§53-60  Ordinance relating to repair,closing, and demolition of dwellings unfit for human habitation.  (a) Whenever any county finds that there exists in urban areas in the countydwellings which are unfit for human habitation due to dilapidation, defectsincreasing the hazards of fire, accidents, or other calamities, lack ofventilation, light or sanitary facilities, or due to other conditions,including those set forth in subsection (c) hereof, rendering the dwellingunsafe or unsanitary, or dangerous or detrimental to the health, safety, orwelfare, or otherwise inimical to the welfare of the residents  of the county,power is hereby conferred upon the county to require or cause the repair,closing or demolition or removal of the dwellings in the manner hereinprovided.  A "dwelling" means any building, or structure, or partthereof, used and occupied for human habitation or intended to be so used, andincludes any appurtenances belonging thereto or usually enjoyed therewith.

(b)  Upon the adoption of an ordinance findingthat dwelling conditions of the character described in subsection (a) hereofexist within a county, the council may adopt ordinances relating to thedwellings within the county which are unfit for human habitation.  Theordinances shall include the following provisions except as otherwise providedby chapter 91:

(1)  That a public officer be designated or appointedto exercise powers prescribed in the ordinance, and that a board of appeals becreated to conduct hearings prescribed hereinafter and setting forth thequalifications, the manner of appointment and term of office of its members.

(2)  That whenever a petition is filed with the publicofficer by at least five residents of the county charging that any dwelling isunfit for human habitation or whenever it appears to the public officer (on thepublic officer's own motion) that any dwelling is unfit for human habitation,the public officer shall, if the public officer's preliminary investigationdiscloses a basis for the charges, issue and cause to be served upon the owner,every mortgagee of record, and all parties in interest in the dwelling(including persons in possession) a complaint stating the charges in thatrespect.  Such complaint shall contain a notice that a hearing will be heldbefore the board of appeals at a place therein fixed not less than ten days normore than thirty days after the serving of the complaint; that the owner,mortgagee, and parties in interest shall be given the right to file an answerto the complaint and to appear in person or otherwise, and give testimony atthe place and time fixed in the complaint; and that the rules of evidenceprevailing in courts of law or equity shall not be controlling in hearingsbefore the board of appeals.

(3)  That the board of appeals may administer oaths,affirmations, examine witnesses and receive evidence, and that if, after suchnotice and hearing, the board of appeals determines that the dwelling underconsideration is unfit for human habitation it shall state in writing itsfindings of fact in support of the determination and shall issue and cause tobe served upon the owner thereof an order which,

(A)  If the repair, alteration, or improvementof the dwelling can be made at a reasonable cost in relation to the value ofthe dwelling (the ordinance of the county shall fix a certain percentage of thecost as being reasonable for the purpose), requires the owner, within the timespecified in the order, to repair, alter, or improve the dwelling to render itfit for human habitation or to vacate and close the dwelling as a humanhabitation; or

(B)  If the repair, alteration, or improvementof the dwelling cannot be made at a reasonable cost in relation to the value ofthe dwelling (the ordinance of the county shall fix a certain percentage of thecost as being reasonable for the purpose), requires the owner, within the timespecified in the order, to remove or demolish the dwelling.

(4)  That, if the owner fails to comply with an orderto repair, alter, or improve or to vacate and close the dwelling, the publicofficer may cause the dwelling to be repaired, altered, or improved, or to bevacated and closed.

(5)  That, if the owner fails to comply with an orderto remove or demolish the dwelling, the public officer may cause the dwellingto be removed or demolished.

(6)  That the amount of the cost of the repairs,alterations, or improvements, or vacating and closing, or removal or demolitionby the public officer shall be a lien against the real property upon which thecost was incurred.  If the dwelling is removed or demolished by the publicofficer the public officer shall sell the materials of the dwelling and shallcredit the proceeds of the sale against the cost of the removal or demolitionand any balance remaining shall be deposited with the clerk of the circuitcourt of the circuit in which the county is situated, by the public officer,shall be secured in such manner as may be directed by the court, and shall bedisbursed by the court to the persons found to be entitled thereto by finalorder or decree of the court.

(c)  An ordinance adopted by a county pursuantto this section shall provide that the public officer or the board of appealsmay determine that a dwelling is unfit for human habitation if it is found thatconditions in such dwelling which are dangerous or injurious to the health,safety, or welfare of the occupants of such dwelling, the occupants ofneighboring dwellings, or other residents of such county, or which have ablighting influence on properties in the area.  The conditions may include thefollowing, without limitation:  defects therein increasing the hazards of fire,accident or other calamities; lack of adequate ventilation, light, or sanitaryfacilities; dilapidation; disrepair; structural defects; uncleanliness;overcrowding; inadequate ingress and egress; inadequate drainage; or anyviolation of health, fire, building or zoning regulations, or any other laws orregulations relating to the use of land and the use and occupancy of buildingsand improvement.  Such ordinance may provide additional standards to guide thepublic officer or the public officer's agents or employees or the board ofappeals in determining the fitness of a dwelling for human habitation.

(d)  Complaints or orders issued pursuant to anordinance adopted under this section shall be served upon persons eitherpersonally or by registered mail, but if the whereabouts of the persons isunknown and the same cannot be ascertained by the public officer in theexercise of reasonable diligence, and the public officer makes an affidavit tothat effect, then the serving of the complaint or order upon the persons may bemade by publishing the same once each week for two consecutive weeks in anewspaper printed and published in the county, or, in the absence of suchnewspaper, in one printed and published in the State and circulating in thecounty in which the dwellings are located.  A copy of the complaint or ordershall be posted in a conspicuous place on the premises affected by the complaintor order.  A copy of the complaint or order shall also be filed with theregistrar of conveyances or, in the case of registered land, with the assistantregistrar of the land court as provided in section 501-136, and the filing ofthe complaint or order shall have the same force and effect as other lispendens notices provided by law.

(d)  [Subsection effective July 1, 1999.  Forpresent provision, see above.]  Complaints or orders issued pursuant to anordinance adopted under this section shall be served upon persons eitherpersonally or by registered mail, but if the whereabouts of the persons isunknown and the same cannot be ascertained by the public officer in theexercise of reasonable diligence, and the public officer makes an affidavit tothat effect, then the serving of the complaint or order upon the persons may bemade by publishing the same once each week for two consecutive weeks in anewspaper printed and published in the county, or, in the absence of suchnewspaper, in one printed and published in the State and circulating in thecounty in which the dwellings are located.  A copy of the complaint or ordershall be posted in a conspicuous place on the premises affected by thecomplaint or order.  A copy of the complaint or order shall also be filed withthe registrar of conveyances or, in the case of registered land (but excludinga leasehold time share interest), with the assistant registrar of the landcourt as provided in section 501-136, and the filing of the complaint or ordershall have the same force and effect as other lis pendens notices provided bylaw.

(e)  Any person affected by an order issued bythe board of appeals may petition the circuit court for an injunctionrestraining the public officer from carrying out the provisions of the orderand the court may, upon such petition, issue a temporary injunction restrainingthe public officer pending the final disposition of the cause, provided thatthe petition is filed within sixty days after the posting and service of theorder of the board of appeals.  Hearings shall be held by the court on suchpetitions within twenty days, or as soon thereafter as possible, and shall begiven preference over other matters on the court's calendar.  The court shallhear and determine the issues raised and shall enter a final order or decree inthe proceeding.  In all the proceedings the findings of the board of appeals asto the facts, if supported by evidence shall be conclusive.  Costs shall be inthe discretion of the court.  Except as otherwise provided in chapter 91, theremedies herein provided shall be exclusive remedies and no person affected byan order of the board of appeals shall be entitled to recover any damages foraction taken pursuant to any order of the board of appeals, or because ofcompliance by the person with any order of the board of appeals.

(f)  An ordinance adopted by the council mayauthorize the public officer to exercise such powers as may be necessary orconvenient to carry out and effectuate the purposes and provisions of thissection, including the following powers in addition to others herein granted:

(1)  To investigate the dwelling conditions in thecounty in order to determine which dwellings therein are unfit for humanhabitation;

(2)  To enter upon premises for the purpose of makingexaminations, provided that the entries shall be made in such manner as tocause the least possible inconvenience to the persons in possession, and toobtain an order for this purpose from a court of competent jurisdiction in theevent entry is denied or resisted;

(3)  To appoint and fix the duties of such officers,agents, and employees as the public officer deems necessary to carry out thepurposes of such ordinance;

(4)  To delegate any of the public officer's functionsand powers under the ordinance to such officers, agents, and employees as thepublic officer may designate.

(g)  The council adopting an ordinance underthis section shall as soon as possible thereafter prepare an estimate of theannual expenses or costs to provide the equipment, personnel, and suppliesnecessary for periodic examinations and investigations of the dwellings in thecounty for the purpose of determining the fitness of the dwellings for humanhabitation, and for the enforcement and administration of its ordinance orordinances adopted under this section.

(h)  Nothing in this section shall be construedto abrogate or impair the powers of the courts or of any department of anycounty or the State to enforce any provisions of its charter or its ordinancesor regulations, nor to prevent or punish violations thereof; and the powersconferred by this section shall be in addition and supplemental to the powersconferred by any other law.

(i)  Nothing in this section shall be construedto impair or limit in any way the power of the county or of the department ofhealth of the State to define and declare nuisances and to cause their removalor abatement, by summary proceedings or otherwise. [L 1955, c 271, pt of §1; RL1955, §143-60; am L Sp 1959 2d, c 1, §19; am L 1965, c 96, §90; HRS §53-60; amL 1970, c 55, §1; gen ch 1985; am L 1998, c 219, §2]

 

Cross References

 

  Service by certified mail, see §1-28.

 

Case Notes

 

  Notice of hearing must be given to person in possession.  61H. 156, 598 P.2d 168.