COMMITTEE SUBSTITUTE
FOR
H. B. 2323
(By Mr. Speaker, Mr. Chambers, and Delegates Johnson,
Fragale and Manuel)

(Originating in the House Committee on the Judiciary)
[February 27, 1995]

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 amend and reenact sections thirteen and sixteen, article twelve, chapter eight of said code; and to amend and reenact section sixteen, article three, chapter twenty-nine of said code, all relating to granting county commissions and municipalities the authority to adopt by ordinance the authority to require nonfarm property owners, following order by state fire marshal, county health officer for county commissions only, or by the governing body of the municipality or county, the authority to demolish or vacate any hazardous or unfit dwelling or building; removing some condemnation authority of counties; making the property owner or other responsible party pay any costs associated with the demolition, vacation or any other costs associated with this proceeding by civil action or by lien against said property; and limiting the amount of the lien to the value of the property.

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 be further amended by adding thereto a new section, designated section three-gg; that sections thirteen and sixteen, article twelve, chapter eight of said code be amended and reenacted; and that section sixteen, article three, chapter twenty-nine of said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 1. COUNTY COMMISSIONS GENERALLY.

§7-1-3ff. Duty to require clearance of refuse and debris from private lands and demolition of buildings and recovery of costs incurred; 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 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 or uses 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 the 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 nonfarm building be demolished, vacated, closed or otherwise modified 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 the county 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 all costs within two months ninety days of such removal that a judgment lien on the subject property, not to exceed the assessed value of the property as recorded of the books of the county assessor, will may 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 requested. 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 the 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 the subject 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 the front 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 the 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.
(e) The county commission of every county shall have plenary power to adopt by ordinance the authority to require the property owner or owners of any nonfarm dwelling or building, under order of the county commission or health officer pursuant to this section, or by the state fire marshal as provided for in section sixteen, article three of chapter twenty-nine of this code, 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 attach a lien against the real property in question as herein provided for an amount not to exceed the assessed value of the real property as recorded on the books of the county assessor, or institute a civil action in a court of competent jurisdiction against any property owner or owners or responsible parties for all costs incurred by the county, including reasonable attorney fees and court costs incurred in the prosecution of an action authorized pursuant to this subsection.
Not less than ten days prior to instituting civil action for collection of as provided for in this section, the county commission shall send notice to the property owner by certified mail return receipt requested of the county commission's intention to institute such action. 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 county commission 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.
CHAPTER 8. MUNICIPAL CORPORATIONS.
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 to adopt by ordinance the authority to require the property owner or owners of any dwelling or building, ordered by the municipality or its enforcement agency to take action to make repair, remove, or otherwise modify subject property, or by its own initiative, cause such action be done pursuant to subsection (a) of this section, or by order of the state fire marshal as provided for in section sixteen, article three of chapter twenty-nine of this code. The power and authority shall also include the right to attach a lien against the real property in question for an amount not to exceed the assessed value of the real property as recorded on the books of the county assessor, or 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 to 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 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 plenary power to adopt by ordinance the authority to file a lien against the real property in question for an amount not to exceed the assessed value of the real property as recorded on the books of the country assessor, or institute 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 incurred in the prosecution of an action as provided herein, 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.
If the municipality incurs the aforementioned costs of removal and the landowner fails to pay all costs within ninety days of such removal that a judgment lien on the subject property, not to exceed the assessed value of the property as recorded of the books of the county assessor, may be filed in the county clerk's office wherein the subject property exists.
Not less than ten days prior to instituting civil action for collection of 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 such action. 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 seem meet and proper.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS
.

ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.

§29-3-16. Work to be done at expense of owner or occupant upon failure to comply with repair or demolition order; action to recover.

In the event any owner of any building or premises served with a copy of an order as provided in sections fourteen and fifteen of this article shall fail substantially to comply with such order within thirty days from the date of issuance thereof, or within thirty days after any appeal from such order has been affirmed by the state fire commission or by the court, the state fire marshal may enter into and upon the premises affected by such order and cause the building, structure or premises to be repaired, torn down, materials removed and all dangerous conditions to be remedied, as the case may be, at the expense of the owner and with any administrative charges as established by the commission also being borne by the owner, and if such person shall fail or neglect to repay the state fire marshal the expense and administrative charge thereby incurred by him, within thirty days after written demand shall have been delivered or mailed to the said owner as provided in section fifteen of this article, the state fire marshal is hereby authorized to bring an action in the name of the state to recover such expenses, with interest, and any administrative charge as established by the commission, in any court of competent jurisdiction.
Upon a determination by the state fire marshal that the provisions of sections fourteen and fifteen of this article have not been met, and such property constitute a hazard to health or public safety, in lieu of initiating an order as herein provided, the state fire marshal may notify the county commission, or the county health officer in order that they can perform their duties pursuant to section three-ff, article one of chapter seven of this code. The fire marshal may also in lieu thereof, notify the municipality where the property is located so that the municipality can perform its duties pursuant to section thirteen, article twelve of chapter eight of this code.