the state, county, city, board of education or other public body, or consist of property owned by, or used for, a church, or religious, charitable, educational or eleemosynary institution for purposes not subject to taxation, such property shall nevertheless be assessed with its proper proportion of the cost of said improvement, and it shall be the duty of those persons having charge of the fiscal affairs of such owner or the management of any such property or institution to make proper arrangements for the payment of, and cause to be paid, such assessments as and when due and payable.
(l) Payment of assessments or installment certificates; release. Payments of any assessments or installment certificates may be made to the treasurer of the city or the holder of the assessment certificates. If payment is made to the treasurer, he shall require all interest to be paid which is owed up to the time of payment, and notify the holder of the certificate, if informed of the holder’s address, that he has received such payments, and make payment to the holder on presentation for cancellation of the certificate representing such payment. If payment is made to the holder of the certificate, the holder shall deliver to the payor certificates marked “paid” representing the payments made of principal and interest. On presentation to the treasurer for cancellation of all certificates of principal and interest for the whole assessment made against a specific piece of property assessed, the treasurer shall on request execute and deliver a release of the lien of such assessment.
(m) Reassessment for void, irregular or omitted assessments. In the case of the construction of any permanent improvements where an assessment has heretofore been laid or may hereafter be laid for the cost thereof, which said assessment is or shall be void or voidable by reason of errors, irregularities or defects in the proceedings under which such improvement was made, or in case such assessment shall have been made against the wrong person or property, or shall have been omitted to be made in a case where the same was proper, it shall be the duty of the common council within ten years after the completion of such improvements, or after any court shall have declared such assessment invalid, to cause notice to be given to any person against whom the cost of said improvement might properly be or have been assessed, of its intention to lay such assessment and fixing a time and place at which the owner may appear and show cause against the same. Said notice shall be served in the manner provided in this article in the giving of notices in assessment proceedings, or any other manner provided by law. At the time and place, under the notice aforesaid, or at any time thereafter, the common council shall proceed to lay and levy an assessment for the cost of such improvement as would have been lawful under proper proceedings at the time said improvement was completed, unless the owner so notified shall show good cause against the same. The reassessment so laid shall be a lien upon the property liable therefor in the manner hereinabove provided from the date of the completion of the improvement, with interest therefrom, and proper assessment certificates may be issued, recordation had, and payment and the lien may be enforced in the same manner and upon the same terms as would have been proper at the time of the completion of the said improvement had the assessment therefor been then properly laid and levied.
(n) Liberal construction of section; validity and enforcement of assessments. This section shall be liberally construed to accomplish the purpose of providing reasonable, economical and expeditious means for the city to provide permanent improvements and assure to the contractors making such improvements, or persons directly or indirectly financing the same, security in the payment of the cost and expense of such improvements; and nothing in this section shall be construed as imposing a time limit on the certificate holder for the enforcement of his rights.
Moreover, the validity and enforcement of the assessment in this section provided shall not be impaired by the issuance and sale of bonds, as provided by chapter 13, article 1 (section 1053 et seq.) of the Code of West Virginia of 1931, as amended, for the same improvements, nor by the application, in whole or in part, of the proceeds of any such bond issued to the cost of any such improvements prior to collection of said assessments.
(o) Separability. If any provision or part of this section is declared unconstitutional or invalid, such declaration shall in no way affect any other part hereof.