§53-60 - Ordinance relating to repair, closing, and demolition of dwellings unfit for human habitation.

§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 county
dwellings which are unfit for human habitation due to dilapidation, defects
increasing the hazards of fire, accidents, or other calamities, lack of
ventilation, light or sanitary facilities, or due to other conditions,
including those set forth in subsection (c) hereof, rendering the dwelling
unsafe or unsanitary, or dangerous or detrimental to the health, safety, or
welfare, 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 herein
provided.  A "dwelling" means any building, or structure, or part
thereof, used and occupied for human habitation or intended to be so used, and
includes any appurtenances belonging thereto or usually enjoyed therewith.

(b)  Upon the adoption of an ordinance finding
that dwelling conditions of the character described in subsection (a) hereof
exist within a county, the council may adopt ordinances relating to the
dwellings within the county which are unfit for human habitation.  The
ordinances shall include the following provisions except as otherwise provided
by chapter 91:

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

(2)  That whenever a petition is filed with the public
officer by at least five residents of the county charging that any dwelling is
unfit for human habitation or whenever it appears to the public officer (on the
public officer's own motion) that any dwelling is unfit for human habitation,
the public officer shall, if the public officer's preliminary investigation
discloses 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 that
respect.  Such complaint shall contain a notice that a hearing will be held
before the board of appeals at a place therein fixed not less than ten days nor
more 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 answer
to the complaint and to appear in person or otherwise, and give testimony at
the place and time fixed in the complaint; and that the rules of evidence
prevailing in courts of law or equity shall not be controlling in hearings
before the board of appeals.

(3)  That the board of appeals may administer oaths,
affirmations, examine witnesses and receive evidence, and that if, after such
notice and hearing, the board of appeals determines that the dwelling under
consideration is unfit for human habitation it shall state in writing its
findings of fact in support of the determination and shall issue and cause to
be served upon the owner thereof an order which,

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

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

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

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

(6)  That the amount of the cost of the repairs,
alterations, or improvements, or vacating and closing, or removal or demolition
by the public officer shall be a lien against the real property upon which the
cost was incurred.  If the dwelling is removed or demolished by the public
officer the public officer shall sell the materials of the dwelling and shall
credit the proceeds of the sale against the cost of the removal or demolition
and any balance remaining shall be deposited with the clerk of the circuit
court 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 be
disbursed by the court to the persons found to be entitled thereto by final
order or decree of the court.

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

(d)  Complaints or orders issued pursuant to an
ordinance adopted under this section shall be served upon persons either
personally or by registered mail, but if the whereabouts of the persons is
unknown and the same cannot be ascertained by the public officer in the
exercise of reasonable diligence, and the public officer makes an affidavit to
that effect, then the serving of the complaint or order upon the persons may be
made by publishing the same once each week for two consecutive weeks in a
newspaper printed and published in the county, or, in the absence of such
newspaper, in one printed and published in the State and circulating in the
county in which the dwellings are located.  A copy of the complaint or order
shall be posted in a conspicuous place on the premises affected by the complaint
or order.  A copy of the complaint or order shall also be filed with the
registrar of conveyances or, in the case of registered land, with the assistant
registrar of the land court as provided in section 501-136, and the filing of
the complaint or order shall have the same force and effect as other lis
pendens notices provided by law.

(d)  [Subsection effective July 1, 1999.  For
present provision, see above.]  Complaints or orders issued pursuant to an
ordinance adopted under this section shall be served upon persons either
personally or by registered mail, but if the whereabouts of the persons is
unknown and the same cannot be ascertained by the public officer in the
exercise of reasonable diligence, and the public officer makes an affidavit to
that effect, then the serving of the complaint or order upon the persons may be
made by publishing the same once each week for two consecutive weeks in a
newspaper printed and published in the county, or, in the absence of such
newspaper, in one printed and published in the State and circulating in the
county in which the dwellings are located.  A copy of the complaint or order
shall be posted in a conspicuous place on the premises affected by the
complaint or order.  A copy of the complaint or order shall also be filed with
the registrar of conveyances or, in the case of registered land (but excluding
a leasehold time share interest), with the assistant registrar of the land
court as provided in section 501-136, and the filing of the complaint or order
shall have the same force and effect as other lis pendens notices provided by
law.

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

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

(1)  To investigate the dwelling conditions in the
county in order to determine which dwellings therein are unfit for human
habitation;

(2)  To enter upon premises for the purpose of making
examinations, provided that the entries shall be made in such manner as to
cause the least possible inconvenience to the persons in possession, and to
obtain an order for this purpose from a court of competent jurisdiction in the
event 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 the
purposes of such ordinance;

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

(g)  The council adopting an ordinance under
this section shall as soon as possible thereafter prepare an estimate of the
annual expenses or costs to provide the equipment, personnel, and supplies
necessary for periodic examinations and investigations of the dwellings in the
county for the purpose of determining the fitness of the dwellings for human
habitation, and for the enforcement and administration of its ordinance or
ordinances adopted under this section.

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

(i)  Nothing in this section shall be construed
to impair or limit in any way the power of the county or of the department of
health of the State to define and declare nuisances and to cause their removal
or abatement, by summary proceedings or otherwise. [L 1955, c 271, pt of §1; RL
1955, §143-60; am L Sp 1959 2d, c 1, §19; am L 1965, c 96, §90; HRS §53-60; am
L 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.  61
H. 156, 598 P.2d 168.