Injunctive Relief Through a Nuisance Code

Injunctive Relief Through a Nuisance Code

In addition to issuing orders through a code official, a city may elect to have a hearing before the city council or county commission, declare a condition a public nuisance, and proceed to circuit court for injunctive relief.

While the building code provides clear standards and remedies to address violations, some communities have found this method of addressing problem properties to be costly and time-consuming. For example, after a code violation is issued under the International Property Maintenance Code (IPMC), a landowner may appeal to the IPMC Board of Appeals. The landowner may also file a second or third appeal by petition in circuit court, which can take up to a year, and then to the West Virginia Supreme Court of Appeals, costing the local government tens of thousands of dollars and several years of time. For this reason, many communities also enact nuisance ordinances so they may seek injunctive relief from a court of law.

A typical nuisance ordinance reads:

No person shall erect, contrive, cause, continue, maintain or permit to exist any public nuisance within the City, or within the police jurisdiction of the City.

- Section 1101.01, City of Charles Town.

Ordinances also define what constitutes a public nuisance, often by referencing to health and safety codes as well as the building code. Municipalities may regulate nuisances under the following West Virginia Code provisions:

Section 8-12-5(23) allows municipalities [t]o provide for the elimination of hazards to public health and safety and to abate or cause to be abated anything which in the opinion of a majority of the governing body is a public nuisance.

Section 8-12-5(13) allows municipalities [t]o prevent injury or annoyance to the public or individuals from anything dangerous, offensive or unwholesome.

An injunction is a court order that requires a person to do something or to stop doing something. For example, the court may order a building owner to demolish a building or may order the owner to repair and restore the building. Under Section 53-5-4 of the West Virginia Code, every judge has general jurisdiction in awarding injunctions, meaning judges can award injunctions in any kind of case.

Prerequisites

Nuisance ordinance. Municipalities must adopt a local nuisance code.

Advantages

  • Allows the local government to proceed directly to circuit court for injunctive relief, after providing notice to appropriate parties
  • May expedite the process of addressing a problem property, saving time and resources
  • The court may order the property owner to pay the local government’s legal costs, including attorney’s fees

Disadvantages

  • Subject to appeal
  • Requires savvy legal counsel with an understanding of litigation and nuisance law
Use of the IPMC with a Nuisance Ordinance Proceeding

Whether violations enumerated under the IPMC are pursued directly under the procedures contained therein, or alternatively referred to as proof of unlawful conditions under a nuisance ordinance proceeding, the IPMC provides a tried and true, well-established code that is accepted statewide under the State Fire Code.

-Braun Hamstead

Community Highlight – Morgantown

Article 1149 of the Morgantown City Code authorizes Morgantown City Council to abate anything that in the opinion of a majority of Council constitutes a public nuisance, after due notice to all parties.

On May 18, 2012, after receiving numerous complaints from neighboring property owners about a smell coming from the house, City building code officials condemned the house on the basis that it was unfit for human occupancy. An on-site inspection revealed the remains of multiple dead animals and large amounts of animal waste. The owners had been cited multiple times and had consistently failed to correct sanitation issues. Eventually, the owners requested a hearing with the Morgantown ICC Building Code Board of Appeals. The Appeals Board ordered the owners to comply with the code enforcement office’s orders, but the owners again failed to do so. As a result, city building code officials arranged for an environmental indoor air quality specialist to inspect the house and outline any steps needed to eliminate health hazards.

A report detailing the health hazards was submitted to the City in March 2014. This report led the Morgantown City Manager to request that the City Council hold a hearing to determine whether the house constituted a public nuisance. City Council proceeded to hold the hearing after giving notice to the owners and placing a Class II Legal Advertisement in the local newspaper to give notice to all persons with an ownership interest in the property.

In May 2014, City Council ordered all persons with an ownership interest in the property to submit an agreement to remediate the structure and to hire qualified individuals to perform the necessary work. When the homeowners failed to comply with the order to abate the nuisance, the City Manager sought judicial relief from the Circuit Court of Monongalia County. The court granted an injunction and authorized the City to take whatever action it deemed necessary to remove the health hazard, including demolition of the structure. The court appointed a Special Commissioner with the authority to sell the property and distribute proceeds if the owners could not reimburse the City in full.

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