Senate Bill No. 406
(By Senators Hunter, Oliverio, Unger, Rowe, Mitchell, Burnette,
Redd and Snyder)
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[Introduced March 6, 2001; referred to the Committee on the
Judiciary.]
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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, relating to authorizing litter control
officers to issue citations for littering.
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 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 such 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 deemed 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 such 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 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 such the enforcement agency and the county
officer charged with enforcing the orders of the county commission
under this section.
(d) Any ordinance adopted pursuant to the provisions of this section shall provide fair and equitable rules of procedure and any
other standards deemed 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 such the matters before the county
commission. Any entrance upon premises for the purpose of making
examinations shall be made in such a manner as to cause the least
possible inconvenience to the persons in possession.
(e) 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 four 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 such 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 deemed
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 such 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.
(f) 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 such contractor to accomplish the ordered repairs, alterations
or improvements, or the ordered demolition, removal or clean up.
(g) 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.
(h) 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
authorize litter control
officers to issue citations for littering.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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