[HISTORY: Adopted by the Council of the Borough of Darby
as indicated in article histories. Amendments noted where applicable.]
This article shall be known as the "Darby Borough Blight Reclamation
and Revitalization Ordinance."
The Borough Council finds it to be the best interest of the
residents of the Borough of Darby to provide for certain protections
and safeguards in order to address deteriorated properties, public
nuisances and properties in serious violation of state law and/or
municipal codes. Such protections and safeguards include denial of
permits, and actions at law and in equity to address deteriorated
properties, which impact upon crime, quality of life of our residents
and require expenditure of public funds to correct and/or abate nuisances,
violations and delinquent municipal service accounts.
The following words and phrases, when used in this article,
shall have the meanings given to them in this section unless the context
clearly indicates otherwise.
The Borough of Darby, County of Delaware, Commonwealth of
Pennsylvania.
A residential, commercial or industrial building or structure
and the land appurtenant to it.
A building, housing, property maintenance, fire, health or
other public safety ordinance enacted by the Borough. The term does
not include a subdivision and land development ordinance or a zoning
ordinance enacted by a municipality.
The appropriate court of common pleas or magisterial district
judge court.
A business association defined as a "banking institution" or "mortgage lender" under 7 Pa.C.S.A. Ch. 61 (relating to mortgage loan industry licensing and consumer protection) that is in possession of or holds title to real property pursuant to, in enforcement of or to protect rights arising under a mortgage, mortgage note, deed of trust or other transaction that created a security interest in the real property.
A city, borough, incorporated town, township or home rule,
optional plan or optional charter municipality or municipal authority
in this commonwealth and any entity formed pursuant to Subchapter
A of Chapter 23 (relating to intergovernmental cooperation).[3]
Privileges relating to real property granted by a municipality,
including, but not limited to, building permits, exceptions to zoning
ordinances and occupancy permits. The term includes approvals pursuant
to land use ordinances other than decisions on the substantive validity
of a zoning ordinance or map or the acceptance of a curative amendment.
Services provided at a cost by the Borough or other municipal
entity, including water service, sanitary sewer service, refuse collection
and parking allotments/facilities, which benefit individual properties
and also serve to benefit the overall welfare, safety and health of
all residents of the Borough.
A holder of the title to residential, commercial or industrial
real estate, other than a mortgage lender who possesses and controls
the real estate. The term includes, but is not limited to, heirs,
assigns, beneficiaries and lessees, provided this ownership interest
is a matter of public record.
Property which, because of its physical condition or use,
is regarded as a public nuisance at common law or has been declared
by the appropriate official a public nuisance in accordance with a
municipal code.
A violation of a state law or a code that poses an imminent
threat to the health and safety of a dwelling occupant, occupants
in surrounding structures or passersby.
A statute of the commonwealth or a regulation of an agency
charged with the administration and enforcement of commonwealth law.
An affirmative action as determined by a property code official
or officer of the court on the part of a property owner or managing
agent to remedy a serious violation of a state law or municipal code,
including, but not limited to, physical improvements or repairs to
the property, which affirmative action is subject to appeal in accordance
with applicable law.
Tax delinquent real property as defined under the Act of
July 7, 1947 (P.L. 1368, No. 542), known as the "Real Estate Tax Sale
Law";[4] the Act of May 16, 1923 (P.L. 207, No. 153), referred
to as the "Municipal Claim and Tax Lien Law";[5] or the Act of October 11, 1984 (P.L. 876, No. 171) known
as the "Second Class City Treasurer's Sale and Collection Act,"[6] located in any municipality in this commonwealth.
A.
In addition to any other remedy available at law or in equity, the
Borough may institute the following actions against the owner of any
real property that is in serious violation of a code or for failure
to correct a condition which causes the property to be regarded as
a public nuisance:
(1)
An in personam action may be initiated for a continuing violation
for which the owner takes no substantial step to correct within six
months following receipt of an order to correct the violation, unless
the order is subject to a pending appeal before the administrative
agency or court.
(2)
Notwithstanding any law limiting the form of action for the recovery
of penalties by a municipality for the violation of a code, the Borough
may recover, in a single action under this section, an amount equal
to any penalties imposed against the owner and any costs of remediation
lawfully incurred by or on behalf of the Borough to remedy any code
violation.
B.
A proceeding in equity.
C.
A lien may be placed against the assets of an owner of real property
that is in serious violation of a code or is regarded as a public
nuisance after a judgment, decree or order is entered by a court of
competent jurisdiction against the owner of the property for an adjudication
under Section 6111 (relating to actions).[1] Nothing in this section shall be construed to authorize,
in the case of an owner that is an association or trust, a lien on
the individual assets of the general partner or trustee, except as
otherwise allowed by law, limited partner, shareholder, member or
beneficiary of the association or trust.
[1]
Editor's Note: See 53 Pa.C.S.A. § 6111.
A.
A person who lives or has a principal place of residence outside
this commonwealth, who owns property in this commonwealth against
which code violations have been cited and the person is charged under
18 Pa.C.S. (relating to crimes and offenses), and who has been properly
notified of the violations may be extradited to this commonwealth
to face criminal prosecution to the full extent allowed and in the
manner authorized by 42 Pa.C.S.A. Ch. 91 (relating to detainers and
extradition).
B.
Where, after reasonable efforts, service of process for a notice
or citation for any code violation for any real property owned by
an association or trust cannot be accomplished by handing a copy of
the notice or citation to an executive officer, partner or trustee
of the association or trust or to the manager, trustee or clerk in
charge of the property, the delivery of the notice or citation may
occur by registered, certified or United States Express mail, accompanied
by a delivery confirmation to the registered office of the association
or citation trust. Where the association or trust does not have a
registered office, notice may occur by registered, certified or United
States Express Mail, to the mailing address used for real estate tax
collection purposes, if accompanied by the posting of a conspicuous
notice to the property and by handing a copy of the notice or citation
to the person in charge of the property at that time.
A.
The Borough or a Board may deny issuing an applicant a municipal
permit if the applicant owns real property in any municipality for
which there exists on the real property:
(1)
Tax and/or municipal services delinquencies on account of the actions
of the owner; or
(2)
A serious violation and the owner has taken no substantial step to
correct the serious violation within six months following notification
of the violation and for which fines or other penalties or a judgment
to abate or correct were imposed by a Magisterial District Judge or
municipal court, or a judgment at law or in equity was imposed by
a court of common pleas. However, no denial shall be permitted on
the basis of a property for which the judgment, order or decree is
subject to a stay or supersedeas by an order of a court of competent
jurisdiction or automatically allowed by statute or rule of court
until the stay or supersedeas is lifted by the court or a higher court
or the stay or supersedeas expires as otherwise provided by law. Where
a stay or supersedeas is in effect, the property owner shall so advise
the Borough or Board seeking to deny a municipal permit. The Borough
or Board shall not deny a municipal permit to an applicant if the
municipal permit is necessary to correct a violation of state law
or a code.
B.
The municipal permit denial shall not apply to an applicant's delinquency
on taxes, water, sewer or refuse collection charges that are under
appeal or otherwise contested through a court or administrative process.
C.
In issuing a denial of a municipal permit based on an applicant's
delinquency in real property taxes or municipal charges or for failure
to abate a serious violation of state law or a code on real property
that the applicant owns in this commonwealth, the Borough or Board
shall indicate the street address, municipal corporation and county
in which the property is located and the court and docket number for
each parcel cited as a basis for the denial. The denial shall also
state that the applicant may request a letter of compliance from the
appropriate state agency, municipality or school district, in a form
specified by such entity as provided in this section.
D.
All municipal permits denied in accordance with this subsection may
be withheld until an applicant obtains a letter from the appropriate
state agency, municipality or school district indicating the following:
(1)
The property in question has no final and unappealable tax, water,
sewer or refuse delinquencies;
(2)
The property in question is now in state law and code compliance;
or
(3)
The owner of the property has presented and the appropriate state
agency or municipality has accepted a plan to begin remediation of
a serious violation of state law or a code. Acceptance of the plan
may be contingent on:
(a)
Beginning the remediation plan within no fewer than 30 days
following acceptance of the plan or sooner, if mutually agreeable
to both the property owner and the municipality.
(b)
Completing the remediation plan within no fewer than 90 days
following commencement of the plan or sooner, if mutually agreeable
to both the property owner and the municipality.
E.
In the event that the appropriate state agency, municipality or school
district fails to issue a letter indicating tax, water, sewer, refuse, state
law or code compliance or noncompliance, as the case may be, within
45 days of the request, the property in question shall be deemed to
be in compliance for the purpose of this section. The appropriate
state agency, municipality or school district shall specify the form
in which the request for a compliance letter shall be made. Letters
required under this section shall be verified by the appropriate municipal
officials before issuing to the applicant a municipal permit.
F.
Boards, including the Borough Zoning Hearing Board, may deny approval
of municipal permits, which includes special exception approval and
variance relief, if warranted as set forth above to the extent that
approval of such a municipal permit is within the jurisdiction of
the Board.
G.
In any proceeding before a Board other than the governing body of
the Borough, the Borough may appear to present evidence that the applicant
is subject to a denial by the Board in accordance with this section.
H.
For purposes of this section, a municipal permit may only be denied
to an applicant other than an owner if the applicant is acting under
the direction or with the permission of an owner; and the owner owns
real property that is subject to denial as set forth above.
I.
A denial of a municipal permit shall be subject to the provisions of 2 Pa.C.S.A. Chapter 5, Subchapter B (relating to practice and procedure of local agencies) and Chapter 7, Subchapter B (relating to judicial review of local agency action) or the Pennsylvania Municipalities Planning Code,[1] for denials subject to the act.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
In the event of a conflict between the requirements of this
article and federal requirements applicable to demolition, disposition
or redevelopment of buildings, structures or land owned by or held
in trust for the Government of the United States and regulated pursuant
to the United States Housing Act of 1937 (50 Stat. 888, 42 U.S.C.
§ 1437 et seq.) and the regulations promulgated thereunder,
the federal requirements shall prevail.
Where property is inherited by will or intestacy, the devisee
or heir shall be given the opportunity to make payments on reasonable
terms to correct code violations or to enter into a remediation agreement
under Section 6131(b)(1)(iii) (relating to municipal permit denial)[1] with a municipality to avoid subjecting the devisee's
or heir's other properties to asset attachment or denial of permits
and approvals on other properties owned by the devisee or heir.
[1]
Editor's Note: See 53 Pa.C.S.A. § 6131(b)(1)(iii).
Nothing in this article shall be construed to abridge or alter
the remedies now existing at common law or by statute, but the provisions
of this article are in addition to such remedies.
[Adopted 11-19-2014 by Ord. No. 767, approved 11-19-2014]
This article may be cited as the "Darby Borough Chronic Nuisance
Property Ordinance."
A.
Chronic nuisance properties present grave health, safety and welfare
concerns, where the persons responsible for such properties have failed
to take corrective action to abate the nuisance condition. Chronic
nuisance properties have a tremendous negative impact upon the quality
of life, safety and health of the neighborhoods where they are located.
This article is enacted to remedy nuisance activities that are particularly
disruptive to quality of life and repeatedly occur or exist at properties
by providing a process for abatement. This remedy is not an exclusive
remedy available under any state or local laws and may be used in
conjunction with such other laws.
B.
Also, chronic nuisance properties are a financial burden to the Borough
by the repeated calls for service to the properties because of the
nuisance activities that repeatedly occur or exist on such property.
This is an additional means to ameliorate those conditions and hold
accountable those persons responsible for such property.
For purposes of this article, the following words or phrases
shall have the meaning prescribed below:
To repair, replace, remove, destroy, or otherwise remedy
a condition, which constitutes a violation of this article by such
means and in such a manner and to such an extent as the applicable
Borough department director or designee(s) determines is necessary
in the interest of the general health, safety and welfare of the community.
The ability to regulate, restrain, dominate, counteract or
govern property, or conduct that occurs on a property.
Property on which a combination of three or more nuisance
activities occurs or exists during any sixty-day period.
Any unlawful activity at a property which consists of the
manufacture, delivery, sale, storage, possession, or giving away of
any controlled substance as defined by state law.
Any criminal conduct as defined by state law or local ordinance
occurring on, around or near a property, including, but not limited
to, the following activities or behaviors:
Stalking;
Harassment;
Failure to disperse;
Disorderly conduct;
Assault;
Any domestic violence crimes;
Reckless endangerment;
Prostitution;
Patronizing a prostitute;
Public disturbance noises;
Lewd conduct;
Any firearms/dangerous weapons violations;
Drug-related loitering;
Any dangerous animal violations;
Any drug-related activity.
For purposes of this article, "nuisance activity" shall not
include conduct where the person responsible is the victim of a crime
and had no control over the criminal act.
Unless otherwise defined, the actual or threatened revocation,
suspension or nonrenewal of a rental license, the actual or threatened
assessment of fines or the actual or threatened eviction, or causing
the actual or threatened eviction, from leased premises.
Unless otherwise defined, any person who has titled ownership
of the property or structure which is subject to this article, an
occupant in control of the property or structure which is subject
to this article, 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 article and/or any person
who has control over the property and allows a violation of this article
to continue.
Natural person, joint venture, partnership, association,
club, company, corporation, business trust, organization, or the manager,
lessee, agent, officer or employee of any of them.
May be used by this article interchangeably and means and
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.
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.
A.
Any property within the Borough of Darby which is a chronic nuisance
property is in violation of this article and subject to its remedies;
and
B.
Any person responsible for property who permits property to be a
chronic nuisance property shall be in violation of this article and
subject to its remedies.
A.
When the Chief of Police, or his/her designee(s), receives documentation confirming the occurrence of three or more nuisance activities within a sixty-day period on any property, the Chief of Police or his/her designee(s), may review such documentation to determine whether it describes the nuisance activities enumerated in § 97-12. Upon such a finding, the Chief of Police, or his/her designee(s), shall warn the person responsible for such property, in writing, that the property is in danger of being declared a chronic nuisance property. Nothing in this article shall be construed to penalize a resident, tenant or landlord 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.A. § 6102 (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.A. § 8103 (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.
B.
The warning shall contain:
(1)
The street address or legal description sufficient for identification
of the property;
(2)
A concise description of the nuisance activities that exist, or that
have occurred on the property;
(3)
A demand that the person responsible for such property respond to
the Chief of Police or his/her designee(s) within 10 days of service
of the notice to discuss the nuisance activities and create a plan
to abate the chronic nuisance;
(4)
Offer the person responsible an opportunity to abate the nuisance
activities giving rise to the violations; and
(5)
A statement describing that if legal action is sought, the property
could be subject to closure and civil penalties and/or costs assessed
up to $100 per day if declared a chronic nuisance property.
C.
The Chief of Police or his/her designee(s) shall serve or cause to
be served such warning upon the person responsible in accordance with
the procedures set forth above.
D.
If the person responsible fails to respond to the warning within
the time prescribed, the Chief of Police or his/her designee(s) shall
issue a notice declaring the property to be a chronic nuisance property
and post such notice at the property and issue the person responsible
a civil infraction, punishable by a maximum penalty of $1,000. If
the person responsible fails to respond to the issued infraction and/or
continues to violate the provisions of this article, the matter shall
be referred to the Borough Solicitor for further action.
E.
If the person responsible responds as required by the notice and
agrees to abate the nuisance activity, the Chief of Police or his/her
designee(s), and the person responsible, may work out an agreed-upon
course of action which would abate the nuisance activity. If an agreed
course of action does not result in the abatement of the nuisance
activities or if no agreement concerning abatement is reached, the
matter shall be forwarded to the Borough Solicitor for enforcement
action. Provided, that in the event the Chief of Police or his/her
designee(s) or the Borough Solicitor determines that the person responsible
has taken reasonable steps to abate the nuisance activity, the Borough
Solicitor shall not commence an enforcement action under this article,
notwithstanding the continuance of the nuisance activity.
F.
It is a defense to an action for chronic nuisance property that the
person responsible, at all material times, could not, in the exercise
of reasonable care or diligence, determine that the property had become
a chronic nuisance property, or could not, in spite of the exercise
of reasonable care and diligence, control leading to the determination
that the property is chronic nuisance property.
A.
Once the matter is referred to the Borough Solicitor, the Borough
Solicitor shall immediately review and make a determination to initiate
legal action authorized under this article or state statute, or may
seek alternative forms of abatement of the nuisance activity. The
Borough Solicitor may initiate legal action on the chronic nuisance
property and seek civil penalties and costs in district court for
the abatement of the nuisance.
B.
In determining whether a property shall be deemed a chronic nuisance
property and subject to the court's jurisdiction, the Borough shall
have the initial burden of proof to show by a preponderance of the
evidence that the property is a chronic nuisance property. The Borough
may submit official police reports and other affidavits outlining
the information that led to arrest(s), and other chronic nuisance
activity occurring or existing at the property. The failure to prosecute
an individual, or the fact no one has been convicted of a crime is
not a defense to a chronic nuisance action.
C.
Once a court determines the property to be a chronic nuisance under this section, the court may impose a civil penalty against any or all of the persons responsible for the property, and may order any other relief deemed appropriate. A civil penalty may be assessed for up to $100 per day for each day the nuisance activity continues to occur following the date of the original warning by the Chief of Police or his/her designee(s), as described in § 97-14. In assessing the civil penalty, the court may consider the following factors, citing to those found applicable:
D.
The court which determined the property to be a chronic nuisance
property shall also assess costs against the person responsible in
the amount it costs the Borough to abate, or attempt to abate, the
nuisance property.
E.
If the court determines the property to be a chronic nuisance property,
the court shall order the property closed and secured against all
unauthorized access, use and occupancy for a period up to one year,
and may impose a civil penalty and costs.
F.
Once a determination has been made by the court that the chronic
nuisance property shall be subject to closure the court may authorize
the Borough to physically secure the premises and initiate such closure.
Costs for such closure shall be submitted to the court for review.
Any civil penalty and/or costs awarded to the Borough may be filed
with the Secretary, who shall cause the same to be filed as a lien
on the property with the County Prothonotary. The Borough shall file
a formal lis pendens notice when an action for abatement is filed
in the Court of Common Pleas of Delaware County.
G.
The Delaware County Court shall retain jurisdiction during any period
of closure or abatement of the property.
H.
District Court 32-2-37 shall have jurisdiction of all civil infractions
issued pursuant to this article.
Nothing in this article prohibits the Borough from taking any
emergency action for the summary closure of such property when it
is necessary to avoid an immediate threat to public welfare and safety.
The Borough may take summary action to close the property without
complying with the notification provisions of Pennsylvania Rules of
Civil Procedure, but shall provide such notice as is reasonable under
the circumstances.
A.
If any portion of this article, or its application to any person
or circumstances, is held invalid, the validity of the ordinance as
a whole, or any other portion thereof, or the application of the provisions
to other persons or circumstances is not affected. If any one or more
sections, subsection, or sentences of this article are held to be
unconstitutional or invalid, such decision shall not affect the validity
of the remaining portion of this article and the same shall remain
in full force and effect.
B.
Any ordinance or resolution or part thereof conflicting with the
provisions of this article is hereby repealed so far as the same affects
this article.
C.
All Borough-elected and -appointed officials are authorized to take
all action necessary to ensure the implementation and effect the purpose
hereof.
D.
This is effective immediately upon enactment according to law, and
shall remain in effect hereafter until revised, amended, or revoked
by action of the Council of the Borough of Darby.
