[Adopted 4-19-1991 by Ord. No. 257 (Ch. 238, Art. V, of the 1992 Code)]
This article is adopted pursuant to §§ 4.1, 4.2.12, 4.2.25, 4.2.27, 4.2.28, 4.2.31, 4.2.47 and 22 of the Town Charter of the Town of Bethany Beach and, further, pursuant to the general police powers of the Town of Bethany Beach.
The Town Council of the Town of Bethany Beach has found and determined that, during times of heavy or extended precipitation, there exists a serious problem in the Town with regard to drainage of surface waters from public and private lands within the Town.
The Town Council has further found and determined that one of the primary causes of such drainage problems during times of heavy or extended precipitation is the failure of private property owners within the Town to maintain and keep open those portions of surface water drainage systems located on their respective properties which form a part of an interconnected surface water drainage system located within various areas of the Town of Bethany Beach.
The Town Council hereby declares it to be the purpose of this article to ensure that all portions of any surface water drainage system previously existing, now existing or hereafter created within the Town of Bethany Beach which is located in, on, over, across or under public or private property within the Town be opened, reopened and maintained by the owners of the real estate upon which such drainage system or portions thereof is/are located, so as to promote drainage of stormwater within the Town.
It is hereby declared to be unlawful and a violation of this article to:
Fill, obstruct, block, dam or otherwise interfere with the normal and proper operation of any drainage ditch, swale, gully, storm drain or other surface water drainage feature in the Town, which is part of or connected with or to any surface water drainage system.
The Town shall have the authority to enter upon private property located within the boundaries of the Town of Bethany Beach to inspect any portion of a surface water drainage system located thereon.
If, after such inspection, any duly authorized Town official determines that a violation of this article is occurring on any property within the Town, the Town may issue an order to the owner(s) of record of such property ordering such owner(s) to correct such violation within 30 days of receipt of such written order. The order shall specify the corrective measures necessary to remove the violation, shall indicate that such corrections must be completed within 30 days of receipt of the order and shall set out the enforcement remedies available to the Town in the event that the violation has not be remedied within the time stated in the order. A form of order to be issued pursuant to this section is attached to this article as Exhibit A and is made a part hereof.
Editor's Note: Exhibit A is on file and available for inspection in the Town Office.
In the event that any violation of this article is not remedied within 30 days after receipt by any one or more of such property owners of record of any order issued pursuant to § 516-44 of this article, the Town may pursue each or all of the following remedies:
Civil fine. The Town may file a complaint alleging a violation of this article in any court of competent jurisdiction. Upon conviction, the property owner(s) shall, upon conviction thereof, pay such fines as set out in Chapter 1, General Provisions, Article I, Penalties. Each day of a continuing violation after expiration of the thirty-day notice shall be a separate offense. In any such prosecution, each property owner of record shall be jointly and severally liable for such violation with all other joint property owners of record.
[Amended 2-17-2006 by Ord. No. 407]
Injunctive relief. The Town may file an action in any court of competent jurisdiction seeking injunctive relief to compel the property owner(s) to take the necessary corrective measures to remedy the violation. In any such action, the Town shall request the court to award its court costs and attorney's fees reasonably and necessarily incurred in order to obtain such injunctive relief.
Remedy of violation by Town; costs. The Town may, through its own employees or through an independent contractor, enter upon the property to take the necessary corrective measures to remedy the violation and charge the costs thereof, plus a service charge as provided in the fee schedule on file in the Town Office to cover administrative costs to the Town, against the property owner. Such costs may be recovered against the property owner in any civil action for debt in any court of competent jurisdiction or may be assessed as a lien against the property under 25 Del. C. Chapter 29 or pursuant to the pertinent provisions of the Town Charter.
Before the Town may proceed under § 516-45C to enter upon the property and take necessary corrective measures to remedy the violation, the property owner(s) shall be notified, in writing, of the Town's intent to do so and of the right of appeal to the Town Council.
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 and by sending written notice, first class, regular mail, to any other addresses reasonably known to the Town for such property owner(s).
Such notice shall include a copy of the notice and order previously given under § 516-44 of this article, shall indicate the Town's intent to enforce compliance under § 516-45C 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 hereinabove provided, the notice date shall be the date that the last of the three alternative notice requirements are performed (i.e., the date of publication, the date of posting or the date of mailing). A form of the notice of appeal rights to be issued pursuant to this section is attached to this article as Exhibit B and made a part hereof.
Editor's Note: Exhibit B is on file and available for inspection in the Town Office.
In the event that no written request for appeal is received by the Town within 21 days after the notice date, the Town may proceed to enforce compliance under § 516-45C hereof.
In the event that a written request for appeal is received by the Town within 21 days of the notice date, a hearing shall be scheduled before the Town Council on not less than 15 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.
At or before the commencement of any such hearing, the Town Council shall be entitled to establish reasonable rules for the conduct thereof, 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.
If a majority of the Town Council shall be persuaded that a violation of this 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).