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Dilapidated houses a growing concern

As someone who grew up in Elkins, and still has family there, the problems associated with abandoned and dilapidated properties are always a personal concern.

Abandoned and dilapidated properties present health, welfare, and safety concerns for the whole community.

That is why the Charleston City Attorney’s Office, along with the WVU Land Use and Sustainable Development Law Clinic, State Fire Marshall, Municipal League, and others got together and drafted legislation to address these problem properties (unresponsive or uncooperative owners in particular). Those efforts during the 2017 session produced the current language of W.Va. Code section 8-12-16.

The purpose of W.Va. Code section 8-12-16 is to give municipalities of all sizes plenary power to draft ordinances regulating the repair, alteration, improvement, closing, demolition of structures, dwellings or buildings that are unsafe, unsanitary, dangerous or detrimental to the public safety or welfare. Municipalities from Huntington to Thurmond can utilize it.

The statute also lays out procedures for expediting the process when owners cannot be personally served notice or refuse to do anything with the property after receiving notice of building code violations.

Elkins has already adopted the State Building Code. Therefore, if the procedures are followed as outlined in W.Va. Code section 8-12-16 it is 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 the city.

A rough outline of the process would start with the municipality passing an ordinance regulating the repair, alteration, improvement, closing, demolition of structures, dwellings or buildings that are unsafe, unsanitary, dangerous or detrimental to the public safety or welfare. W.Va. Code § 8-12-16 defines what structures or dwellings qualify as unsafe, unsanitary, dangerous or detrimental. It was taken directly from the State Building Code and the International Property Maintenance Code.

Second, the code enforcement agency identifies structures that may meet those definitions. The next step is to determine the owners of those structures or dwellings via tax tickets, property records, or other public documents.

After identifying the owner, a final notice of repair or demolition is posted to the subject property and served personally upon the owner or sent via certified mail, return receipt requested to last address of record. The code enforcement agency produces a written notice containing 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.

If personal service is effected or the certified mail comes back claimed, but the owner still has not taken steps to correct the structure or dwelling within the allotted time, the city may proceed with the corrective action or demolition and lien the property in the amount of the repairs or demolition. The owner has been afforded due process and sat on their rights.

If the code enforcement agency cannot effect personal service on the owner or the certified mail comes back unclaimed, a code enforcement agency official shall subscribe a written affidavit documenting the code enforcement agency official’s efforts to contact the owner.

The code enforcement agency then publishes notice of its intent to enter the property as a Class II legal advertisement to run at least 30 days before the date of the proposed action by the enforcement agency.

If there is no response from the owner after publication, then the municipality shall have the authority to proceed in correction or demolition of the subject dwelling, building or structure. The municipality can then place a lien on the property for the cost of the corrective action or demolition.

Obviously, this is a rough outline of the process, but my intent is to show how the process works. It leaves in place all current routes to address abandoned and dilapidated properties, while also creating an expedited process for addressing the most problematic properties when the owners are either unresponsive or uncooperative.

Nigel E. Jeffries

Charleston

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