Senate Bill No. 440
(By Senators Kessler, Unger, D. Facemire and Laird)
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[Introduced March 4, 2009; referred to the Committee on Natural
Resources; and then to the Committee on Government Organization.]
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A BILL to amend and reenact §7-1-3ff of the Code of West Virginia,
1931, as amended, relating to giving county litter control
officers the authority to issue citations for failure to prove
proper disposal of trash and creating, contributing to or
allowing an open dump.
Be it enacted by the Legislature of West Virginia:
That §7-1-3ff of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3ff. Authority of county commission to enact ordinances
regulating the repair, alteration, improvement,
vacating, closing, removal or demolition of unsafe
or unsanitary structures and the clearance and
removal of refuse, debris, overgrown vegetation,
toxic spills or toxic seepage on private land;
authority to create enforcement agency; procedure
for complaints; promulgation of rules governing investigation and hearing of complaints; remedies
for failure to comply with commission-ordered
repairs or alterations; lien and sale of land to
recover costs; entry on land to perform repairs and
alterations or to satisfy lien; receipt of grants
and subsidies.
(a) Plenary power and authority are hereby conferred upon
every county commission to adopt ordinances regulating the repair,
alteration or improvement, or the vacating and closing or removal
or demolition, or any combination thereof, of any dwellings or
other buildings, except for buildings utilized for farm purposes on
land actually being used for farming, unfit for human habitation
due to dilapidation, defects increasing the hazard of fire,
accidents or other calamities, lack of ventilation, light or
sanitary facilities or any other conditions prevailing in any
dwelling or building, whether used for human habitation or not,
which would cause the dwellings or other buildings to be unsafe,
unsanitary, dangerous or detrimental to the public safety or
welfare, whether the result of natural or manmade force or effect.
(b) Plenary power and authority are hereby conferred upon
every county commission to adopt ordinances regulating the removal
and clean up of any accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage located on private
lands which is determined to be unsafe, unsanitary, dangerous or
detrimental to the public safety or welfare, whether the result of
natural or manmade force or effect.
(c) The county commission, in formally adopting ordinances,
shall designate an enforcement agency which shall consist of the
county engineer (or other technically qualified county employee or
consulting engineer), county health officer or his or her designee,
a fire chief from a county fire company, the county litter control
officer, if the commission chooses to hire one, and two members at
large selected by the county commission to serve two-year terms.
The county sheriff shall serve as an ex officio member of the
enforcement agency and the county officer charged with enforcing
the orders of the county commission under this section.
(d) In addition to the powers and duties imposed by this
section, county litter control officers shall have authority to
issue citations for violations
of the provisions of section four,
article fifteen-a, chapter twenty-two of this code,
section ten-a,
article fifteen, chapter twenty two of this code and section ten-a,
article four, chapter twenty-two-c of this code, after completing
a training course offered by the West Virginia Department of
Environmental Protection. Nothing in this subsection supercedes
the authority or duty of other law-enforcement officers to preserve
law and order and enforce the litter control program.
(e) Any ordinance adopted pursuant to the provisions of this
section shall provide fair and equitable rules of procedure and any
other standards considered necessary to guide the enforcement
agency, or its agents, in the investigation of dwelling or building
conditions, accumulation of refuse or debris, overgrown vegetation
or toxic spillage or toxic seepage and shall provide for fair and equitable rules of procedure for instituting and conducting
hearings in the matters before the county commission. Any entrance
upon premises for the purpose of making examinations shall be made
in a manner as to cause the least possible inconvenience to the
persons in possession.
(f) Any county commission adopting ordinances authorized by
this section shall hear and determine complaints of the enforcement
agency. Complaints shall be initiated by citation issued by the
county litter control officer or petition of the county engineer
(or other technically qualified county employee or consulting
engineer) on behalf of and at the direction of the enforcement
agency, but only after that agency has investigated and determined
that any dwelling, building, accumulation of refuse or debris,
overgrown vegetation or toxic spillage or toxic seepage is unsafe,
unsanitary, dangerous or detrimental to the public safety or
welfare and should be repaired, altered, improved, vacated,
removed, closed, cleaned or demolished. The county commission
shall cause the owner or owners of the private land in question to
be served with a copy of the complaint. Service shall be
accomplished in the manner provided in Rule 4 of the West Virginia
Rules of Civil Procedure. The complaint shall state the findings
and recommendations of the enforcement agency and that unless the
owner or owners of the property file with the clerk of the county
commission a written request for a hearing within ten days of
receipt of the complaint, an order will be issued by the county
commission implementing the recommendations of the enforcement agency. If the owner or owners of the property file a request for
a hearing, the county commission shall issue an order setting this
matter down for hearing within twenty days. Hearings shall be
recorded by electronic device or by court reporter. The West
Virginia rules of evidence do not apply to the proceedings, but
each party has the right to present evidence and examine and
cross-examine all witnesses. The enforcement agency has the burden
of proving its allegation by a preponderance of the evidence and
has the duty to go forward with the evidence. At the conclusion of
the hearing the county commission shall make findings of fact,
determinations and conclusions of law as to whether the dwelling or
building: Is unfit for human habitation due to dilapidation; has
defects that increase the hazard of fire, accidents or other
calamities, lacks ventilation, light or sanitary facilities; or any
other conditions prevailing in the dwelling or building, whether
used for human habitation or not and whether the result of natural
or manmade force or effect, which would cause such dwelling or
other building to be unsafe, unsanitary, dangerous or detrimental
to the public safety or welfare; or whether there is an
accumulation of refuse or debris, overgrown vegetation, toxic
spillage or toxic seepage on private lands which is determined to
be unsafe, unsanitary, dangerous or detrimental to the public
safety or welfare, whether the result of natural or manmade force
or effect. The county commission has authority to order the owner
or owners thereof to repair, alter, improve, vacate, remove, close,
clean up or demolish the dwelling or building in question or to remove or clean up any accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage within a reasonable
time and to impose daily civil monetary penalties on the owner or
owners who fail to obey an order. Appeals from the county
commission to the circuit court shall be in accordance with the
provisions of article three, chapter fifty-eight of this code.
(g) Upon the failure of the owner or owners of the private
land to perform the ordered duties and obligations as set forth in
the order of the county commission, the county commission may
advertise for and seek contractors to make the ordered repairs,
alterations or improvements or the ordered demolition, removal or
clean up. The county commission may enter into any contract with
any contractor to accomplish the ordered repairs, alterations or
improvements or the ordered demolition, removal or clean up.
(h) A civil proceeding may be brought in circuit court by the
county commission against the owner or owners of the private land
which is the subject matter of the order of the county commission
to subject the private land in question to a lien for the amount of
the contractor's costs in making these ordered repairs, alterations
or improvements or ordered demolition, removal or clean up,
together with any daily civil monetary penalty imposed and
reasonable attorney fees and court costs and to order and decree
the sale of the private land in question to satisfy the lien and to
order and decree that the contractor may enter upon the private
land in question at any and all times necessary to make
improvements or ordered repairs, alterations or improvements, or ordered demolition, removal or clean up. In addition, the county
commission shall have the authority to institute a civil action in
a court of competent jurisdiction against the landowner or other
responsible party for all costs incurred by the county with respect
to the property and for reasonable attorney fees and court costs
incurred in the prosecution of the action.
(i) County commissions have the power and authority to receive
and accept grants, subsidies, donations and services in kind
consistent with the objectives of this section.
NOTE: The purpose of this bill is to grant additional
authority to county litter control officers, specifically to issue
citations for failure to prove lawful disposal of trash and
creating, contributing to or allowing an open dump.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.