Section 147:16-a Procedure for Ordering Building Vacated.
The health officer shall have the authority to order occupants to vacate a building, structure, or other premises if the officer determines, based on reasonable information and belief, that the condition of such premises constitutes a clear and imminent danger to the life or health of occupants or other persons, and that protection of life or health requires vacating the premises. For the purposes of this section, ""officer'' shall mean any municipal official who orders such vacation, including the health officer acting under the authority of this section, RSA 147:4, or RSA 147:11, the building inspector acting under RSA 674:52-a, or the fire chief acting under RSA 154:21-a. The following procedure shall apply:
I. The officer shall inform the owner and all occupants of the premises of the order, orally or otherwise, as soon, and by such means, as are practicable. The order, if not effective immediately, shall include a reasonable time, in light of the seriousness and immediacy of the danger, within which vacation must occur.
II. A prominent notice shall be posted at each entrance to the building or other premises providing a brief description of the dangerous condition, and informing all persons that the premises has been ordered vacated, and of the officer making the order and the effective date and time of the order. Such notice shall not be removed during the period such order is in effect, and anyone removing such notice shall be guilty of a misdemeanor. The following wording, though not exclusive, shall be deemed sufficient:
""DANGER. THIS BUILDING (or other premises) IS UNSAFE BECAUSE OF THE FOLLOWING DANGEROUS CONDITION: (brief description) __________ EFFECTIVE (date and time). OCCUPANCY IS PROHIBITED BY ORDER OF THE (officer's title) OF THE TOWN (City) OF __________, UNDER AUTHORITY OF RSA 147:16-a. DETAILS OF THIS VIOLATION ARE ON FILE AT __________. ANYONE ENTERING THIS BUILDING (premises) WITHOUT PERMISSION OF THE (officer's title), OR ANYONE REMOVING THIS NOTICE SHALL BE GUILTY OF A MISDEMEANOR. PERSONS AGGRIEVED BY THIS ORDER MAY REQUEST A HEARING IN THE __________ DISTRICT COURT, AND MAY ASK THE COURT TO DIRECT THE RESPONSIBLE PARTY TO REMOVE OR ABATE THE DANGEROUS CONDITION.''
III. The officer shall cause written notice of the order to vacate to be sent, registered mail, to the owner of the property, if known, and to known lessees or others known to exercise control over the premises. Such written notice shall be mailed within 24 hours of the order to vacate, or upon the next business day thereafter, provided, however that no such mailing shall be necessary in cases where, due to immediate removal or abatement of the source of danger, the order has been countermanded before that time. In the alternative, the officer may cause the written notice to be served personally by a peace officer. The written notice shall contain the address and description of the premises, a statement of the particulars of the danger to life, health, or safety, a statement of the date and time that the order becomes or became effective, and a statement of the right to a hearing in district court to contest the order or to have the court consider whether to direct the responsible party to remove or abate the source of danger. The officer shall also forward a copy of the order to the local law enforcement agency having jurisdiction to enforce the order, and shall file a copy of the order, and a service list of the names and addresses of the people to whom the officer sent notice of the order, in the district court for the district in which the property is located. Any court filing fee shall be paid by the municipality.
IV. Any person specially aggrieved by the order to vacate may file a written request with the clerk of the district court for the district in which the property is located for a hearing to contest the order or to have the court consider whether to direct the responsible party to remove or abate the source of danger. The hearing shall be held no later than 7 days after the request is received by the clerk who shall send a hearing notice to the aggrieved person, the municipality, and any other person whose name appears on the service list filed in court by the municipality. The hearing shall concern whether the order to vacate is justified and/or whether the court shall order the responsible party to prospectively remove or abate the source of danger. Other issues, including any challenge to outstanding ordinance or code violations, cease and desist orders, or removal or repair orders, shall be contested only under the statutes appertaining to them. The court, upon presentation of such evidence as it may require, shall affirm, modify, or set aside the order to vacate, issue any such other appropriate order as is consistent with this paragraph, and enter judgment accordingly.
V. Any person who fails to comply with an order under this section, after having received due notice of it, either orally, in writing, or by posted notice, shall be guilty of a misdemeanor unless the district court has set aside the order. A deficiency in the municipal officer's adherence to this section shall not constitute a defense to the misdemeanor charge unless it amounts to failure of notice to the defendant.
VI. A municipality may combine any order to vacate under this section with other lawful orders, including but not limited to orders under RSA 147:7-a, RSA 154:20, RSA 155-B:2, or RSA 676:17-a, as long as the minimum procedures of this section are met. When and if the source of danger is removed or abated following the issuance of any order to vacate under this section or any order under paragraph IV or if the order to vacate is set aside by the district court, the displaced occupants shall have the right to return to occupancy in the building, structure, or other premises.
VII. The provisions of this section shall not apply to a residence which is occupied only by the owner and his or her immediate family, unless the condition of such premises constitutes a clear and imminent danger to the life or health of persons other than the occupant or occupants.
VIII. Nothing in this section shall be deemed to affect a municipality's duty to provide general assistance under RSA 165. No proceeding under this section shall be deemed to affect any legal rights between landlord and tenant.
IX. If the district court finds that a municipality's order to vacate under this section was frivolous, or was commenced in bad faith, or was not based upon reasonable information and belief, then the court may order the municipality to pay the costs and reasonable attorneys' fees of any aggrieved person requesting a hearing on the order to vacate under paragraph IV.
Source. 1998, 318:1, eff. Aug. 25, 1998.