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SB600 SUB1 Senate Bill 600 History

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COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 600

(By Senators Yost, Snyder, Miller, Laird, Edgell and Fitzsimmons)

____________

[Originating in the Committee on Government Organization;

reported February 18, 2014.]

____________

 

A BILL to amend and reenact §8-12-16, §8-12-16a and §8-12-16c of the Code of West Virginia, 1931, as amended, all relating to the registration, maintenance and regulation of dwellings unfit for human habitation and vacant buildings and properties by municipal governments; defining terms; clarifying the parties responsible for compliance with municipal ordinances regarding these dwellings, buildings and properties; and authorizing municipalities to enact maintenance of vacant buildings and properties ordinances.

Be it enacted by the Legislature of West Virginia:

    That §8-12-16, §8-12-16a and §8-12-16c of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED                  RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND                  MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST                  MUNICIPALITIES.

§8-12-16. Ordinances regulating the repair, closing, demolition, etc., of dwellings or buildings unfit for human habitation; procedures.

    (a) 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.

    (b) The governing body in formally adopting the 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 the enforcement agency.

    (c) Any ordinance adopted pursuant to the provisions of this section must 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 is made in a manner as to cause the least possible inconvenience to the persons in possession.

    (d) The governing body of every municipality has plenary power and authority to adopt an ordinance requiring the owner or owners of any dwelling or building under determination of the State Fire Marshal, as provided in section twelve, article three, chapter twenty-nine of this code, or under order of the enforcement agency of the municipality, to pay for the costs of repairing, altering or improving, or of vacating and closing, removing or demolishing any dwelling or building.

    (e) Every municipality:

    (1) May file a lien against the real property in question for an amount that reflects all costs incurred by the municipality for repairing, altering or improving, or of vacating and closing, removing or demolishing any dwelling or building; and

    (2) May institute a civil action in a court of competent jurisdiction against the landowner or other responsible party for all costs incurred by the municipality with respect to the property and for reasonable attorney fees and court costs incurred in the prosecution of the action.

    (f) Not less than ten days prior to instituting a civil action as provided for in this section, the governing body of the municipality shall send notice to the landowner by certified mail, return receipt requested, advising the landowner of the governing body's intention to institute such action.

    (g) The notice shall be sent to the most recent address of the landowner of record in the office of the 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, the governing body shall cause a Class III-0 legal advertisement to be published in a newspaper of general circulation in the county wherein the subject property is located and post notice on the front door or other conspicuous location on the subject property.

    (h) If any landowner desires to contest any demand brought forth pursuant to this section, the landowner may seek relief in a court of competent jurisdiction.

    (i) For purposes of this section, “owner” or “landowner” means a person who individually or jointly with others:

    (1) Has legal title to the property, with or without actual possession of the property;

    (2) Has charge, care or control of the property as owner or agent of the owner;

    (3) Is an executor, administrator, trustee or guardian of the estate of the owner;

    (4) Is the agent of the owner for the purpose of managing, controlling or collecting rents; or

    (5) Is entitled to control or direct the management or disposition of the property.

    (i) (j) All 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 be posted in a conspicuous place on the premises affected by the complaint or order: Provided, That no ordinance may be adopted without providing for the right to apply to the circuit court for a temporary injunction restraining the enforcement agency pending final disposition of the cause.

    (j) (k) 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.

§8-12-16a. Registration of uninhabitable property.

    (a) The governing body of a municipality may, by ordinance, establish a property registration for any real property improved by a structure that is uninhabitable and violates the applicable building code adopted by the municipality. An owner of real property subject to the registration shall be assessed a fee as provided by the ordinance.

    (b) The mayor of the municipality shall appoint a code enforcement officer to investigate and determine whether real property violates provisions of the applicable building code of the municipality.

    (c) After inspecting the property, if the officer determines the property is uninhabitable and violates the applicable building code, then:

    (1) The officer shall post a written notice on the property which shall include:

    (A) An explanation of the violation(s);

    (B) A description of the registration;

    (C) The date the fee will be assessed;

    (D) An explanation of how to be removed from the registration;     (E) An explanation of the appeals process; and

    (F) A statement that if the fee is not paid, then the property is subject to forfeiture; and

    (2) Within five business days of the inspection and the posting of the property, the officer shall, by certified mail, send a copy of the notice that was posted to the owner(s) of the property at the last known address according to the county property tax records.

    (d) Within forty-five days of receipt of the notification by the owner(s), the property owner may:

    (1) Make and complete any repairs to the property that violate the applicable building code; or

    (2) Provide written information to the officer showing that repairs are forthcoming in a reasonable period of time.

    (e) For purposes of this section, “owner” or “property owner” means a person who individually or jointly with others:

    (1) Has legal title to the property, with or without actual possession of the property;

    (2) Has charge, care or control of the property as owner or agent of the owner;

    (3) Is an executor, administrator, trustee or guardian of the estate of the owner;

    (4) Is the agent of the owner for the purpose of managing, controlling or collecting rents; or

    (5) Is entitled to control or direct the management or disposition of the property.

    (e) (f) After the repairs are made, the owner may request a reinspection of the property to ensure compliance with the applicable building code. If the officer finds the violations are fixed, the owner is not subject to the registration and no fee will be incurred.

    (f) (g) The officer may reinspect the property at any time to determine where in the process the repairs fall.

    (g) (h) Within ninety days of receipt of the notification by the owner(s), the property owner has the right to appeal the decision of the officer to the enforcement agency, created in section sixteen, article twelve of this chapter.

    (h) (i) If an appeal is not filed within ninety days, the property is registered and the fee is assessed to the owner(s) on the date specified in the notice. The notice of the fee shall be recorded in the office of the clerk of the county commission of the county where the property is located and if different, in the office of the clerk of the county commission of the county where the property is assessed for real property taxes.

    (i) (j) If the enforcement agency affirms the registration and assessment of the registration fee, the property owner has the right to appeal the decision of the enforcement agency to the circuit court within thirty days of the decision. If the decision is not appealed in a timely manner to the circuit court, then the property is registered and the fee is assessed on the date specified in the notice. The notice of the fee shall be recorded in the office of the clerk of the county commission of the county where the property is located and if different, in the office of the clerk of the county commission of the county where the property is assessed for real property taxes.

    (j) (k) A fee assessed under this section shall be recorded in the same manner as a lien is recorded in the office of the clerk of the county commission of the county.

    (k) (l) If the fee is paid, then the municipality shall record a release of the fee in the office of the clerk of the county commission of the county where the property is located and if different, in the office of the clerk of the county commission of the county where the property is assessed for real property taxes.

    (l) (m) If an owner fails to pay the fee, then the officer shall annually post the written notice on the property and send the written notice to the owner(s) by certified mail.

    (m) (n) If a registration fee remains delinquent for two years from the date it was placed on record in the clerk of the county commission in which the property is located and assessed, the municipality may take action to receive the subject property by means of forfeiture. Should the municipality take the steps necessary to receive the subject property, the municipality then becomes the owner of record and takes the property subject to all liens and real and personal property taxes.

§8-12-16c. Registration of vacant buildings; registration fees; procedures for administration and enforcement.

    (a) The governing body of a municipality shall have plenary power and authority to establish by ordinance a vacant building and property registration and maintenance program.

    (b) For purposes of this section:

    (1) “Owner” or “property owner” means a person who individually or jointly with others:

    (A) Has legal title to the property, with or without actual possession of the property;

    (B) Has charge, care or control of the property as owner or agent of the owner;

    (C) Is an executor, administrator, trustee or guardian of the estate of the owner;

    (D) Is the agent of the owner for the purpose of managing, controlling or collecting rents; or

    (E) Is entitled to control or direct the management or disposition of the property.

    The term (2) “Vacant building” means a building or other structure that is unoccupied, or unsecured and occupied by one or more unauthorized persons for an amount of time as determined by the ordinance. Provided, That A new building under construction or a building that by definition is exempted by ordinance of the municipality, is not deemed a vacant building. Provided, however, That The governing body of a municipality, shall on a case-by-case basis, upon request by the property owner, shall exempt a vacant building from registration upon a finding for good cause shown that the person will be unable to occupy the building for a determinant period of time.

    (3) “Vacant property” means a property on which no building is erected and no routine activity occurs.

    (b) (c) An owner of real property subject to registration and maintenance requirements may be charged a fee or fees as provided by ordinance. The ordinance shall provide administrative procedures for the administration and enforcement of registration and payment and collection of registration fees.

    (c) (d) The ordinance may require that when the owner of the vacant building or property resides outside of the state that the owner provide the name and address of a person who resides within the state who is authorized to accept service of process and notices of fees due under this section on behalf of the owner and who is designated as a responsible, local party or agent for the purposes of notification in the event of an emergency affecting the public health, safety or welfare.

    (d) (e) The ordinance may authorize the municipality to institute a civil action against the property owner and/or file a lien on real property for unpaid and delinquent vacant building registration fees. Before any lien is filed, the municipality shall give notice to the property owner or owner’s agent, by certified mail, return receipt requested, that the municipality will file the lien unless the delinquent fees are paid by a date stated in the notice, which must be no less than thirty days from the date the notice is received by the owner or the owner’s agent, which shall be the date of delivery shown on the signed certified mail return receipt card. The ordinance may provide for alternative means of service when service cannot be obtained by certified mail.

    (f) The ordinance may require that the owner maintain the vacant building or property to a standard deemed reasonable by the governing body. The ordinance may include authority for the municipality, following notice to the owner, to act to bring the vacant building or property into compliance with the standard, or otherwise eliminate the public nuisance caused by any noncomplaint conditions: Provided, That nothing in this section is to be interpreted to impose a duty, obligation or requirement that a municipality must undertake such repairs, demolition or maintenance measures which remain as obligations and responsibilities of the owner. Cost of the repairs, demolition and maintenance and related legal and administrative costs incurred by the municipality are to be paid by the owner. Collection of these costs may be enforced in civil proceedings against the owner.

    (e) (g) The ordinance shall permit a property owner to challenge any determination made pursuant to the ordinance. The administrative procedures adopted pursuant to the ordinance shall include the right to appeal to the circuit court of the county in which the property is located.

    (f) (h) The governing body of a municipality shall deposit the fee into a separate account, which shall be used to:

    (1) Improve public safety efforts, especially for police and fire personnel, who most often contend with the dangerous situations manifested in vacant properties;

    (2) Monitor and administer this section; and

    (3) Repair, close or demolish a vacant structure as authorized by section sixteen of this article. twelve, chapter eight



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