A.
Title. These regulations shall be known as the Property
Maintenance Code of Town of Bethany Beach, hereinafter referred to
as "this code."
B.
Scope. The provisions of this code shall apply to
all existing residential and nonresidential structures and all existing
premises and constitute minimum requirements and standards for premises,
structures, equipment and facilities for light, ventilation, space,
heating, sanitation, protection from the elements, life safety, safety
from fire and other hazards, and for safe and sanitary maintenance;
the responsibility of owners, operators and occupants; the occupancy
of existing structures and premises, and for administration, enforcement
and penalties for violations.
C.
Intent. This code shall be construed to secure its
expressed intent, which is to ensure public health, safety and welfare
insofar as they are affected by the continued occupancy and maintenance
of structures, premises, equipment and facilities. Existing structures
and premises that do not comply with these provisions shall be altered
or repaired to provide a minimum level of health and safety as required
herein. Repairs, alterations, additions to and change of occupancy
in existing buildings shall comply with the Town of Bethany Beach
Building Code.
A.
General. The provisions of this code shall apply to all matters affecting or relating to structures, premises, equipment and facilities, as set forth in § 475-16B. Where, in a specific case, different sections of this code specify different requirements, the most restrictive shall govern.
B.
Maintenance. Equipment, systems, devices and safeguards
required by this code or a previous regulation or code under which
the structure or premises was constructed, altered or repaired shall
be maintained in good working order. No owner, operator, or occupant
shall cause any service, facility, equipment or utility which is required
under this section to be removed from or shut off from or discontinued
for any occupied dwelling, except for such temporary interruption
as necessary while repairs or alterations are in progress. The requirements
of this code are not intended to provide the basis for removal or
abrogation of fire protection and safety systems and devices in existing
structures. Except as otherwise specified herein, the owner or the
owner's designated agent shall be responsible for the maintenance
of buildings, structures, equipment, facilities and premises.
C.
Application of other codes. Repairs, additions or
alterations to a structure, or changes of occupancy, shall be done
in accordance with the procedures and provisions of the Town of Bethany
Beach Building Code. Nothing in this code shall be construed to cancel,
modify or set aside any provision of the Town of Bethany Beach Zoning
Code.
D.
Existing remedies. The provisions in this code shall
not be construed to abolish or impair existing remedies of the jurisdiction
or its officers or agencies relating to the removal or demolition
of any structure which is dangerous, unsafe and unsanitary.
E.
Good workmanship. Repairs, maintenance work, alterations
or installations which are caused directly or indirectly by the enforcement
of this code shall be executed and installed in a good and workmanlike
manner and installed in accordance with the manufacturer's installation
instructions.
F.
Historic buildings. The provisions of this code shall
not be mandatory for existing buildings or structures designated as
historic buildings when such buildings or structures are judged by
the Code Enforcement Constable to be safe and in the public interest
of health, safety and welfare.
G.
Referenced codes and standards. The codes and standards
referenced in this code shall be those that are listed in Table 1
and considered part of the requirements of this code to the prescribed
extent of each such reference. Where differences occur between provisions
of this code and the referenced standards, the provisions of this
code shall apply.
|
Table 1
| |||
|---|---|---|---|
|
Standard Reference Number
|
Title
|
Referenced in Code Section Number
| |
|
ICC EC-03
|
ICC Electrical Code™ — Administrative
Provisions
|
201.3, 604.2
| |
|
IBC-03
|
International Building Code®
|
201.3, 401.3, 702.3
| |
|
IEBC-03
|
International Existing Building Code™
|
101.3, 102.3, 201.3
| |
|
IFC-03
|
International Fire Code®
|
201.3, 702.1, 702.2, 704.1, 704.2
| |
|
IMC-03
|
International Mechanical Code®
|
201.3
| |
|
IPC-03
|
International Plumbing Code®
|
201.3, 505.1, 602.2, 602.3
| |
|
IZC-03
|
International Zoning Code®
|
102.3, 201.3
| |
H.
Requirements not covered by code. Requirements necessary
for the strength, stability or proper operation of an existing fixture,
structure or equipment, or for the public safety, health and general
welfare, not specifically covered by this code, shall be determined
by the Code Enforcement Constable.
A.
Whenever any member of the Police Force or the Building
Inspector is aware of the existence of a nuisance, as herein enumerated,
it shall be his or her duty to mail or serve a written notice on or
to the owner (or owner's agent) and occupant of the property with
in a period of five business days. Such notice shall advise the recipient
that such recipient may, in writing, request a hearing before the
Town Manager concerning whether or not a violation exists, provided
that such written request shall be mailed or delivered to the Town
office prior to the expiration of the five business days specified
herein.
B.
If any official of the Town named in Subsection A shall be unable to serve notice personally upon such owner (or owner's agent) and occupant, the notice may be given by posting the same in some conspicuous place on the property.
C.
Any person so notified who shall fail, neglect or
refuse to remove or abate such nuisance within the time specified
shall, upon conviction, be guilty of a violation of this Part 3.
A.
General. The Code Enforcement Constable shall enforce
the provisions of this code under the directions of the Building Inspector.
B.
Inspections. The Code Enforcement Constable shall
make all of the required inspections, or shall accept reports of inspection
by approved agencies or individuals. All reports of such inspections
shall be in writing and be certified by a responsible officer of such
approved agency or by the responsible individual. The Code Enforcement
Constable is authorized to engage such expert opinion as deemed necessary
to report upon unusual technical issues that arise, subject to the
approval of the Town Manager.
C.
Right of entry. The Code Enforcement Constable is
authorized to enter the structure or premises at reasonable times
to inspect subject to constitutional restrictions on unreasonable
searches and seizures. If entry is refused or not obtained, the Code
Enforcement Constable is authorized to pursue recourse as provided
by law.
E.
Notices and order. Unless otherwise provided herein,
the Code Enforcement Constable shall issue all necessary notices or
orders to ensure compliance with this code.
F.
Department records. The Code Enforcement Constable
shall keep official records of all business and activities of the
department specified in the provisions of this code. Such records
shall be retained in the official records as long as the building
or structure to which such records relate remains in existence, unless
otherwise provided for by other regulations.
G.
Coordination of inspections. Whenever in the enforcement
of this code or another code or ordinance, the responsibility of more
than one Code Enforcement Constable of the jurisdiction is involved,
it shall be the duty of the Code Enforcement Constables involved to
coordinate their inspections and administrative orders as fully as
practicable so that the owners and occupants of the structure shall
not be subjected to visits by numerous inspectors or multiple or conflicting
orders. Whenever an inspector from any agency or department observes
an apparent or actual violation of some provision of some law, ordinance
or code not within the inspector's authority to enforce, the inspector
shall report the findings to the Code Enforcement Constable having
jurisdiction.
A.
Modifications. Whenever the Code Enforcement Constable determines that compliance with this code would cause unnecessary hardship or involve exceptional practical difficulties because of circumstances unique to the structure or premises involved, the Code Enforcement Constable shall have the authority to grant modifications from the specific requirements of this code, provided that the modification(s) is/are in substantial compliance with the purpose and intent of this code, and that such modification(s) does not significantly lessen health, life, or firesafety requirements. The Code Enforcement Constable shall document the unique circumstances justifying his or her decision and set out, in detail, the modifications granted. Such written documentation shall be filed with the department's records and retained as provided in § 475-19F.
B.
Alternative materials, methods and equipment. The
provisions of this code are not intended to prevent the installation
of any material or to prohibit any method of construction not specifically
prescribed by this code, provided that any such alternative has been
approved. An alternative material or method of construction shall
be approved where the Code Enforcement Constable finds that the proposed
design is satisfactory and complies with the intent of the provisions
of this code, and that the material, method or work offered is, for
the purpose intended, at least the equivalent of that prescribed in
this code in quality, strength, effectiveness, fire resistance, durability
and safety.
C.
Required testing. Whenever there is insufficient evidence
of compliance with the provisions of this code, or evidence that a
material or method does not conform to the requirements of this code,
or in order of substantiate claims for alternative materials or methods,
the Code Enforcement Constable have the authority to require tests
to be made as evidence of compliance at no expense to the Town.
(1)
Test methods. Test methods shall be as specified in
this code or by other recognized test standards. In the absence of
recognized and accepted test methods, the Code Enforcement Constable
shall be permitted to approve appropriate testing procedures performed
by an approved agency.
(2)
Test reports. Reports of tests shall be retained by
the Code Enforcement Constable for seven years.
D.
Material and equipment reuse. Materials, equipment
and devices shall not be reused unless such elements are in good repair
or have been reconditioned and tested when necessary, placed in good
and proper working condition and approved.
A.
Notice and order to correct. Whenever any member of
the police force, any Code Enforcement Constable, or the Building
Inspector become aware of a violation of this Part 3, it shall be
his or her duty to, in writing:
(1)
Notify the owner (or owner's agent) or occupant, as
appropriate, of the nature of the violation(s), including a description
of the real estate sufficient for identification and the specific
code section(s) violated;
(2)
Order the owner (or owner's agent) or occupant, as
appropriate, to correct the violation(s) within a stated period of
time (reasonable to allow such repairs or improvements, but not to
exceed 120 days);
(3)
Notify the owner of the Town's right to place a lien against the property in accordance with § 475-22C and 25 Del.C. § 2901; and
(4)
Notify the owner (or owner's agent) or occupant, as
appropriate, of their right to appeal such notice and order to the
Town Manager, in writing, within five business days of the date of
such written notice and order.
B.
Right of appeal to Town Manager. Any person desiring
to appeal such notice and order shall, within five business days of
the date of such notice and order, submit a written notice of appeal
to the Town Manager's Office. Failure to submit a timely notice of
appeal shall constitute an admission of the violation and a bar to
any further administrative review thereof; and the Town may raise
"Failure to Exhaust Administrative Remedies" as an affirmative defense
to any suit filed in any court seeking review of the Town's action
or seeking to enjoin enforcement by the Town.
C.
Hearing procedures. At any hearing of an appeal before
the Town Manager, the burden of proof shall be upon the charging official
to demonstrate, by a preponderance of the evidence, each violation
charged. Strict rules of evidence shall not apply and the Town Manager
may consider and give appropriate weight to any relevant probative
evidence which a reasonable person might take into consideration in
making important decisions in his or her own life. The Town Manager
shall have reasonable discretion to establish ad hoc rules concerning
procedure and the order of the proceedings, including setting reasonable
limits on the number of witnesses, the number of exhibits, and the
time allotted to each party to present their case or to cross-examine
opposing witnesses.
D.
Decision and order. In the event the Town Manager
determines, at the conclusion of any such hearing, that a violation
does exists, he shall notify the owner (or owner's agent) or occupant,
as appropriate, in writing of such determination and order the owner
(or owner's agent) to correct such violation within a stated period
of time (not to exceed 30 days).
E.
Failure to comply with final order. Any person who, failing to request an appeal to the Town Manager, does not comply with the notice and order issued under § 475-5, or who, after an appeal hearing before the Town Manager, fails to comply with the Town Manager's order under § 475-5, violation of this Part 3 and subject to such penalties and sanctions as set out in § 475-22.[1]
F.
Delivery of notices. Any notice required under this § 475-21 may be delivered by: U.S. Mail, first class postage prepaid, to the addressee at his or her last known address as shown on the Town's tax records; by overnight courier or delivery service (e.g., UPS, FedEx) to the addressee at his or her last known address as shown on the Town's tax records; by fax to the addressee's fax number if known to the Town (provided that a fax receipt evidencing receipt of the faxed message by the receiving fax machine can be obtained); or by personal delivery to the addressee at his or her place of business or to the addressee or to some adult member of the addressee's family residing at the residence of the addressee. Notice shall be deemed delivered, as appropriate: upon deposit into the U.S. Mails; upon delivery to the addressee's address by overnight courier or delivery service; upon receipt of a fax confirmation receipt from the receiving fax machine; or upon personal delivery as provided herein. In the event that notice cannot be delivered as provided herein, notice may be given by posting the same upon some conspicuous place on the property, at the Town Hall and in four other public places in the Town, and publishing such notice in a newspaper of general circulation in the Town. In such event, notice shall be deemed given as of the date that the last such posting or publication occurred.
G.
Transfer of ownership. It shall be unlawful for the owner of any structure or premises who has received a "Notice of Violation and Order To Correct" to sell, transfer, mortgage, lease, or otherwise dispose of such structure or premises to another person or entity until: the provisions of any Order To Correct deemed final under § 475-21E have been complied with; or the owner shall have provided the Code Enforcement Constable a notarized written statement executed the grantee, transferee, mortgagee, or lessee, acknowledging receipt from the owner of a true and correct copy of the "Notice and Order to Correct" and setting out the undertaking of the grantee, transferee, mortgagee, or lessee to assume all of the responsibilities and rights of the owner, without condition, for compliance with the provisions of this code. Notwithstanding the failure of any grantee, transferee, mortgagee, or lessee to provide such written and notarized statement, any such person or entity shall be bound by the provisions of this code and any "Notice and Order To Correct" issued hereunder.
A.
Unlawful acts. It shall be unlawful for a person or any legal entity to be in violation of any of the provisions of this code or with any order of correction deemed final under § 475-21E. Any violation of this code shall be deemed a "strict liability" offense as the same is defined herein.
B.
Prosecution of violation. Where any person fails to comply with any order of correction deemed final under § 475-21E, the Code Enforcement Constable may institute an action in any court of competent jurisdiction to collect the appropriate fine(s) or civil penalty(ies) for such violation(s) as set forth in Chapter 1, General Provisions, Article I, Penalties. Each day of a continuing violation shall be deemed a separate offense.[1]
C.
Abatement of violation. In lieu of or in addition to enforcement under Subsection B, the Code Enforcement Constable may commence an action at law or in equity to enjoin, correct, or abate such violation, or to require the removal or termination of the unlawful occupancy of the structure or premises in violation of this code or any order of correction deemed final. In such event, the costs incurred by the Town to do so shall be a lien against the property as authorized by 25 Del.C. § 2901.
A.
General. When a structure or equipment is found by
the Code Enforcement Constable to be unsafe, or when a structure is
found unfit for human occupancy, or is found unlawful, such structure
shall be condemned pursuant to the provisions of this code.
(1)
Unsafe structures. An unsafe structure is one that
is found to be dangerous to the life, health, property or safety of
the public or the occupants of the structure by not providing minimum
safeguards to protect or warn occupants in the event of fire, or because
such structure contains unsafe equipment or is so damaged, decayed,
dilapidated, structurally unsafe or of such faulty construction or
unstable foundation, that partial or complete collapse is possible.
(2)
Unsafe equipment. Unsafe equipment includes any boiler,
heating equipment, elevator, moving stairway, electrical wiring or
device, flammable liquid containers or other equipment on the premises
or within the structure which is in such disrepair or condition that
such equipment is a hazard to life, health, property or safety of
the public or occupants of the premises or structure.
(3)
Structure unfit for human occupancy. A structure is
unfit for human occupancy whenever the Code Enforcement Constable
finds that such structure is unsafe, unlawful or, because of the degree
to which the structure is in disrepair or lacks maintenance, is unsanitary,
vermin- or rat-infested, contains filth and contamination, or lacks
ventilation, illumination, sanitary or heating facilities or other
essential equipment required by this code, or because the location
of the structure constitutes a hazard to the occupants of the structure
or to the public.
(4)
Unlawful structure. An unlawful structure is one found
in whole or in part to be occupied by more persons than permitted
under this code, or was erected, altered or occupied contrary to law.
B.
Closing of vacant structures. If the structure is
vacant and unfit for human habitation and occupancy, and is not in
danger of structural collapse, the Code Enforcement Constable is authorized
to post a placard of condemnation on the premises and order the structure
closed up so as not to be an attractive nuisance. Upon failure of
the owner to close up the premises within the time specified in the
order, the Code Enforcement Constable shall cause the premises to
be closed and secured through any available public agency or by contract
or arrangement by private persons and the cost thereof shall be charged
against the real estate upon which the structure is located and shall
be a lien upon such real estate and may be collected by any other
legal resource.
C.
Notice. Whenever the Code Enforcement Constable has condemned a structure or equipment under the provisions of this section, notice shall be posted in a conspicuous place in or about the structure affected by such notice and served on the owner or the person or persons responsible for the structure or equipment in accordance with § 475-21. If the notice pertains to equipment, it shall also be placed on the condemned equipment. The notice shall be in the form prescribed in § 475-21A.[1]
D.
Placarding.
(1)
Upon failure of the owner or person responsible to
comply with the notice provisions within the time given, the Code
Enforcement Constable shall post on the premises or on defective equipment
a placard bearing the word "Condemned" and a statement of the penalties
provided for occupying the premises, operating the equipment or removing
the placard.
(2)
Placard removal. The Code Enforcement Constable shall
remove the condemnation placard whenever the defect or defects upon
which the condemnation and placarding action were based have been
eliminated. Any person who defaces or removes a condemnation placard
without the approval of the Code Enforcement Constable shall be subject
to the penalties provided by this code.
E.
Prohibited occupancy. Any occupied structure condemned
and placarded by the Code Enforcement Constable shall be vacated as
ordered by the Code Enforcement Constable. Any person who shall occupy
a placarded premises or shall operate placarded equipment, and any
owner or any person responsible for the premises who shall let anyone
occupy a placarded premises or operate placarded equipment shall be
liable for the penalties provided by this code.
A.
Imminent danger. When, in the opinion of the Code
Enforcement Constable, there is imminent danger of failure or collapse
of a building or structure which endangers life, or when any structure
or part of a structure has fallen and life is endangered by the occupation
of the structure, or when there is actual or potential danger to the
building occupants or those in the proximity of any structure because
of explosives, explosive fumes or vapors or the presence of toxic
fumes, gases or materials, or operation of defective or dangerous
equipment, the Code Enforcement Constable is hereby authorized and
empowered to order and require the occupants to vacate the premises
forthwith. The Code Enforcement Constable shall cause to be posted
at each entrance to such structure a notice reading as follows: "This
Structure is Unsafe and its Occupancy has been Prohibited by the Code
Enforcement Constable." It shall be unlawful for any person to enter
such structure except for the purpose of securing the structure, making
the required repairs, removing the hazardous condition or of demolishing
the same.
B.
Temporary safeguards. Notwithstanding other provisions
of this code, whenever, in the opinion of the Code Enforcement Constable,
there is imminent danger due to an unsafe condition, the Code Enforcement
Constable shall order the necessary work to be done, including the
boarding up of openings, to render such structure temporarily safe
whether or not the legal procedure herein described has been instituted;
and shall cause such other action to be taken as the Code Enforcement
Constable deems necessary to meet such emergency.
C.
Closing streets. When necessary for public safety,
the Code Enforcement Constable shall temporarily close structures
and close, or order the authority having jurisdiction to close, sidewalks,
streets, public ways and places adjacent to unsafe structures, and
prohibit the same from being utilized.
D.
Emergency repairs. For the purposes of this section,
with approval from the Town Manager, the Code Enforcement Constable
shall employ the necessary labor and materials to perform the required
work as expeditiously as possible.
E.
Costs of emergency repairs. Costs incurred in the
performance of emergency work shall be paid by the Town. The legal
counsel of the jurisdiction shall institute appropriate action against
the owner of the premises where the unsafe structure is or was located
for the recovery of such costs.
F.
Hearing. Any person ordered to take emergency measures
shall comply with such order forthwith. Any affected person shall
thereafter, upon petition directed to the appeals board, be afforded
a hearing as described in this code.
A.
General. The Code Enforcement Constable shall order
the owner of any premises upon which is located any structure, which
in the Code Enforcement Constable's judgment is so old, dilapidated
or has become so out of repair as to be dangerous, unsafe, unsanitary
or otherwise unfit for human habitation or occupancy, and such that
it is unreasonable to repair the structure, to demolish and remove
such structure; or if such structure is capable of being made safe
by repairs, to repair and make safe and sanitary or to demolish and
remove at the owner's option; or where there has been a cessation
of normal construction of any structure for a period of more than
two years, to demolish and remove such structure.
C.
Failure to comply. If the owner of the premises fails
to comply with a demolition order within the time prescribed, the
Code Enforcement Constable shall cause the structure to be demolished
and removed, either through an available public agency or by contract
or arrangement with private persons and the cost of such demolition
and removal shall be charged against the real estate upon which the
structure is located and shall be a lien upon such real estate.
D.
Salvage materials. When any structure has been ordered
demolished and removed, the Town or other designated officer under
said contract or arrangement aforesaid shall have the right to sell
the salvage and valuable materials at the highest price obtainable.
The net proceeds of such sale, after deducting the expenses of such
sale, demolition, and removal, shall be promptly remitted with a report
of such sale or transaction, including the items of expense and the
amounts deducted, for the person who is entitled thereto subject to
any order of a court. If such a surplus does not remain to be turned
over, the report shall so state.
A.
Whenever the Code Enforcement Constable shall have taken any "Emergency Measure" under § 475-24, or whenever the Code Enforcement Constable shall order the demolition of any structure (or any portion thereof) pursuant to § 475-25, the property owner(s) shall be notified, in writing, of such action or determination and of the property owner(s)' right of appeal to the Town Council.
B.
Such notice shall be sent by registered mail, return
receipt requested, to the property owner's last known address as shown
on the Town's tax records. Notice to one joint property owner shall
be notice to all. In the event that such notice is returned undelivered
(for reasons other than refused delivery), alternate notice shall
be given by publishing such notice once in a newspaper of general
circulation in the Town, posting such notice on the property, at the
Town Hall and at four other public places in the Town, and by sending
written notice, first class, regular mail, to any other addresses
reasonably known to the Town for such property owner(s).
C.
Such notice shall include a copy of the notice and order previously given under § 475-21A of this Part 3, shall indicate the Town's intent to enforce compliance under § 475-25C hereof and shall inform the property owner(s) of the right to appeal such alleged violation to the Town Council by filing a written request for appeal with the Town Manager within 15 days of the notice date. For purposes hereof, the notice date shall be the date that written notice under this section was actually received (or refused) by the property owner(s) as shown on the return receipt or, in the event that alternate notice is given, as provided above, the notice date shall be the date that the last of the three alternate notice requirements are performed (i.e., the date of publication, the date of posting or the date of mailing).
D.
In the event that no written request for appeal is received by the Town within 15 days of the notice date, the Town may proceed to enforce compliance under § 475-25C.
E.
In the event that a written request for appeal is
received by the Town within 15 days of the notice date, a hearing
shall be scheduled before the Town Council on not less than 10 days
notice to the property owner(s), at which hearing the Town Council
shall hear evidence regarding the alleged violation. Any affected
property owner(s) shall have the right to be represented by an attorney,
to present evidence, to cross-examine witnesses and to present sworn
testimony. In hearing such appeal, the Town Council shall not be bound
by strict rules of evidence but shall be entitled to accept and consider
any probative evidence which reasonable persons of average intelligence
and understanding would consider as reasonably trustworthy in making
important decisions within their own lives, and the standard of proof
shall be by a preponderance of the evidence.
F.
At or before the commencement of any such hearing,
the Town Council shall be entitled to establish reasonable rules of
conduct, including the length of time permitted to each side for their
case-in-chief, for cross-examination, limiting the number of witnesses
and the like.
G.
If a majority of the Town Council shall be persuaded
that a violation of the article has occurred, it shall set forth its
decision and the reasons therefor in writing, signed by those Council
Members so finding and a copy thereof shall be filed in the Town Hall
and sent to the property owner(s). No decision of the Town Council
hereunder shall be final until such written decision is so filed and
sent to the property owner(s).
