[Adopted 10-21-2013 by Ord. No. 2013-10]
This article shall be known as the "Hazardous or Dangerous Tree
and Shrub Ordinance of 2013."
This article is ordained and enacted pursuant to the power of
the Board of Supervisors to prohibit nuisances as per Section 1529,
Nuisances, of the Second Class Township Code, as amended (53 P.S.
§ 66529, as amended), Section 2326, Obstructions and Nuisances,
of the Second Class Township Code (53 P.S. § 67326), Section
2325, Saving Trees and Shrubbery, of the Second Class Township Code
(53 P.S. § 67325) and the general powers of the Township
to make or adopt ordinances necessary for the proper management, care
and control of the Township and the maintenance of peace, good government,
health and welfare of the Township and of its citizens per Section
1506 of the Second Class Township Code, as amended (53 P.S. § 66506,
as amended), and otherwise per law.
The purpose of this article is to require the removal of dead,
dying and hazardous or dangerous trees or shrubs in the public right-of-way
found by the Supervisors to constitute a hazardous or dangerous condition
to the use of a public street, road or highway or which impairs the
use or maintenance of a public street, road or highway in the Township
all so as to protect the public health, safety and welfare and to
eliminate a potential menace to public travel.
The Supervisors of the Township of Derry hereby find and declare
that dead, dying and hazardous or dangerous trees or shrubs within
the public right-of-way constitute a hazardous or dangerous condition
to the use of public streets, roads or highways and/or impair the
use or maintenance of public streets, roads or highways in the Township
of Derry and are hereby declared to be a public nuisance.
It is the intent of this article that for a violation hereof
to be a public nuisance, there must be a nuisance in fact.
From and after the passage and approval of this article, no
person, firm or corporation shall permit any dead, dying and hazardous
or dangerous tree or shrub to remain on a Township right-of-way abutting
real property of that person, firm or corporation which is owned,
leased or occupied by said person, firm or corporation.
A.
Notice.
(1)
Whenever such a condition as set forth in this article is maintained,
the Board of Supervisors shall cause written notice, by one authorized
so to do, to be served upon the owner and the occupant of the property
abutting the Township right-of-way, in one of the following manners:
(a)
By making personal service or delivery of the notice to the
owner and, if applicable, the occupant of the premises abutting the
Township right-of-way; or
(b)
By handing a copy:
[1]
At the residence of the owner to an adult member of the family
with whom he/she resides; but if no adult member of the family is
found, then to an adult person in charge of such residence, or to
an adult person in charge of the property abutting the Township right-of-way
where the condition is located; or
[2]
At the residence of the owner or to the clerk or manager of
the hotel, inn, apartment house, boardinghouse or other place of lodging
at which he/she resides; or
[3]
At any office or usual place of business of the owner or his/her/its
agent or to the person for the time being in charge thereof; or
(c)
By mailing a copy of the notice to the last known address of
the owner, and, if applicable, the occupant, by certified mail, return
receipt requested, restricted delivery and concomitantly mailing a
copy of said notice by United States First-Class Mail, as evidenced
by a postal certificate of mailing.
(3)
If the certified mail, return receipt requested, restricted delivery and the United States First Class Mail are both returned by the postal authorities, and if service cannot reasonably and expeditiously be made in any other manner under Subsection A(1)(a) through (c), service shall be made by posting a copy of the notice and order in a conspicuous place visible to the public and to any owner or occupant of the property abutting the Township right-of-way, on the property which is the subject of or is the property affected by the notice and order.
B.
Order to correct. Such notice shall contain an order to correct which
shall include:
(1)
A description sufficient to identify the condition and the location
of the condition; and
(2)
An order to such owner or occupant to take action to correct the
condition within a specified time no less than within 10 days after
the date of the notice and, thereafter, to comply fully with its terms
of the notice with reasonable dispatch as is deemed necessary by the
Township to correct the condition under the circumstances; and
(3)
A warning substantially to the effect that if the condition is not
corrected within the time fixed in the order, the failure to correct
the condition could result in the imposition of a fine and court costs,
and, in addition, could result in the condition being abated by the
Township as a public nuisance at the cost and expense of the owner
and/or occupant of the property abutting the Township right-of-way;
and
(4)
Both the owner and the occupant of a premises/property abutting the
Township right-of-way shall be responsible for carrying out or complying
with the order.
Any person who violates or permits a violation of this article
shall, upon conviction in a summary proceeding brought before a Magisterial
District Judge under the Pennsylvania Rules of Criminal Procedure,
be guilty of a summary offense and shall be punishable by a fine of
not more than $1,000, plus costs of prosecution. In default of payment
thereof, the defendant may be sentenced to imprisonment for a term
not exceeding 90 days. Each day or portion thereof that such violation
continues or is permitted to continue shall constitute a separate
offense, and each section of this article that is violated shall also
constitute a separate offense.
The Township, by means of a complaint in equity, may compel
the owner and, if applicable, the occupant of the premises to comply
with the terms of any notice of violation, or otherwise may seek any
such other relief as any court of competent jurisdiction is empowered
to afford.
A.
Should any owner of real estate abutting the Township right-of-way
fail to cut or remove such dead, dying and hazardous or dangerous
tree or shrub, upon being notified to do so, as aforesaid, the Township
shall have such removed and bill the owner for the actual cost thereof,
and, upon default of payment of said invoice by the owner of the real
estate, the Township Supervisors shall collect the actual cost and
expense of such cutting and/or removal from the owner of the real
estate abutting the Township right-of-way who created, continued,
caused, maintained or permitted such violation to exist, and/or failed,
neglected or refused to comply with the notice and order when so requested,
by the filing of a municipal claim in the manner provided by law for
the filing and collection of Municipal Claims, 53 P.S. § 7101
et seq., as such may be amended from time to time, and/or by an action
in assumpsit (a civil action).
B.
Nonetheless, all logs, cordwood, branch wood or other forms of wood
derived from the destruction or removal of any such trees or shrubs
shall be surrendered to the abutting property owner(s).
Nothing in this article shall prevent the Board of Supervisors
or the Roadmaster or other persons in their employ from removing roadside
trees which may be thrown down by wind or lodged in a position to
be a menace to public travel or which by reason of any other cause
may become a source of danger to the public. Upon doing so, the Township
may bill the abutting property owner for the actual cost thereof and
on default of payment thereof may collect the same by the filing of
a municipal claim in the manner provided by law for the filing and
collection of Municipal Claims, 53 P.S. § 7101 et seq.,
as such may be amended from time to time, and/or by an action in assumpsit
(a civil action).
