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February 25, 2012 J Volume 6 J No. 4 Zoning Bulletin Constitutional Validity of Regulation— Ordinance Declares Abandoned Vehicles Nuisance Property owners argue ordinance is ultra vires and unconstitutional because it does not require establishment of a nuisance in fact Citation: Borough of New Bloomfield v. Wagner, 2012 WL 1 30668 (Pa. Commw. Ct. 2012) PENNSYLVANIA (01/18/12)—This case addressed the issue of whether a nuisance ordinance prohibiting the accumulation of aban- doned vehicles on private or public property was unconstitutional as ap- plied to property owners. The BackgroundlFacts: In September 2006, the Borough of New Bloomfield (the "Borough") passed Ordinance No. 256 (the "Ordi- nance") The Ordinance prohibits nuisances on private or public proper- ty within the Borough, including, among other things, the accumulation of abandoned vehicles. The Wagners and the Henches (the "Property Owners") owned and stored a variety of unregistered or uninspected vehicles on their respec- tive properties. The Property Owners' vehicles would be deemed "aban- doned" under the Ordinance. In August 2009, the Borough filed a declaratory judgment action with the trial court. It asked the court to: declare that the Property Owners' vehicles were "abandoned" under the Ordinance, and direct the Prop- erty Owners to remove the abandoned vehicles from their property. The Property Owners responded by arguing that the Ordinance was ultra vires (Le., beyond the Borough's powers) and unconstitutional as applied to them. They maintained the Ordinance was ultra vires because it declared the storage of abandoned vehicles a nuisance per se—without having to show a nuisance in fact. The Property Owners argued that the Ordinance was unconstitutional as applied to them because there was no evidence that the vehicles on their property actually were a nuisance in fact. They contended that an unregistered or uninspected vehicle has no more impact on the public welfare than a registered or inspected ve- hicle in the absence of facts that such vehicle creates a nuisance. In other words, they argued that for the Ordinance to automatically deem their vehicles a nuisance, without the Borough actually having to establish they were in fact a nuisance causing a harm (such as a harm greater than a registered and inspected vehicle) was unconstitutional. The trial court held the Ordinance did not declare the storage of ve- hicles a nuisance per se. The court reasoned that because the Ordinance listed certain exceptions or circumstances where a vehicle was not con- 10 © 2012 Thomson Reuters