COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 440
(By Senators Kessler, Unger, D. Facemire and Laird)
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[Originating in the Committee on Natural Resources;
reported March 24, 2009.]
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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 regulate unsafe or
unsanitary structures and refuse on private land;
authority to establish an enforcement agency; county
litter control officers; procedure for complaints;
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 open dumps, as
prohibited by subsection (a), section ten, article fifteen, chapter
twenty-two of this code, unlawful disposal of litter, as prohibited
by of section four, article fifteen-a, chapter twenty-two of this
code,
and failure to provide proof of proper disposal of solid
waste, as prohibited by subsection (a), section ten, 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
the Department of Environmental Protection or 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.
(1) Complaints authorized by this section shall be brought
before the county commission. 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) 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
or other responsible party which that the subject matter of the
order of the county commission to subject the private land in
question
: (1) 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; (2) to order and decree the sale of the private
land in question to satisfy the lien
and; (3) 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 and (4) to order the payment of 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.
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(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.)