[Ord. 763, 5/6/1998,
§ 501]
1.
The purpose of this Part is to help prevent the spread of graffiti
and to establish a program for its removal from Borough-owned property
and non-Borough-owned property within the Borough.
2.
The Borough Code, 53 P.S. § 46202, authorizes the Borough
to prohibit and remove any nuisance, to require the removal of any
nuisance, to make such regulations as may be necessary for the health,
safety, general welfare, cleanliness, beauty, convenience and comfort
of the Borough and to make and adopt all such ordinances, bylaws,
rules and regulations as may be expedient or necessary for those purposes.
3.
The Borough Council finds and determines that graffiti is obnoxious
and a pubic nuisance and unless the Borough causes it to be removed
from Borough-owned and non-Borough owned property within the Borough,
it tends to remain. Other properties then become the target of graffiti
with the result that entire neighborhoods are affected and become
less desirable places in which to be, all to the detriment of the
Borough.
4.
It is the purpose of the Borough Council of the Borough of Stroudsburg,
through the adoption of this Part, to provide additional enforcement
tools to protect public and private property from acts of vandalism
and defacement, including the application of graffiti on walls, natural
objects and structures. Such acts are destructive of the rights and
values of property owners as well as the entire community.
[Ord. 763, 5/6/1998,
§ 502]
For the purposes of this Part, the following words shall have
the meanings respectively ascribed to them in this section:
Any aerosol container which is adapted or made for the purpose
of applying spray painting, or other substance capable of defacing
property.
Any indelible marker or similar implement with a tip which,
at its broadest width, is greater than 1/8 of an inch, containing
ink or other pigmented liquid which is not water-soluble.
Any unauthorized inscription, word, figure, painting or other
defacement that is written, marked, etched, scratched, sprayed, drawn,
painted or engraved on or otherwise affixed to or on any surface of
Borough-owned property or non-Borough-owned property within the Borough
by or with, but not limited to, any of the following: felt-tip marker,
paint stick or graffiti stick, or graffiti implement, to the extent
that the same was not authorized in advance by the owner or occupant
thereof or, despite advance authorization, is otherwise deemed by
the Board to be a public nuisance.
An aerosol paint container, a felt-tip marker, gum label,
paint stick or graffiti stick, etching tool, or any other device capable
of scarring or leaving a visible mark on glass, metal, concrete or
wood or any other surface.
Any device containing a solid form of paint, chalk, wax,
epoxy, or other similar substance capable of being applied to a surface
by pressure, and upon application, of leaving a mark at least 1/8
of an inch in width.
[Ord. 763, 5/6/1998,
§ 503]
It is unlawful for any person to apply graffiti to any trees,
other natural features, or structures including but not limited to
buildings, walls, fences, poles and signs (hereinafter "structures")
on any Borough-owned property or, without the permission of the owner
or occupant, on any non-Borough-owned property within the Borough.
[Ord. 763, 5/6/1998,
§ 504]
1.
The existence of graffiti on any Borough-owned property, or without
the permission of the owner or occupant, or on any non-Borough-owned
property within the unincorporated areas of the Borough is expressly
declared to be a public nuisance.
2.
The Borough Council of the Borough of Stroudsburg hereby declares
and finds graffiti to be a nuisance subject to abatement according
to the provisions and procedures herein contained.
3.
It is the duty of both the owner of the property which the graffiti
has been applied, and any person who may be in possession or who has
the right to possess such property, to at all times keep such property
clear and free of graffiti.
[Ord. 763, 5/6/1998,
§ 505]
Any person applying graffiti on property within the Borough
shall have the duty to remove same within 24 hours after notice by
the Borough or private owner of the property involved. Such removal
shall be done in a manner prescribed by the Borough, as authorized
by the Borough Council, and may be deemed by the Borough to satisfy
any payment or penalty that might otherwise be imposed. Any person
applying graffiti shall be responsible for such removal or for the
payment therefor. Failure of any person to so remove graffiti or pay
for its removal shall constitute an additional violation of this Part.
Where graffiti is applied by an unemancipated minor, the parent(s)
or legal guardian(s) shall also be responsible for such removal or
for the payment therefor. Such payments shall be in addition to any
other penalties imposed.
[Ord. 763, 5/6/1998,
§ 506]
1.
Graffiti may be removed by any of the following methods:
A.
It is unlawful for any person who is the owner, or who has primary
responsibility for control of property or who has primary responsibility
for repair or maintenance or property in the Borough, hereinafter
referred to in this section as the "responsible party," to permit
said property which is defaced with graffiti to remain so defaced
for a period of 10 days after service by first-class mail of notice
of same, unless (1) said person shall demonstrate by a preponderance
of the evidence that he or she does not have the financial ability
to remove the defacing graffiti, or (2) it can be demonstrated by
the responsible party that the responsible party has an active program
for the removal of graffiti and has scheduled the removal of the graffiti
as part of that program, in which case it shall be unlawful to permit
such property to remain defaced with graffiti for a period of 15 days
after service by first-class mail of notice of same.
B.
Right of Borough to Remove.
(1)
Whenever the Borough becomes aware or is notified and determines
that graffiti is located on Borough-owned property or non-Borough-owned
property within the Borough, that is viewable by persons utilizing
any public right of way in the Borough, the Borough shall secure the
consent of the property owner and the Borough shall be authorized
to use public funds to provide for the painting or repairing of same,
but shall not authorize or undertake to provide for the painting or
repair of any more extensive area than that where the graffiti is
located, unless the Borough, as authorized by the Borough Council,
determines in writing that a more extensive area is required to be
repainted or repaired in order to avoid aesthetic disfigurement to
the neighborhood or community, or unless the responsible party agrees
to pay for the costs of repainting or repairing the more extensive
area.
(2)
Right of Entry on Private Property. Prior to entering upon private
property or property owned by a public entity other than the Borough,
for purposes of removal of graffiti, the Borough shall secure the
consent of the responsible party, and a release of the Borough from
any liability.
C.
If a responsible party fails to remove the offending graffiti within
the time herein specified, or if the Borough shall have requested
consent to remove or paint over the offending graffiti and the responsible
party has refused to grant consent for entry on terms acceptable to
the Borough consistent with the terms of this section, the Borough
may commence abatement and cost recovery proceedings for the removal
of the graffiti pursuant to the provisions of this Part, which procedures
authorize the recovery of all costs incurred by the Borough in abating
graffiti including the recordation of a lien as to the affected property.
Notwithstanding the foregoing, owner-occupied single-family residences
are excluded from such cost recovery proceedings including the recordation
of a lien on the property.
(1)
Whenever the Borough, as authorized by the Borough Council,
determines that graffiti has been applied to non-Borough-owned property
within the Borough and that it is in the interest of the Borough to
remove such graffiti through the use of Borough resources, then the
Borough, as authorized by the Borough Council, may use Borough resources
to remove the graffiti, provided that the Borough obtains the consent
of the private property owner and release of the Borough from liability.
(2)
Whenever the Borough, as authorized by the Borough Council,
determines that graffiti is being maintained upon any non-Borough-owned
property within the Borough in violation of this Part, the Borough,
as authorized by the Borough Council, may issue a written notice and
order to abate the graffiti. The notice shall be issued to the owner
of the property and shall inform the owner that the owner is maintaining
graffiti which constitutes a public nuisance and that maintenance
of the graffiti is a violation of this Part. The notice shall state
that the graffiti must be removed within 10 days from the date of
the notice and that if the graffiti is not removed within that time,
then the Borough proposes to remove the graffiti and the cost of such
removal, if not paid by the owner, shall be made a lien upon the property.
Notwithstanding the foregoing, a notice of graffiti nuisance shall
not be issued to the owner of a single-family residence which is owner
occupied.
The notice shall also inform the property owner that if the
graffiti is not removed within the specified ten-day period, then
a hearing shall be held before the Borough Codes Hearing Board to
hear any protest of the property owner. The notice shall specify the
time and place at which the Borough Codes Hearing Board shall hold
such hearing. Such hearing shall be scheduled not less than 10 days
after the date of the notice.
(3)
The notice issued pursuant to Subsection C(2) above shall be addressed to the owner of the property as shown on the latest tax assessment roll at the owner's last known address and shall be delivered by depositing a copy of the notice in the United States mail, postage paid, or personally delivering a copy of the notice to the owner. Notice shall also be posted in a conspicuous place on the subject property. No such notice shall be either mailed to or posted on an owner-occupied single-family residence. The failure of any person to receive notice shall not affect the validity of any proceeding under this Part.
(4)
Before any abatement of any graffiti, the Borough Codes Hearing
Board, as authorized by the Borough Council, shall hold a hearing
regarding the proposed abatement to determine whether the graffiti
constitutes a public nuisance and whether abatement is appropriate.
The Borough Codes Hearing Board shall receive and consider all relevant
evidence presented at the hearing. Any interested person shall be
given an opportunity to be heard.
(5)
The Borough Codes Hearing Board shall provide notice of the
their decision and shall provide an order to abate the graffiti, if
appropriate, to the owner of the subject property as shown in the
latest tax assessment.
(6)
The Borough Codes Hearing Board may order that the Borough abate
any graffiti that has been determined to be a public nuisance and
that remains unabated at least seven days after the Hearing Board
gives notice of their decision and issues an order to abate.
(7)
The Borough shall keep an account of the costs, including incidental
expenses, of abating such graffiti on each separate property where
the work is done and shall render an itemized report in writing to
the Council showing the cost of abatement of the graffiti. The term
incidental expenses shall include but is not limited to the actual
expenses and costs of the Borough in the preparation of notices, title
searches, specifications and contracts, inspection of the work, the
cost of posting and mailing required under this Part, any attorney's
fees expended in the abatement of the nuisance, all costs and expenses
for which the Borough may be liable under state law arising from or
related to the nuisance abatement action, and all costs or expenses
to which the Borough may be entitled under state law. Costs and expenses
for which the Borough may be reimbursed begin to accrue at the time
the Borough first receives a complaint regarding the graffiti. Costs
and expenses may be recovered once it has become necessary for the
Borough to conduct an abatement hearing. Notwithstanding the foregoing,
costs and expenses of abatement may not be recovered from owners of
single-family residences that are owner-occupied.
(8)
If the total cost of the abatement of the graffiti by the Borough
is not paid to the Borough within 10 days after the date of the notice
of the cost of the abatement, the Borough shall record, in the office
of the County Recorder, a statement of the total balance due to the
Borough, a legal description of the property, and the name of the
owner concerned. From the date of such recording, the balance due
will constitute a lien on the property. The lien will continue in
full force and effect until the entire amount due, together with interest
as the maximum legal rate accruing from the date of the completion
of the abatement, is paid in full. Notwithstanding the foregoing,
no lien shall be placed on a single-family residence which is owner-occupied.
(9)
The Borough may bring appropriate actions, in a court of competent
jurisdiction, to collect any amounts due by reason of the abatement
of graffiti by the Borough and to foreclose any existing liens for
such amounts. Notwithstanding the provisions of this Part, the Borough
may bring the appropriate civil and criminal action in a court of
competent jurisdiction for abatement of any nuisance within the Borough
pursuant to any other provision of the law.
[Ord. 763, 5/6/1998,
§ 507]
Any person, firm or corporation who shall violate any provision
of this Part shall, upon conviction thereof, be sentenced to pay a
fine of not more than $300, together with the cost of prosecution,
the cost of removal by the Borough, or to imprisonment for a term
not to exceed 30 days. Every day that a violation of the Part continues
shall constitute a separate offense.
