[HISTORY: Adopted by the Borough Council
of the Borough of Ephrata 9-11-2017 by Ord. No. 1536. Amendments noted where applicable.]
A.
Title. This chapter shall be known and may be cited as the "Borough
of Ephrata Nuisance Properties Ordinance."
B.
Authority. This chapter is enacted under the authority of 8 Pa.C.S.A.
§ 101 et seq. (the Borough Code).
C.
Purpose. It is the purpose and intent of this chapter to ensure that
public health, safety and welfare shall not be abridged by the making
and creating of nuisance properties through nuisance activities created
thereon within the Borough of Ephrata. To this end, Borough Council
hereby authorizes and directs the Borough Manager ("Manager") or his/her
designee, as provided in the following sections, to charge to the
property owner the costs of abatement of nuisances arising from the
conditions and/or activities at or upon nuisance property, and to
enforce the provisions of this chapter against the owner of and/or
person responsible for a nuisance property when the nuisance activity
(as defined herein) remains unabated over an unreasonably long period
of time.
D.
Scope. This chapter applies to all persons and property within the
Borough of Ephrata as regulated herein.
E.
Relationship with other restrictions. The provisions of this chapter
are not intended to interfere with, abrogate or annul other rules,
regulations or ordinances, including Title 18 (Crimes Code) and Title
75 (Vehicles Code), Pennsylvania Consolidated Statutes or 42 U.S.C.
§§ 3601-3619, the Fair Housing Act. If more stringent
requirements concerning nuisance abatement are contained in the other
rules, regulations or ordinances, the more stringent regulation shall
apply. No provision, regulation, duty, limitation or restriction of
this chapter shall penalize a person for a contact made for police
or emergency assistance by or on behalf of a victim of "abuse" as
defined in 23 Pa.C.S.A. § 6102 (relating to definitions),
a victim of a "crime" pursuant to 18 Pa.C.S.A. (relating to crimes
and offenses), or an individual in an "emergency" pursuant to 35 Pa.C.S.A.
§ 8103 (relating to definitions), if the contact was made
based upon the reasonable belief of the person making the contact
that intervention or emergency assistance was necessary to prevent
the perpetration or escalation of the abuse, crime or emergency or
if the intervention or emergency assistance was actually needed in
response to the abuse, crime or emergency.
Unless otherwise expressly stated or the context clearly indicates
a different intention, the following terms or phrases shall have the
following meanings:
The Borough of Ephrata, Lancaster County, Pennsylvania.
For purposes of this chapter, the individual appointed by
the Council of the Borough pursuant to the provisions of § 1141
of the Borough Code[1] or his or her designee; the Manager.
The ability to regulate, restrain, dominate, counteract or
govern property, or conduct that occurs on a property.
The reasonable costs of abatement of one or more of the infractions set forth in § 218-3 of this chapter and as calculated by the Borough Manager, and shall include, but not be limited to, actual costs and/or actual expenses incurred to abate the infraction and associated property inspections. No such costs shall be assessed for any public safety services. The failure to pay any cost imposed upon the property owner shall constitute a lien against the property and may be enforced and/or collected as provided by law.
Any unlawful activity at a property which consists of the
manufacture, delivery, sale, storage, possession, possession of drug
paraphernalia or giving away of any controlled substance as defined
by state law.
Any sworn or nonsworn code enforcement officer or official
of the Borough of Ephrata who has been designated or assigned the
duties of code enforcement for the Borough of Ephrata and any assistant
or deputy thereof, and including any authorized member or officer
of the Borough Police Department or other law enforcement organization
having appropriate jurisdiction.
A person on the property with the actual or implied consent
of the occupant, tenant, owner or person responsible.
Any nuisance as defined by state law or local ordinance occurring on, around or near a property, including, but not limited to, violations of the laws and regulations set forth in § 218-3 of this chapter. For purposes of this chapter, "nuisance activity" shall not include conduct where the person responsible is the victim of abuse, a victim of a crime and had no control over the criminal act or conduct committed by a person having no association with the property by acquaintance with, relation to or expressed or implied invitation from the owner, occupant, person responsible, operator or agent of the property.
Property on which combinations of three or more nuisance
activities occur or exist during any consecutive twelve-month period.
An individual who resides on the property, whether or not
as the owner, with or without a written lease.
Any natural person, joint venture, partnership, association,
club, company, corporation, business trust, organization, or the manager,
lessee, agent, officer or employee of any of them; whenever used in
any clause prescribing and imposing a penalty, "person" includes the
individual members, partners, officers and managers or any of them
of partnerships and associations and, as for corporations, the officers
and managers thereof or any of them and any officer, employee, department,
agency or instrumentality of a state or any political subdivision
of a state.
Any person who, whenever engaged in any infraction, is physically
present at the subject property, enters, patronizes, or attempts to
enter, patronize, or visit, or waits to enter, patronize, or visit
a property or person present on a property, including any officer,
director, customer, agent, employee, or independent contractor of
the record owner of the subject property.
May be used by this chapter interchangeably and unless otherwise
defined, any person who has titled ownership of the property or structure
which is subject to this chapter, an occupant in control of the property
or structure which is subject to this chapter, a developer, builder,
or business operator or owner who is developing, building or operating
a business on the property or in a structure which is subject to this
chapter and/or any person who has control over the property and allows
a violation of this chapter to continue.
May be used by this chapter interchangeably and means any
public or private building, lot, parcel, dwelling, rental unit, real
estate or land or portion thereof, including property used as a residential
or commercial property; a parcel of real estate, improved or unimproved,
including, but not limited to, a house, room, apartment, building,
garage, structure or other property or any part of any of the foregoing.
Any person or business entity listed as the record owner
of any property within the boundaries of the Borough of Ephrata as
set forth in the records of the Office for the Recording of Deeds
in and for Lancaster County, Pennsylvania.
Any structure or that part of a structure, including, but
not limited to, a single family home, room or apartment, which is
rented to another and used as a home residence, or sleeping place
by one or more persons.
[1]
Editor's Note: See 8 Pa.C.S.A. § 1141.
A.
Except as otherwise provided in this chapter, it shall be unlawful
for any person to engage in, make or cause to be made any nuisance
activity or to allow any nuisance activity to be made in or on any
real or personal property occupied or controlled by that person.
B.
Nuisance activity shall be any form of conduct, action, omission,
incident or behavior perpetrated, caused or permitted on a property
by the owner(s), tenant(s), occupant(s), person(s) responsible or
their invitee(s) of the property, which constitutes a violation of
any of the following ordinances of the Code of the Borough of Ephrata
or statutes of the Commonwealth of Pennsylvania:
(1)
Any public order offense relating to: soliciting business, noise
control, unlicensed alcohol or liquor sale, or alcohol or liquor consumption
on streets or sidewalks; or 18 Pa.C.S.A. § 5501 (riot),
18 Pa.C.S.A. § 5502 (failure to disperse), 18 Pa.C.S.A.
§ 5503 (disorderly conduct), 18 Pa.C.S.A. § 5505
(public drunkenness), 18 Pa.C.S.A. § 5506 (loitering), 18
Pa.C.S.A. § 5512 (lotteries), 18 Pa.C.S.A. § 5513
(gambling devices, gambling), or 18 Pa.C.S.A. § 5514 (pool
selling and bookmaking); or 18 Pa.C.S.A. § 4304 (endangering
the welfare of children), 18 Pa.C.S.A. § 6110.1 (possession
of firearm by minor), 18 Pa.C.S.A. § 6301 (corruption of
minors), 18 Pa.C.S.A. § 6308 (purchase, consumption or possession
of alcoholic beverages by minor), 18 Pa.C.S.A. § 6310 (inducement
of minor to buy alcoholic beverages), 18 Pa.C.S.A. § 6310.1
(selling or furnishing alcoholic beverages to minors), 18 Pa.C.S.A.
§ 6310.7 (selling or furnishing nonalcoholic beverages to
minors) or 18 Pa.C.S.A. § 6319 (solicitation of minors to
traffic drugs) of the Pennsylvania Crimes Code;
(2)
Any firearms or other weapons offense under the Code of the Borough
of Ephrata or the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A.
§ 6101 et seq.;
(3)
Any violation related to the maintenance of a property free from
noxious weeds, high grass and refuse under the Code of the Borough
of Ephrata;
(4)
Any public decency offenses under the Code of the Borough of Ephrata
or 18 Pa.C.S.A. § 5901 (open lewdness), 18 Pa.C.S.A. § 5902
(prostitution), 18 Pa.C.S.A. § 5903 (obscene and other sexual
materials and performances), or 18 Pa.C.S.A. § 5904 (public
exhibition of insane or deformed person);
(5)
Any violation related to the maintenance of property under Chapter 245 of the Code of the Borough of Ephrata;
(6)
Any sanitation violation of the garbage/rubbish collection ordinances
of the Borough of Ephrata or 18 Pa.C.S.A. § 6501 (scattering
rubbish);
(7)
Any animal offense relating to animals or wildlife or 18 Pa.C.S.A.
§ 5511 (cruelty to animals);
(8)
Any violation of the Pennsylvania Controlled Substance, Drug, Device
and Cosmetic Act, 35 P.S. § 780-101 et seq.;
(9)
Violation of any existing ordinance of the Borough of Ephrata or
other laws of the Commonwealth of Pennsylvania which results in a
disturbance of the quiet use and enjoyment of the neighboring property.
A.
Except as otherwise provided in this chapter, it shall be unlawful
for any person, property owner or person responsible to maintain,
operate or use a nuisance property after the property has been designated
a nuisance property as provided for in this chapter.
B.
When the Manager determines that the owner(s), person(s) responsible,
tenant(s) or occupant(s) of a property, or any person(s) present at
a property with the permission and knowledge of the owner(s), person(s)
responsible, tenant(s) or occupant(s), has been found guilty or has
plead guilty to any nuisance activity initiated by the issuance of
a citation or summons or arrest occurring on the property on three
separate occasions within any one-year period and no related appeals
are pending, the Manager may declare the property to be a nuisance
property and proceed with the notice and enforcement procedures set
forth in this chapter.
C.
For all properties, including rental properties, containing two or
more dwelling units, each individual unit shall be considered a "property"
for purposes of enforcement of this chapter, thus requiring that three
separate citations, summons and/or arrests for nuisance activity must
be made involving the same dwelling unit in order to declare the individual
unit a nuisance property. Any occurrence of nuisance activity in the
common area or curtilage of a rental property shall be charged to
the specific rental unit that the actor occupies and not the property
in whole.
D.
If, after a property has been declared a nuisance property, no nuisance
activities have occurred for a period of 12 consecutive months from
the date of the notice of the declaration of the property as a nuisance
property, the property will no longer be classified as a nuisance
property.
E.
Any citation, summons or arrest for nuisance activity perpetrated by a tenant who is already in the process of being evicted shall not count towards the declaration of a nuisance property pursuant to Subsection B above, provided that the property owner can prove that an eviction action has been commenced in a court of law and that the property owner is actively prosecuting said eviction action against the tenant.
F.
An offense shall not be considered a nuisance activity if it is committed
by a person having no association with the property by acquaintance
with, relation to or expressed or implied invitation from the owner,
occupant, operator or agent of the property.
A.
The Manager shall provide written notice to the occupant of any property
at which a citation, summons or arrest has been made for a nuisance
activity. A separate notice shall be provided to the property owner
for each citation, summons or arrest made for a nuisance activity
occurring on a property.
B.
The notice identified in Subsection A shall be deemed to be properly delivered if sent either by first-class mail to the property owner's registered address or, if unavailable, to the property owner's last known address or as may be found in public records, or if delivered in person to the property owner or left at the property owner's usual place of abode in the presence of a competent member of the family at least 18 years of age or a competent adult residing there. If a current address cannot be located, notice shall be deemed sufficient if posted on the potential nuisance property, and a copy of the notice is sent via first-class mail to the last known address of the property owner.
C.
The notice required by Subsection A shall contain the following information:
(1)
The street address or legal description sufficient for identification
of the property;
(2)
A description of the nuisance activity and the date on which the
citation, summons or arrest was made;
(3)
A statement that the property is declared a nuisance property or,
if the property has not yet been declared a nuisance property, a statement
of the number of remaining citations, summons and/or arrests for nuisance
activity which will result in such a declaration;
(4)
If the property has been declared a nuisance property, a statement
that the occurrence of any subsequent nuisance activity at this property
within 12 months following the date of the notice may result in the
property owner being cited with a summary violation and charged with
the costs incurred by the Borough to abate nuisance activity;
(5)
If the property has been declared a nuisance property, a statement
that the occurrence of any subsequent nuisance activity at this property
within six months following the date of the notice may result in the
suspension or revocation of the use and occupancy and/or rental permit
for the property;
(6)
Notice of the property owner's right to appeal pursuant to § 218-7 of this chapter and to obtain, upon written request for such, copies of all documentation supporting the Manager's determination that nuisance activity has occurred at the property; and
(7)
A statement that the property owner shall, within 15 business days
of the date of the notice, respond to the Manager, in writing, stating
either:
A.
Within 15 business days of service of the notice of a nuisance property, the property owner may submit in writing a plan to the Manager by which the property owner proposes to prevent further nuisance activities from occurring at the property. The time period for implementation of any proposed plan shall not exceed 60 days from the date of plan submission approval or such greater time period as may be extended for good cause by the Borough Manager. The Manager shall, within 15 business days of receipt of said proposal, either approve or disapprove of the proposal and provide the property owner with written notice of his/her decision. The denial of a plan by the Manager may be appealed by the property owner pursuant to § 218-7 of this chapter.
B.
If the Manager determines that any subsequent nuisance activity occurred within 12 months after a property was declared a nuisance property, and the property owner failed to file either an appeal of the declaration pursuant to § 218-7 of this chapter or an approved plan to abate the nuisance property pursuant to Subsection A above, the property owner may be assessed all costs incurred by the Borough to abate the subsequent nuisance activity. Within 30 days of the Borough incurring any costs set forth in this subsection, the Manager shall present the property owner with a written demand for payment containing a description/summary of all costs incurred by the Borough and a notice that the property owner has the right to appeal the demand pursuant to § 218-7 of this chapter. The written demand shall be delivered to the property owner in accordance with § 218-5 of this chapter. Failure to pay any such costs of abatement to the property shall be cause for the Borough to file either or both an in rem judgment against the property or an in personam (personal) action against the property owner(s) for recovery of the costs incurred by the Borough.
C.
Costs of abatement shall be determined based on the time required
to abate the nuisance activity multiplied by an hourly rate based
upon the wages and benefits of the employee, vehicle and equipment
costs, supervisory and administrative costs, and those of any contractors
employed by the Borough to abate the nuisance activity. The hourly
rate may be adjusted based on the number of employees and contractors
required to abate the nuisance activity.
D.
The Borough shall not assess any costs of abatement unless/until a final determination has been made by the Property Maintenance and Codes Appeals Board (hereinafter referred to as the "Appeals Board") pursuant to the provisions of this chapter and Chapter 4 of the Code of the Borough of Ephrata or a court of competent jurisdiction on any appeal filed by the property owner pursuant to § 218-7 of this chapter or the property owner has failed to successfully implement a plan approved by the Manager pursuant to Subsection A above.
A.
Any property owner or other person aggrieved by a notice of the issuance of a citation, summons or arrest for a nuisance activity at his/her property, a notice declaring his/her property a nuisance property, or a notice demanding payment for costs of abatement of a nuisance activity at a nuisance property may, within 15 business days of the service date of the notice, appeal the violation to the Appeals Board pursuant to the provisions of this chapter. The Appeals Board shall conduct a hearing and render a decision in accordance with the provisions of this chapter and Chapter 4 of the Code of the Borough of Ephrata and such other Borough ordinances, laws and regulations as may govern its conduct and procedure. The property owner may prevail on appeal of any notice if the owner demonstrates that:
(1)
He/she was not the owner at the time of any of the nuisance activity
that was the basis of the notice;
(2)
He/she had knowledge of the nuisance activity but promptly and vigorously
took all actions necessary to prevent the occurrence of future nuisance
activity; or
(3)
He/she had no knowledge of the nuisance activity and could not, with
reasonable care and diligence, have known of the activity; and upon
receipt of the notice of the declaration of the property as a nuisance
property, he/she promptly took all actions necessary to prevent an
existing nuisance activity or condition or the occurrence of future
nuisance activity or condition.
B.
Upon appeal of a notice declaring his/her property a nuisance property
or a notice demanding payment for costs of abatement of a nuisance
activity at a nuisance property, if a property owner is able to demonstrate
to the Board that an eviction action has been commenced in a court
of law and that the property owner is actively prosecuting said eviction
action against the offending tenant, then the Board shall order a
stay of any/all further enforcement of this chapter by the Borough
pending a determination by the Magisterial District Judge or Lancaster
County Court of Common Pleas Judge on the eviction action. If the
property owner is successful in the eviction action, then the property
will no longer be classified as a nuisance property.
C.
Upon appeal of a notice declaring his/her property a nuisance property
or a notice demanding payment for costs of abatement of a nuisance
activity at a nuisance property, if a property owner is able to demonstrate
to the Board that one or more of the citations, summons or arrests
for nuisance activity which was the basis of the declaration of nuisance
property is subject to a "not guilty" plea by the offending party,
then the Board shall order a stay of any/all further enforcement of
this chapter by the Borough pending a determination by the Magisterial
District Judge or Lancaster County Court of Common Pleas Judge on
the citation or summons. If the offending party is found to be "not
guilty" on one or more of the citations or summons, then the not guilty
event or events shall not count toward the declaration of the property
as a nuisance property. No occurrence shall be considered a violation
as hereinabove set forth where such occurrence was included in an
accelerated rehabilitative disposition pursuant to the provisions
of Pa.R.Crim.P. § 300 et seq. and the defendant has completed
all conditions of that disposition.
A.
Any property within the Borough of Ephrata which is a nuisance property
is in violation of this chapter and subject to its remedies.
B.
Any person responsible for property who permits property to be a
nuisance property shall be in violation of this chapter and subject
to its remedies.
C.
Any person responsible for property who fails to abate any nuisance
activity occurring on the property after its designation as a nuisance
property shall be in violation of this chapter and upon the occurrence
of any such nuisance activity on the property within any twelve-month
period after its designation as a nuisance property, the person responsible
shall, upon summary conviction by the Magisterial District Judge,
be sentenced to pay a fine of not less than $250 nor more than $1,000
for the first offense, not less than $500 nor more than $1,000 for
the second offense, and $1,000 for the third and subsequent offense
and, in default of payment of said fine and costs, to be imprisoned
for a period not exceeding 90 days.
D.
A penalty provided for under this chapter may be imposed in addition
to any penalty that may be imposed for any other criminal offense
arising from the same conduct.
E.
Each act of violation and every day upon which such violation occurs
shall constitute a separate offense.
F.
In addition to the fines set forth hereinabove, any person found
guilty of violating any provision of this chapter shall pay the court
costs and reasonable attorney fees incurred by the Borough in the
enforcement proceedings.
G.
If a property has been declared a nuisance property in accordance with § 218-4 of this chapter and no appeal from said declaration is pending, the Enforcement Officer may revoke the occupancy permit and/or rental permit of the property, initiate any action at law or at equity to abate the nuisance and shall perform any other actions to ensure the abatement of the nuisance. Costs for such actions shall be assessed to the property owner. The revocation of the occupancy permit and/or rental permit shall remain in effect until such time as the nuisance has been fully abated as determined by the Borough Manager.
H.
Where suit is brought by the Borough for the abatement of the nuisance
activity or for the recovery of any costs incurred by the Borough
in enforcing this chapter, the person liable therefor shall, in addition,
be liable for the costs of collection and the interest and penalties
herein imposed.
I.
The penalties imposed under this chapter may be imposed in addition
to any penalty that may be imposed for any other criminal offense
arising from the same conduct, including, but not limited to, the
provisions of the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 6504,
relating to public nuisances.
J.
Each act of violation and every day upon which such violation occurs
shall constitute a separate offense.
K.
The declaration of a nuisance property or the charging or assessment
of costs by the Borough on a property under this chapter shall not
affect or limit the Borough's right or authority to bring criminal
prosecution or other action at law or at equity against any person
for violation of the Ephrata Code or other laws of the Commonwealth
of Pennsylvania.
The provisions of this chapter shall be enforced by the sworn
and nonsworn code enforcement officers and officials of the Borough
of Ephrata and any authorized member or officer of the Ephrata Borough
Police Department or other law enforcement organization having appropriate
jurisdiction.
