Unlicensed vehicle issue - PA

Land, personal possessions, and self. Not necessarily in that order.
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notmartha
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Re: Unlicensed vehicle issue - PA

Post by notmartha » Sat Jul 14, 2018 1:04 pm

cobra2411 wrote:
Fri Jul 13, 2018 11:17 am

My fear is the solicitor may just want the billing and will fight so my first step will be to reach out to the board of supervisors and see if a conversation will address things. If not I'll start the legal process. In my opinion it's flat out unconstitutional under PA law.
Thanks for the update.

When I pulled the oaths of township "officers" not one of them was correct. None of them, therefore, were holding "lawful" office, and/or were bound by the Pennsylvania Constitution. They were all acting under color of law. I knew they could then act only by my consent/contract (or force, but they generally don't want to go there at this level...) so I went to a scheduled township meeting, where the "township secretary" (who, incidentally, had no oath at all on file) was keeping the minutes and a local newspaper was reporting, and addressed each individual "officer" on the record, one by one. "John Doe, purported Township Supervisor for xyz Township, do I have any contracts with you?" "Jane Doe, purported Zoning Officer for xyz Township, do I have any contracts with you?" etc. They all said "no"...on record. And I never had a problem again.
Last edited by notmartha on Fri Aug 24, 2018 12:39 pm, edited 1 time in total.
cobra2411
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Re: Unlicensed vehicle issue - PA

Post by cobra2411 » Tue Jul 17, 2018 12:14 pm

Notmartha, any tips on where I would find their oaths? From what I'm told the chairman, er chairperson, is a piece of work and drunk with power...

Here's my thoughts so far on a response. I want to focus on the constitutionality of it, not the vehicles or their status. With that said I'm also working on getting to the point where I'm in compliance with the ordinance so if the constitutional challenge fails I can simply say that I only have one unlicensed / inoperative vehicle on the property...

My Reply:

In response to your notice of violation dated 7/9/18 and received 7/14/18 I find that Section 302.8 of the property maintenance code (302.8) is unconstitutional as it’s arbitrary, unreasonable, and is unrelated to the public health, safety or general welfare of the township. 302.8 seeks to arbitrarily prohibit the storage of motor vehicles through legislative fiat (1). Unconstitutional laws are void and unenforceable and can be ignored with impunity (2).

A municipality's police powers are broad and flexible, but they are not without limits. The Pennsylvania Constitution protects the right to own, use and enjoy property. 302.8 arbitrarily singles out the specific personal property known as motor vehicles yet does not show why motor vehicles are subject to special or unique treatment (3). PennDOT, the authority on motor vehicles, makes no requirements on ownership of motor vehicles, only the use upon the public roadways. The township failed to list any public health, safety or welfare goals that it sought to advance by the enacting of ordinance 176 of 2014.

1.) What legislative goal is sought by Honey Brook Township through the enacting and enforcement of 302.8?

2.) In what way does 302.8 benefit the public health, safety and general welfare of the township?

3.) Is 302.8 the most reasonable way to achieve these goals?

4.) Why is one unlicensed / inoperative vehicle acceptable but two are not? What was the basis of the decision to limit the number to one?

Footnotes:
(1) Kadash v. City of Williamsport, 19 Pa.Commonwealth Ct. 643, 650, 340 A.2d 617, 621 (1975). "What is not an infringement upon public safety and is not a nuisance cannot be made one by legislative fiat and then prohibited."
(2) 16 Am Jur 2nd, Sec 177 late 2d, Sec 256. "No one is bound to obey an unconstitutional law and no courts are bound to enforce it."
(3) Commonwealth v Nicely Pa. Commonwealth Ct, No. 1107 C.D. (2009). “Nicely cites no authority, and we have found none, that holds that there is something inherently special or privileged about motor vehicles”
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notmartha
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Re: Unlicensed vehicle issue - PA

Post by notmartha » Thu Jul 19, 2018 12:02 pm

cobra2411 wrote:
Tue Jul 17, 2018 12:14 pm
Notmartha, any tips on where I would find their oaths? From what I'm told the chairman, er chairperson, is a piece of work and drunk with power...
The Township Secretary should have them on file at the township building. As I recall, they charged $1 a page for copies.

You can check them against the "official" oath here (also check the dates - they must be taken before entering office):

http://www.legis.state.pa.us/cfdocs/leg ... &subsctn=0

Which is:
"I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity."
This differs slightly from the oath in "SECOND CLASS TOWNSHIP CODE" (which I think Honey Brook is?):
ARTICLE V

TOWNSHIP OFFICERS GENERALLY

Section 501. Oath of Office.--Every person elected or appointed to any township office shall before assuming the duties of the office take and subscribe an oath or affirmation before a notary public, district justice or judge to support the Constitutions of the United States and of the Commonwealth and to perform the duties of the office with fidelity. A copy of the oath or affirmation shall be filed with the township secretary before assuming the duties of the office.
Which was then trumped by this one in 2008 (which matches the constitutional oath):
Effective: September 8, 2008

53 Pa.C.S.A. § 1141

§ 1141. Form of oaths of office

Whenever an elected or appointed official of a municipality is required to take, subscribe or file an oath or affirmation of office, the oath or affirmation shall be in the form prescribed in this section, as follows:

I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity.

Credits

2008, July 9, P.L. 999, No. 76, § 1, effective in 60 days [Sept. 8, 2008].

Current through 2018 Regular Session Acts 1 to 41, 43 to 47, 51, 52, 54, 65, 66 and 72.
The oaths I pulled did not match either, and most were not dated before office was taken.

Notice one oath says "the Commonwealth" and the other says "this Commonwealth." They mean different things, and are therefore different oaths. In case you are not familiar with their definitions:
Pennsylvania Code & Bulletin Style Manual § 6.6.

Commonwealth government or territory.

(a) Government. The government of the Commonwealth of Pennsylvania at the Statewide level is referred to as “the Commonwealth.”

(b) Territory. The territory under the jurisdiction of the Commonwealth of Pennsylvania is referred to as “this Commonwealth.”

(c) The use of "Pennsylvania” should be avoided.
Terms defined:

Territory
Government
Jurisdiction
Avoid

Your letter may or nay not work. It is hard to say when dealing with arbitrary and capricious thugs.

I know you say you want to only bring into question the constitutionality of their claims against you. It is irrelevant whether the codes are constitutional or not if the "enforcers" are not lawfully holding office. My bet is that they are not, but if their oaths are good, you can then try to hold their feet to the fire in acting constitutionally on an individual level. So pulling their oaths is a win/win.
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Re: Unlicensed vehicle issue - PA

Post by cobra2411 » Fri Nov 02, 2018 3:31 pm

And I have a citation... Just showed up yesterday.

It's a non-traffic summary violation from the MDJ courts (basically small claims/traffic courts.) They are courts of no record.

So now I need to respond in some way. Of course they give you the "Plead guilty or not guilty" lines to sign with little else for options.

I have a good handle on the constitutionality of it, but I don't know if going into the MDJ court would be a trap.

The "Code enforcement officer" is an employee of a third party company. Would he not have to take an oath? I'm just thinking this now...
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Re: Unlicensed vehicle issue - PA

Post by cobra2411 » Fri Nov 02, 2018 3:41 pm

https://www.legis.state.pa.us/WU01/LI/L ... /0069..HTM

ARTICLE XVII-A, Section 1704-A. Property maintenance code.

(b) Code enforcement officers.--The township supervisors may appoint code enforcement officers who shall have the right to enter upon and inspect any premises, subject to constitutional standards, at reasonable hours and in a reasonable manner for the administration and enforcement of the township's property maintenance code. A fee payable to code enforcement officers under the ordinance shall be promptly paid by the township supervisors to the township treasurer for the use of the township.

Act 69, second class township
Section 501. Oath of Office.--Every person elected or appointed to any township office shall before assuming the duties of the office take and subscribe an oath or affirmation before a notary public, district justice or judge to support the Constitutions of the United States and of the Commonwealth and to perform the duties of the office with fidelity. A copy of the oath or affirmation shall be filed with the township secretary before assuming the duties of the office.


53 Pa.C.S.A. § 1141
§ 1141. Form of oaths of office
"Whenever an elected or appointed official of a municipality is required to take, subscribe or file an oath or affirmation of office, the oath or affirmation shall be in the form prescribed in this section, as follows:"

This last bit just changed the oath correct? They didn't remove the need for an oath. So the 3rd party appointed code inspector needs to have taken an oath. And that should be on file at the township building?
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notmartha
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Re: Unlicensed vehicle issue - PA

Post by notmartha » Sat Nov 03, 2018 6:53 am

cobra2411 wrote:
Fri Nov 02, 2018 3:31 pm
The "Code enforcement officer" is an employee of a third party company. Would he not have to take an oath?
cobra2411 wrote:
Fri Nov 02, 2018 3:41 pm
This last bit just changed the oath correct? They didn't remove the need for an oath. So the 3rd party appointed code inspector needs to have taken an oath. And that should be on file at the township building?
Anyone holding "office," whether subcontracted or not, should technically under statute have to take the oath and it should be on file at the township building. If they tell you they don't need one, tell them that you want that in writing. You can even have the paper ready for them to sign -

"I, _____________________, acting Code Enforcement Officer appointed by Honey Brook Township, am not required to take nor file an Oath of Office before assuming the duties of this office."

I actually had one fool sign a similar statement! Boy was her solicitor irate when he found out! Contact from them then seized.
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Re: Unlicensed vehicle issue - PA

Post by cobra2411 » Mon Nov 05, 2018 3:02 pm

While it might be fun, I don't have the confidence that it would do anything for me to pull the oaths and such. Not saying I'm not going to do it, but my knowledge is all very much in line with the government having authority, blah blah blah. Hard to change that thinking I guess. I'll update with what I end up doing, but for now, I have my response pretty well solidified. I'm sure I'll tweak it, but the idea is to get them to apply the same standards as they have in all other abandoned vehicle cases since the before time. I want them to prove a nuisance in fact exists. Not that I want to invite scrutiny however...


******My Draft below********

Honey Brook Township (HTB) enacted ordinance 176 with the goal of “Governing the conditions and maintenance of certain property, buildings and structures to ensure that structures are safe, sanitary and fit for occupation and use” (HBT Ordinance 176 of 2014 header). Section 301.2 of the property maintenance code (PMC) further supports the goal of keeping premises that are in “sanitary and safe” condition.

HBT cited M under a violation of section 302.8 of the PMC for allowing several unlicensed or inoperative to be store at the property, but failed to show how restricting unlicensed or inoperative vehicles contributed to the goal of ensuing that the premises are “sanitary and safe”.

M Maintains that the ordinance is invalid because 1) it is unconstitutionally unreasonable, 2) it goes beyond what is authorized by the state enabling legislation, 3) it goes beyond the legitimate exercise of a municipality's police power as the Ordinance is essentially aesthetic and 4) it impinges on an area controlled exclusively by the Pennsylvania Motor Vehicle Code.

Black’s Law defines a Nuisance as: “That class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, either real or personal.” Clearly the prohibition of the reasonable, warrantable or lawful use of property would exceed the scope of any legislative body, we must assume that this ordinance is intended to prevent or prohibit the unreasonable, unwarrantable or unlawful use of property and thus is by definition a nuisance.

Further, “In Pennsylvania, the Commonwealth has delegated authority to control public nuisances to municipalities by enabling them to enact ordinances under their respective municipal codes or the Pennsylvania Municipalities Planning Code (MPC)” (Municipal Handbook 5th ed. Pg 80) Examples of this may be seen in sections 1529 (Nuisances), 1703-A (Public Nuisances) and 1704-A (Property Maintenance Code) (Municipal Handbook 5th Ed. Pg 83)

It’s clear that the Commonwealth views the property maintenance code, among others, as a delegation of their authority to control public nuisances to a municipality.

“What is not an infringement upon public safety and is not a nuisance cannot be made one by legislative fiat and then prohibited.” (Kadash v. City of Williamsport, 19 Pa. Commonwealth Ct. 643, 650, 340 A.2d 617, 621 (1975)). Further, "even legitimate legislative goals cannot be pursued by means which stifle fundamental personal liberty when the goals can be otherwise more reasonably achieved." (Commonwealth v. Sterlace, 24 Pa. Commonwealth Ct. 62, 66, 354 A.2d 27, 29 (1976)).

Case law is clear in this regard – liberty cannot be stifled by the stroke of a pen. Municipalities must achieve their goals of protecting public safety and controlling public nuisances in the most reasonable way available.

“Subject to its enabling legislation and pursuant to its police power, a governing body has the authority to enact laws which it perceives necessary to protect the public health, safety and general welfare.” (De Paul v. Kauffman, 441 Pa. 386, 272 A.2d 500 (1971)). "neither aesthetic reasons nor the conservation of property values or the stabilization of economic values in a township are, singly or combined, sufficient to promote the health or the morals or the safety or the general welfare of the township or its inhabitants or property owners." (Medinger Appeal, 377 Pa. 217, 226, 104 A.2d 118, 122 (1954)). “actions taken in furtherance of these objectives could, therefore, never constitute an exercise of the police power.” (REDEVELOP. AUTH. OF OIL CITY v. Woodring 498 Pa. 180 (1982) 445 A.2d 724).

Preserving the economic value of the township, property values or aesthetic reasons alone are insufficient and they exceed the police powers granted to the municipality.

“municipalities are authorized to provide for the prohibition of, and seek the abatement of, a public nuisance through the exercise of their police power. However, this authority is justified only by the ability to demonstrate that the act constituting a violation of the ordinance did in fact cause a public nuisance. Stated another way, municipalities are not authorized to simply prohibit a nuisance per se—that is declare that a particular act results in interference so severe that it would constitute a nuisance under any circumstance. Municipalities that enact ordinances to provide for the prosecution of public nuisances which exist within the municipalities have often sought to establish the specific conduct that would violate the ordinance. This appears to be facially supported by the special powers provisions of the various municipal codes.” (Municipal Handbook 5th ed. Pg 78)

Declaring the storage of a vehicle a nuisance per se is beyond the authority of the municipality as well as unconstitutionally unreasonable. Municipalities may regulate nuisances, however they have an obligation to show a nuisance in fact exists. See: Kadash, Commonwealth v Sterlace and The Municipal Handbook 5th ed. Pg 79.

Life, liberty and property are fundamental rights and are held in the highest regard by the Commonwealth as evidenced by their protections being placed as Article 1, Section 1 of the Pennsylvania Constitution as well as the Declaration of Independence. “Municipalities must face the strict scrutiny that “the objective being pursued by the government must be “compelling” and not merely “legitimate.” The strict scrutiny test also requires that the means chosen to achieve that compelling end must be “necessary”; i.e., there must not be any less restrictive means that would do the job just as well.” (Municipal Planning Guide 5th ed, Pg 39) "Any constitutional provision intended to confer a benefit should be liberally construed in favor in the clearly intended and expressly designated beneficiary" “That a constitution should receive a literal interpretation in favor of the Citizen, is especially true, with respect to those provisions which were designed to safeguard the liberty and security of the Citizen in regard to person and property.” Bary v US – 273 US 128

A citizen of this commonwealth as well as this state has the right to own and enjoy property. This is protected by not only the US Constitution but also the Pennsylvania Constitution. The state department of transportation does not require license, registration or even insurance for the ownership and enjoyment of motor vehicles on private land. You do not need a license to enjoy something you already have a right to – that’s axiomatic.

Since the ability to regulate the ownership and enjoyment of motor vehicles on private land does not exist anywhere within the Pennsylvania code, nor can it, the state cannot delegate what it doesn’t have. Therefore, by requiring the registration of motor vehicles on private land HBT has not only exceeded the power delegated to them in the MPC but they have also exceeded their constitution authority.

While Penndot does maintain standards for motor vehicles, it does not enforce those nor make them a requirement of ownership on private land. While it may be that an inoperative, abandoned, disabled or even unlicensed vehicle may be prejudicial to the public health or safety and in fact be a nuisance, that is not always the case. It doesn’t matter under which delegated power the municipality wants to draw their police powers from the courts have long established that municipalities have to affirmatively state that a nuisance in fact exists in regards to a public nuisance. The municipality must affirmatively show that a nuisance in fact exists. Municipalities cannot use aesthetics alone and they don’t have the authority to declare something a nuisance pe se.

Clearly HBT has the power to prohibit or otherwise control a nuisance in fact. HBT is attempting to either declare a nuisance per se with this ordinance nor they are trying to prohibit based on aesthetic reasons. Both are beyond their abilities. “Where a reasonable interpretation can be adopted, which will save the constitutionality of an ordinance, it is the court’s duty to adopt it.” (340 A.2d at 621; Dole v. Philadelphia, 337 Pa. 375 (1940)). The Court in Kadash interpreted an ordinance prohibiting, among other defined nuisances, the storage and accumulation of abandoned or junked motor vehicles or motor vehicles not used or licensed, as requiring that the municipality prove a nuisance in fact in any given case in order to preserve the constitutionality of the ordinance. Therefore, this court should apply the same standard to public nuisances as defined within the property maintenance code and require HBT to prove a nuisance in fact exists.
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Re: Unlicensed vehicle issue - PA

Post by cobra2411 » Fri Nov 09, 2018 5:18 pm

https://casetext.com has been amazing. It lets you look up the Shepard's citations as well as easily copy cited cases. A little pricey, but they have a 2-week trial, so I've done as much research as I can and downloaded all the case law I found that could apply. There are cases I can't find on sites like Justia.

"Although these cases involve zoning regulations, and not property maintenance regulations, both Section 1 of the Law and Section 105 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10105, rely upon a municipality's police power to protect and preserve public health, safety, morals, and general welfare as the basis for the regulatory provisions contained therein. The rationales set forth in the above-cited cases, such as the obligation of a property owner to utilize his property in a manner that will not harm others, or the interests of neighboring property owners, also apply to matters involving property maintenance ordinances."
Commonwealth v. Holland, No. 1463 C.D. 2010, at *10-11 (Pa. Cmmw. Ct. Jun. 22, 2011)

The township previously cited Nicely and in nicely they argue that the power flowed through the property maintenance code, not the nuisance section. Since neither the property maintenance code nor the ordinance in Nicely said they had to declare a nuisance in fact the court said they didn't have to. They could simply regulate it as the condition of the exterior of the property. Now, Nicely didn't raise a Constitutional argument whereas I am, so there's that. I intend to use this in case the township says case law and guidance from the municipal handbook don't relate as it clearly shows the logic can be applied to similar cases even if the power flows different.

The Borough of New Bloomfield v. Wagner (Pa. Cmmw. Ct. 2012) has lots of good nuggets too.

"It is well settled that there must be sufficient evidence of a nuisance in fact before permitting a borough to enforce an ordinance abating the storage of vehicles on private property. Davis, 561 A.2d at 1341."

"Thus, under Ordinance No. 256, the mere presence of “abandoned” vehicles on private property is a nuisance per se. Moreover, the fact that Ordinance No. 256 provides for certain exceptions where a vehicle is not considered abandoned (i.e., where the vehicle is covered, in a building, or at a car repair shop), does not affect the analysis. In light of the foregoing analysis, we must conclude that Ordinance No. 256 is unconstitutional as applied to Property Owners, and the trial court erred in holding otherwise."

"The mere fact that Property Owners' vehicles sit in plain view of multiple residences does not support a finding that the vehicles create an inconvenience, annoyance, or discomfort to the adjacent homeowners."

There a few others.

Then there's this...

In establishing a violation of such an ordinance, the township bears the burden of proving the existence of a nuisance in fact. See Borough of New Bloomfield v. Wagner, 35 A.3d 839, 843 (Pa. Cmwlth. 2012); McClellan v. Commonwealth, 499 A.2d 1150, 1151 (Pa. Cmwlth. 1985). "The burden to prove a nuisance in fact is strict and requires clear evidence of a nuisance . . . ." Borough of New Bloomfield, 35 A.3d at 845. For example, in Talley v. Borough of Trainer, 394 A.2d 645 (Pa. Cmwlth. 1978), we concluded that a nuisance in fact existed where the actual condition of the property constituted a public hazard because, inter alia, there was broken glass strewn about the property, and many abandoned vehicles on the property "closely abutted and partially impinged upon a public sidewalk frequently used by children going to and from school." Talley, 394 A.2d at 646. In contrast, in Commonwealth v. Hanzlik, 400 Pa. 134, 161 A.2d 340 (1960), the Supreme Court of Pennsylvania stated that there was no evidence that the appellees were maintaining a nuisance in fact, such as loud noises, offensive odors, attraction of vermin, or injuries to the public, in the operation of their business. Hanzlik, 400 Pa. at 136, 161 A.2d at 341. In Teal v. Township of Haverford, 578 A.2d 80 (Pa. Cmwlth. 1990), appeal denied, 527 Pa. 659, 593 A.2d 429 (1991), we concluded that the township failed to meet its burden to prove nuisance in fact when there was no evidence that disabled vehicles stored on the landowner's property posed any public danger, inconvenience, or distraction. Teal, 578 A.2d at 83. See also Holsten v. Haverford Township, 698 A.2d 174, 176 (Pa. Cmwlth. 1997) (holding Township failed to establish nuisance in fact where no evidence showed that dogs running at-large on landowner's property posed danger to public).
Commonwealth v. Douros, No. 1694 C.D. 2012, at *11-12 (Pa. Cmmw. Ct. Aug. 9, 2013)

And this...

276 A.2d 853 (1971). In Commonwealth v. Sadecky,41 Pa. Commw. 86, 398 A.2d 1073 (1979), a case involving a borough junkyard ordinance, we noted that the provisions of the Act of February 1, 1966 (Borough Code), P.L. (1965) 1656, as amended, 53 P. S. § 45101-48501, confer greater regulatory powers upon boroughs than those granted to some townships under the Township Code. Nonetheless, we required that "the ordinance . . . be phrased in such a way as to require the municipality to affirmatively establish that a nuisance in fact exists." Id.,41 Pa. Commw. at 89, 398 A.2d at 1075.
Davis v. Com, 127 Pa. Commw. 475, 478 (Pa. Cmmw. Ct. 1989)

And this...

"...to regulate the use and maintenance of land and structures is "founded upon the constitutional principles of the police powers of government to promote the public health, morals, safety and general welfare." Forks Township Board of Supervisors v. George Calantoni & Sons, Inc., 297 A.2d 164, 166 (Pa. Cmwlth. 1972); 53 P.S. § 48301.
Commonwealth v. Holland, No. 1463 C.D. 2010, at *9 (Pa. Cmmw. Ct. Jun. 22, 2011)
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Re: Unlicensed vehicle issue - PA

Post by cobra2411 » Fri Nov 09, 2018 6:16 pm

Twp. of Cranberry v. Spencer, No. 2289 C.D. 2011 (Pa. Cmmw. Ct. Dec. 19, 2012)

***Drops Mic***




:lol: :lol: :lol:

This case is as close to what I'm dealing with as I could ever find including a township that's arguing that they are regulating property maintenance and don't have to prove a nuisance in fact. The courts said they very much can read it as requiring them to prove a nuisance in fact.

Actually there's a ton of case law that I've already found in here. There's so much gold here that I may just print it complete and bring it with me...

Link - https://law.justia.com/cases/pennsylvan ... -2011.html
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Re: Unlicensed vehicle issue - PA

Post by cobra2411 » Sun Nov 11, 2018 6:20 pm

Trial date is Nov 28th. I'll probably tweak, but this is what I've got so far. It's MDJ court, so I'll probably bring this more as an outline than something to give out, but I'll make copies just in case. I'm also going to make a "response" page to address any objections I can think of with case law under them. I would like to lure them into admitting that it's for aesthetic reasons however.

________________________

On October 16th Honey Brook Township (HBT) cited (“M”) for a violation of HBT Ordinance 176 of 2014 for allowing several unlicensed or inoperative vehicles to be stored at (Property).

“M” contends that the Ordinance as written is invalid because 1) it is unconstitutionally unreasonable and overbroad, 2) it is arbitrary, 3) it goes beyond the legitimate exercise of a municipality’s police power as the Ordinance is essentially aesthetic, 4) it goes beyond what is authorized by the state enabling legislation and 5) it impinges on an area of law controlled exclusively by the Pennsylvania Motor Vehicle Code.

“M” intends to show the court that this Ordinance is an attempt to regulate a public nuisance and as such HBT has the burden of proof to show beyond a reasonable doubt that a Nuisance In Fact exists. “M” contends that as written this ordinance declares two or more unlicensed or inoperative vehicles a nuisance per se and is thus unconstitutionally unreasonable and overbroad.

“If we were to interpret the ordinance as declaring the collection of junked autos to be unlawful as a nuisance per se, it would in our view fail the test of reasonableness.” Kadash, v. City Williamsport, 19 Pa. Commw. 643, 650 (Pa. Cmmw. Ct. 1975)

This Ordinance is arbitrary in that it assumes that one unlicensed or inoperative vehicle is never a threat to the community whereas two or more always are without explaining why. Race cars, Off Road vehicles and other vehicles intended to be used solely on private property are frequently unregistered yet can be maintained in a way that would not harm others. Title 75, Section 1301 of the Motor Vehicle code regulates vehicle registration and nowhere inside is there a requirement to register vehicles that will be kept or used solely on private property. Section 1302 lists registration exemptions and all of the exemptions relate to unregistered vehicles that use the public highways – even if incidentally. The Motor Vehicle Code is clear – if the vehicle never touches the public highways there is no requirement to register. This same logic applies to operational status – there is no requirement that a vehicle has to run if it is kept on private property. Since the Motor Vehicle Code doesn’t make any requirement for registration on private property, how does HBT have that authority?

“The Court found that the potential health hazards that may result from the open storage of abandoned vehicles provided a reasonable basis for their regulation as nuisances. There is no question that abandoned or disabled or even unlicensed vehicles may be prejudicial to the public health or safety and in fact be nuisances. This will not always be true in every case, however. Groff correctly upheld the constitutionality of the ordinance; however, the ordinance must be interpreted to prohibit or regulate nuisances in fact and not merely nuisances per se. To the extent Groff does not stand for this proposition, this Court must follow the decision of the Supreme Court in Hanzlik and the line of cases in this Court stemming from Hanzlik adopting that proposition.” Teal v. Township of Haverford, 134 Pa. Commw. 157, 163 n.4 (Pa. Cmmw. Ct. 1990)

“M” contends that HBT is using its police powers to regulate a nuisance in this matter. A nuisance is:

“That class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, either real or personal, or from his own improper, indecent, or unlawful personal conduct” – Black’s Law Dictionary

“defined as the unreasonable or unlawful use of property that causes damage, injury, inconvenience or annoyance to another in the enjoyment of his or her reasonable rights.” PENNSYLVANIA LEGISLATOR’S MUNICIPAL DESKBOOK | 5th Ed. (2017) Pg 77

HBT in the preamble of the ordinance lists their goal of ensuring that the conditions of property are safe and sanitary, thus they are attempting to protect public health and safety. HBT may enact ordinances to protect the health and safety of the community and the Commonwealth has delegated power through numerous avenues.

“In Pennsylvania, the Commonwealth has delegated authority to control public nuisances to municipalities by enabling them to enact ordinances under their respective municipal codes or the Pennsylvania Municipalities Planning Code (MPC), although the Commonwealth also controls nuisances in certain instances.” Municipal Deskbook Pg 80

“Some Examples of Municipal Code Sections Authorizing the Regulation or Abatement of Nuisances … ARTICLE XV, CORPORATE POWERS, Section 1529. Nuisances … ARTICLE XVII, UNIFORM CONSTRUCTION CODE, PROPERTY MAINTENANCE CODE AND RESERVED POWERS, Section 1703-A. Public nuisance. Section … 1704-A. Property maintenance code.” Municipal Deskbook Pgs 81 & 83

As we can see HBT has a number of ways to control public nuisances. These powers however are limited to being reasonable and necessary to protect public health and safety. We can see through case law as well as guidance from the Commonwealth that while HBT has great authority to enable legislation it must show that a nuisance in fact exists.

“Subject to its enabling legislation and pursuant to its police power, a governing body has the authority to enact laws which it perceives necessary to protect the public health, safety and general welfare.” (De Paul v. Kauffman, 441 Pa. 386, 272 A.2d 500 (1971)).

“to regulate the use and maintenance of land and structures is "founded upon the constitutional principles of the police powers of government to promote the public health, morals, safety and general welfare." Forks Township Board of Supervisors v. George Calantoni & Sons, Inc., 297 A.2d 164, 166 (Pa. Cmwlth. 1972); 53 P.S. § 48301.”
Commonwealth v. Holland, No. 1463 C.D. 2010, at *9 (Pa. Cmmw. Ct. Jun. 22, 2011)

"even legitimate legislative goals cannot be pursued by means which stifle fundamental personal liberty when the goals can be otherwise more reasonably achieved." (Commonwealth v. Sterlace, 24 Pa. Commonwealth Ct. 62, 66, 354 A.2d 27, 29 (1976)).

“What is not an infringement upon public safety and is not a nuisance cannot be made one by legislative fiat and then prohibited. Commonwealth v. Christopher, supra.” Kadash, v. City Williamsport, 19 Pa. Commw. 643, 650 (Pa. Cmmw. Ct. 1975)

“municipalities are authorized to provide for the prohibition of, and seek the abatement of, a public nuisance through the exercise of their police power. However, this authority is justified only by the ability to demonstrate that the act constituting a violation of the ordinance did in fact cause a public nuisance.” Municipal Deskbook Pg 78

“Nonetheless, we required that "the ordinance . . . be phrased in such a way as to require the municipality to affirmatively establish that a nuisance in fact exists." Id., 41 Pa. Commw. at 89, 398 A.2d at 1075. ” Davis v. Com, 127 Pa. Commw. 475, 478 (Pa. Cmmw. Ct. 1989)

“In establishing a violation of such an ordinance, the township bears the burden of proving the existence of a nuisance in fact. See Borough of New Bloomfield v. Wagner, 35 A.3d 839, 843 (Pa. Cmwlth. 2012); McClellan v. Commonwealth, 499 A.2d 1150, 1151 (Pa. Cmwlth. 1985). "The burden to prove a nuisance in fact is strict and requires clear evidence of a nuisance . . . ." Borough of New Bloomfield, 35 A.3d at 845. “
Commonwealth v. Douros, No. 1694 C.D. 2012, at *11 (Pa. Cmmw. Ct. Aug. 9, 2013)

“The Borough cannot rely on objects as being a nuisance per se, but must prove the offensive nature of the conditions, which it did not” Commonwealth v. Dennis, No. 1873 C.D. 2013, at *13 (Pa. Cmmw. Ct. Oct. 9, 2014)


Most of these cases involve section 1529 of the municipal planning code and not the Property Maintenance Code section 1704-A. As already stated, the Municipal Deskbook lists section 1704-A as an example of the Commonwealth’s delegation of power to regulate nuisances. In Com v. Nicely, the court’s found that the municipality did not have to prove a nuisance in fact but rather they could regulate the exterior condition of the property. This case is flawed as Nicely did not raise a constitutional argument. “M” maintains that a municipality does not have the authority to base an ordinance on the exterior appearance of the property based on the PA Supreme Court case off the Redevelopment Authority of Oil City.

“In a case involving the constitutionality of a zoning ordinance, this Court held that "neither aesthetic reasons nor the conservation of property values or the stabilization of economic values in a township are, singly or combined, sufficient to promote the health or the morals or the safety or the general welfare of the township or its inhabitants or property owners." Medinger Appeal, 377 Pa. 217, 226, 104 A.2d 118, 122 (1954). This Court concluded that actions taken in furtherance of these objectives could, therefore, never constitute an exercise of the police power.” Redev. Auth. of Oil City v. Woodring, 498 Pa. 180, 186 (Pa. 1982)

“We held in New Bloomfield, however, that nuisance in fact cannot be based solely on the public's view of a property. New Bloomfield, 35 A.3d at 848.” Twp. of Cranberry v. Spencer, No. 2289 C.D. 2011, at *11-12 (Pa. Cmmw. Ct. Dec. 19, 2012)

“M” also contends that logic from similar cases can be used. In other words, even though the above cited cases rely on cases that use Section 1529, the logic from those as well as the guidance from the Municipal Deskbook applies to this matter as well.

“Although these cases involve zoning regulations, and not property maintenance regulations, both Section 1 of the Law and Section 105 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10105, rely upon a municipality's police power to protect and preserve public health, safety, morals, and general welfare as the basis for the regulatory provisions contained therein. The rationales set forth in the above-cited cases, such as the obligation of a property owner to utilize his property in a manner that will not harm others, or the interests of neighboring property owners, also apply to matters involving property maintenance ordinances.”
Commonwealth v. Holland, No. 1463 C.D. 2010, at *10-11 (Pa. Cmmw. Ct. Jun. 22, 2011)

“While Hanzlik involved a determination of the extent of a township's powers under Section 702 of the Township Code, this Court has applied its reasoning in cases involving borough and city ordinances. See, e.g., Talley v. Borough of Trainer,38 Pa. Commw. 441, 394 A.2d 645 (1978); Kadash v. City of Williamsport,19 Pa. Commw. 643, 340 A.2d 617 (1975); Borough of Macungie v. Hoch, 34 Lehigh L.J. 99 (1970), aff'd per curiam,1 Pa. Commw. 573, 276 A.2d 853 (1971).”

Davis v. Com, 127 Pa. Commw. 475, 478 (Pa. Cmmw. Ct. 1989)

The case law and guidance from the state is overwhelmingly clear here. A municipality bears the burden of proof to show a nuisance in fact exists beyond a reasonable doubt. Any assertion that this is a property maintenance issue and not a nuisance issue must fail as it’s clear that the dominant purpose of this ordinance is to regulate nuisances. HBT is making the claim that two or more inoperative or unlicensed vehicles are a nuisance per se. Declaring a nuisance per se exceeds their authority.

“In Commonwealth of Pennsylvania v. Hanzlik, 400 Pa. 134, 161 A.2d 340 (1960), our Supreme Court held that second-class townships are not permitted under the Code to declare the storage of abandoned or junked vehicles on a private property a nuisance per se. Hanzlik, 400 Pa. at 137, 161 A.2d at 342. An ordinance must be phrased in a manner as to require a township to establish the existence of a nuisance in fact. New Bloomfield, 35 A.3d at 844. A court may save the constitutionality of an ordinance declaring junked or abandoned vehicles as nuisance per se by reasonably interpreting the statute. Teal v. Twp. of Haverford, 578 A.2d 80, 82 (Pa. Cmwlth. 1990). We, therefore, can read an ordinance prohibiting junked or abandoned vehicles as requiring a township to prove a nuisance in fact.”
Twp. of Cranberry v. Spencer, No. 2289 C.D. 2011, at *10 (Pa. Cmmw. Ct. Dec. 19, 2012)

“Here, the Ordinance declares and deems the storage or accumulation of … more than one junked or abandoned vehicle … on private property as nuisance per se. Consequently, the law requires the Township to prove nuisance in fact.”
Twp. of Cranberry v. Spencer, No. 2289 C.D. 2011, at *11 (Pa. Cmmw. Ct. Dec. 19, 2012)

HBT has offered no evidence that the vehicles stored on the property constitute a nuisance in fact. All they have proved is that there are several unlicensed or inoperative vehicles stored on the property.
Last edited by cobra2411 on Wed Feb 20, 2019 5:33 pm, edited 1 time in total.
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