Senate Bill No. 456

(By Senators Buckalew and Macnaughtan)

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[Introduced February 10, 1998; 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 the authority of county commissions to adopt ordinances regulating the repair, alteration or improvement, or the vacating and closing or removal or demolition of any dwellings, other buildings, structures or appurtenances thereto located on private lands 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 such dwellings, buildings, structures or appurtenances thereto, including toxic spillage or seepage; authority to enforce these ordinances; procedure for hearing complaints; right of appeal to circuit court; right of county commission to contract for demolition, removal, repairs or cleanup; and authorizing a lien against land for these services.

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. Clearance of refuse and debris from private lands; demolition of buildings and recovery of costs incurred; notice of demand thereof; procedure to contest demand.
(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 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, 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, 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.
(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, 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, 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. In that regard the county commission shall cause the owner or owners of the private land in question to be served with a copy of the petition of the enforcement agency and an order setting this matter down for hearing before the county commission. Service shall be accomplished in the manner provided in rule 4 of the West Virginia rules of civil procedure. 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; 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, 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.
(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: This bill provides authority to county commissions to adopt ordinances; regulate the repair, alteration or improvement, or the vacating and closing or removal or demolition, or any combination thereof, of any dwellings, other buildings, structures or appurtenances thereto located on private lands 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 such dwellings, buildings, structures, or appurtenances thereto whether used for human habitation or not, which would cause such dwellings, other buildings, structures or appurtenances thereto to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare, whether the result of natural or manmade force or effect. It regulates the removal and clean up of any accumulation of refuse or debris, 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. It creates an enforcement agency and provides for county commissions to adopt rules of procedures and other standards necessary to guide the enforcement agency or its agents in the conduct of investigations and to adopt rules of procedure for determination hearings to be conducted before the county commissions. It provides for the county commissions to make determinations requiring the owner or owners of any such dwellings, other buildings, structures or appurtenances thereto to repair, alter, improve, vacate, close, remove or demolish any such dwellings, other buildings, structures or appurtenances thereto which are deemed by the county commission to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare whether the result of natural or manmade force or effect. It provides for the county commissions to make determinations requiring the removal and clean-up of any accumulation of refuse or debris or toxic spillage or toxic seepage located on private lands which is deemed by the county commission to be unsafe, unsanitary, dangerous and detrimental to the public safety or welfare whether the result of natural or manmade force or effect; and requiring the owner or owners of any such dwellings, other buildings, structures, or appurtenances thereto located on private lands, that has been determined to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare to make all repairs, alterations or improvements determined and ordered by the county commission. It requires the owner or owners of any such dwellings, other buildings, structures or appurtenances thereto located on private lands that have been closed or vacated to remove or demolish any such dwellings, other buildings, structures or appurtenances thereto determined and ordered by the county commission within a reasonable period of time. It requires the owner or owners of private lands to remove and clean up any accumulation of refuse or debris or toxic spillage or toxic seepage that has been determined to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare by the county commission within a reasonable period of time. It provides for the county commission to adopt a schedule of daily civil monetary penalties that may be imposed upon any owner who fails to comply with the determinations and order of the county commission. It provides for a right of appeal of the determinations and order of the county commission to the circuit court. It provides for the county commission to contract for the ordered repairs, alterations, improvements, or the ordered demolition, removal or clean up where the owners refuse to comply with order of the county commission. It provides for a civil proceeding to impose a lien for the amount of the contractor's costs in making the ordered repairs, alterations, improvements, demolition, removal or clean up, together with any daily civil monetary penalty imposed and reasonable attorney fees and court costs, and authorizes an order and decree of sale of the private lands in question to satisfy the lien. And, it permits the entry of the designated contractor on the private lands in question to satisfy the lien and to permit the entry of the designated contractor on the private lands to make the ordered repairs, alterations or improvements, demolition, removal or cleanup.

Section 3ff has been completely rewritten; therefore, strike-throughs and underscoring have been omitted.