[HISTORY: Adopted by the Mayor and Council
of the Town of Elsmere as indicated in article histories. Amendments
noted where applicable.]
[Adopted 5-13-2004 by Ord. No. 430]
The Mayor and Council finds and determines that
the existence of buildings, structures, properties and open lots which
are repeatedly in violation of or the subject of repeated neighborhood
complaints concerning violations of the Property Maintenance Code,
and the General Code of the Town of Elsmere, can have a devastating
impact upon the use of such property as well as surrounding properties
and upon the surrounding community, including the promotion of illegal
activities, the threat to the public health, safety and welfare, the
interference in the community's quality of life as well as the value
of surrounding properties, and, therefore, constitute public nuisances
that endanger the health, safety and general welfare of the people
of the Town of Elsmere and to the businesses thereof and visitors
thereto.
As used in this article, the following terms
shall have the meanings indicated:
Any person, individual, association, entity or corporation
in whose name the affected real estate is recorded with the New Castle
County Recorder of Deeds shall be presumed to be the owner thereof.
Any action or lack of action which creates or results in
the maintaining of or failure to abate a condition which is in violation
of the codes of the Town of Elsmere or the laws of the State of Delaware
or which endangers the safety, health or welfare of the public.
[Amended 4-14-2011 by Ord. No. 529]
A residence, premises, structure, place or lot, developed
or undeveloped, which creates or results in the maintaining of or
failure to abate a condition which is in violation of the codes of
the Town of Elsmere or the laws of the State of Delaware or which
endangers the safety, health or welfare of the public.
[Amended 4-14-2011 by Ord. No. 529]
Any building, residence, premises, structure, place or lot,
developed or undeveloped, where an owner or agent has been given written
notice by the Code Enforcement Office of the Town of Elsmere or the
Police Chief of the Town of Elsmere that public nuisance has taken
place at said location and within one year of that notice there is
more than one additional violation at that location for prohibited
conduct for which the owner or agent is again notified in writing.
[Amended 4-14-2011 by Ord. No. 529]
It is a violation of this article for the owner
or his or her agent, the lessee, renter, occupant or person in charge
of any building, residence, premises, structure, place or lot, developed
or undeveloped, to allow, cause, own, lease, permit, facilitate or
maintain the creation or occurrence of a public nuisance or repeat
public nuisance.
A.
It shall be a rebuttable presumption that more than
two violations for prohibited conduct occurring within 12 months of
each other have caused a repeat public nuisance to exist. This presumption
shall be effective for any combination of three violations occurring
within 12 months.
B.
Presumption of agency. Whenever there is evidence
that a person was the manager, operator, supervisor or, in any other
way, in charge of the premises at the time a public nuisance exists,
such evidence shall be presumptive that he or she was an agent of
the property owner.
A.
In addition to any other penalties provided for in
the Code of the Town of Elsmere for a violation of the Code, a violation
of this article shall be a misdemeanor punishable by a fine of not
less than $1,000 for the first offense and $2,000 for each additional
offense occurring within one year and/or imprisonment for up to one
year for each offense.
[Amended 7-9-2015 by Ord.
No. 597]
B.
This article shall not be construed to exclude any
civil or criminal remedy provided by law for the enforcement of this
Code or of the other laws of the Town of Elsmere or the County of
New Castle, the State of Delaware or the United States of America.
C.
In addition to any other penalty that may be imposed
hereunder, the owner of a premises who fails to abate a public nuisance,
said owner having knowledge of same or having been given due notice
as set forth in this article, shall be liable to reimburse the Town
for its costs and expenses to abate such public nuisance, for inspections
and to maintain the property in a safe condition, including reasonable
attorneys' fees. Said costs and expenses, if unpaid within 30 days
of service on the owner of notice of amounts due, shall become a lien
on the real property for said premises.
D.
In addition to any other penalty which may be imposed hereunder,
the Town of Elsmere may, at its discretion, revoke any rental licenses
or building permits for not only the subject property but also any
other property located within the Town of Elsmere owned by the offending
owner until the Town is satisfied that the problem has been mitigated.
[Added 4-14-2011 by Ord. No. 529]
A.
A notice of violation that a prohibited conduct has
occurred at a location shall be served by placing into the U.S. mail
a notice of the violation and mailing same to the last known address
of the owner of said property.
B.
The notice must contain the following:
(1)
A statement of the date or dates upon which the prohibited
conduct occurred at the property.
(2)
The nature of the prohibited conduct and a directive
that such conduct be abated within five days of the mailing of said
notice.
(3)
A copy of this code and a warning that if more than
one additional violation for prohibited conduct as defined in this
article occurs within one year of a previous violation, the owner
will be subject to the penalties of this article, including but not
limited to the Town seeking to place a lien or forfeiture pursuant
to this article.
D.
A violation notice for a violation of §§ 192-1 and 192-2 of the Code of the Town of Elsmere shall be posted at the property where the violation occurred or served upon any occupant of that property. If the owner of the property where the violation occurred has provided the Code Enforcement Department with a telephone number where he/she can be located, the Code Enforcement Department shall attempt to contact the owner one time and advise him/her that a violation notice has been issued.
[Added 11-12-2015 by Ord.
No. 606]
A.
Upon each offense for prohibited conduct, the Code
Enforcement Officer may issue a summons to the owner, person in charge
of said premises and/or the occupant of the residence.
B.
Upon a first offense for prohibited conduct, the Code
Enforcement Department shall send the property owner or his or her
agent a notice pursuant to the requirements of this article. Upon
a second or subsequent offense for prohibited conduct occurring within
one year of the first offense, a second or subsequent notice as described
in this article shall be sent to the property owner or his or her
agent.
C.
Upon failure of the owner to bring the building, residence,
premises, structure, place or lot into compliance with the Town Code,
the Town Attorney may apply to the appropriate court to appoint a
temporary receiver to manage, operate and bring the building, residence,
premises, structure, place or lot into compliance with the Code of
the Town of Elsmere.
[Adopted 3-9-2017 by Ord.
No. 626]
The Mayor and Council finds and determines that a system of housing receivership is a necessary tool to address public nuisances as defined in § 145-2 of this chapter, particularly in those instances in which, notwithstanding reliance upon provisions of Article I of this chapter and other provisions of this code, the public nuisance persists.
For the purposes of this article, the following words and phrases shall have the meanings respectively ascribed to them in Article I of this chapter and as follows:
The definition of abandoned property in Elsmere Code § 209-13 shall apply.
The Town Manager of Elsmere, or his or her designee as applicable.
A.
Any structure or part of a structure found to be abandoned, unsafe
or unfit for human habitation or other authorized use must be rehabilitated
or, as permitted or required by the Town Manager, demolished. A structure
may be unsafe or unfit for human habitation or other authorized use
because of:
(1)
Conditions constituting a fire hazard or conditions of damage, decay,
dilapidation, obsolescence, abandonment, vacancy, insanitation, or
vermin or rodent infestation that constitute a hazard to the health,
welfare, or safety of occupants or the public;
(2)
Lack of sanitation, illumination, ventilation, heating, plumbing,
exitways, fire protection, utilities, or other facilities adequate
to protect the health, welfare, or safety of occupants or the public;
or
(3)
Conditions that are so unsafe, insanitary, overcrowded, improper
in use or occupancy, or otherwise dangerous to life, health, welfare,
or safety as to create a hazard to occupants or the public.
B.
Whenever the Town Manager determines all or any part of an occupied
structure to be unsafe or unfit for human habitation or other authorized
use:
(1)
The Town Manager may post an order requiring the structure or affected
part to be vacated, and take necessary steps to remove occupants who
fail or refuse to vacate.
(2)
Once vacated, the structure or affected part may not be reoccupied
until it is rehabilitated to comply with all applicable codes and
ordinances, and the Town Manager has issued an occupancy permit.
(3)
Pending rehabilitation, the structure must be kept secure against
casual entry and the premises kept free of occupants, litter, high
grass, and weeds.
C.
Any structure or part of a structure that has been left unoccupied
without removing appliances or portable equipment or furniture and
without disconnecting utility service must be safeguarded by closing
and securely locking all windows, doors, and other openings.
D.
Required safeguarding. Every abandoned property must be cleaned,
closed, and safeguarded as follows:
(1)
Before the structure is closed and secured, all litter, trash, and
other debris must be removed from the premises.
(2)
All windows, doors, and other openings must be closed, securely locked,
and, if readily accessible, boarded up with substantial material,
including masonry, approved by the Town Manager. The Town Manager
may require windows facing streets to be boarded with lexan, vinyl,
or similar material, protected by security grills, or both.
(3)
As long as the structure remains unrehabilitated, it must be kept
boarded, the premises must be conspicuously posted against trespass,
and the premises must be kept free of occupants, litter, trash, debris,
high grass, and weeds at all times.
(4)
Boarding, posting, and cleaning, however, do not relieve the owner
of responsibility to demolish or to repair and maintain the property
in conformity with this article.
(5)
The structure may not be reoccupied until the Town Manager has issued
an occupancy permit.
E.
Emergency condition. An abandoned property that is not kept boarded
and free from accumulations of debris and high vegetation or that,
in the opinion of the Town Manager, is so dangerously unsound or so
deteriorated that rehabilitation is not feasible, constitutes an emergency
condition that imminently threatens the public health and safety and
requires immediate resolution.
F.
Rehabilitation, demolition, and stabilization. Except as otherwise
authorized or required under this article, a structure found to be
an abandoned property, or unsafe or unfit for human habitation or
other authorized use must be rehabilitated and an occupancy permit
obtained.
(1)
Permitted demolition. On timely appeal of an order to rehabilitate,
the Town Manager may permit an owner to demolish an unsafe structure
instead of rehabilitating it if, in the Town Manager's opinion,
demolition is not detrimental to the immediate neighborhood.
(2)
Required demolition. The Town Manager may order the immediate demolition
of any unsafe structure that, in the Town Manager's opinion,
is either so dangerously unsound or so deteriorated that rehabilitation
is not feasible.
(3)
Rescission of demolition order. The Town Manager may rescind or modify
a demolition order if the owner demonstrates the financial ability
and requisite expertise to rehabilitate the structure within a reasonable
time, as determined by the Town Manager, and agrees to comply with
a specified timetable. Failure to comply with an agreed timetable
reinstates the demolition order.
(4)
Stabilization. The Town Manager may permit or order an interim stabilization
of an unsafe structure pending its rehabilitation.
G.
Vacant lot maintenance. When a structure has been demolished under this § 145-10, the premises must be made to conform to the provisions of this article.
H.
Remedial action by Town Manager. The Town Manager may take action
whenever the owner, agent, or person in control cannot be found or
fails to comply with a notice or order served under this article:
I.
Actions authorized. The Town Manager may proceed to seek appointment
of a receiver, or complete all or any part of the required work through
officers, agents, employees, or contractors. Before taking any remedial
action, the Town Manager may enter the premises, without additional
notice, to determine the extent of deterioration and the feasibility
of rehabilitation. Remedial action under this article does not preclude
any other enforcement action authorized by this article.
A.
Power of Town Manager in emergencies. In an emergency where life,
health, safety, or property is in immediate danger, the Town Manager
may immediately take any action necessary to protect the endangered
life, health, safety, or property, without complying with the notice
provisions of this article.
B.
Photographs of dangerous conditions. In all emergencies, if it is
practical and if enough time is available to do so, the Town Manager
must cause the dangerous or unsafe condition that created the emergency
to be photographed before any demolition or other work or operation
is begun to eliminate the dangerous or unsafe condition.
C.
When necessary for the public safety, the Town Manager may temporarily
close adjacent structures and adjacent sidewalks, streets, and other
public ways and prohibit them from being used.
D.
Labor and material for emergency work. In an emergency where life,
health, safety, or property is in immediate danger and it is necessary
to perform any work or operation to protect that life, health, safety,
or property, the Town Manager may employ the persons and buy the materials
needed to perform the work or operation as expeditiously as possible.
A.
Scope. This section applies to all cases where:
(1)
The Town Manager enforces any provision of this article, including,
but not limited to: the elimination of any safety, health, or fire
hazard; the elimination of any nuisance, blight, or insanitary condition;
the removal of any abandoned or illegally constructed structure or
other object; acting as a receiver or the taking of any corrective
action in emergencies or otherwise; or
(2)
In connection with those efforts, the Town Manager or any department,
agency, unit, or body corporate and politic of this state, furnishes
or causes to be furnished any labor, supervision, equipment, or materials;
or performs or causes to be performed any inspection, work, or operation
to eliminate the hazard or condition or to remove the structure or
other object.
B.
Liability and lien for expenses. In the cases described in Subsection A, the entire amount of the Town Manager's expenditures and of the expenditures incurred by any department, agency, unit, or body corporate and politic of this state, together with all incidental costs and all accrued penalties are a lien in favor of the Town on the land and improvements in respect to which the expenditures were made.
C.
When debts and liens become effective. All debts become due and owing
to the Town immediately when the work is completed or the expenditure
made. All liens become effective when notice of the lien has been
given or that a structure has been posted in accordance with this
article.
A.
In general. If any land or structure becomes unsafe or dangerous
to public health or safety, the Town Manager may condemn the land,
structure, or equipment and issue a condemnation notice of this article.
The issuance of a violation notice is not a prerequisite for the condemnation
of real property.
B.
Posting notice. If the Town Manager condemns any land or structure,
the Town Manager must cause a notice to be conspicuously displayed
on the condemned land, structure, or equipment. The notice must:
C.
Emergencies. In case of an emergency where life or property may be in immediate danger, the Town Manager need not post the property and may proceed in accordance with § 145-11 of this article.
D.
Vacating condemned property. A notice posted under Subsection B is deemed to be sufficient warning to all occupants of the condemned property to leave immediately. If any occupant fails to vacate the property immediately after the notice is posted, the Town Manager may take whatever action is proper and expedient to remove that occupant.
F.
Status of condemned property. After property has been condemned and posted in accordance with this § 145-13, that property remains condemned and may not be occupied or used again until the Town Manager declares the property safe for occupancy or use and has removed the condemnation.
G.
Order to demolish. If, in the Town Manager's opinion, a structure
is so dangerously unsound or so deteriorated that rehabilitation is
not feasible, the condemnation notice may order the owner to demolish
the structure immediately.
H.
Removal of unsafe conditions. Any time after notice has been posted in accordance with this § 145-13, the Town Manager may demolish, move, alter, repair, rehabilitate, rebuild, reconstruct, or take any other appropriate action to eliminate or make safe and secure any dangerous or unsafe condition.
B.
In general. The Town Manager may petition a Delaware court of competent jurisdiction for appointment of a receiver to rehabilitate an abandoned or condemned property, to demolish it, or to sell it to a qualified buyer. Except as otherwise provided in this § 145-14, the receiver may be any person.
C.
Contents of petition. In seeking the appointment of a receiver, the
Town Managers must include in the petition:
(1)
A copy of the original abandoned property or condemned property notice
or order; and
(2)
A verified pleading that avers that the property is abandoned or
condemned and required rehabilitation or demolition has not been completed,
and identifies and states the qualifications of the proposed receiver,
if other than the Town Manager.
E.
Notice to judgment creditors and lien holders. After filing the petition
but before seeking finalization of the appointment of a receiver,
the Town Manager must give notice of the pendency and nature of the
proceedings by regular and certified mail to the last-known addresses
of all judgment creditors and lien holders with a recorded interest
in the property, subject to the following exceptions:
F.
Appointment of receiver. If no qualified person with an ownership
interest requests appointment to rehabilitate or demolish the property,
or if an appointee is dismissed, the Town Manager must then request
that the court appoint a receiver of the property for the purpose
of rehabilitating and managing the property, demolishing the property,
or selling it to a qualified buyer, subject to the following:
(1)
Parties divested of authority. On appointment of a receiver to rehabilitate,
demolish, or sell the property, all parties are divested of any authority
to act with respect to that property.
(2)
Penalties. Any party who takes any step to rehabilitate, demolish,
or sell the property is subject to the penalties for contempt.
(3)
Receiver not responsible to maintain or protect the property. A receiver
appointed to rehabilitate, demolish, or sell a vacant building has
no duty to, and is not personally liable for failing to, maintain
the property or protect the property from casualty or loss.
G.
Powers of receiver appointed to rehabilitate or demolish. The Town
Manager shall seek from the court such authority for the receiver
that, in addition to all necessary and customary powers, includes
the right of possession with authority to:
(1)
Contract for necessary labor and supplies for rehabilitation or demolition;
(2)
Borrow money for rehabilitation or demolition from an approved lending
institution or through a government agency or program, using the receiver's
lien against the property as security;
(3)
Manage the property after rehabilitation, with all the powers of
a landlord, for a period of up to two years and apply the rent received
to current operating expenses and to repayment of outstanding rehabilitation
expenses; and
(4)
Foreclose on the receiver's lien or accept a deed in lieu of
foreclosure.
H.
Powers of receiver appointed to sell. The Town Manager shall seek
from the court such authority for the receiver that, in addition to
all necessary and customary powers, includes the right for the receiver
to sell the property to the high bidder at public auction, following
all relevant laws and notice requirements in Delaware, or to sell
the property in a private sale if the property fails to sell at public
auction, subject to the following:
(1)
Buyer qualifications. Before any sale, the applicants to bid in a
public sale or the proposed buyer in a private sale must demonstrate
the ability and experience needed to rehabilitate the property within
a reasonable time.
(2)
Application fee. The receiver may charge a reasonable fee to applicants
in connection with the application to bid at a public sale or in connection
with the solicitation of offers for a private sale.
(3)
Application of sale proceeds. After deducting the expenses of the
sale, the amount of outstanding taxes and other government assessments,
and the amount of the receiver's lien, the receiver must apply
any remaining proceeds of the sale, first to the petitioner's
costs and expenses, including reasonable attorney's fees, and
then to the liens against the property in order of priority.
I.
Tenure of receiver appointed to rehabilitate. The Town Manager must
seek court approval that the tenure of a receiver appointed to rehabilitate
a vacant building may extend no longer than two years after rehabilitation,
and that after rehabilitation, any party to the receivership may file
a motion to dismiss the receiver on payment of the receiver's
outstanding costs, fees, and expenses.
J.
Final accounting. The Town Manager shall request the court require
that at the end of the receiver's tenure the receiver file a
final accounting with the court.
K.
Receiver's lien for costs, etc. Any costs or fees incurred by the Town Manager or the receiver are a lien against the property in accordance with § 145-12 of this article. The receiver's lien has priority over all other liens and encumbrances, except taxes or other government assessments as required by Delaware law. The receiver must allow the Town Manager's costs and expenses, including reasonable attorney's fees, to be paid to the extent that the proceeds of the sale permit.
L.
Foreclosure of lien. A receiver may foreclose on the lien by a sale
of the property at public auction, following one public notice and
notice to interested parties in the manner of a mortgage foreclosure.
After deducting the expenses of the sale, the receiver must apply
the proceeds of the sale to the liens against the property, in order
of priority. In lieu of foreclosure, and only if the receiver has
rehabilitated the property, an owner may pay the receiver's costs,
fees, including attorney's fees, and expenses or may transfer
all ownership in the property to either the receiver or an agreed-on
third party for an amount agreed to by all parties to the receivership
as being the property's fair market value.
M.
Transfer on sale. The Town Manager shall request the court to require,
following court ratification of a sale, that the receiver sign a deed
conveying title to the buyer, free and clear of all liens, judgments,
and other encumbrances. The Town Manager shall also request the court
to require, upon court ratification of the sale, that any secured
interest of a lien holder or judgment creditor automatically attaches
to the proceeds from the sale, to the extent those proceeds are available.
N.
Dismissal. The Town Manager shall request the court to require that,
on sale of the property, the receiver must file with the court a final
accounting, and, at the same time, file a motion with the court to
dismiss the action.
A.
In general. All notices under this article must be issued in accordance
with this section. However, nothing in this article may be construed
to excuse or relieve any person from complying with all provisions
of this article at all times, regardless of whether any notice or
order has been issued by the Town Manager in any particular case.
B.
Classification. Notices issued under this article are classified
as either condemnation notices, violation notices, or abandoned property
notices.
C.
Contents of condemnation notices.
(1)
Except as specified herein, every condemnation notice must set forth:
(a)
The location of the condemned structure or equipment;
(b)
The reason the structure or equipment is condemned;
(c)
A reference to applicable provisions of this article;
(d)
A warning against entering or using the condemned structure
or equipment; and
(e)
Unless to be contained in a follow-up or subsequent notice: a statement of the requirements that must be complied with to rectify the unsafe condition; the time within which the unsafe condition must be rectified; and the Town Manager's authority under Subsection I to take action at the owner's expense.
(2)
A follow-up or other subsequent notice involving the same condemnation
need not repeat the information contained in a prior notice as long
as the subsequent notice identifies the prior notice.
D.
Contents of violation notices.
(1)
(2)
A follow-up or other subsequent notice involving the same violation
need not repeat the information contained in a prior notice as long
as the subsequent notice identifies the prior notice.
E.
Contents of abandoned property notices. All notices that a property
is to be considered abandoned must set forth:
F.
When notices to be issued. Except as otherwise specified in this
article, notices must be issued in all cases where legal proceedings
might be necessary to enforce this article.
(1)
Condemnation notices. For any land, structure, or equipment being
condemned, the condemnation notice must be issued to the owner of
the land, structure, or equipment.
(2)
Violation notices. For violations, the violation notice must be issued
to the person who committed or otherwise is responsible for the violation.
G.
Service of notice: general. Except as otherwise specified in Subsection H, all notices issued by the Town Manager must be served on the person that the notice is intended for or on any authorized agent or representative of that person.
(1)
If more than one person is responsible for the violation or responsible
for complying with this Code, as in a case of property owned by more
than one person, notice may be served on any one of those persons
or on any authorized agent or representative of any of them.
(2)
A notice is properly served if: served personally on the owner, agent,
person in control, former owner, or other person responsible for the
property; hand delivered to that person's home, business, or
tax record address; or sent by certified or registered mail to that
person's home, business, or tax record address.
H.
Service of notice: posting. Adequate and sufficient notice may be
made by posting a copy of the notice on the property in question if:
(1)
The identity or whereabouts of the owner, agent, person in control,
former owner, or other person responsible for the property is unknown;
or
I.
Failure to comply with notice or citation. If any person fails to
comply with a violation notice, condemnation notice, or citation,
the Town Manager:
(1)
May take whatever action is necessary and proper, including the institution
of legal proceedings, to compel compliance with the notice or citation
or to enforce the penalty provisions of this article; and
(2)
Subject to the notice requirements of § 145-15, may proceed to repair, rebuild, demolish, or take any other action necessary to eliminate, in whole or in part, or make safe any nuisance, blight, health hazard, or dangerous, unsanitary, or unsafe condition that is the subject of the violation notice, condemnation notice, or citation.
J.
Notice of intent to repair, etc. Except as provided in § 145-15, before the Town Manager proceeds to repair, rebuild, demolish, or take any other action to eliminate or make safe any nuisance, blight, health hazard, or dangerous, unsanitary, or unsafe condition, a notice must be posted on the front of the structure stating that the violation has not been rectified and that the Town Manager intends to undertake the necessary work and charge the expenses of that work to one or more of the owner, agent, person in control, or former owner of the premises, as the case may be. This notice must also be mailed or delivered to the home, business, or tax record address of the owner, agent, person in control, former owner, or other person responsible for the property, as the case may be, or their respective agents.
L.
Actions not an abatement, etc. Actions taken by the Town Manager
do not constitute an abatement or cancellation of the underlying notice
or citation.
M.
Extension of time limit on notices. The Town Manager may extend the
time within which to comply with a condemnation notice or violation
notice if, in the Town Manager's judgment, more time is needed
to comply.
N.
Removal or defacement of posted notices. No person may remove, deface,
damage, or change any notice, poster, or sign placed under this article
on any land, structure, or other object, until the Town Manager authorizes
its removal.
O.
Opportunity to contest notice. Any notice provided for under this
article shall state a date, time and place where any interested party
may appear and be heard in opposition to any order or other action
proposed to be taken with respect to any property or building. The
notice may further provide for a date by which any interested party
must submit such information that they intend to submit in support
of their opposition.
