House Bill 617

AN ACT TO AUTHORIZE THE GOVERNING AUTHORITY OF ANY MUNICIPALITY, TO WAIVE LIENS, UNDER CERTAIN CIRCUMSTANCES, THAT ARE IMPOSED ON REAL PROPERTY FOR COSTS AND/OR PENALTIES ASSOCIATED WITH A MUNICIPALITY'S CLEANING OF REAL PROPERTY THAT HAS BEEN DEEMED A MENACE; TO PROVIDE THAT AN APPLICATION FOR THE WAIVER BE SUBMITTED FOR CONSIDERATION OF SUCH WAIVER; TO PROHIBIT THE PROPERTY OWNER WHO CAUSED THE PROPERTY TO BE DEEMED A MENACE BY THE MUNICIPALITY FROM SUBMITTING SUCH APPLICATION; TO AMEND SECTION 21-19-11, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. As used in this act unless the context otherwise requires:

(a) "Amnesty" or "waiver" means the forgiveness of an assessment against a property or individual(s) of the costs and related penalties associated with the cleanup incurred by or paid by the municipality to clear code violations. Approvals for such amnesty or waiver shall specify dollar amounts or are otherwise assumed to be in full. Amnesty or waiver referenced in this section applies to those costs and penalties applicable set out in Section 21-19-11 and in no way relieves costs, fines or other orders imposed by any court.

(b) "Governing authority" means the governing authority of a municipality.

SECTION 2. The governing authority of any municipality is authorized with the conditions enumerated in this act to consider and award, when it deems appropriate, the full or partial waiver of assessments against properties or individuals as a result of the municipality having acted to clear code violations.

SECTION 3. Whereas, the purpose of the governing authority in exercising the authority under this act, is to foster development and reuse of properties formerly found to be a menace by the municipality by virtue of any number of code violations or blight conditions, the following circumstances must exist to consider such waiver or amnesty:

(a) The governing authority must have adopted a resolution and entered on its minutes a finding that (i) collection of the assessment and related penalties through the ordinary process of law has been and will likely be ineffectual and therefore is a doubtful claim; and (ii) it will be more beneficial to the municipality for the new owner of the property to have the property free of any liens of the municipality, which will make it easier for the owner to develop, reuse or redevelop the property.

(b) Such waiver or amnesty shall not unduly benefit the owner(s) responsible for the property's past code violation condition. Application shall be made by a new owner or a prospective new owner.

(c) The property for which such waiver or amnesty is requested are those where the municipality, by its own labor or its contractors, have acted to clear violations by any legal process available to it and where there are costs and/or penalties associated with the property and/or its owner(s) and where the work performed was no less than one year prior to the application for amnesty.

(d) Costs and/or penalties may be considered for waiver/amnesty regardless of whether or not the associated costs have been assessed by the tax collector to be collected along with the standard taxes for the property. Costs and/or penalties may also be considered for waiver/amnesty if they have been sold for taxes but have not yet been redeemed. Costs/penalties already paid or sold at tax sale and already redeemed shall not be eligible for waiver/amnesty.

SECTION 4. The municipality shall require application for consideration of lien waiver/amnesty to include the following:

(a) An owner or prospective owner must make application to the municipality for such amnesty, but in no case may the owner responsible for the past code enforcement action or anyone in any way affiliated with such owner be eligible to apply.

(b) Application must include plans for redevelopment, reuse, alternative use, or improved maintenance of the property, and the governing authority shall use the assurances of the developer as the basis for negotiating any terms and conditions it deems appropriate.

(c) Application for amnesty requires that the new or prospective owner supply one recent appraisal of the property from a reputable real estate appraiser or the county tax assessor's appraised value, or if vacant land, an appraisal, the tax assessor's appraised value, or a competitive sales analysis by a reputable real estate professional, identifying its post-cleaning condition. The applicant must also provide a copy of the contract or closing documents for purchase revealing that the purchase price does not exceed the appraised or analyzed value.

SECTION 5. The governing authority of a municipality shall be the decision-making body determining what developments warrant lien waiver/amnesty and conditions to apply.

(a) Amnesty may be denied or may be granted in full or in part by the governing authority and its consideration of all factors, but in no case shall any such lien be waived or reduced until such time that the governing authority has acted to confirm that its conditions have been met.

(b) For properties where demolition is a part of the agreed upon plan, demolition must occur within twelve (12) months of approval. For reuse or redevelopment of structures, all conditions must be satisfied within eighteen (18) months of approval. For agreements where demolition is the only proposed action or where improved maintenance of a vacant parcel is the only proposed action, the property must be sufficiently maintained for no less than twelve (12) months prior to finding that all conditions of amnesty have been satisfied. For good cause shown, the municipality may allow an additional six (6) to twelve (12) months to satisfy conditions.

(c) Approvals for lien waivers/amnesty shall be approved on conditional basis only, and releases therefor shall not be approved or filed until the governing authority of the municipality has formally acknowledged that the conditions of the lien waiver/amnesty agreement have been met.

(d) Upon approval of a conditional waiver/amnesty where the cost has already been posted to the tax rolls, the municipality will coordinate with the tax collector to withdraw and hold in abeyance that assessment until such time that the conditions of the governing authority have been satisfied.

(e) If the owner has not satisfied the conditions within the time period established and the municipality has not extended the period allowed, the owner must pay the principal amount of the municipality's lien plus interest at the rate of eight percent (8%) per annum.

(f) If the owner desires to sell or dispose of the real property prior to satisfying the conditions, the owner must first obtain the municipality's approval. If the municipality approves the sale or disposal of the real estate prior to satisfying the conditions, the owner shall pay the principal amount of the lien on or before the closing date of the sale unless a subsequent purchaser of the blighted real property has applied for and been granted conditional lien amnesty.

(g) If an owner sells or disposes of the real property prior to satisfying the conditions without the municipality's approval, then the owner shall be liable to the municipality for the principal amount of the lien plus interest at the rate of eight percent (8%), and a penalty of One Thousand Five Hundred Dollars ($1,500.00) will also be assessed against the owner.

SECTION 6. Section 21-19-11, Mississippi Code of 1972, is amended as follows:

21-19-11. (1) To determine whether property or parcel of land located within a municipality is in such a state of uncleanliness as to be a menace to the public health, safety and welfare of the community, a governing authority of any municipality shall conduct a hearing, on its own motion, or upon the receipt of a petition signed by a majority of the residents residing within four hundred (400) feet of any property or parcel of land alleged to be in need of the cleaning. Notice shall be provided to the property owner by:

(a) United States mail two (2) weeks before the date of the hearing mailed to the address of the subject property, except where the land or structure(s) is apparently vacant, and to the address where the ad valorem tax notice for such property is sent by the office charged with collecting ad valorem tax; and

(b) Posting notice for at least two (2) weeks before the date of a hearing on the property or parcel of land alleged to be in need of cleaning and at city hall or another place in the municipality where such notices are posted.

Any notice required by this section shall include language that informs the property owner that an adjudication at the hearing that the property or parcel of land is in need of cleaning will authorize the municipality to reenter the property or parcel of land for a period of two (2) years after final adjudication without any further hearing if notice is posted on the property or parcel of land and at city hall or another place in the municipality where such notices are generally posted at least seven (7) days before the property or parcel of land is reentered for cleaning. A copy of the required notice mailed and posted as required by this section shall be recorded in the minutes of the governing authority in conjunction with the hearing required by this section.

If, at such hearing, the governing authority shall adjudicate the property or parcel of land in its then condition to be a menace to the public health, safety and welfare of the community, the governing authority, if the owner does not do so himself, shall proceed to clean the land, by the use of municipal employees or by contract, by cutting grass and weeds; filling cisterns; removing rubbish, abandoned or dilapidated fences, outside toilets, abandoned or dilapidated buildings, slabs, personal property, which removal of personal property shall not be subject to the provisions of Section 21-39-21, and other debris; and draining cesspools and standing water therefrom. The governing authority may by resolution adjudicate the actual cost of cleaning the property and may also impose a penalty not to exceed One Thousand Five Hundred Dollars ($1,500.00) or fifty percent (50%) of the actual cost, whichever is more. The cost and any penalty may become a civil debt against the property owner, and/or, at the option of the governing authority, an assessment against the property. The "cost assessed against the property" means either the cost to the municipality of using its own employees to do the work or the cost to the municipality of any contract executed by the municipality to have the work done, and administrative costs and legal costs of the municipality. For subsequent cleaning within the one-year period after the date of the hearing at which the property or parcel of land was adjudicated in need of cleaning, upon seven (7) days' notice posted both on the property or parcel of land adjudicated in need of cleaning and at city hall or another place in the municipality where such notices are generally posted, and consistent with the municipality's adjudication as authorized in this subsection (1), a municipality may reenter the property or parcel of land to maintain cleanliness without further notice or hearing no more than six (6) times in any twelve-month period with respect to removing abandoned or dilapidated buildings, slabs, dilapidated fences and outside toilets, and no more than twelve (12) times in any twenty-four-month period with respect to cutting grass and weeds and removing rubbish, personal property and other debris on the land, and the expense of cleaning of the property, except as otherwise provided in this section for removal of hazardous substances, shall not exceed an aggregate amount of Twenty Thousand Dollars ($20,000.00) per year, or the fair market value of the property subsequent to cleaning, whichever is more. The aggregate cost of removing hazardous substances will be the actual cost of such removal to the municipality and shall not be subject to the Twenty Thousand Dollars ($20,000.00) limitation provided in this subsection. The governing authority may assess the same penalty for each time the property or land is cleaned as otherwise provided in this section. The penalty provided herein shall not be assessed against the State of Mississippi upon request for reimbursement under Section 29-1-145, nor shall a municipality clean a parcel owned by the State of Mississippi without first giving notice. Upon written authority from the Secretary of State's office, for state-owned properties, a municipality may forgo the notification process that is prescribed in this subsection and proceed to clean the properties and assess costs as prescribed in this subsection, except that penalties shall not be assessed against the State of Mississippi.

(2) When the fee or cost to clean property or a parcel of land that is one (1) acre or less does not exceed Two Hundred Fifty Dollars ($250.00), excluding administrative costs, and the property or parcel is located within a municipality having a population over one thousand five hundred (1,500), the governing authority of the municipality may authorize one or more of its employees to determine whether the property or parcel of land is in such a state of uncleanliness as to be a menace to the public health, safety and welfare of the community and the determination made by the authorized municipal employee shall be set forth and recorded in the minutes of the governing authority. Notice of this determination shall be provided to the property owner by:

(a) United States mail seven (7) days before the date of cleaning of the property or parcel of land mailed to the address of the subject property, except where the land or structure(s) is apparently vacant, and to the address where the ad valorem tax notice for such property is sent by the office charged with collecting ad valorem tax; and

(b) Posting notice for at least seven (7) days before the cleaning of the property or parcel of land and at city hall or another place in the municipality where such notices are posted.

Any notice required by this subsection shall include language that informs the property owner that the appropriate municipal official has determined that the property or parcel of land is a menace to the public health, safety and welfare of the community and in need of cleaning and the municipality is authorized to enter the property for cleaning and that the municipality is further authorized to reenter the property or parcel of land for a period of two (2) years after this cleaning without any further hearing or action if notice is posted on the property or parcel of land and at city hall or another place in the municipality where such notices are generally posted at least seven (7) days before the property or parcel of land is reentered for cleaning. A copy of the required notice mailed and posted as required by this subsection shall be recorded in the minutes of the governing authority in conjunction with the determination made by the municipal employee in this subsection (2).

If an authorized municipal employee determines that the condition of property or parcel of land is a menace to the public health, safety and welfare of the community, the governing authority, if the owner does not do so himself, shall proceed to clean the land, by the use of municipal employees or by contract, by cutting grass and weeds; filling cisterns; removing rubbish, abandoned or dilapidated fences, outside toilets, abandoned or dilapidated buildings, slabs, personal property, which removal of personal property shall not be subject to the provisions of Section 21-39-21, and other debris; and draining cesspools and standing water therefrom. The governing authority shall by resolution adjudicate the actual cost of cleaning the property under this provision, provided the same does not exceed Two Hundred Fifty Dollars ($250.00) and may also impose a penalty not to exceed One Hundred Dollars ($100.00) or one hundred percent (100%) of the actual cost of cleaning the property, whichever is more. The cost and any penalty imposed may become a civil debt against the property owner, and/or, at the option of the governing authority, an assessment against the property. The "cost assessed against the property" means either the cost to the municipality of using its own employees to do the work or the cost to the municipality of any contract executed by the municipality to have the work done, and additionally may include administrative costs of the municipality not to exceed Fifty Dollars ($50.00). For subsequent cleaning within the one-year period set forth in this subsection (2), upon seven (7) days' notice posted both on the property or parcel of land adjudicated in need of cleaning and at city hall or another place in the municipality where such notices are generally posted, and consistent with the municipal official's determination as authorized in this subsection (2), a municipality may reenter the property or parcel of land to maintain cleanliness without further notice or hearing under this subsection (2) no more than six (6) times in any twelve-month period with respect to removing abandoned or dilapidated buildings, slabs, dilapidated fences and outside toilets, and no more than twelve (12) times in any twenty-four-month period with respect to cutting grass and weeds and removing rubbish, personal property and other debris on the land, and the expense of cleaning of the property shall not exceed an aggregate amount of One Thousand Dollars ($1,000.00) per year under this subsection (2). The governing authority may assess the same actual costs, administrative costs and penalty for each time the property or land is cleaned as otherwise provided in this subsection (2). The penalty provided herein shall not be assessed against the State of Mississippi upon request for reimbursement under Section 29-1-145, nor shall a municipality clean a parcel owned by the State of Mississippi without first giving notice. Upon written authority from the Secretary of State's office, for state-owned properties, a municipality may forgo the notification process that is prescribed in this subsection and proceed to clean the properties and assess costs as prescribed in this subsection, except that penalties shall not be assessed against the State of Mississippi. A determination made by an appropriate municipal employee under this subsection (2) that the state or condition of property or a parcel of land is a menace to the public health, safety and welfare of the community shall not subsequently be used to replace a hearing if subsection (1) of this section is later utilized by a municipality when the prerequisites of this subsection (2) are not satisfied.

(3) If the governing authority declares, by resolution, that the cost and any penalty shall be collected as a civil debt, the governing authority may authorize the institution of a suit on open account against the owner of the property in a court of competent jurisdiction in the manner provided by law for the cost and any penalty, plus court costs, reasonable attorney's fees and interest from the date that the property was cleaned.

(4) (a) If the governing authority declares that the cost and any penalty shall be collected as an assessment against the property, then the assessment above provided for shall be a lien against the property and may be enrolled in the office of the chancery clerk of the county as other liens and encumbrances are enrolled, and the tax collector of the municipality shall, upon order of the board of governing authorities, proceed to sell the land to satisfy the lien as now provided by law for the sale of lands for delinquent municipal taxes. The lien against the property shall be an encumbrance upon the property and shall follow title of the property.

(b) (i) All assessments levied under the provisions of this section shall be included with municipal ad valorem taxes and payment shall be enforced in the same manner in which payment is enforced for municipal ad valorem taxes, and all statutes regulating the collection of other taxes in a municipality shall apply to the enforcement and collection of the assessments levied under the provisions of this section, including utilization of the procedures authorized under Sections 17-13-9(2) and 27-41-2.

(ii) All assessments levied under the provisions of this section shall become delinquent at the same time municipal ad valorem taxes become delinquent. Delinquencies shall be collected in the same manner and at the same time delinquent ad valorem taxes are collected and shall bear the same penalties as those provided for delinquent taxes. If the property is sold for the nonpayment of an assessment under this section, it shall be sold in the manner that property is sold for the nonpayment of delinquent ad valorem taxes. If the property is sold for delinquent ad valorem taxes, the assessment under this section shall be added to the delinquent tax and collected at the same time and in the same manner.

(5) All decisions rendered under the provisions of this section may be appealed in the same manner as other appeals from municipal boards or courts are taken. However, an appeal from a decision of a municipal officer or official shall be made to the governing authority and such appeal shall be in writing, state the basis for the appeal and be filed with the city clerk no later than seven (7) days from the latest date of notice required under this section.

(6) (a) Nothing contained under this section shall prevent any municipality from enacting criminal penalties for failure to maintain property so as not to constitute a menace to public health, safety and welfare.

(b) Nothing contained under this section shall prevent any municipality from awarding, when it deems appropriate, the full or partial waiver of assessments against properties or individuals, as authorized under Sections 1 through 5 of this act, as long as the requirements and conditions set out under Sections 3 through 5 of this act are satisfied.

(7) (a) If private property or a parcel of land located within a municipality is a perpetual care cemetery subject to Section 41-43-1 et seq., the governing authority of the municipality may proceed pursuant to the same provisions of this section used to determine whether a property is a public health menace to instead determine if the perpetual care cemetery and all structures on the cemetery are not being properly maintained and have become detrimental to the public health and welfare. A perpetual care cemetery that is "not being properly maintained and has become detrimental to the public health and welfare" means a perpetual care cemetery that shows signs of neglect, including, without limitation, the unchecked growth of vegetation, repeated and unchecked acts of vandalism, unusable entrances and exits, excess rubbish or debris, or the disintegration of grave markers or boundaries. Upon notice and opportunity to be heard as provided in subsection (1) of this section, the governing authority of the municipality may adjudicate the property or parcel of land in its then condition to be not properly maintained and detrimental to the public health and welfare, and if the owner does not do so itself, may proceed to clean the property or parcel of land as provided in subsection (1) of this section. When cleaning the property or parcel of land of a perpetual care cemetery pursuant to this subsection (7), the penalty or penalties provided in subsection (1) of this section shall not be assessed against owners of the perpetual care cemeteries.

(b) The governing authority of a municipality that cleans the property or parcel of land of a perpetual care cemetery pursuant to this subsection (7) may make application to the Secretary of State for an order directing the trustee of the perpetual care cemetery trust fund to release accrued interest or principal of the trust fund sufficient to reimburse the municipality for only the actual cleanup costs incurred by the municipality. The application to the Secretary of State shall include a statement by the municipality that all of the requirements of this section have been met.

(c) If the Secretary of State is satisfied that the notice and hearing requirements of this section have been met, and that the application for an order directing the trustee to release accrued interest of the perpetual care cemetery trust fund does not threaten the ability of the trust fund to provide for the care and maintenance of the cemetery, the Secretary of State may order the trustee to release accrued interest of the trust fund sufficient to reimburse the municipality for the actual costs of cleanup performed by the municipality.

(d) If the Secretary of State is satisfied that the notice and hearing requirements of this section have been met, but makes a determination that the accrued interest of the perpetual care cemetery trust fund is insufficient to reimburse the municipality for the actual costs of cleanup performed by the municipality, or that an order to release accrued interest would threaten the ability of the trust fund to provide for the care and maintenance of the cemetery, the Secretary of State may consider an order directing the trustee to reimburse the municipality from the principal of the trust fund. If the Secretary of State determines that an order to the trustee to release principal from the trust fund will not threaten the solvency of the trust fund, the Secretary of State may order the trustee to release principal of the trust fund in an amount sufficient to reimburse the municipality for the actual costs of cleanup performed by the municipality.

(i) The Secretary of State may not order the trustee to release an amount of more than fifteen percent (15%) of principal of the trust fund to reimburse the municipality for the actual costs of cleanup performed by the municipality.

(ii) The provisions of this section may be utilized no more than once in a four-year period.

SECTION 7. This act shall take effect and be in force from and after July 1, 2022.