Agenda - Planning Commission - 04/05/2012

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Zoning Bulletin February 25, 2012 I Volume 61 No. 4 sidered abandoned, the Ordinance did not declare the storage of unregis- tered or uninspected vehicles to be a nuisance per se. DECISION: Reversed, and matter remanded. The Commonwealth Court of Pennsylvania disagreed with the trial court. It found that the Ordinance did declare vehicles stored on a pri- vate property owner's property for more than 48 hours that fall within the definition of "abandoned vehicle" a nuisance per se. This was, con- cluded the court, ultra vires, and therefore unconstitutional as applied to the Property Owners. The court explained: The Borough had only those powers specifically delegated to it by the General Assembly. Under statutory law —S 1202(5) of The Borough Code the Borough was authorized to enact an ordi- nance "[t]o prohibit and remove any nuisance, including but not limited to ... the storage of abandoned or junked automobiles ... on public or private grounds, or to require the removal of any such nuisance ... by the owner or occupier of such grounds." However, noted the court, a borough's ordinance seeking to abate the storage of abandoned vehicles could not "declare the mere presence of such vehicles on any given piece of property to be a nuisance per se." Rather, "the ordinance must be phrased in such a way as to require the municipality to affirmatively es- tablish that a nuisance in fact existed." Here, the court found that, under the Ordinance, a vehicle was "au- tomatically deemed `abandoned' if the vehicle [was] unregistered, unin- spected, or ha[d] no title and ha[d] remained on an owner's private prop- erty ... for more than forty -eight hours." The court further found that, while the Ordinance's definition of "nuisance" included a standard of harm, the Ordinance did not specifically state that such harm must be shown before a vehicle falling within the definition of "abandoned vehi- cle" would be deemed a nuisance in accordance with the Ordinance. "In other words," found the court, the Ordinance was not "phrased in such a way as to require the [Borough] to affirmatively establish that a nui- sance in fact" existed. Rather, the Ordinance "declare[d] the mere pres ence of unregistered or uninspected vehicles on private property for more • than forty -eight hours to be a nuisance per se." In light of that analysis, the court agreed with the Property Owners that the Ordinance was therefore ultra vires and unconstitutional as ap- plied to the Property Owners. See also: Com. v. Creighton, 1 63 Pa. Commw. 68, 639 A.2d 1 296 (1994). See also: Kadash v. City of Williamsport, 19 Pa. Commw. 643, 340 A.2d 617 (1975). See also: Teal v. Township of .Haver ford, 134 Pa. Commw. 157, 578 A.2d 80 (1990). © 2012 Thomson Reuters 11