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Introduced Version Senate Bill 631 History

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WEST virginia Legislature

2017 regular session

Introduced

Senate Bill 631

By Senators Palumbo, Jeffries and Takubo

[Introduced March 17, 2017; Referred
to the Committee on Government Organization
]

A BILL to amend and reenact §8-12-13 and §8-12-16 of the Code of West Virginia, 1931, as amended, all relating to the process for prosecution of violations of municipal building code; clarifying the process by which municipal governments may abate unsafe, unsanitary or dangerous dilapidated structures that are detrimental to the public safety or welfare; permitting complaints to be filed; establishing a procedure; requiring notice; granting hearings; permitting the recovery for costs for instituting an action; and defining terms.

Be it enacted by the Legislature of West Virginia:


That §8-12-13 and §8-12-16 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.


§8-12-13. 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) Unless otherwise authorized by state law, any misdemeanor prosecution of a violation of an ordinance adopted pursuant to this section before a municipal judge or other municipal official lawfully authorized to hear and determine violations of municipal code shall be initiated by a complaint presented to and sworn or affirmed before a municipal judge or other municipal official with lawful authority to hear and determine violations of municipal code in the municipality where the offense is alleged to have occurred. Unless otherwise provided by statute, the presentation and oath or affirmation shall be made by a code enforcement department official or municipal attorney showing reason to have reliable information and belief. If from the facts stated in the complaint the municipal judge or other municipal official with lawful authority to hear and determine violations of municipal code finds probable cause, the complaint becomes the charging instrument initiating a criminal proceeding.

A complaint lawfully authorized by this subsection together with a summons setting forth the date, time and place of appearance before a municipal judge or other municipal official with lawful authority to hear and determine violations of municipal code, shall be served in accordance with the law of the State of West Virginia concerning the service of process in civil actions, except that personal service of a summons and complaint may be made by a code enforcement department official and the method of service effectuated by mailing by the clerk of a court in accordance with Rule 4(d)(1)(D) of the West Virginia Rules of Civil Procedure shall be deemed to be effectuated by mailing of the summons and complaint by a code enforcement department official. If service is made by certified mail pursuant to that rule in the manner permitted herein and delivery of the summons and complaint is refused, the code enforcement department official, promptly upon the receipt of the notice of such refusal, shall mail to the person or entity being noticed, by first class mail, postage prepaid, a copy of the summons and complaint. So long as such first-class mailing is not returned as undeliverable by the U.S. Postal Service, service of the summons and complaint will be presumed to have been effectuated. Upon service of the summons and complaint consistent with this subsection, the violation may be prosecuted consistent with state and local law.

§8-12-16. Ordinances regulating the repair, alteration, improvement, closing, demolition, etc., of structures, dwellings or buildings unfit for human habitation that are unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare; procedures.


(a) For the purposes of this section:

(1) “Code Enforcement Agency” means either a code enforcement department as defined by 87 C.S.R §7-2, as may be amended, or an enforcement agency as permitted by subsection (c) of this section.

(2) “Code Enforcement Agency official” means any lawful agent of a Code Enforcement Agency. building or portion thereof as an attractive nuisance or hazard to the public.

(3) "Owner" or "landowner" 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.

(4) “Unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare” means:

(A) Any door, aisle, passageway, stairway, exit or other means of egress that does not conform to the approved building or fire code of the jurisdiction as related to the requirements for existing buildings;

(B) The walking surface of any aisle, passageway, stairway, exit or other means of egress is so warped, worn loose, torn or otherwise unsafe as to not provide safe and adequate means of egress;

(C) Any portion of a dwelling, building, structure or appurtenance that has been damaged by fire, earthquake, wind, flood, deterioration, neglect, abandonment, vandalism or by any other cause to such an extent that it is likely to partially or completely collapse, or to become detached or dislodged;

(D) Any portion of a structure or building, or any member, appurtenance or ornamentation on the exterior thereof that is not of sufficient strength or stability, or is not so anchored, attached or fastened in place so as to be capable of resisting natural or artificial loads of one and one-half the original designed value;

(E) The dwelling, building, or structure, or part of the building or structure, because of dilapidation, deterioration, decay, faulty construction, the removal or movement of some portion of the ground necessary for the support, or for any other reason, is likely to partially or completely collapse, or some portion of the foundation or underpinning of the building or structure is likely to fail or give way;

(F) The dwelling, building, or structure, or any portion thereof, is clearly unsafe for its use;

(G) The dwelling, building, or structure is neglected, damaged, dilapidated, unsecured or abandoned so as to become an attractive nuisance to children, becomes a harbor for vagrants, criminals, criminal activity, or enables persons to resort to the dwelling, building, or structure for committing a nuisance or an unlawful act;

(H) Any dwelling, building, or structure has been constructed, exists or is maintained in violation of any specific requirement or prohibition applicable to such dwelling, building, or structure provided by the approved building or fire code of the jurisdiction, or of any law or ordinance to such an extent as to present either a substantial risk of fire, building collapse or any other threat to life and safety;

(I) A dwelling, building, or structure, used or intended to be used for dwelling purposes, because of inadequate maintenance, dilapidation, decay, contamination by any hazardous substance or material including, but not limited to, substance resulting from the illegal manufacture of drugs, damage, faulty construction or arrangement, inadequate light, ventilation, mechanical or plumbing system, or otherwise, is determined by the code enforcement agency to be unsanitary, unfit for human habitation or in such a condition that is likely to cause sickness or disease;

(J) Any dwelling, building, or structure, because of a lack of sufficient or proper fireresistance-rated construction, fire protection systems, electrical system, fuel connections, mechanical system, plumbing system or other cause, is determined by the code official to be a threat to life or health; or

(K) Any portion of a building that remains on a site after the demolition or destruction of the building or structure or whenever any building or structure is abandoned so as to constitute such.

(a) (b) 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 structure, 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 that is unsafe, unsanitary, dangerous or detrimental to the public safety or welfare.

(b) (c) The governing body in formally adopting the ordinances any ordinance pursuant to this section 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 Code Enforcement Agency as provided by the state building code and authorized by section five-b, article three, chapter twenty-nine of this code and section thirteen, article twelve, chapter eight of this code; or municipal officials as may otherwise be authorized by this code; or municipal officials or agents as authorized by rules promulgated by the State Fire Commission and approved by the Legislature; or municipal officials or agents as may otherwise be authorized by the State Fire Commission. Notwithstanding any provision of this code to the contrary, for the purposes of this section any municipality that has not adopted the state building code may designate an enforcement agency consisting 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, and the ranking health officer and fire chief who shall serve as ex officio members of the enforcement agency.

(c) (d) Any ordinance adopted pursuant to the provisions of this section must provide fair and equitable rules of procedure and any other standards deemed procedures required by law or necessary and appropriate to guide the Code Enforcement Agency, or its agents officials, in the investigation of any structure, dwelling or building conditions, and in conducting hearings: Provided, That any corrective action taken by the Code Enforcement Agency.

(e) Any entrance by a Code Enforcement Agency official upon premises property for the purpose of making examinations is investigation or inspection of any structure, dwelling, or building shall be made in a manner as to cause the least possible intended to minimize inconvenience to the owner or persons in possession and, at a minimum, shall also be consistent with the following:

(1) Except in exigent circumstances and as permitted by law, the enforcement agency shall provide reasonable advance notice to the owner prior to entry upon the property and shall request permission from the owner for entry upon the property.

(2) In the event the owner cannot be located after reasonable inquiry by the Code enforcement agency as required by this section, or if the owner refuses entry, the code Enforcement Agency may obtain an administrative search warrant from either the municipal court or the magistrate court located in the jurisdiction of the municipality or county in which the structure, dwelling, or building is located. Prior to obtaining an administrative search warrant, a Code Enforcement Agency official shall be required to make a sworn and prima facie showing that the Code Eenforcement Agency has been unable to gain access to the structure, dwelling, or building after reasonable and good faith efforts, and that there is a legitimate and substantial safety concern involving the structure, dwelling, or building that supports the requested entry.

(3) If granted by the court, and provided the owner can be located, the Code Enforcement Agency will provide owner a copy of the administrative search warrant with at least five days’ notice prior to entry upon the property. If applicable, the Code Enforcement Agency shall also provide the same notice to any tenant or other person in possession of the structure, dwelling, or building.

(4) Entry shall be for the sole purpose of inspection of the structure, dwelling, or building for unsafe or unsanitary conditions and shall not be for the purpose of criminal prosecution or gathering evidence for use in any criminal charge or proceeding unrelated to the unsafe or unsanitary condition of the structure, dwelling, or building.

(f) The governing body of every municipality has plenary power and authority to adopt an ordinance providing for the vacating, closing, removal, or demolition of any dwelling, structure, or building by the municipality in the absence of owner agreement or court order: Provided, That any such ordinance shall require the Code Enforcement Agency to provide lawful notice to and undertake reasonable efforts to seek agreement from the owner prior to taking any action permitted by this section and shall comply with the requirements set forth in this subsection.

(1) Any ordinance adopted pursuant to this subsection is applicable only to dwellings, structures, or buildings which meet the definition of unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare as set forth in:

(A) Paragraph (C), (E) or (H), subdivision (4), subsection (a) of this section; or

(B) Paragraph (F), (G), (I) or (K), subdivision (4), subsection (a) of this section: Provided, That the dwelling, building, or structure is vacant, abandoned, or has been lawfully declared unfit for human habitation; and the reasonable estimated cost of repair, rehabilitation, or corrective action exceeds the fair market value of the dwelling, building, or structure.

(2) At a minimum, any ordinance adopted pursuant to this subsection must also provide for the following:

(A) The Code Enforcement Agency shall produce a written notice containing the date of the last inspection, the name of the inspector, a reasonable description of the unsafe, unsanitary, dangerous, or detrimental condition(s), the corrective measures required, the allotted time to correct the substandard condition(s), and the allotted time the owner has to apply to the circuit court for a temporary injunction or other similar relief restraining action by the enforcement agency. 

(B) The notice shall be served upon the owner or landowner by conspicuously posting and attaching a copy of the notice to the subject property, and by serving the notice on the owner or landowner in the same manner as service of a complaint as set forth in subdivision (2), subsection (j) of this section.

(C) If the Code Enforcement Agency is unable to effect personal service on the owner: a Code Enforcement Agency official shall subscribe a written affidavit, to be maintained for a minimum of two years, that demonstrates the structure, dwelling, or building falls within one of the categories set forth in paragraph (A) or (B), subdivision (4) of this subsection sets forth the basis therefore in reasonable detail including documentation of same, and memorializes the Code Enforcement Agency official’s efforts to contact and/or get permission for entry and corrective action from the owner; and the Code Enforcement Agency shall publish notice of its intent to enter the property for the purpose of demolition or correction, along with the address of the property, the name of the owner(s) and the date of the proposed action, as a Class II legal advertisement consistent with the requirements of section two, article three, chapter fifty-nine of this code, the first of which shall run at least thirty days prior to the date of the proposed action by the enforcement agency, and the last being no later than twenty days prior to the date of the proposed action by the enforcement agency.

(D) If there is no response to the notice by the owner or landowner in the time specified in the notice, then the municipality shall have the authority to proceed in correction or demolition of the subject dwelling, building or structure.

(3) It shall be an absolute defense to any civil action by an owner, landowner, or tenant for damages resulting from the closure, demolition, or other corrective action taken by a municipality pursuant to this section: Provided, That the municipality: acted in good faith, can demonstrate that the structure, dwelling, or building falls within one of the categories set forth in paragraph (A) or (B), subdivision (4) of this subsection, the municipality followed the procedures set forth in this subsection, and the municipality had adopted the state building code at the time of the closure, demolition, or other corrective action occurred.

(4) Any ordinance adopted pursuant to this subsection must also provide for notice to the owner of the right of the owner to apply to the circuit court for a temporary injunction or other similar relief restraining correction or demolition by the enforcement agency. In the event the application is made by the owner, a hearing thereon shall be had within twenty days of the application, or as soon thereafter as reasonably possible.

(A) Continuances of the hearing provided for in this subdivision may be for cause only. If a continuance is granted upon request by the owner, the owner shall be required to pay into court in the form of a bond, any reasonable and necessary costs related to the property likely to be incurred by the municipality during the period of such continuance.

(B) At the conclusion of a hearing held under this subdivision, if the court finds that the property is unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare, the court shall make and enter an order granting the relief as requested by the municipality. The court may disburse any moneys paid into court by the owner in accordance with this section.

(d) (g) 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 Code 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 and 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

(h) In addition to the authority provided and process set forth in subsection (f) of this section, every municipality may also institute a civil action in circuit court against the landowner or other responsible party to obtain an order to take corrective action up to and including demolition of any structure, dwelling, or building that is unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare; and/or (2) May institute a civil action in a court of competent jurisdiction against the landowner or other responsible party to recover any and all reasonable costs and expenses 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 (1) No fewer than ten days prior to instituting a civil action as provided in this section subsection, 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) (2) 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 and to such other address for the landowner as may exist on record with the municipality. If, for any reason, such certified mail is returned without evidence of proper receipt thereof, then in such event, the governing body municipality shall resend the notice(s) by First-class Mail, postage prepaid, 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 shall also 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.

(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.

(i) To the extent not otherwise authorized by state law, all notices of violation or correction for violations that do not fall within one of the categories set forth in paragraph (A) or (B), subdivision (1), subsection (f) of this section issued by the enforcement agency of a municipality that has adopted the state building code shall be served in accordance with the process set forth in the state building code. All notices of violation or correction orders for violations that do not fall within one of the categories set forth in paragraph (A) or (B), subdivision (1), subsection (f) of this section issued by a Code Enforcement Agency of a municipality that has not adopted the state building code shall be served in accordance with the law of this state concerning the service of process in civil actions, except that personal service may be made by a Code Enforcement Agency official and the method of service effectuated by mail by the clerk of a court as permitted by Rule 4(d)(1)(D) of the West Virginia Rules of Civil Procedure shall be deemed to be effectuated by mailing by a Code Enforcement Agency official, and shall be posted in a conspicuous place on the property that is the subject of the notice of violation or correction.

(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

(j) Any violation of an ordinance adopted pursuant to this section, may be prosecuted by the municipality consistent with state and local laws.

(1) Unless otherwise authorized by state law, prosecution of a violation shall be initiated by a complaint presented to and sworn or affirmed before a municipal judge or other municipal official with lawful authority to hear and determine violations of municipal code in the municipality where the offense is alleged to have occurred. Unless otherwise provided by statute, the presentation and oath or affirmation shall be made by a Code Enforcement Agency official or municipal attorney showing reason to have reliable information and belief. If from the facts stated in the complaint the municipal judge or other municipal official with lawful authority to hear and determine violations of municipal code finds probable cause, the complaint becomes the charging instrument initiating a criminal proceeding.

(2) A complaint lawfully authorized by subdivision (1) of this subsection along with a summons setting forth the date, time, and place of appearance before a municipal judge and or other municipal official with lawful authority to hear and determine violations of municipal code, shall be served in accordance with the law of the State of West Virginia concerning the service of process in civil actions, except that personal service of a summons and complaint may be made by a Code Enforcement Agency official and the method of service effectuated by mailing by the clerk of a court as permitted by West Virginia Rule of Civil Procedure 4(d)(1)(D) shall be deemed to be effectuated by mailing of the summons and complaint by a Code Enforcement Agency official.  If service is made by certified mail pursuant to Rule 4(d)(1)(D) of the West Virginia Rules of Civil Procedure in the manner permitted herein and delivery of the summons and complaint is refused, the Code Enforcement Agency official, promptly upon the receipt of the notice of such refusal, shall mail to the person or entity being noticed, by first class mail, postage prepaid, a copy of the summons and complaint. So long as such first-class mailing is not returned as undeliverable by the U.S. Postal Service, service of the summons and complaint will be presumed to have been effectuated. Upon service of the summons and complaint consistent with this subsection, the violation may be prosecuted consistent with state and local law.


 

NOTE: The purpose of this bill is to clarify the process by which municipal governments may abate unsafe, unsanitary, or dangerous dilapidated structures that are detrimental to the public safety or welfare. The bill permits complaints to be filed. The bill establishes a procedure. The bill requires notice. The bill grants hearings. The bill permits the recovery for costs for instituting an action. The bill defines terms.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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