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.