Town of Elsmere, DE Article III Roadway Obstructions

[Adopted 12-8-2005 by Ord. No. 457]

§ 192-5 Definitions.

As used in this article, the following terms shall have the meanings indicated:

DUMPSTER

A metal storage bin commonly used for the temporary storage of municipal waste, construction debris and other solid waste prior to disposal.

PODS

A commercially marketed "portable on-demand storage" container or similar device intended to store personal items at an off-site location for short- or long-term storage or transportation from one point to another.

ENFORCEMENT OFFICER

Any duly authorized law enforcement officer, any Code Enforcement Officer of the Town of Elsmere and any full-time employee of the Town's Special Services Department.

RIGHT-OF-WAY

Any strip of land located beginning at the end of the roadway curbing closest to any structure, or the edge of a roadway if no curb is present and running perpendicular to the curbing or road edge for a distance of 10 feet, including any grass, sidewalk or driveway.

ROADWAY

The entire width between boundary lines of every way or place of whatever nature open to the use of the public as a matter of right for the purpose of vehicular travel, including any curb, but does not include a road or driveway upon grounds owned by private persons, colleges, universities or other institutions.

ROADWAY OBSTRUCTION

Any of the following items or any part thereof as well as any likeness of these items:

A. Unofficial sign(s).

B. Unofficial pole(s).

C. Basketball net, backboard, pole or other stand.

D. Hockey net(s).

E. Soccer net(s).

F. Skateboard ramp, pole or other item designed or used to test the skills of those using skateboards.

G. Any item determined by an enforcement officer, as defined by this article, to be a hazard or obstruction to the free and unrestricted passage of the public.

H. Any item designed or intended to be used or potentially used to restrict or save a parking space(s).

§ 192-6 Prohibited acts.

A. It shall be unlawful for any person(s) to place or construct any roadway obstruction as defined by this article into or upon any roadway or right-of-way as defined by this article.

B. It shall be unlawful for anyone age 18 or older and who is the parent or legal guardian of any person under the age of 18 to knowingly allow or permit their child or a child to whom they are the legal guardian to place or construct any roadway obstruction as defined by this article into or upon any roadway or right-of-way as defined by this article.

C. It shall be unlawful for any person(s) to place into any roadway or right-of-way any item designed or intended to be used, or potentially used to restrict or save a parking spaces(s), except those which have been authorized by the Elsmere Bureau of Police or which has been placed for official purposes by the Special Services Department of the Town of Elsmere.

D. It shall be unlawful for any person(s) to place into any roadway or right-of-way any dumpster or PODS, unless the person(s) has first obtained a permit allowing the placement of these items issued by the Code Enforcement Department of the Town of Elsmere.

E. It shall be unlawful for any person(s), corporation or other business who or which sells, leases or rents dumpsters, PODS or similar devices to place such a device in or upon any roadway right-of-way at any location located within the corporate limits of the Town of Elsmere without first obtaining proof that a permit has been issued for the placement of the device. Failing to do so shall subject the person(s), corporation or other business to the same penalties as described in § 192-10 of this article.

§ 192-7 Enforcement.

A. This article shall be enforced by any duly authorized law enforcement officer, any Code Enforcement Officer of the Town of Elsmere and any full-time employee of the Town's Special Services Department.

B. First offense.

(1) Any enforcement officer observing a violation of this article who is able to reasonably identify the owner or responsible party shall order the responsible party or owner of the roadway obstruction to cease and desist such activity immediately. Additionally, the enforcement officer shall order that the roadway obstruction be removed from the roadway or right-of-way immediately.

(2) The enforcement officer shall then issue the responsible party or owner of the roadway obstruction a written warning. If such responsible party is a juvenile, a copy of the written warning shall be delivered or mailed to the juvenile's parents or lawful guardians, at their last known address.

(3) Should the responsible party or owner of the roadway obstruction refuse to immediately remove the roadway obstruction or the enforcement officer observing a violation be unable to reasonably identify the owner or responsible party, the item shall be seized in accordance with § 192-8 of this article.

§ 192-8 Removal and disposal of roadway obstructions.

The Special Services Department shall remove or cause to be removed any item placed in violation of this article.

A. If the owner of an item which has been seized can be determined, the notice of the seizure shall be sent to the owner of the roadway obstruction via United States mail or personal delivery to the owner's last known address.

B. The notice shall advise the owner that his/her property has been seized in accordance with this article and is being stored at the Special Services Department. The notice shall advise the owner that he/she has 30 days to make arrangements to recover the property at his/her expense and pay to the Town any reasonable cost incurred by the Town in the seizing of the item.

C. The notice shall further advise the owner that if the property is not claimed by the owner within thirty (30) days it will be disposed of.

D. After the expiration of 30 days from the date on which the notification letter was mailed to the owner, the property shall be disposed of in any manner the Town Manager deems appropriate.

E. Should the Town be unable to determine the owner of a roadway obstruction which has been seized, the item shall be maintained by the Special Services Department for 30 days. After the expiration of 30 days from the date in which the item was seized, the property shall be disposed of in any manner the Town Manager deems appropriate.

§ 192-9 Permits.

A. Any person may apply to the Code Enforcement Officer for a permit for the temporary placement of a dumpster or PODS in upon any roadway or right-of-way.

B. A permit may only be issued by the Code Enforcement Officer if he/she determines:

(1) That it is impossible or impractical to place the dumpster or PODS in a position which is totally on the property of the applicant.

(2) That the placing of the dumpster or PODS will not create a traffic or pedestrian hazard.

(3) The person requesting the permit will install adequate warning devices if they are determined to be appropriate.

(4) The placement of the dumpster or PODS will not create an undue hardship for other residents in the area.

C. The length of time for which the permit is valid shall be determined by the Code Enforcement Officer and shall not exceed the absolute minimum amount of time needed to accomplish the desired task. Only in the case of an emergency shall any permit be valid for a period of time exceeding seven days.

D. The fee associated with a permit shall be $25 per day.

E. The Town Manager may waive any fee associated with a permit.

F. Any permit issued may be revoked and the dumpster or PODS ordered to be removed immediately if the Code Enforcement Officer determines that the site is not being maintained in a clean and safe manner.

G. While a permit will not be required for a portable-on-demand storage device (PODS) to be placed on private property, no such device shall remain on private property for a period of time which exceeds 30 days. If the Code Enforcement Officer determines that an emergency or hardship exists, the Code Enforcement Officer may extend the period of time.

[Added 4-11-2013 by Ord. No. 564]

H. While a permit will not be required for a dumpster to be placed on private property, no such dumpster shall remain on private property for a period of time which exceeds 30 days. In any such case, dumpsters which are full must be emptied or removed within 48 hours of becoming full or such work requiring said dumpster has been completed. If the Code Enforcement Officer determines that an emergency or hardship exists, the Code Enforcement Officer may extend the period of time.

(1) Any dumpster, whether in a public right-of-way pursuant to a permit or on private property, may be ordered to be removed by the Code Enforcement Officer if the officer determines that the dumpster is;

(a) Creating a public nuisance due to offensive smell.

(b) Is leaking any liquid from inside the dumpster to outside the dumpster.

(c) Contains trash or other municipal solid waste.

(d) Is overflowing.

(e) Is unsecured.

(f) Is attracting rats and other rodents.

(g) Is being used by those other than the person who rented the dumpster to perform illegal dumping.

(2) Any dumpster ordered to be removed by the Code Officer must be removed within 48 hours of the time which the Code Officer ordered the removal.

(3) Should the dumpster not be removed within 48 hours, both the person who rented the dumpster and the owner of the dumpster shall pay a fine of $50 per day until such time as the dumpster is removed.

§ 192-10 Violations and penalties.

A. Any person having previously been issued a written warning under § 192-7B(2) of this article who is observed violating this article a second or subsequent time shall, upon conviction, forfeit and pay a fine of not less than $50 nor more than $100 plus court costs and Victim's Compensation Fund and other assessment if applicable.

B. If such person is a juvenile, a copy of the charges shall be delivered or mailed to such juvenile's parents or lawful guardians at the parent's or guardian's last known address.

C. The parents or legal guardian of a juvenile under the age of 18 shall be responsible for the payment of any fine which may be imposed for a violation of this article.

D. Any person age 18 or older and who is the parent or legal guardian of any person under the age of 18 and who violates § 192-6B of this article shall be fined not less than $50 nor more than $100 for a first offense, and not less than $100 nor more than $500 for a second or subsequent offense, plus court costs as well as any Victim's Compensation Fund and other applicable assessments.

E. Any person violating § 192-9 of this article shall be fined not less than $100 nor more than $500 for a first offense, and not less than $500 nor more than $1,000 for a second or subsequent offense, plus court costs as well as any Victim's Compensation Fund and other applicable assessments.

F. Any person(s), corporation or other business who or which sells, leases or rents dumpsters or PODS devices who or which fails to obtain proof that a permit has been issued for the placement of the dumpster prior to placing the dumpster or PODS or who fails to follow an order by the Code Enforcement Officer to immediately remove a dumpster or PODS shall be subject to the same penalties as described in Subsection E of this section.