[HISTORY: Adopted by the City Council of the City of Allentown 2-15-2023 by Ord. No. 15872.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 406,
Nuisance Abatement, adopted 4-19-2017 by Ord. No. 15365 (Article 715 of the 1962 Codified
Ordinances), as amended.
A.
Public nuisances diminish the quality of life and the community environment
in the City.
B.
The persistence of such activities and violations is detrimental
to the health, safety, and welfare of the people of the City of Allentown.
C.
The City of Allentown, as a Home Rule Charter community, states its
intent to adopt the following public nuisance provisions.
D.
These provisions are drawn from the nuisance provisions of the Third
Class City Code, 11 Pa.C.S.A. §§ 127A01 through 127A12.
The interpretation of this chapter should be guided by the application
of precedent arising from the provisions of the Third Class City Code.
The following words and phrases when used in this chapter shall
have the meanings given to them in this section unless the context
clearly indicates otherwise:
The removal, stoppage or destruction by any reasonable means
of the cause or constitution of a public nuisance.
Executive Branch of the City of Allentown.
City of Allentown Department of Community and Economic Development.
The Director of the Department.
A public nuisance of such a severe and substantial nature
to justify extraordinary and immediate action, without prior notice
to the owner, to avoid personal injury, death or substantial loss
of property. Extraordinary and immediate action is authorized if the
conditions of the property present a clear, immediate, and substantial
danger to (any single one of these criteria, or any number of these
criteria in combination): public health, public safety, occupant health,
occupant safety; or neighboring properties.
The purpose for which a building or portion thereof is utilized
or occupied.
Any person who has charge, care or control of a structure
or premises.
Any person, agent, operator, firm, corporation, or other
legal entity, having legal or equitable interest in the property;
or recorded in the official records of the state, county or municipality
as holding title to the property; or otherwise having control of the
property, including the guardian of the estate of any such person,
and the executor or administrator of the estate of such person if
ordered to take possession of real property by a court.
Personal property or real property and any improvements to
real property.
Conduct or property, or the condition or use of property, defined
or declared to be a public nuisance under any provision of this chapter
or other law.
Conduct or property, or the condition or use of property, if
the Department determines that it endangers the health or safety of,
or causes hurt, harm, inconvenience, discomfort, damage or injury
to, a person or property in the City by reason of the conduct or property
or the condition or use of the property, being any of the following:
A menace, threat or hazard to the general health and safety
of the community.
A fire hazard.
A building or structure that is unsafe for occupancy or use.
Property that is so inadequately or insufficiently maintained
that it diminishes or depreciates the enjoyment and use of other property
in its immediate vicinity to the extent that it is harmful to the
community in which the property is situated.
Unauthorized accumulations of garbage and rubbish and the unauthorized
storage of abandoned or junked automobiles or other vehicles on private
or public property, and the carrying on of any offensive manufacture
or business.
A submission averring the existence of a public nuisance.
Abatement of a public nuisance by the City without prior
notice to the owner of the property in accordance with this chapter.
A person, corporation, partnership or group, whether or not
the legal owner of record, occupying a building or portion thereof
as a unit.
A.
Designation of Department. All reports of the existence of a possible
public nuisance shall be made to the Department.
B.
Who may submit reports. The reports may be submitted by a member
of the public; City employee; elected official; or appointed City
official. Any City department that, through the normal course of its
activities, identifies a property that may constitute a public nuisance
shall submit a report to the Department through the Department's Director
or designee.
C.
Form of reports. The Department shall establish a procedure for receiving,
documenting, and maintaining reports. This procedure shall, at a minimum,
be posted on the City of Allentown web page. The Department shall
provide the City Clerk with a copy of these procedures for inclusion
on the City's online code database.
D.
Investigation. The Department shall investigate in a timely basis
all reports it receives. The Department shall establish criteria for
investigating reports to determine the existence of a public nuisance.
The Director, or the Director's designee, may enter upon any premises
within the City which are reported to be a public nuisance for the
purpose of examining the premises or of preventing, confining or abating
public nuisances. The following apply:
(1)
In the event that entry upon any premises is refused by an owner,
an agent of an owner or tenant, the Director or the Director's designee
shall obtain an administrative search warrant from a Magisterial District
Judge within the judicial district where the premises to be inspected
is located.
(2)
It shall be sufficient to support the issuance of a warrant for the
Director or the Director's designee to provide to the Magisterial
District Judge evidence of any of the following:
(a)
Reasonable standards and an administrative plan for conducting
inspections.
(b)
The condition of the premises or general area and the passage
of time since the last inspection.
(c)
Facts, supported by an oath or affirmation, alleging that probable
cause exists that a law, regulation or ordinance of the City of Allentown
or the Commonwealth of Pennsylvania has been violated or is being
violated.
F.
Abatement. Emergent public nuisances shall be handled by the procedures for summary abatement in § 406-4. Nonemergent public nuisances shall be handled using the procedures for abatement with prior notice in § 406-5. The chapter provisions adopted here are not intended to supplant any other form of relief available to the City under other applicable ordinances, statutes, regulations, or precedential court authority. Rather, this chapter provides a means for relief in addition to all other available remedies. Despite the use of the word "shall" in the first two sentences of this subsection, at all times the Administration has authority to use whatever other means of legal relief are available under ordinance, statute, regulations or precedential court authority, in order to address emergent or nonemergent public nuisances.
A.
General rule. The City shall have the power to utilize summary abatement
in accordance with this section.
B.
Conditions. In the case of a reported public nuisance, the Director
or designee shall have authority to utilize summary abatement if both
of the following occur:
C.
Prior notice not necessary. If summary abatement is implemented pursuant to Subsection B, the Department shall have the authority to enter upon the property for the purpose of abatement without prior notice to the owner of the property or to the holders of liens on the property.
D.
Procedure. The following shall apply:
(1)
Within 10 days following a summary abatement, the Department shall
post on the property upon which the abatement has occurred a notice
describing the action taken to abate the emergent public nuisance.
(2)
Within 20 days following a summary abatement, the Department shall
determine the identity of the owner of the property by reference to
the City's real estate registry if the City maintains a registry or,
in the absence of a registry, by reference to county assessment records,
and the identity of the holders of all liens upon the property which
are properly indexed among the records of the county and provide to
the owner and to all lienholders written notice, by first-class mail
or hand delivery, of the action taken to abate the nuisance.
(3)
Within 30 days following a summary abatement, the Department shall
file with the City of Allentown Director of Finance a statement of
costs of the abatement, which shall include the administrative fee
and civil penalty provided by this chapter. The Director shall then
provide notice of the statement of costs to the owner and lienholders.
A.
Abatement with notice. The City of Allentown is authorized to abate
nonemergent public nuisances using the procedures of this section.
B.
Method of notice.
(1)
If the Department proceeds with abatement pursuant to this section,
it shall identify the owner of the property by reference to the City's
real estate registry or by reference to county assessment records,
and shall immediately serve a written notice on the owner by any of
the following methods:
(a)
Personal service.
(b)
Leaving a copy of the notice at the place of residence or business
of the owner or the address of the owner shown in the City's real
estate registry or in the records in the office of the Recorder of
Deeds.
(c)
Mailing a copy by United States certified mail, return receipt
requested, to the owner at the owner's current address shown in the
City's real estate registry or in the records in the office of the
Recorder of Deeds.
(2)
If service of the written notice is unable to be perfected by any of the methods under Subsection B(1), the Department shall publish a copy of the notice in a newspaper of general circulation once a week for two consecutive weeks and shall provide a copy of the notice to the individual in possession of the property on which the Department has determined that the public nuisance exists, or, if there is no individual in possession of the property, the Department shall post a copy of the notice at the structure, location or premises.
(3)
The Department shall determine from the records in the offices of
the Recorder of Deeds the identities of all lienholders of the property
and serve a written notice on all lienholders by United States certified
mail, return receipt requested.
C.
Contents of notice. The notice to the owner and lienholders shall
state clearly and concisely the findings and determination of the
Department with respect to the existence of a public nuisance. This
should include advising the property owner of the reasons for the
public nuisance determination, including any criminal violation(s)
that are alleged to have occurred on the property and the date of
the violation(s); that failure to abate the violation(s) may subsequently
lead to the closure and securing of the property; and that the owner
may appeal the notice of determination of public nuisance to the Nuisance
Abatement Board of Appeals. The notice shall further state that the
public nuisance shall be abated by the City at the expense of the
owner unless it is otherwise abated within 30 days of the notice or
within any extension of that period granted by the Department.
[Amended 9-6-2023 by Ord. No. 15941]
D.
Liability. A person who is the owner of the premises, location or
structure at the time a notice to abate a public nuisance is issued
and served upon the person shall be responsible for complying with
the notice and shall be liable for any costs incurred by the City
in connection with the notice, notwithstanding if the person conveyed
the person's interest in the property to another after the notice
was issued and served.
[Amended 8-2-2023 by Ord. No. 15934; 9-6-2023 by Ord. No. 15941]
A.
Nuisance Abatement Board of Appeals. There is hereby established
a Nuisance Abatement Board of Appeals which, if an appeal is taken,
shall conduct the hearing on the question of whether a public nuisance,
in fact, exists. The Nuisance Abatement Board of Appeals may uphold,
amend or modify the determination of the Department or extend the
time for compliance with the Department's order if the extension is
limited to a specific time period.
(1)
The
Nuisance Abatement Board of Appeals shall consist of:
(a)
A member of City Council.
(b)
A private citizen who owns and operates a business within the City
of Allentown.
(c)
A private citizen who owns and operates a business within the City
of Allentown.
(d)
A private citizen who resides within the City of Allentown.
(e)
A private citizen who resides within the City of Allentown.
(3)
After
the initial terms have expired, each member of the Nuisance Abatement
Board of Appeals shall be appointed for a term of two years.
(4)
Appointments
shall be made in accordance with the appointment procedures established
by the City of Allentown Home Rule Charter.
(5)
After
all members have been appointed, the Nuisance Abatement Board of Appeals
shall hold an organizational meeting within 30 days to appoint a Chair
and Vice Chair. The Council member serving on the Nuisance Abatement
Board of Appeals may not be appointed Chair or Vice Chair.
(6)
Three
members of the Nuisance Abatement Board of Appeals shall constitute
a quorum for purposes of conducting Nuisance Abatement Board of Appeals
business.
B.
Time limitations. An appeal under this section shall suspend the
period of time within which the nuisance is to be abated until a decision
is rendered by the Nuisance Abatement Board of Appeals.
C.
Right of appeal. A property owner, operator, or tenant may, within
10 business days of the date of the notice of a determination of public
nuisance, appeal, in writing, to the Nuisance Abatement Board of Appeals.
The written appeal shall be mailed or delivered to:
City Clerk for the City of Allentown
435 Hamilton Street
Allentown, PA 18101
E.
Decisions. The Nuisance Abatement Board of Appeals shall issue its decision to either grant or deny the appeal within five business days of the date of the hearing. Notice of the decision shall be served upon the appellant and the Director pursuant to § 406-5B above.
F.
Time limits for a decision. Failure to hold an appeal hearing within
90 days of the date of service of the appeal shall result in the appeal
being granted, unless the Nuisance Abatement Board of Appeals and
the property owner or tenant agree otherwise. Failure to issue a written
decision within five business days of the hearing shall result in
the appeal being granted unless the Nuisance Abatement Board of Appeals
and the property owner or tenant agree otherwise in writing.
G.
Final administrative decision. The determination of the Nuisance
Abatement Board of Appeals shall be a final administrative decision
within the City.
H.
Local Agency Law. All hearings shall be conducted pursuant to the
requirements of the Local Agency Law, 2 Pa. C.S.A. §§ 751
through 754.
I.
Nuisance Abatement Board of Appeals Solicitor for hearings. The Nuisance
Abatement Board of Appeals shall select a Solicitor to serve as Solicitor
to the Nuisance Abatement Board of Appeals for purposes of the appeal
hearings.
The owner of the property affected by the orders hereunder shall
be presumed to be the person in whose name title real estate is recorded
in the office of the Recorder of Deeds in and for Lehigh County, Pennsylvania.
The lack of knowledge of acquiescence or participation in or
responsibility for a public nuisance or violation of a closure under
this chapter on the part of the owners, lessors, lessees, mortgagees
and all those persons in possession or having charge of the property
as agent or otherwise, or having any interest in the property, real
or personal, used in conducting or maintaining the public nuisance,
shall not be a defense by such owners, lessors and lessees, mortgagees,
and such other persons. Owners, lessors and lessees, mortgagees, and
such other persons are responsible for their guests, invitees, licensees,
and customers.
In abating a public nuisance, the Department may call upon any
of the City departments or divisions for assistance, as shall be deemed
necessary, or may abate the public nuisance by private contract.
If deemed practicable by the Department, the Department may
salvage and sell at private or public sale any material derived from
an abatement of a public nuisance. The proceeds of such a sale shall
be placed in escrow. The escrowed proceeds may be applied against
the amount of the City's costs, fees and penalties relating to the
abatement. If the amount of the escrowed proceeds exceeds the amount
of the costs, fees and penalties, any excess shall be paid to the
owner.
A.
Notice of assessment. The Director or the Director's designee shall provide the Director of Finance with a receipt of the statement of costs either for a summary abatement pursuant or for an abatement with notice. The Director of Finance or the Director of Finance designee shall, in accordance with § 406-5B, give notice of the amount set forth in the statement of costs to the owner and lienholders of the property upon which the public nuisance has been abated. The notice shall state that the City proposes to assess against the property the amount set forth in the notice and that objections to the proposed assessment must be made in writing and received by the designated officer within 20 days from the date of mailing the notice.
B.
Lien. Upon the expiration of the twenty-day period, if no written
objections have been received by the Director of Finance, the total
amount of costs, fees and penalties specified in the statement of
costs may be entered as a lien against the property on which the nuisance
was abated and shall be collected in the manner provided for the collection
of municipal claims and liens, subject to rights of appeal provided
in this section.
C.
Administrative review. If objections of the owner or a lienholder
are received by the Finance Director prior to the expiration of the
twenty-day period, the Finance Director shall conduct an administrative
review of the matter. This administrative review shall consist of
the Director or the Director's designee meeting with the Finance Director
and reviewing all the costs.
D.
Director of Finance decision. After conducting an administrative
review, the Director of Finance will issue a written memorandum or
decision identifying whether the assessment amount set forth by the
Director is maintained, reduced or increased.
E.
Right of appeal. Parties may appeal the administrative decision to the Nuisance Abatement Board of Appeals using the processes established in § 406-6.
[Amended 9-6-2023 by Ord. No. 15941]
F.
Reduction or cancellation of assessment. The Finance Department in
administrative review, or the Nuisance Abatement Board of Appeals
on appeal, may reduce or cancel a proposed assessment if it is determined
that any of the following did not conform to the provisions of this
chapter:
[Amended 9-6-2023 by Ord. No. 15941]
G.
Elimination of civil penalty. The Department, in administrative review,
or the Nuisance Abatement Board of Appeals, on appeal, may reduce
a proposed assessment by eliminating the civil penalty portion of
the statement of costs if any of the following apply:
[Amended 9-6-2023 by Ord. No. 15941]
(1)
The current owner did not own the property at the time the notice
required in Section 127A04 (relating to prior notice of abatement)
was posted.
(2)
The owner did not receive the notice to remove the public nuisance,
did not have knowledge of the public nuisance and could not, with
the exercise of reasonable diligence, have had knowledge of the public
nuisance.
Notwithstanding the right of the City to utilize in rem proceedings to pursue collection of the costs, fees and penalties in the statement of costs as a municipal claim, the person who is the owner of the property at the time of a summary abatement at the time the notice required by § 406-4D is given, or, in the case of a nonsummary abatement, the person who was the owner of the property at the time notice of the existence of the public nuisance was given, shall be personally liable for the amount of the assessment, including all interest, other charges and, except as provided in § 406-11 (relating to notice of assessment and appeal of charges), civil penalties.
Whenever a public nuisance is abated by the City, the statement
of the costs of the public nuisance shall include the City's actual
cost of abatement, plus an administrative fee, not to exceed 10%,
and a civil penalty. For the first abatement of a public nuisance
upon any owner's property within the City in any two-year period,
the civil penalty shall be $250. For second and subsequent abatements
upon any properties of any owner within the City during any two-year
period, the civil penalty shall be $500. The increased civil penalty
shall be imposed and collected regardless of whether the second and
subsequent public nuisances upon property or properties of an owner
involve the same property or the public nuisances are of the same
or different character.
