COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 228
(By Senators Love, Snyder, Hunter and Buckalew)
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[Originating in the Committee on the Judiciary;
reported February 19, 1998.]
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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 the
authority of county commissions to adopt ordinances
regulating the repair, alteration, improvement, vacating,
closing, removal or demolition of structures and the removal
or cleanup of refuse, debris, overgrown vegetation, toxic
spillage or seepage on private lands representing a health
or safety hazard to the public; creating an agency to
enforce such ordinances; providing for promulgation of rules
governing investigation and hearing of complaints;
establishing a procedure for complaints; requiring the owner
of such property to perform the ordered repairs, alterations
or clean-up; authorizing imposition of daily civil monetary
penalties on an owner who refuses to comply with such order;
authorizing the county commission to contract with private individuals for the ordered repairs, alterations or clean- up; permitting the county commission to institute a civil
action for imposition of a lien against the property to
recover the costs of such services, any civil penalties
imposed, attorney fees and court costs and for the sale of
the property to satisfy the lien; authorizing the county
commission to institute a civil action for damages to
recover such costs from the landowner; authorizing entry on
the private land for purposes of conducting designated
repairs or alterations and for purposes of satisfying the
lien; and allowing the county commission to receive grants
and subsidies for the purposes of this section.
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 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 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, 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 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 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 matters before the county commission.
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.
(e) Any county commission adopting ordinances authorized by
this section shall hear and determine complaints of the
enforcement agency. Complaints shall be initiated by 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 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 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.
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(NOTE: This bill provides authority to county commissions
to adopt ordinances to regulate the repair, alteration,
improvement, vacating, closing, removal or demolition of unsafe
or unsanitary buildings, or any combination thereof, of any
dwellings, other buildings and the removal and cleanup of refuse,
debris, overgrown vegetation or toxic spillage or toxic seepage
on private lands which is deemed to be unsafe, unsanitary,
dangerous or detrimental to the public safety or welfare. The
bill requires the county commission to create an enforcement
agency and to adopt rules of procedures and other standards for
the conduct of investigations and hearings conducted before the
county commissions. It allows the county commissions to require
the owners of any buildings or land subject to regulation to
effect necessary repairs, alterations or clean-up of the property
and authorizes imposition of a daily civil monetary penalty for
failure to comply with the commission's order. The bill provides
procedures for hearing and contesting complaints and a right of
appeal to the circuit court. Where the owners refuse to carry
out the county commission's order, the bill authorizes the county
commission to contract for the ordered repairs, alterations or
improvements, provides for a civil proceeding to impose a lien on
the property for the amount of the contractor's costs, any daily
civil monetary penalty imposed and reasonable attorney fees and
court costs, and authorizes sale of the property to satisfy the
lien. The bill also permits entry on the property in question to
effect the ordered repairs and to satisfy the lien.
Section 3ff has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.)