Dealing with Abandoned Nuisance Properties

58 Pages·2014·2.88 MB·English

2/7/2014
DEALING WITH
ABANDONED NUISANCE
PROPERTIES
Ohio Township Association
2014 Winter Conference
Peter N. Griggs, Attorney at Law
Brosius, Johnson & Griggs, LLC
50 West Broad Street, Suite 3300
Columbus, Ohio 43215
[phone]
[email protected]
GOLDEN RULE OF
TOWNSHIP LAW:
 “[i]tissettledthat...the[township]trusteescan
exercise only those powers conferred by statute,
or such others as are necessarily to be implied
fromthosegranted”
Trustees of New London Township v. Miner, 26 Ohio St. 452 (1875)
ENFORCEMENT TOOLS
 O.R.C. §505.86
 O.R.C. §505.87
 Junk Vehicles
 Property Maintenance Code
 Zoning
 Board of Health
 Nuisance Statutes
 Limited Home Rule
 Miscellaneous
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O.R.C. §505.86
Authority-O.R.C. §505.86:
Board of Trustees may provide for the “repair,
removal or securance of buildings or other
structures”
Buildings must be declared INSECURE,
UNSAFE,STRUCTURALLYDEFECTIVEOR
UNFITFORHUMANHABITATION
Use township fire department, county building
department or county board of health to make
initialdetermination
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O.R.C. §505.86
 Process:
Practical Recommendations:
Policy-based resolution is recommended as first step to
addressnuisancestructure
Includedeterminationoftheboardoftrusteesthat itis
thepolicyofthetownshiptosecureorremovenuisance
structures
Outlineprocessincludingall“informal”stepstakenprior
tostatutoryrequirements
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O.R.C. §505.86
 Process:
“Expert” Determination on building
Township fire inspector, county building inspector or
board of health (note: unfit for human habitation only
made by board of health)
Assist experts during inspections if allowed
Expert determination in writing
Photos, photos and more photos (maybe even video)
O.R.C. §505.86
 Process:
Board of Trustees:
Hold hearing during special or regular meeting
Experts should provide testimony
Introduce exhibits (written report, photos and video)
Affected residents should testify
Court reporter?
Minutes should be detailed
O.R.C. §505.86
 Process:
 Boardshouldmakethefollowingdeterminationsbywritten
resolution:
Structureisinsecure,unsafe,structurallydefectiveorunfit
forhumanhabitation;
Ordertherepair,securanceorremovalofstructurewithin
thirty(30)days;
Set a public hearing date at least thirty (30) days from
determinationofrepairorremovaldate;
Ordertownshipemployeetoobtaintitlesearchtoidentify
recordownerandlienholders;and
Authorize notice to all record owners and lienholders
notifyingoftheBoard’sdecisionandpublichearing.
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O.R.C. §505.86
 Should Board order the removal, secure or
repair?
Does it actually need removed?
Costs involved?
If building is demolished will the costs or demolition
exceed value of vacant land?
Owner may let property go to tax foreclosure -will
anybody purchase?
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O.R.C. §505.86
EMERGENCY:
 If emergency exists, Board does not have
to wait thirty (30) days before removal or
provide notice by certified mail
 Must provide some type of notice
 BE CAREFUL
O.R.C. §505.86
 Chalkerv.HowlandTownshipBoardofTrusteesetal.,74Ohio
Misc.2d5(1995). Boardoftrusteesdeterminedthatemergency
existed. Dead body found in abandoned residence, basement
floodwithwater,porchcollapsing,lackedstructuralintegrityand
weeds three feet high. Board provided seven day notice by
personalservicetorecordownertoabatebutdidnotprovide
opportunity for hearing prior to enforcement. Township
ultimately set fire to structure. Record owner and lienholder
broughtcivilactionagainsttownship. Courteventuallygranted
summary judgment on several issues in favor of township but
held a genuine issue of material fact existed with respect to
wrongfuldemolition.
O.R.C. §505.86
 Additional Due Process Required?
Recommended when removing structures
Considersendinglettertopropertyownerafter“expert”
determinationismadeinformingpropertyownerofsuch
adetermination.
Inform property owner of time, date and location of
BoardofTrusteesmeetingatwhichtheBoardwillmakea
determination
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Proceedings of administrative officers
and agencies are not quasi-judicial where
there is no requirement for notice,
hearing, and opportunity for
introduction of evidence. Revised code
505.86(B) does not constitute a quasi-
judicial proceeding… as there is no
provision for hearing or the introduction
of evidence. Champion Mall Corp v.
Champion Township Board of Trustees,
2008-Ohio-4976
The determination that a structure
is “insecure, unsafe, or structurally
defective” is made by the fire
department… The role of the
Trustees is, in the exercise of
reasonable discretion, to provide
for “the removal, repair or
severance: of such a structure.
Chalker vs. Howland Township
Board of Trustees, 74 Ohio Misc. 2
d 5, 24.
Our holding… should not be
construed to mean that Champion
Mall Corporation was not entitled
to due process, including an
evidentiary hearing, under federal
and/or state constitutional law.
Chalker, 74 Ohio Misc. 2d at 24.
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O.R.C. §505.86
 Notice to Record Owner/Lienholders:
Content of Notice
Include determination made by Board
Indentify property (for lienholders)
Order removal or securance (or inform of Board’s intent)
within 30 days
Notify of public hearing time, date and place
Include township employee contact information
O.R.C. §505.86
Notice to Record Owner/Lienholders:
Must send certified mail to:
To all record owners listed in title search
(if address known)
To all lienholders listed in title search
O.R.C. §505.86
 NoticetoRecordOwner/Lienholders:
Publication
If address is unknown of record owner, publish notice
onceinnewspaperofgeneralcirculationwithintownship
(paidpublication).
Returnofcertifiedmail
“Vacant” or “Moved left no forwarding address” -
Publishinnewspaperasabove.
“Unclaimed”or“Refused”-ordinarymailorpublishin
newspapers?
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O.R.C. §505.86
 Failure to remove, secure, repair:
 Agreement with Mortgage Company or Property
Owner?
 Thirty (30) days after notice is given and public
hearing has taken place, Board may take action.
 Contractor or township employees to repair or
secure?
 Payment for Costs:
 Township general fund if using contractor
 No authority to borrow money
O.R.C. §505.86
 Collection of Costs:
Fiscal Officer certify to costs county auditor;
Total costs incurred in cleanup (either contract cost or
amount of employee hours and cost of serving notice,
include title search)
Include proper description of property (tax parcel id,
address etc.)
Commence civil action against record owner
FIRE LOSS
 O.R.C. §3929.86-Fire Loss:
Requires that delinquent taxes or assessments be
paidoutoffirelossproceeds
Provides a means for townships to ensure that
buildings or structures that have been damaged by
fireareremoved,repaired,orsecured
Beforeaninsurancecompanypaysaclaiminexcess
of $5,000 for fire damage to a building, it must
receive a certificate fromcounty treasurerregarding
taxesandassessments(O.R.C§505.86)
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FIRE LOSS
 O.R.C. §3929.86-Fire Loss:
If the fire loss equals 60% of the liability limits
covering the building, the insurance company is
required to transfer to a township an aggregate of
$2,000foreach$15,000offireloss
If insured has submitted a signed contractor’s
estimate, insurance company must submit amount
listedinestimatetotownship
FIRE LOSS
 O.R.C. §3929.86-Fire Loss:
Township must contact insured upon receipt of
funds and notify that funds will be returned upon
completionofrepairs
If Township has incurred expenses under O.R.C.
§505.86,thencanbereimbursedfromthesefunds
MUST PASS RESOLUTION-SEND TO
DEPARTMENTOFINSURANCE
O.R.C. §505.87
 Weeds, Vegetation and Other Debris–Nuisance:
 Authority-O.R.C. §505.87
 Board of Trustees may provide for the “abatement,
control, or removal of vegetation, garbage, refuse,
and other debris”
 Outdoor storage of junk
 Board must determine vegetation, refuse, junk
constitutes a NUISANCE
 Recommend that Board adopt policy-based
resolution
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