Sussex County, DE Property Maintenance Code

[1]

Editor's Note: This ordinance also repealed former Ch. 80, Lot Maintenance, adopted 3-18-1986 by Ord. No. 357, as amended.

[Amended 9-22-2020 by Ord. No. 2738]

Constable authority. It shall be the duty of the Constable or his/her designee (collectively "Constable") to enforce the provisions of this chapter. When the Constable, or his/her designee, determines that there has been a violation of this chapter, or has grounds to believe that a violation has occurred, notice shall be given to the owner of the subject property, if known. Notice may also be given to the person responsible for the subject property as defined in 9 Del. C. § 7101(3).

Administrative enforcement. Any person violating the provisions of this chapter may be subject to administrative proceedings instituted by the Constable.

(1)

Notice to owner or person responsible. Whenever the Constable determines that there has been a violation of this chapter or has reasonable ground to believe that a violation has occurred, notice shall be given to the owner, if known. Notice may also be given to person(s) responsible for the property as defined in 9 Del. C. § 7101(3). Any person(s) noticed shall be responsible for correcting such violation(s).

(2)

Form. The form of such notice prescribed in Subsection B(1) shall be in accordance with § 80-5B.

(3)

Method of service. The method of service of the notice prescribed in Subsection B(1) shall be in accordance with § 80-5C.

(4)

Exceptions. In no case shall the Constable be required under this section to provide a subsequent violation notice to any owner or person where the same violation is alleged by the Constable to exist within a twelve-month period.

Ticketing. Pursuant to Title 9, Chapter 71 and Title 25, Chapter 29 of the Delaware Code, the Constable shall have the authority to issue ticket(s) to the owner of a property, regardless of whether the owner actually resides upon the property, including any vacant lots, for violations of § 80-1, Prohibited growth and accumulations; § 115-191, Parking, storing and maintaining of vehicles and trailers; and § 115-191.1, Prohibited accumulations.

(1)

Procedure. Whenever the Constable's Office receives a complaint that there has been an alleged violation(s) of the above-referenced sections, the Constable's Office shall inspect the property to determine whether a violation(s) has occurred. If a violation(s) has occurred, a notice of violation(s) shall be given to the owner of the property. Notice may also be given to the person responsible for the subject property. The owner and/or noticed person responsible shall be responsible for correcting such violation(s) within 10 calendar days. If the Constable determines that the violation(s) remains after the 10th calendar day, the owner of the property on which such noncompliance exists shall be subject to, and liable for, a civil penalty in the amount of $100. This civil penalty shall double if not paid within 30 calendar days from the date of the ticket. In no case shall the Constable be required by this section to provide notice within a twelve-month period to any owner previously provided notice pursuant to this section where the same Code violation exists.

(2)

Citation. Any ticket issued for failure to comply with any provision identified in § 80-4C may be mailed or personally delivered to the person responsible for the property and shall be mailed or personally delivered to the owner of the property that is the subject of the ticket. Pursuant to 9 Del. C. § 7107 and 25 Del. C. § 2901, civil penalties may be added to the County property tax billings for the property which was the subject of the ticket. Additional civil penalties shall also double if not paid within 30 calendar days from the date of the respective ticket.

(3)

Continuing violations. After the recipient of a ticket(s) has an opportunity to appeal the ticket(s) as permitted by § 80-4C(5), the violation shall constitute a continuing violation; a ticket for the same violation may be issued each day the violation continues and a separate penalty for each day may be imposed.

(4)

State of mind. It shall be unnecessary to prove the violator's state of mind with regard to the failure to comply with any provision of this section, as the legislative purpose is to impose strict liability for such noncompliance.

(5)

Appeals. The owner of or person responsible for a property aggrieved by any civil penalty imposed pursuant to § 80-4C may appeal the ticket to the Board of Adjustments and Appeals in accordance with § 80-4F.

Costs. The owner of or person responsible for the property shall be responsible for all costs associated with the enforcement of this chapter and the investigation, removal, remediation, or abatement of violations including the costs of the institution and maintenance of temporary safeguards and reasonable attorneys' fees associated with the above. The costs shall be liens on the property to the extent permitted by law.

Administrative penalty provisions. The following administrative penalties may be imposed by the Constable:

(1)

Administrative fines. Notwithstanding any other section of this Code, any person who is found to have violated any provision of this chapter or directive of the Constable, may be subject to the penalties specified in § 80-4G(3) for each day that the violation continues in addition to any expense incurred by the County for the removal or abatement of the violation. Administrative fines imposed pursuant to this section shall be a lien on the parcel of real property that the expense is incurred upon or which is the subject of the violation. Upon certification of the lien by the Constable's Office, the amount of such lien shall be recorded and collected in the same manner as other county real estate taxes, and paid to Sussex County when collected.

(2)

Institution of remedial action. The County may initiate action to remedy any violation. Upon completion of such remedial work, the violator shall be provided the opportunity to reimburse the County for the cost incurred. If the violator fails to reimburse the County within the time period specified, the County may:

(a)

Call or collect on any bond or insurance established for this purpose;

(b)

Place a lien on any property within the County held by the person as permitted by state law; or

(c)

Institute a civil action for the recovery of such expenses, together with any penalty, fine, fee and/or interest, against the person, and the County shall be awarded reasonable attorneys' fees and all expenses and costs the County has incurred including, without limitation, proceedings pursuant to a writ of monition, as permitted under 9 Del. C., Chapter 71. An administrative fee for processing vendor requests and providing vendor services shall be charged for each instance such service is provided as set forth in the appendix to this chapter. This section shall not be construed to limit any other actions or remedies at law or equity.

Administrative appeal.

(1)

Appeal to the Board of Adjustments and Appeals. Any person aggrieved by any administrative enforcement action taken pursuant to this chapter, or any person who in good faith claims that the true intent of this chapter or the rules legally adopted there under have been incorrectly interpreted, the provisions of this chapter do not fully apply, or an equally good or better form of construction is proposed shall have the right to appeal to the Board of Adjustments and Appeals. The Board shall not have the authority to waive any requirement of this chapter.

(2)

Time. All appeals shall be filed with the Board of Adjustments and Appeals within 10 days of the date the ticket issued by the Constable. A public hearing will then be afforded to the appellant within 45 days of the filing of the appeal, or as soon as can practically be heard.

(3)

Written decision. The Board of Adjustments and Appeals shall make findings of fact and shall render a decision in writing based upon the record created at the public hearing within 20 days.

(4)

Actions that can be taken. The Board of Adjustments and Appeals may affirm or deny the action appealed, provided that such action shall be affirmed by the Board if the action was not arbitrary or capricious, or was not taken pursuant to law.

(5)

Stay. If a stay of the action being appealed is desired, a written request must be submitted in writing to the Constable at the Constable's Office. The stay will be granted unless the Constable can demonstrate that the granting of the stay would jeopardize the health, safety or welfare of the public.

(6)

Fee. The fee for filing of an appeal under this section is set forth in the Appendix to this chapter.

(7)

Writ of certiorari. An aggrieved party may appeal the decision of the Board of Adjustments and Appeals by filing a petition for a writ of certiorari in the Delaware Superior Court.

Criminal enforcement. Any person violating the provisions of this chapter may be subject to a criminal proceeding instituted by the Constable or the County Attorney, or his or her designee. It is unnecessary to prove the defendant's state of mind with regard to offenses which constitute violations as the legislative purpose is to impose strict liability for such offenses.

(1)

Dismissal of charges. Any person subject to criminal prosecution under this Chapter may avoid the same upon presenting sufficient evidence to establish that the alleged violation has been remedied. At the discretion of the Constable or the County Attorney, or his or her designee, and if sufficient evidence is presented prior to trial, the County may enter a nolle prosequi with or without prejudice.

(2)

Criminal proceedings. Justices of the Peace shall have jurisdiction throughout the state to hear, try and finally determine any violation or violations of any ordinance. Only upon conviction shall the defendant have the right to appeal to the Court of Common Pleas.

(3)

Penalties. Violations of this chapter shall be deemed misdemeanor offenses. The sentence for any person convicted of such a misdemeanor offense shall include a fine of up to $1,000 for each violation and may include restitution or such other conditions as the court deems appropriate:

(a)

Any unpaid fine amounts may be considered a tax lien and collected in the same manner as other County real estate taxes. "Fines" as used in this section shall also include any civil judgment awarded to the County thereof entered pursuant to 11 Del. C. § 4101 (Payment of fines, costs and restitution upon conviction), 25 Del. C. § 2901 et seq. (Liens of the State and/or its political subdivisions) or 9 Del. C. § 7107 et seq. (Abatement; creation of tax lien).

(4)

Continuing violations. Each day any violation of this chapter shall continue shall constitute a continuing violation for which a separate conviction may be obtained and a separate penalty for each day shall be imposed, and shall be considered a single conviction for the purposes of § 80-4G(3).

Civil enforcement. Any person violating the provisions of this chapter may be subject to a civil proceeding instituted by the County Attorney or his or her designee. The County may apply to the Court of Chancery for injunctive relief against the person, to prevent, restrain, correct, abate, remove, or enjoin any violation of the provisions of this chapter.

Abatement of violation. The imposition of the penalties and remedies herein prescribed shall not preclude the Constable or his or designee from instituting the appropriate action to restrain, correct or abate a violation when such person fails to correct the violation after due notice, either actual or constructive, and where such person has had the opportunity to be heard by the Board of Adjustments and Appeals or court of competent jurisdiction through a timely filed appeal on the issue of the violation.

Reimbursement. Upon completion of any action taken by the County to correct or abate a violation, the violator shall be provided the opportunity to reimburse the County for any costs incurred within 30 days of issuance of written notice served in accordance with § 80-5C. An administrative fee for processing vendor requests and providing vendor services shall be charged for each instance such service is provided as set forth in the appendix to this chapter.

Remedies. Upon failure to reimburse the County within the time period specified, the County may:

(1)

Call or collect on any bond or insurance established for this purpose;

(2)

Place a lien upon the parcel of real property which is the subject of the abatement or after a notice of lien is filed on any property within the County which is held by the responsible person. Upon certification of the lien by the Constable's Office, the amount of such lien shall be recorded and collected in the same manner as other county real estate taxes and paid to the County when collected. There shall be a right to appeal the abatement cost to the Board of Adjustments and Appeals; or

(3)

Institute a civil action for the recovery of such expense, together and with any penalty, fine, fee and/or interest, against the person, and the County shall be awarded reasonable attorneys' fees and all expenses and costs the County has incurred including, without limitation, proceedings pursuant to a writ of monition, as permitted under 9 Del. C., Chapter 71. This section shall not be construed to limit any other actions or remedies at law or equity.

Extensions. Application for an extension of the time frame to correct the violations addressed in the violation notice may be made in writing to the Constable. The Constable is authorized to grant, in writing, one or more extensions of time. The applicant must demonstrate justifiable cause and explain all pertinent surrounding circumstances including reasons for the delay, plans for completion, and what actions the applicant has taken to correct the problem. The Constable may set conditions regarding the time frame to rectify any violation as well as any other conditions such as, but not limited to, those prescribed by a court of law or the Board of Adjustments and Appeals. A fee as set forth in the Appendix to this chapter shall be charged for each extension.

[1]

Editor's Note: This ordinance also renumbered former § 80-5 as § 80-6.