Section 101.1, Title. These regulations shall be known as the
"Kent County Property Maintenance Code," hereinafter referred to as
"this chapter."
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Section 101.1.1. Jurisdiction. This chapter shall regulate all
housing and property maintenance on properties located in unincorporated
Kent County and in any of the incorporated municipalities that elect
to have Kent County provide code enforcement services. Municipalities
must make a formal request from their elected body in order for Kent
County to assume enforcement of these property maintenance standards.
Kent County Levy Court must take official action consenting to provide
code enforcement services and may develop a fee schedule to offset
additional costs. Kent County shall not be responsible for any costs
related to legal action as part of municipal code enforcement.
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Section 101.4. Severability. The provisions of this chapter
shall be severable. If any provision of this chapter is found by a
court of competent jurisdiction to be unconstitutional or void, such
decision shall not affect the validity of the remaining portions of
this chapter.
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Section 101.5. Conflict. Where there is a conflict between a
provision in this chapter and another chapter of the Kent County Code,
the most-restrictive provision shall apply.
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Section 101.6. No liability created. Nothing in this chapter
shall create any liability for loss or damage resulting from the failure
of the County to perform any responsibility set forth in this chapter
or obligate the County to make any appropriation or expend any money
not appropriated for any purpose set forth in this chapter.
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Section 101.7. Effect upon suits, proceedings, rights, liabilities.
Nothing in this chapter or in any of the codes hereby adopted shall
be construed to affect any suit or proceeding pending in any court
or any rights acquired or liability incurred or any causes of action
acquired or existing under any act or ordinance hereby repealed, nor
shall any just or legal right or remedy of any character be lost,
impaired, or affected by this chapter.
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Section 106.1. Violations; generally. Any person who shall violate
any provision(s) of this chapter or shall fail to comply with any
of the requirements hereof shall be subject to any of the enforcement
mechanisms and penalties outlined in this chapter.
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Section 106.3. Enforcement.
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Section 106.3.1. Administrative enforcement. Any
person violating the provisions of this chapter may be subject to
administrative proceedings instituted by the Code Enforcement Officer.
Violations subject to administrative enforcement shall be commenced
within three years as provided in 10 Del. C. § 8106 (Actions
subject to 3-year limitation).
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Section 106.3.1.1. Notice to owner or person responsible.
Whenever the Code Official determines that there has been a violation
of this chapter or has reasonable grounds to believe that a violation
has occurred, notice shall be given to the owner or persons responsible
for the property. The person(s) noticed shall be responsible for correcting
such violation(s).
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Section 106.3.1.1.1. Form. The form of such notice
prescribed in Section 106.3.1.1, shall be in accordance with Section
107.2.
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Section 106.3.1.1.2. Method of service. Notice required
by Section 106.3.1.1 shall be satisfied where a copy of the decision,
or violation notice is: (a) delivered personally to the owner or person
responsible for the property; or (b) mailed by certified United States
mail and addressed to the owner or person responsible for the property
at their last known address; or (c) posted in a conspicuous place
on the property. Service of such notice in the foregoing manner upon
an owner's agent or upon the person responsible for the structure
shall constitute service of notice upon the owner.
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Section 106.3.1.1.3. Exceptions. In no case shall
the Code Official be required by Section 106.3.1.1 to provide a violation
notice to:
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a.
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Any owner or person previously provided notice pursuant to Section
106.3.1.1 or under any former provision of this chapter, where the
same violation is alleged by the Code Official to exist; or
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b.
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In the event that a violation exists or is reasonably believed
to exist, because work is being done in an unsafe or dangerous manner,
jeopardizes the health, safety or welfare of the public, or is being
done (or was done) in the absence of necessary permit(s), license(s)
or registration(s).
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Section 106.3.1.2. Ticketing. Pursuant to 9 Del. C. Ch. 56 ("Kent County Property Maintenance"), and 25 Del. C. Ch. 29 ("Liens of the State and/or its Political Subdivisions"), the Code Official 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 Sections 302.1, Sanitation; 302.4, Prohibited growth of weeds and grass; 302.7, Accessory structures; 302.8.3, Inoperable or unregistered vehicles; 302.8.4, Oversized vehicle parking; 302.8.6, Parking of vehicles; 302.10, Outside storage of household items; 302.11, Outside storage of debris; 302.12, Responsibility to keep shrubs and trees trimmed; 302.16, Portable temporary storage units; 303.1, Swimming pools; 308.1, Accumulation of rubbish or garbage; and 308.2, Disposal of rubbish.
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Section 106.3.1.2.1. Procedure. Whenever the Department of Planning Services receives a complaint that there has been a violation(s) of the above-referenced sections, a notice of alleged violation(s) shall be given to the owner of the property. The owner shall be responsible for correcting such violation(s) within the applicable time frame as enumerated by Chapter 90, Violations and Complaints. If the Code Official determines that the violation(s) remain after the applicable 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 $50. If a ticketed violation is not corrected after issuance of a first ticket, then the owner of the property will be subject to, and liable for, additional civil penalties in the amounts of $75 for a second ticket for the same infraction issued within one year of the date of the notice of violation, and $100 for subsequent tickets issued for the same infraction within one year of the date of the notice of violation. Civil penalties shall double if not paid within 30 calendar days from the date of the citation. In no case shall the Code Official 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.
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Section 106.3.1.2.2. Citation. Any citation issued
for failure to comply with any provision identified in Section 106.3.1.2
shall be mailed to the owner of the property that is the subject of
the citation. Pursuant to 9 Del. C. § 5607 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 citation.
Additional civil penalties shall also double if not paid within 30
calendar days from the date of the respective citation.
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Section 106.3.1.2.2.1. Continuing violations. After
the recipient of a ticket(s) has an opportunity to appeal the ticket(s)
as permitted by Section 106.3.1.2.4, 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.
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Section 106.3.1.2.3. 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.
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Section 106.3.1.2.4. Appeals. The owner of a property
aggrieved by any civil penalty imposed pursuant to Section 106.3.1.2
may follow any one of the following methods to appeal the ticket:
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Section 106.3.1.2.4.1. Request a hearing before
an administrative hearing officer. Within 10 business days of the
date of the citation, the recipient of the ticket may request a pre-deprivation
hearing from the Department of Land Use Code Official as described
in Section 106.3.1.3 below.
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Section 106.3.1.2.4.2. Submit a detailed written
explanation. In lieu of personally appearing before an administrative
hearing officer as provided for in Section 106.3.1.2.4.1 above, the
recipient of the ticket, at their sole discretion, may, within 10
business days of the date of the citation, file a detailed written
explanation of the grounds for the appeal to the Code Official. The
Code Official shall issue a written decision affirming, modifying,
reversing, revoking or vacating the civil penalty within 10 calendar
days of receipt of the written explanation of the grounds for the
appeal.
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Section 106.3.1.2.4.3. Fee. A fee for filing an
appeal under this section may be established by the Levy Court. Such
fee shall not be charged if the applicant prevails on all issues presented
to the Code Official or at any level of appeal.
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Section 106.3.1.2.4.4. Stay. Except as provided
for in Section 108 of this chapter, an appeal of a violation under
this section shall act as an automatic stay of the action being appealed.
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Section 106.3.1.2.4.5. Appeal. The decision of the
Code Official made pursuant to this section must be appealed in accordance
with Section 106.3.1.6, Administrative appeal.
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Section 106.3.1.3. Show-cause or pre-deprivation
hearing. Except as provided in Section 106.3.1.2.1 and Section 109.6,
if such violations are not remedied within the time specified, the
Code Official shall schedule a show-cause or pre-deprivation hearing
and provide the person an opportunity to defend his, her, or its conduct
prior to any penalty being imposed. After such show-cause or pre-deprivation
hearing, the Code Official shall render a decision within 20 days
and send a written letter to the person informing them of his or her
decision and detailing the reasons for any adverse action taken. Any
decision made by the Code Official is appealable pursuant to Section
106.3.1.5.
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Section 106.3.1.4. Costs. The owner of the property
or person responsible for the building, structure, premises, or equipment
shall be responsible for all costs associated with the enforcement
of this code and the investigation, removal, remediation, or abatement
of code violations, including the costs of reports, studies, and opinions
prepared by design professionals, the institution and maintenance
of temporary safeguards, restoration of unsafe buildings, structures
or equipment, demolition, and reasonable attorney fees associated
with the above. The costs shall be liens on the property to the extent
permitted by law.
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Section 106.3.1.5. Administrative penalty provisions.
The following administrative penalties may be imposed by the Code
Official:
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Section 106.3.1.5.1. Administrative fines. Notwithstanding
any other section of this code, any person who is found during a show-cause
or pre-deprivation hearing to have violated any provision of this
Code or directive of the Code Official may be subject to the penalties
specified in Section 106.3.2.3, as if that person were convicted in
a court of law, 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 Department of Planning Services, the amount of
such lien shall be recorded and collected in the same manner as other
county real estate taxes, and paid to Kent County, when collected.
9 Del. C. § 5607 et seq. (Abatement; Creation of Tax Lien).
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Section 106.3.1.5.2. Institution of remedial action.
The County may initiate action to remedy the violation. Upon completion
of such remedial work, the violator shall be provided the opportunity
to reimburse the County for the cost incurred. A $50 administrative
fee for processing vendor requests and providing vendor services shall
be charged for each instance such service is provided. If the violator
fails to reimburse the County within the time period specified, the
County may:
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(i)
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Call or collect on any bond or insurance established for this
purpose;
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(ii)
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Place a lien on any property within the County held by the person
as permitted by state law; or
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(iii)
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Institute a civil action for the recovery of such expenses,
together with any penalty and/or interest, against the person, and
the County shall be awarded reasonable attorney fees.
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This section shall not be construed to limit any
other actions or remedies at law or equity.
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Section 106.3.1.5.3. Voluntary assessment. A code
enforcement officer may issue a summons to a person the officer has
reasonable grounds to believe has committed an offense against any
ordinance pertaining to building, housing, sanitation, zoning or public
health codes of the County. Any summons issued by a code enforcement
officer may provide that, in lieu of appearing in court, the offender
may correct the offense(s) and remit a voluntary assessment of up
to $200 for each offense cited. The summons may provide that each
day such violation continues shall constitute a separate offense.
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State Law reference — Similar
provisions, 10 Del. C. § 2902(f).
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Section 106.3.1.6. Administrative appeal.
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Section 106.3.1.6.1. Appeal to the Board of 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 thereunder
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 Appeals.
The Board shall not have the authority to waive any requirement of
this chapter.
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Section 106.3.1.6.2. Time. All appeals shall be
filed with the Department of Planning Services within 20 days of the
date the written decision is issued by the Department. A public hearing
will then be afforded to the appellant within 45 days of the filing
of the appeal.
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Section 106.3.1.6.3. Standard of review. On appeal,
the Board shall hear any evidence which the aggrieved party or the
County may desire to offer.
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Section 106.3.1.6.4. Written decision. The Board
of 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.
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Section 106.3.1.6.5. Actions that can be taken.
The Board of Appeals may affirm, modify, reverse, vacate, or revoke
the action appealed, provided that such action shall be affirmed by
the Board if it was neither arbitrary and capricious nor contrary
to law.
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Section 106.3.1.6.6. Stay. If a stay of the action
being appealed is desired, a written request must be submitted in
writing to the Director of the Department of Planning Services. The
stay will be granted unless the Code Official can demonstrate that
the granting of the stay would jeopardize the health, safety or welfare
of the public.
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Section 106.3.1.6.7. Fee. The fee for filing of an appeal under this section is set forth in Chapter 128 of the Kent County Code. Such fee shall be refunded to the applicant if it prevails on all issues presented to the Board after any right(s) to appeal have expired or have been exhausted.
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Section 106.3.1.6.8. Writ of certiorari. An aggrieved
party may appeal the decision of the Board of Appeals by filing a
petition for a writ of certiorari in the Delaware Superior Court.
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Section 106.3.2. Criminal enforcement. Any person
violating the provisions of this code may be subject to a criminal
proceeding instituted by the Code Official 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.
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Section 106.3.2.1. 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 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.
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Section 106.3.2.2. 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.
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State Law reference — Similar
provisions, 11 Del. C. § 5917.
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Section 106.3.2.3. Penalties. Violations of this
chapter shall be deemed misdemeanor offenses. The sentence for any
person convicted of such a misdemeanor offense shall include the following
fines and may include restitution or such other conditions as the
court deems appropriate:
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a.
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For the first conviction, the penalty shall be a fine of not
less than $250 nor more than $1,000.
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b.
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For the second conviction for the same offense, the penalty
shall be a fine of not less than $500 nor more than $2,500.
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c.
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For all subsequent convictions for the same offense, the penalty
shall be a fine of no less than $1,000 nor more than $5,000.
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The 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. § 5607 et
seq. (Abatement; Creation of Tax Lien).
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State Law reference — Similar
provisions, 11 Del. C. § 5917(a).
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Section 106.3.2.4. 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 Section 106.3.2.3.
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Section 106.3.3. 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.
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Section 106.5, Abatement of violation. The imposition
of the penalties and remedies herein prescribed shall not preclude
the Code Official or his or her designee from instituting the appropriate
action to restrain, correct or abate a violation, or to prevent illegal
occupancy of a building, structure or premises, or to stop an illegal
act, conduct, business or utilization of a building, structure or
premises when such person fails to correct the violation after due
notice, either actual or constructive, has been given to the person
responsible, and where such person has had the opportunity to be heard
by an administrative tribunal or court of competent jurisdiction on
the issue of the violation.
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Section 106.5.1. 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. An administrative fee of $50 for processing
vendor requests and providing vendor services shall be charged for
each instance such service is provided.
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Section 106.5.2. Remedies. Upon failure to reimburse
the County within the time period specified, the County may:
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a.
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Call or collect on any bond or insurance established for this
purpose;
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b.
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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 Department of Planning Services, the amount of
such lien shall be recorded and collected in the same manner as other
county real estate taxes and paid to Kent County when collected. There
shall be a right to appeal the abatement cost to the Board of Appeals;
or
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c.
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Institute a civil action for the recovery of such expense, together
and with penalty and/or interest, against the person, and the County
shall be awarded reasonable attorney fees. This section shall not
be construed to limit any other actions or remedies at law or equity.
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State Law reference — Similar
provisions, 9 Del. C. § 1315.
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Section 106.6, Extensions. The Code Official is authorized to
grant one or more extensions of time. The applicant must demonstrate
justifiable cause, including reasons for the delay, plans for completion,
and what actions the applicant has taken to correct the problem. The
Code Official 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 License, Inspection,
and Review.
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Section 107.1. Notice to owner or person responsible. Whenever
the Code Official determines that there has been a violation of this
chapter, or has reasonable grounds to believe that a violation has
occurred, notice shall be given in the manner prescribed in Section
107.2 and Section 107.3 to the owner or person responsible for the
violation as specified in this chapter. Notices for condemnation procedures
shall also comply with Section 108.3.
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Section 107.2. Form. Such notice prescribed in Section 107.1
shall be in accordance with all of the following:
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a.
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Be in writing;
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b.
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Include a description of the real estate sufficient for identification;
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c.
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Include a statement of the violation or violations and why the
notice is being issued; and
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d.
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Include a directive indicating the time to make the repairs
and improvements required to bring the premises into compliance with
the provisions of this chapter.
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Section 107.3. Method of service. Such notice shall be deemed
to be properly served if a copy thereof is:
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a.
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Delivered personally to the owner or person responsible for
the property; or
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b.
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Sent by certified or first-class mail addressed to the last
known address; or
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c.
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Posting a copy of the notice in a conspicuous place in or about
the structure or equipment affected by such notice.
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Section 107.3.1, Method of service exception. In no case shall
the Code Official be required by this section to provide a violation
notice within a twelve-month period to any owner or person responsible
previously provided notice pursuant to this section or under any former
code provision where the same code violation is alleged by the Code
Official to exist.
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Section 302.4. Prohibited growth of weeds and grass.
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Weeds and grass shall be no greater than 12 inches high on any
parcel except as provided below.
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Section 302.4.1. Exception, Weeds do not include:
(a) ornamental shrubs and trees, (b) a wildflower meadow maintained
and located no less than 10 feet from any property line.
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Section 302.4.2. Application to agricultural parcels.
This section shall not apply to any parcel that is a farm or property
used exclusively for agricultural purposes.
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Section 302.4.3. Natural resource area plan. This
section shall not apply to any parcel or portion thereof to the extent
that it conflicts with a County- or state-approved plan, including,
but not limited to, a landscape plan, record plan, reforestation plan
or natural resource area management plan.
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Section 302.4.4. Trees. Outside of wooded areas,
all trees shall be free from dead limbs or branches and dead trees
shall be removed.
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Section 302.4.5. Shrubbery. All shrubbery shall
be maintained so as not to encroach upon or extend beyond the line
of any walkway or driveway. All shrubbery shall be trimmed from blocking
any doors or hatchways.
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Section 302.4.6. Application to wooded areas. The
provisions on high weeds and grass shall not apply to wooded areas,
including, but not limited to, young and mature forest and critical
natural areas.
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