The Procedural Dangers Of Dangerous Building Proceedings
Hardly a week goes by without a story in the local paper about a Maine municipality grappling with what to do about an abandoned or dilapidated building in town. The fact patterns are remarkably similar: A home in significant disrepair, junk in the yard, an absentee property owner, complaints by neighbors—and, consequently, political pressure to “do something about it!”
So what can municipal officials do? The state’s dangerous buildings law (Title 17, Sections 2851- 2859 of the Maine Revised Statutes) provides several options, but—beware—each comes with its own procedural pitfalls.
Securing Buildings in the Case of Serious Threats to Health and Safety
First and foremost, if a building poses a serious threat to public health and safety, the municipality should immediately act to secure it. Notice must be served, although not before securing the building in these situations. The Code Enforcement Officer (CEO) should attempt to contact the owner by phone or email to inform him or her of the municipality’s intentions and document the threat in writing. The CEO should not wait to arrange for the building to be secured, however. Any delay in these instances could raise questions as to whether the threat is, indeed, serious.
Once the building is secured, notice must be personally served by a sheriff or deputy sheriff on the owner and all “parties-in-interest”—including any mortgagors, mortgagees, holders of the fee interest, lessees pursuant to recorded leases or memoranda of leases, lienors and attaching creditors listed in the records of the Registry of Deeds. In other words, a title search is needed to identify all the parties-in-interest.
Local Process: Declaring a Building to be “Dangerous”
The dangerous building statute sets forth a specific process for municipal officers—that is, selectpersons or councilors—to declare a building to be a nuisance or dangerous and order corrective action, including the repair or demolition of the structure.
Under state law, a building may be found dangerous if it is structurally unsafe; is unstable or unsanitary; constitutes a fire hazard; is unsuitable or improper for the use or occupancy to which it is put; constitutes a hazard to health or safety because of inadequate maintenance, dilapidation, obsolescence or abandonment; or is otherwise dangerous to life or property. A “building” for this purpose is defined as “a building or structure, or any portion of a building or structure, or any wharf, pier, pilings or, any portion thereof, that is located on or extending from land within the boundaries of the municipality as measured from the low water mark.”
Before this statutory process is initiated, however, the municipality has often already taken steps to attempt to resolve the situation. Typically, these initial steps include a CEO inspection, delivery of one or more notices of violation, and efforts to reach a consensual settlement with the property owner. In situations where the CEO identifies the property to be a potential dangerous building, the notice of violation should warn the owner that, if the dangerous condition is not corrected within a certain timeframe, the CEO will advise the municipal officers to initiate a dangerous building proceeding. The notice of violation should also spell out the consequences of a dangerous building proceeding to the owner, including the possible assessment of a special tax to recover the costs of expenses incurred by the municipality related to that proceeding and collection by automatic lien foreclosure.
When these initial steps do not resolve the situation, a municipality can follow the statutory process to declare the building to be a nuisance or dangerous and to order corrective action, including demolition of the building.
It bears mention that demolition of property is a drastic governmental action, which can put a municipality at risk for a lawsuit and, ultimately, damages for wrongful removal. As such, the decision to proceed should not be taken lightly and a municipality should consult with legal counsel before commencing this process to both weigh the risks and rewards and ensure that all legal requirements are met.
In sum, the local process involves the following steps:
1. Conduct a Title Search: A title search is needed to identify the owner of record, as well as all “parties-in-interest,” which is defined in state law as including any mortgagors, mortgagees, holders of the fee interest, lessees pursuant to recorded leases or memoranda of leases, lienors and attaching creditors listed in the records of the Registry of Deeds.
2. Schedule a Hearing and Serve Notice: The municipal officers vote to set a hearing to adjudicate whether or not the building is dangerous or a nuisance, and issue a notice of hearing. The notice should be signed by the municipal officers and attested by the municipal clerk. The original must be recorded in the Registry of Deeds, and an attested copy must be personally served on each owner and party-in-interest by the sheriff or deputy sheriff in the county in which the party is located. The returns of service must be provided to the municipality. To allow adequate time to serve the notice on the owner and parties-in-interest, the hearing should be scheduled out about 3 or 4 weeks.
3. Conduct an Inspection: If not already done, the CEO, Fire Chief, and any other municipal official with enforcement authority should conduct an inspection of the property and prepare an inspection report, with photographs documenting all dangerous or nuisance conditions—including broken windows, doors, stairways; loose bricks or trim; debris in the yard; etc. If the CEO cannot obtain consent from the owner to inspect the interior of the building, an administrative inspection warrant should be secured. In addition, in some circumstances, a registered engineer may need to be hired to inspect the building and prepare a written report to document whether or not the building is structurally safe or salvageable.
4. Hold the Hearing: Only after the owner and parties-in-interest have been properly served may the municipal officers hold the hearing. The CEO, Fire Chief, engineer (if hired), and any other municipal official with information about the property should present evidence relevant to the dangerous or nuisance conditions. Any owner or any party-in-interest attending the hearing should also be given an opportunity to testify.
5. Deliberate: Immediately following the hearing, the municipal officers must consider whether the building is “dangerous or a nuisance,” based on the definition in state law. The municipal officers then sign an order containing detailed findings of fact supporting the conclusion that the building is or is not dangerous, and outlining any corrective action that must be taken by the owner to abate the situation. (In practical effect, a draft order is either prepared ahead of the hearing and the municipal officers amend it as necessary as part of their deliberations, or the municipal officers direct the CEO or town attorney to draft the order after the deliberations and reconvene at another time to sign the order.)
6. Serve and Record the Order: The signed order must be recorded in the Registry of Deeds and an attested copy must be personally served upon the owner and the parties-in-interest in the same manner as the notice of hearing was served.
7. Take Corrective Action: Typically, the order provides the owner with at least 30 days to demolish or repair the building to the municipality’s satisfaction. If the necessary corrective action is not taken by the owner, the order will give the municipal manager the authority to abate the property1. Note that any personal property inside a building that has been declared dangerous must be disposed of in accordance with the statutory process for disposing of abandoned property, set forth in Title 30-A, Section 3106 of the Maine Revised Statutes.
8. Recover Expenses: The municipality must itemize all costs related to the dangerous building proceeding action and issue a written demand to the owner. The costs that may be recovered by the municipality include the costs of title searches, service of process, reasonable attorney’s fees, costs to secure the building, costs to repair or demolish the building, clean-up costs, and all other costs that are reasonably related to the dangerous building proceeding. If the owner fails to pay the demand within 30 days, the municipality may assess a special tax on the property, which is included in the next annual warrant to the tax collector and is collected in the same manner as other municipal taxes are collected. (Note that because the special tax is not an ad valorem tax, it cannot be used to determine the mil rate and should be issued as a separate tax bill on the property.) If the tax is not paid, it may be collected using the same automatic lien foreclosure process that is used to collect property taxes.
Alternative Court Process
State law allows municipalities to seek an abatement or demolition order directly from the Superior Court, rather than using the local proceeding outlined above. After a hearing, the Court may order corrective action and award costs to the municipality.
In addition, the statute allows a municipality to use a summary process in situations involving immediate and serious threats to public health, safety, and welfare. After the municipality files a complaint with the Superior Court, the Court may set a hearing within 10 days of the filing of the complaint and may order the owner and parties-in-interest to appear. After the hearing, the Court may order corrective action and award costs.
Because many legal considerations come into play in pursuing these legal actions, a call to a municipal attorney is a necessary step in deciding whether a court process is appropriate for any given situation.
There is no question that the dangerous building process is onerous, requiring municipal officials to take numerous time-consuming and costly steps to ensure that all affected parties—that is, the owner and parties-in-interest—are properly notified, given meaningful opportunity to participate in the process, and ultimately challenge any decision of the municipal officers. The reason for all of this process is clear—and clearly necessary: At the end of the day, the dangerous building statute authorizes local government to demolish a person’s home. This grant of power justifies a commensurate dose of due process.
Note that, last year, the Maine Legislature updated the dangerous building statute to allow for the delay of demolition of a dangerous building if an owner or party-in-interest has demonstrated an ability and willingness to rehabilitate the building. See LD 1959 (“An Act to Protect the Public from Dangerous Buildings”), P.L. 2017 ch. 136.
This article first appeared in Front Page on March 7, 2018
Aga Dixon focuses her legal practice on public finance and municipal and land use matters. Before joining the law firm of Drummond Woodsum, Aga was a senior planner at the Maine Land Use Planning Commission (LURC) where she coordinated comprehensive planning projects, rulemaking initiatives, and regulatory reviews of significant and controversial development projects. Since then, Aga has assisted municipal clients with drafting, enacting, and enforcing ordinances that address local concerns and achieve planning objectives.