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Introduced Version House Bill 2074 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 2074

(By Delegates Staton and Browning)

[Introduced January 19, 1995; referred to the Committee

on Political Subdivisions.]






A BILL to amend and reenact section three-ff, article one, chapter seven of the code of West Virginia, one-thousand nine hundred thirty-one, as amended, to further amend said article one by adding thereto a new section, designated section three-gg; and to amend and reenact sections thirteen and sixteen, article twelve, chapter eight of said code, all relating to granting county commissions the authority to adopt by ordinance the authority to require property owners, following order by state fire marshal, county health officer or by the governing body, and also granting authority to municipalities, to adopt by ordinance, the authority to demolish or vacate any hazardous or unfit dwelling or building, making the property owner or other responsible party pay any costs associated with the demolition, vacation or any other costs associated with this proceeding.

Be it enacted by the Legislature of West Virginia:
That section three-ff, article one, chapter seven of the code of West Virginia, one-thousand nine hundred thirty-one, as amended be amended and reenacted; that said article one be further amended by adding thereto a new section, designated section three-gg; and that sections thirteen and sixteen, article twelve, chapter eight of said code be amended and reenacted, all to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.

§7-1-3ff. Duty to require clearance of refuse and debris from private lands; notice of demand thereof; procedure to contest demand.

County commissions, as set forth in this article, county health officers, as set forth in section two, article two, chapter sixteen of this code, and state fire marshals as set forth in section twelve, article three, chapter twenty-nine of this code, such county commissions and health officers are hereby authorized and obliged to require clearance of any refuse or debris consisting of remnants or remains of any unused or unoccupied dwelling, cement foundation, piping, basements, intact chimneys, nonfarm building, structure or manmade appurtenance on all private lands within their respective scopes of authority by the owners thereof that has accumulated as the result of any natural or manmade fire, force or effect which presents a safety or health hazard, including the removal of toxic or contaminant spillage and seepage or which has deteriorated to such a degree as to be unsightly, visually offensive and be depressive of the value of the adjacent properties or uses of such properties: Provided, That upon request from a landowner and a written determination and approval from the state fire marshal, where appropriate, a landowner may fill the remains of a basement to ground level with inert fill material in lieu of complete removal of such cement foundation, piping and basement.
Upon determination by any state fire marshal that substantial accumulations or refuse, debris or destroyed structures or appurtenances, as described above, exist on the property as a result of a natural or manmade fire, notice shall be given by the fire marshal and forwarded to the owner immediately informing the landowner of the requirements of this article to effect repair, removal, closure or demolition of the fire damaged property within ninety days of the receipt of such notice.
Upon a determination by a county commission or county health officer that substantial accumulations of refuse or the presence of debris as described above, or that any dwelling or building be demolished, vacated, closed or any combination thereof as provided for in this section exist on any such private lands, notice shall be forwarded to the owner thereof informing the landowner of the following:
(a) Of the commission's or health officer's demand to remove all refuse and debris within ninety days of the receipt of such notice unless an extension be granted by said commission or health officer for good cause shown;
(b) Of the landowner's right to contest such demand and of the proper procedure in which to do so;
(c) That if the landowner fails to both properly contest and comply with the commission's or health officer's demand, that removal will be achieved otherwise and that the reasonable costs incurred thereto will become a civil debt owed by the landowner to the county;
(d) That if the county incurs costs of removal and the landowner fails to pay such costs within two months ninety days of such removal that a judgment lien on the subject property will be filed in the county clerk's office wherein the subject property exists.
The commission or health officer shall send notice as described herein by certified mail return receipt required. This notice is to be sent to the most recent address of the property owner on file at the county assessor of the county where the subject property is located. If, for any reason, such certified mail is returned without evidence of proper receipt thereof, then in such event, a Class III-0 legal advertisement shall be published in a newspaper of general circulation in the county wherein such land is situated in order to render proper notice in accordance with this section. The commission or health officer is also to post notice on door or other conspicuous location on the subject property : Provided, That if the commission or health officer determines, after notice and inquiry as provided herein, that such refuse or debris was created by someone other than the present landowner, without such landowner's expressed or implied permission, the commission or health officer shall remove any such refuse or debris and shall apply to and be eligible to receive from the solid waste reclamation and environmental response fund created under section eleven, article fifteen, chapter twenty-two of this code for reimbursement for all reasonable costs incurred for such removal.
In the event any landowner desires to contest any demand brought forth pursuant to this section, the landowner shall do so in accordance with article three, chapter fifty-eight of this code.
The county commission of every county shall have plenary power and authority by ordinance to require the property owner or owners of any dwelling or building, ordered by the county commission or health officer to be demolished pursuant to this section, to pay for the costs of vacating and closing or removal or demolition or any combination therefor.
This power and authority shall also include the right to institute a civil action in a court of competent jurisdiction against any property owner or owners or responsible parties for the costs incurred by the county, including reasonable attorney fees and court costs.

§7-1-3gg. Duty of state fire marshall upon determination that health hazard exists.
Upon a determination by the state fire marshal that substantial accumulations of refuse, debris or destroyed structures or appurtenances, as described pursuant to the provisions of section three-ff of this article, exist on property as a result of a natural or man-made fire, which accumulations constitute a hazard to health or public safety, the state fire marshal shall notify the county commission or the county health officer in order that they may perform their duties pursuant to the provisions of section three-ff of this article.
ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.

§8-12-13. Building regulation; general and special codes; state building code.

(a) The governing body of every municipality shall have plenary power and authority by ordinance or a code of ordinances to:
(1) Regulate the erection, construction, repair or alteration of structures of every kind within the corporate limits of the municipality, prohibit, within specified territorial limits, the erection, construction, repair or alteration of structures of wood or other combustible material, and regulate excavations upon private property;
(2) Regulate electric wiring by prescribing minimum specifications to be followed in the installation, alteration or repair thereof; and
(3) Regulate plumbing by prescribing the minimum specifications to be followed in the installation, alteration or repair of plumbing, including equipment, water and sewer pipe, traps, drains, cesspools and septic tanks.
(b) Notwithstanding the provisions of subsection (a), all existing municipal building codes are void one year after the promulgation of a state building code by the state fire commission as provided in chapter twenty-nine, article three, section five-b of this code.
Upon the voidance of the municipality's existing building code, if the municipality votes to adopt a building code, it must be the state building code promulgated pursuant to chapter twenty-nine, article three, section five-b of this code.
(c) The governing body of every municipality shall have plenary power and authority by ordinance or a code of ordinances to adopt such state building code promulgated by the state fire commission.
(d) The governing body of every municipality shall have plenary power and authority by ordinance to require the property owner or owners of any dwelling or building, ordered by the municipality or its enforcement agency to be demolished pursuant to subsection (a) of this section, to pay for the costs of vacating and closing or removal or demolition or any combination thereof.
The power and authority shall also include the right to institute a civil action in a court of competent jurisdiction against any property owner or responsible parties for costs incurred by the municipality, including reasonable attorney fees and court costs as provided in section sixteen of this article. Prior to enacting any civil action under this section, notification of property owner or other responsible parties shall be given as provided for in section sixteen of this article.
§8-12-16. Ordinances regulating the repair, closing, demolition, etc., of dwellings or buildings unfit for human habitation; procedures.

Plenary power and authority are hereby conferred upon every municipality 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 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 such dwellings or other buildings to be unsafe, unsanitary, dangerous, visually offensive and depressive of the value of adjacent properties or uses of such properties, or detrimental to the public safety or welfare.
The governing body in formally adopting such ordinances shall designate the enforcement agency, which shall consist of the mayor, the municipal engineer or building inspector and one member at large, to be selected by and to serve at the will and pleasure of the mayor. The ranking health officer and fire chief shall serve as ex officio members of such enforcement agency.
Any ordinance adopted pursuant to the provisions of this section shall provide fair and equitable rules of procedure and any other standards deemed necessary to guide the enforcement agency, or its agents, in the investigation of dwelling or building conditions, and in conducting hearings: Provided, That any entrance upon premises for the purpose of making examinations shall be made in such manner as to cause the least possible inconvenience to the persons in possession.
Any ordinance adopted pursuant to the provisions of this section shall provide for the assessment of the costs of such repairs, alterations or improvements, or such vacating and closing or removal or demolition, or any combination thereof, by order of the enforcement agency, and said costs, after the sale of any and all salvaged material is credited to the account, shall be a lien against the real property upon which such costs were incurred.
The municipality shall have the option to adopt an ordinance authorizing the filing of a civil action in the court of competent jurisdiction to obtain a judgement for all of the costs incurred relating to such action including costs of such repairs, alterations or improvements, or such vacating and closing or removal or demolition, or any combination thereof, by order of the enforcement agency. Additionally, all reasonable attorney fees and other costs associated with executing said judgment against the owner, owners or other parties or against those who were the owners of the property where the building was demolished or who were the parties named by the municipality or the enforcement agency in any complaint or order as being responsible for the said property are recoverable by civil action in the court of competent jurisdiction.
Not less than ten days prior to instituting civil action as provided for in this section, the governing body of the municipality shall send notice to the property owner by certified mail return receipt requested of the governing body's intention to institute civil proceedings. This notice is to be sent to the most recent address of the property owner on file at the county assessor of the county where the subject property is located. If, for any reason, such certified mail is returned without evidence of proper receipt thereof, then in such event, a Class III-0 legal advertisement shall be published in a newspaper of general circulation in the county wherein such land is situated in order to render proper notice in accordance with this section. The governing body of the municipality is also to post notice on the front door or other conspicuous location on the subject property.
In the event any landowner desires to contest any demand brought forth pursuant to this section, the landowner shall do so in a court of competent jurisdiction.
All complaints or orders issued by the enforcement agency shall be served in accordance with the law of this state concerning the service of process in civil actions, and shall, in addition thereto, be posted in a conspicuous place on the premises affected by the complaint or order: Provided, however, That no No ordinance shall be adopted without providing therein for the right to apply to the circuit court for a temporary injunction restraining the enforcement agency pending final disposition of the cause. In the event such application is made, a hearing thereon shall be had within twenty days, or as soon thereafter as possible, and the court shall enter such final order or decree as the law and justice may require. Costs shall be imposed in such manner as in the discretion of the court shall deem meet and proper.

Note: The purpose of this bill is to allow county commissions and municipalities to adopt by ordinance the authority to require property owners to demolish, repair or vacate any dwelling or building found to be unfit or hazardous and requiring the property owner to pay any associated costs.
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