BOROUGH OF EPHRATA Lancaster County, Pennsylvania ORDINANCE NO. 1536

Transcription

1 BOROUGH OF EPHRATA Lancaster County, Pennsylvania ORDINANCE NO AN ORDINANCE OF THE BOROUGH OF EPHRATA, LANCASTER COUNTY PENNSYLVANIA, AMENDING PART II OF THE CODE OF THE BOROUGH OF EPHRATA, LANCASTER COUNTY, PENNSYLVANIA, GENERAL LEGISLATION, BY ADDING THERETO CHAPTER 218, ENTITLED NUISANCE PROPERTIES BY IDENTIFYING AND PROHIBITING CERTAIN NUISANCE ACTIVITIES AND PROVIDING FOR A DECLARATION OF NUISANCE PROPERTY AND PROVIDING FOR THE APPEAL FROM SUCH DETERMINATION AND PROVIDING FOR PENALTIES FOR NONCOMPLIANCE BE IT ORDAINED AND ENACTED and it is hereby ordained and enacted by the Council of the Borough of Ephrata, Lancaster County, Pennsylvania, as follows: Section 1. The Code of the Borough of Ephrata is hereby amended by adding thereto Chapter 218 entitled Nuisance Properties to read as follows: General Provisions. A. Title This ordinance shall be known and may be cited as the "Borough of Ephrata Nuisance Properties Ordinance.". B. Authority This chapter is enacted under authority of 8 Pa.C.S. 101 et seq. (the Borough Code) C. Purpose It is the purpose and intent of this ordinance to ensure that public health, safety and welfare shall not be abridged by the making and creating of nuisance properties through nuisance activities created thereon within the Borough of Ephrata. To this end, Borough Council hereby authorizes and directs the Borough Manager ("Manager") or his/her designee, as provided in the following sections, to charge to the property owner the costs of abatement of nuisances arising from the conditions and/or activities at or upon nuisance property, and to enforce the provisions of this ordinance against the owner of and/or person responsible for a nuisance property when nuisance activity (as defined herein) remains unabated over an unreasonably long period of time. D. Scope This ordinance applies to all persons and property, within the Borough of Ephrata as regulated herein. E. Relationship with Other Restrictions The provisions of this ordinance are not intended to 1

2 interfere with, abrogate or annul other rules, regulations or ordinances, including Title 18 (Crimes Code) and Title 75 (Vehicle Code), Pennsylvania Consolidated Statutes or 42 U.S.C , The Fair Housing Act. If more stringent requirements concerning nuisance abatement are contained in the other rules, regulations or ordinances, the more stringent regulation shall apply. No provision, regulation, duty, limitation or restriction of this ordinance shall penalize a person for a contact made for police or emergency assistance by or on behalf of a victim of abuse as defined in 23 Pa.C.S (relating to definitions), a victim of a crime pursuant to 18 Pa.C.S. (relating to crimes and offenses) or an individual in an emergency pursuant to 35 Pa.C.S (relating to definitions), if the contact was made based upon the reasonable belief of the person making the contact that intervention or emergency assistance was necessary to prevent the perpetration or escalation of the abuse, crime or emergency or if the intervention or emergency assistance was actually needed in response to the abuse, crime or emergency Definitions Unless otherwise expressly stated or the context clearly indicates a different intention, the following terms or phrases shall have the following meanings: Borough - The Borough of Ephrata, Lancaster County, Pennsylvania. Borough Manager - For purposes of this Chapter, the individual appointed by the Council of the Borough pursuant to the provisions of Section 1141 of the Borough Code or his or her designee; Manager. Control - The ability to regulate, restrain, dominate, counteract or govern property, or conduct that occurs on a property. Cost of Abatement - The reasonable costs of abatement of one or more of the infractions set forth in Section 103 of this Chapter and as calculated by the Borough Manager, and shall include, but not be limited to actual costs and/or actual expenses incurred to abate the infraction and associated property inspections. No such costs shall be assessed for any public safety services. T h e f a i l u r e t o p a y a n y c o s t i m p o s e d u p o n t h e p r o p e r t y o w n e r s h a l l c o n s t i t u t e a l i e n a g a i n s t t h e p r o p e r t y a n d m a y b e e n f o r c e d a n d / o r c o l l e c t e d a s p r o v i d e d b y l a w. Drug-related activity - Any unlawful activity at a property which consists of the manufacture, delivery, sale, storage, possession, possession of drug paraphernalia or giving away of any controlled substance as defined by State law. Enforcement Officer - Any sworn or non-sworn codes enforcement officer or official of the Borough of Ephrata w h o h a s b e e n d e s i g n a t e d o r a s s i g n e d t h e d u t i e s o f c o d e enforcement for the Borough of Ephrata and any assistant or deputy thereof, and including any authorized member or officer of the Borough Police Department or other law enforcement organization having appropriate jurisdiction. I n v i t e e - A p e r s o n o n t h e p r o p e r t y w i t h t h e a c t u a l o r i m p l i e d c o n s e n t o f t h e o c c u p a n t, t e n a n t, o w n e r o r p e r s o n r e s p o n s i b l e. Nuisance activity - Any nuisance as defined by state law or local ordinance occurring on, around or near a property, including but not limited to, violations of the laws and regulations set forth in Section 103 of this Chapter. For purposes of this Chapter, "Nuisance Activity" shall not 2

3 include conduct where the person responsible is the victim of abuse, a victim of a crime and had no control over the criminal act or conduct committed by a person having no association with the property by acquaintance with, relation to or expressed or implied invitation from the owner, occupant, person responsible, operator or agent of the property. Nuisance property - Property on which combinations of three or more nuisance activities occur or exist during any consecutive 12 month period. O c c u p a n t / t e n a n t - An individual who resides on the property, whether or not as the owner, with or without a written lease. Person - Any natural person, joint venture, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, officer or employee of any of them; whenever used in any clause prescribing and imposing a penalty, "person" includes the individual members, partners, officers and managers or any of them of partnerships and associations and, as for corporations, the officers and managers thereof or any of them and any officer, employee, department, agency or instrumentality of a state or any political subdivision of a state. Person associated with - Any person who, whenever engaged in any infraction, is physically present at the subject property, enters, patronizes, or attempts to enter, patronize, or visit, or waits to enter, patronize, or visit a property or person present on a property, including any officer, director, customer, agent, employee, or independent contractor of the record owner of the subject property. Person responsible for the property or person responsible - May be used by this chapter interchangeably and unless otherwise defined, any person who has titled ownership of the property or structure which is subject to this chapter, an occupant in control of the property or structure which is subject to this chapter, a developer, builder, or business operator or owner who is developing, building or operating a business on the property or in a structure which is subject to this chapter and/or any person who has control over the property and allows a violation of this chapter to continue. Premises and property - May be used by this chapter interchangeably and means any public or private building, lot, parcel, dwelling, rental unit, real estate or land or portion thereof including property used as a residential or commercial property; a parcel of real estate, improved or unimproved, including but not limited to a house, room, apartment, building, garage, structure or other property or any part of any of the foregoing. Property owner - Any person or business entity listed as the record owner of any property within the boundaries of the Borough of Ephrata as set forth in the records of the Office for the Recording of Deeds in and for Lancaster County, Pennsylvania. Rental unit - Any structure or that part of a structure, including but not limited to single family home, room or apartment, which is rented to another and used as a home residence, or sleeping place by one or more persons Nuisance Activities Prohibited. A. Except as otherwise provided in this ordinance, it shall be unlawful for any person to engage in, make or cause to be made any nuisance activity or to allow any nuisance activity to be made in or on any real or personal property occupied or controlled by that person. 3

4 B. Nuisance activity shall be any form of conduct, action, omission, incident or behavior perpetrated, caused or permitted on a property by the owner(s), tenant(s), occupant(s), person(s) responsible or their invitee(s) of the property, which constitutes a violation of any of the following ordinances of the Code of the Borough of Ephrata or statutes of the Commonwealth of Pennsylvania: (1) Any public order offense relating to: soliciting business, noise control, unlicensed alcohol or liquor sale, or alcohol or liquor consumption on streets or sidewalks; or 18 Pa.C.S.A (riot), 18 Pa.C.S.A (failure to disperse), 18 Pa.C.S.A (disorderly conduct), 18 Pa.C.S.A (public drunkenness), 18 Pa.C.S.A (loitering), 18 Pa.C.S.A (lotteries), 18 Pa.C.S.A (gambling devices, gambling), or 18 Pa.C.S.A (pool selling and bookmaking); or 18 Pa.C.S.A (endangering the welfare of children), 18 Pa.C.S.A (possession of firearm by minor), 18 Pa.C.S.A (corruption of minors), 18 Pa.C.S.A (purchase, consumption or possession of alcoholic beverages by minor), 18 Pa.C.S.A (inducement of minor to buy alcoholic beverages), 18 Pa.C.S.A (selling or furnishing alcoholic beverages to minors), 18 Pa.C.S.A (selling or furnishing nonalcoholic beverages to minors) or 18 Pa.C.S.A (solicitation of minors to traffic drugs) of the Pennsylvania Crimes Code; (2) Any firearms or other weapons offense under the Code of the Borough of Ephrata or the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A et seq.; (3) Any violation related to the maintenance of a property free from noxious weeds, high grass and refuse under the Code of the Borough of Ephrata; (4) Any public decency offenses under the Code of the Borough of Ephrata or 18 Pa.C.S.A (open lewdness), 18 Pa.C.S.A (prostitution), 18 Pa.C.S.A (obscene and other sexual materials and performances), or 18 Pa.C.S.A (public exhibition of insane or deformed person); (5) Any violation related to the maintenance of property under Chapter 245 of the Code of the Borough of Ephrata; (6) Any sanitation violation the garbage/rubbish collection ordinances of the Borough of Ephrata or 18 Pa.C.S.A (scattering rubbish); (7) Any animal offense relating to animals or wildlife or 18 Pa.C.S.A (cruelty to animals); (8) Any violation of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act. 35 P.S et seq. (9) Violations of any existing ordinance of the Borough of Ephrata or other laws of the Commonwealth of Pennsylvania which results in a disturbance of the quiet use and enjoyment of the neighboring property Nuisance Properties Prohibited. A. Except as otherwise provided in this Chapter, it shall be unlawful for any person, property owner or person responsible, to maintain, operate or use, a nuisance property after the property has been designated a nuisance property as provided for in this Chapter. B. When the Manager determines that the owner(s), person(s) responsible, tenant(s) or occupant(s) of a property, or any person(s) present at a property with the permission and knowledge of the owner(s), person(s) responsible, tenant(s) or occupant(s), has been found guilty or has plead guilty to any nuisance activity initiated by the issuance of a citation or summons or 4

5 arrest occurring on the property on three separate occasions within any one-year period and no related appeals are pending, the Manager may declare the property to be a nuisance property and proceed with the notice and enforcement procedures set forth in this Chapter C. For all properties, including rental properties, containing two or more dwelling units, each individual unit shall be considered a "property" for purposes of enforcement of this chapter, thus, requiring that three separate citations, summons and/or arrests for nuisance activity must be made involving the same dwelling unit in order to declare the individual unit a nuisance property. Any occurrence of nuisance activity in the common area or curtilage of a rental property shall be charged to the specific rental unit that the actor occupies and not the property in whole. D. If after a property has been declared a nuisance property, no nuisance activities have occurred for a period of 12 consecutive months from the date of the notice of the declaration of the property as a nuisance property, the property will no longer be classified as a nuisance property. E. Any citation, summons or arrest for nuisance activity perpetrated by a tenant who is already in the process of being evicted shall not count towards the declaration of a nuisance property pursuant to Subsection B above, provided that the property owner can prove that an eviction action has been commenced in a court of law and that the property owner is actively prosecuting said eviction action against the tenant. F. A n o f f e n s e s h a l l n o t b e c o n s i d e r e d a n u i s a n c e a c t i v i t y i f i t i s c o m m i t t e d b y a p e r s o n h a v i n g n o a s s o c i a t i o n w i t h t h e p r o p e r t y b y a c q u a i n t a n c e w i t h, r e l a t i o n t o o r e x p r e s s e d o r i m p l i e d i n v i t a t i o n f r o m t h e o w n e r, o c c u p a n t, o p e r a t o r o r a g e n t o f t h e p r o p e r t y Notice of Nuisance Activity/Nuisance Property Declaration. A. The Manager shall provide written notice to the occupant of any property at which a citation, summons or arrest has been made for a nuisance activity. A separate notice shall be provided to the property owner for each citation, summons or arrest made for a nuisance activity occurring on a property. B. The notice identified in Subsection A shall be deemed to be properly delivered if sent either by first-class mail to the property owner's registered address or, if unavailable, to the property owner's last known address or as may be found in public records, or if delivered in person to the property owner or left at the property owner's usual place of abode in the presence of a competent member of the family at least 18 years of age or a competent adult residing there. If a current address cannot be located, notice shall be deemed sufficient if posted on the potential nuisance property, and a copy of the notice is sent via first-class mail to the last known address of the property owner. C. The notice required by Subsection A shall contain the following information: ( 1 ) The street address or legal description sufficient for identification of the property; ( 2 ) A description of the nuisance activity and the date on which the citation, summons or arrest was made; ( 3 ) A statement that the property is declared a nuisance property or, if the property has not yet been declared a nuisance property, a statement of the number of remaining citations, summons and/or arrests for nuisance activity which will result in such a declaration; ( 4 ) If the property has been declared a nuisance property, a statement that the 5

6 occurrence of any subsequent nuisance activity at this property within 12 months following the date of the notice may result in the property owner being cited with a summary violation and charged with the costs incurred by the Borough to abate nuisance activity; ( 5 ) If the property has been declared a nuisance property, a statement that the occurrence of any subsequent nuisance activity at this property within six months following the date of the notice may result in the suspension or revocation of the use and occupancy and/or rental permit for the property; ( 6 ) Notice of property owner's right to appeal pursuant to Section 107 of this Chapter and to obtain, upon written request for such, copies of all documentation supporting the Manager's determination that nuisance activity has occurred at the property; and ( 7 ) A statement that the property owner shall, within 15 business days of the date of the notice, respond to the Manager in writing, stating either: (a) The intent of the property owner to appeal the finding of the Manager, or his/her designee; or (b) A proposal detailing a course of action by which nuisance activities will be abated at the property Abatement of Nuisance Activity or Condition A. Within 15 business days of service of the notice of a nuisance property, the property owner may submit in writing a plan to the Manager by which the property owner proposes to prevent further nuisance activities from occurring at the property. The time period for implementation of any proposed plan shall not exceed 60 days from the date of plan submission approval or such greater time period as may be extended for good cause by the Borough Manager. The Manager shall, within 15 business days of receipt of said proposal, either approve or disapprove of the proposal and provide the property owner with written notice of his/her decision. The denial of a plan by the Manager may be appealed by the property owner pursuant to Section 107 of this Chapter. B. If the Manager determines that any subsequent nuisance activity occurred within 12 months after a property was declared a nuisance property, and the property owner failed to file either an appeal of the declaration pursuant to Section 107 of this Chapter or an approved plan to abate the nuisance property pursuant to Subsection A above, the property owner may be assessed all costs incurred by the Borough to abate the subsequent nuisance activity. Within 30 days of the Borough incurring any costs set forth in this subsection, the Manager shall present the property owner with a written demand for payment containing a description/summary of all costs incurred by the Borough and a notice that the property owner has the right to appeal the demand pursuant to Section 107 of this Chapter. The written demand shall be delivered to the property owner in accordance with Section 105 of this Chapter. Failure to pay any such costs of abatement to the property shall be cause for the Borough to file either or both an in rem judgment against the property or an in personam (personal) action against the property owner(s) for recovery of the costs incurred by the Borough. C. Costs of abatement shall be determined based on the time required to abate the nuisance activity multiplied by an hourly rate based upon the wages and benefits of the employee, vehicle and equipment costs, supervisory and administrative costs, and those of any contractors employed by the Borough to abate the nuisance activity. The hourly rate may be adjusted based on the number of employees and contractors required to abate the nuisance activity. 6

7 D. The Borough shall not assess any costs of abatement unless/until a final determination has been made by the Property Maintenance and Codes Appeals Board (hereinafter referred to as the "Appeals Board") pursuant to the provisions of this Chapter and Chapter 124 of the Code of the Borough of Ephrata or a court of competent jurisdiction on any appeal filed by the property owner pursuant to Section 107 of this Chapter or the property owner has failed to successfully implement a plan approved by the Manager pursuant to Subsection A above Appeal A. Any property owner or other person aggrieved by a notice of the issuance of a citation, summons or arrest for a nuisance activity at his/her property, a notice declaring his/her property a nuisance property, or a notice demanding payment for costs of abatement of a nuisance activity at a nuisance property may, within 15 business days of the service date of the notice, appeal the violation to the Appeals Board pursuant to the provisions of this Chapter. The Appeals Board shall conduct a hearing and render a decision in accordance with the provisions of this Chapter and Chapter 124 of the Code of the Borough of Ephrata and such other Borough ordinances, laws and regulations as may govern its conduct and procedure. The property owner may prevail on appeal of any notice if the owner demonstrates that: (1) He/she was not the owner at the time of any of the nuisance activity that was the basis of the notice; (2) He/she had knowledge of the nuisance activity but promptly and vigorously took all actions necessary to prevent the occurrence of future nuisance activity; or (3) He/she had no knowledge of the nuisance activity and could not, with reasonable care and diligence, have known of the activity; and upon receipt of the notice of the declaration of the property as a nuisance property, he/she promptly took all actions necessary to prevent an existing nuisance activity or condition or the occurrence of future nuisance activity or condition. B. Upon appeal of a notice declaring his/her property a nuisance property or a notice demanding payment for costs of abatement of a nuisance activity at a nuisance property, if a property owner is able to demonstrate to the Board that an eviction action has been commenced in a court of law and that the property owner is actively prosecuting said eviction action against the offending tenant, then the Board shall order a stay of any/all further enforcement of this chapter by the Borough pending a determination by the Magisterial District Judge or Lancaster County Court of Common Pleas Judge on the eviction action. If the property owner is successful in the eviction action, then the property will no longer be classified as a nuisance property. C. Upon appeal of a notice declaring his/her property a nuisance property or a notice demanding payment for costs of abatement of a nuisance activity at a nuisance property, if a property owner is able to demonstrate to the Board that one or more of the citations, summons or arrests for nuisance activity which was the basis of the declaration of nuisance property is subject to a "not guilty" plea by the offending party, then the Board shall order a stay of any/all further enforcement of this chapter by the Borough pending a determination by the Magisterial District Judge or Lancaster County Court of Common Pleas Judge on the citation or summons. If the offending party is found to be "not guilty" on one or more of the citations or summons, then the not guilty event or events shall not count toward the declaration of the property as a nuisance property. No occurrence shall be considered a violation as hereinabove set forth where such occurrence was included in an Accelerated Rehabilitative Disposition pursuant to the provisions of Pa.R.Crim.P. 300 et.seq. and the defendant has completed all conditions of that Disposition. 7

8 Violations and Penalties A. Any property within the Borough of Ephrata which is a nuisance property is in violation of this Chapter and subject to its remedies; and B. Any person responsible for property who permits property to be a nuisance property shall be in violation of this chapter and subject to its remedies. C. Any person responsible for property who fails to abate any nuisance activity occurring on the property after its designation as a nuisance property shall be in violation of this chapter and upon the occurrence of any such nuisance activity on the property within any 12 month period after its designation as a nuisance property, the person responsible s h a l l, u p o n s u m m a r y c o n v i c t i o n b y t h e M a g i s t e r i a l D i s t r i c t J u d g e, b e s e n t e n c e d t o p a y a f i n e o f n o t l e s s t h a n $ nor more than $1, for the first offense, not less than $ nor more than $1, for the second offense, and $1,000 for the third and subsequent offense a n d, i n d e f a u l t o f p a y m e n t o f s a i d f i n e a n d c o s t s, t o b e i m p r i s o n e d f o r a p e r i o d n o t e x c e e d i n g 90 d a y s. D. A penalty provided for under this ordinance may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct. E. Each act of violation and every day upon which such violation occurs shall constitute a separate offense. F. In addition to the fines set forth hereinabove, any person found guilty of violating any provision of this ordinance shall pay the court costs and reasonable attorney fees incurred by the Borough in the enforcement proceedings. G. I f a p r o p e r t y h a s b e e n d e c l a r e d a n u i s a n c e p r o p e r t y i n a c c o r d a n c e w i t h S e c t i o n 104 of this Chapter a n d n o a p p e a l f r o m s a i d d e c l a r a t i o n i s p e n d i n g, t h e E n f o r c e m e n t O f f i c e r m a y r e v o k e t h e o c c u p a n c y p e r m i t a n d / o r r e n t a l p e r m i t o f t h e p r o p e r t y, i n i t i a t e a n y a c t i o n a t l a w o r a t e q u i t y t o a b a t e t h e n u i s a n c e a n d s h a l l p e r f o r m a n y o t h e r a c t i o n s t o e n s u r e t h e a b a t e m e n t o f t h e n u i s a n c e. C o s t s f o r s u c h a c t i o n s s h a l l b e a s s e s s e d t o t h e p r o p e r t y o w n e r. T h e r e v o c a t i o n o f t h e o c c u p a n c y p e r m i t a n d / o r r e n t a l p e r m i t s h a l l r e m a i n i n e f f e c t u n t i l s u c h t i m e a s t h e n u i s a n c e h a s b e e n f u l l y a b a t e d a s d e t e r m i n e d b y t h e B o r o u g h M a n a g e r. H. W h e r e s u i t i s b r o u g h t b y t h e B o r o u g h f o r t h e a b a t e m e n t o f t h e n u i s a n c e a c t i v i t y o r f o r t h e r e c o v e r y o f a n y c o s t s i n c u r r e d b y t h e B o r o u g h i n e n f o r c i n g t h i s C h a p t e r, t h e p e r s o n l i a b l e t h e r e f o r s h a l l, i n a d d i t i o n, b e l i a b l e f o r t h e c o s t s o f c o l l e c t i o n a n d t h e i n t e r e s t a n d p e n a l t i e s h e r e i n i m p o s e d. I. T h e p e n a l t i e s i m p o s e d u n d e r t h i s chapter may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct including but not limited to the provisions of the Pennsylvania Crimes Code, 18 Pa.C.S.A., 6504, relating to public nuisances. J. Each act of violation and every day upon which such violation occurs shall constitute a separate offense. 8

9 K. The declaration of a nuisance property or the charging or assessment of costs by the Borough on a property under this chapter shall not affect or limit the Borough's right or authority to bring criminal prosecution or other action at law or at equity against any person for violation of the Ephrata Code or other laws of the Commonwealth of Pennsylvania Administration. The provisions of this Chapter shall be enforced by the sworn and non-sworn codes enforcement officers and officials of the Borough of Ephrata and any authorized member or officer of the Ephrata Borough Police Department or other law enforcement organization having appropriate jurisdiction. Section 2. All ordinances or resolutions or parts of ordinances or resolutions insofar as they are inconsistent herewith are hereby repealed and rescinded. Section 3. If any sentence, clause, section, or part of this Ordinance is for any reason found to be unconstitutional, illegal or invalid, such unconstitutionality, illegality or invalidity shall not affect or impair any of the remaining provisions, sentences, clauses, sections or parts of this Ordinance. It is hereby declared as the intent of the Council of the Borough of Ephrata that this Ordinance would have been adopted had such unconstitutional, illegal or invalid sentence, clause, section or part thereof not been included herein. Section 4. This Ordinance shall take effect and be in force after its enactment by the Council of the Borough of Ephrata at the earliest date permitted by law. DULY ENACTED AND ORDAINED this 11 th day of September, 2017, by the Council of the Borough of Ephrata, Lancaster County, Pennsylvania, in lawful session duly assembled. BOROUGH OF EPHRATA Lancaster County, Pennsylvania ATTEST: By: Susan E. Rowe, President Ephrata Borough Council D. Robert Thompson, Secretary Approved by me this 11 th day of September, Ralph E. Mowen, Mayor 9