Hey, your friendly rabble-rouser here... I mentored my little brother well... He's got his own battle with an overreaching municipality...
The Borough limits the number of animals on a property to 3. Doesn't matter it's 4 acres off a private drive at the end of a dead end street that you can only see by driving past the very clearly displayed no trespassing signs... The borough has a specific list which includes white mice only - none of those problem causing colored mice allowed... Started with lots more than 3 including many that aren't on their list. Till the cow came. That's when the Borough president lost her mind and started threatening $1,000 per day per animal fines - probably 60-70k a day in fines. For a 160k property...
Anyway, there's a lot more going on, but that's for later. They finally sent a notice of violation so...
Here's the response:
January 17, 2020
Via Email and US First Class Mail
Re: Violation of the Borough Code of Ordinances, Chapter 2, Animals
Mr. W (Codes officer) and Board Members of the Borough:
This correspondence will serve as a response to the letter received on January 15, 2020 in which Mr. W acting on the Borough’s behalf, advised that I am in violation of Section 2 – Animals of the Borough Codes. I find this Section to be unconstitutional, arbitrary, and unreasonable with no bearing on the promotion of the public health, safety, morals or general welfare of the Borough. The Borough has exceeded its authority in limiting the type and quantity of animals kept by residents of the Borough. The Borough has provided no proof that any animal on the property, or how those animals are kept, constitute a nuisance.
Municipalities are given a great deal of power to protect the health and safety of the community however there are clear and well-established limits. I assert that the Borough has grossly exceeded their authority in this regard. Borough and its Board, have exceeded their authority as addressed below, and I consider the Notice of Violations VOID, and the matter withdrawn.
A Borough has only those powers specifically delegated to it by the legislature. See, e.g., Commonwealth v. Hanzlik, 400 Pa. 134 (1960):
“Code clearly sets forth the three methods of enforcement made available by the legislature to second-class townships. First, a township may pass an ordinance prohibiting nuisances. If the enforcement officials of the township thereafter determine that the conduct of a particular business or activity constitutes a nuisance in fact thereby violating the said ordinance, they may, after notice to the owner to voluntarily abate the nuisance and in his default, by the proper procedures and with the necessary safeguards remove said nuisance and collect, by summary proceedings, both the cost of the removal and a penalty provided for in the ordinance. The second authorized method of procedure is for the officials to institute equity proceedings to abate such a nuisance. And lastly, they may proceed pursuant to that part of the comprehensive Act of May 1, 1933, P.L. 103, Art. VII, § 702, cl. XXV, added April 27, 1945, P.L. 319, § 1, renumbered cl. XLI and amended July 10, 1947, P.L. 1481, § 9; May 24, 1951, P.L. 370, § 7; June 1, 1956, P.L. (1955) 2021, § 12, 53 PS § 65741, which provides, ". . . The board of supervisors may prescribe fines and penalties not exceeding three hundred dollars in any instance for the violation of any such township ordinances, which fines and penalties may be collected by suit or summary proceeding brought in the name of the township before any justice of the peace. . . ." Under this provision, the township may create a criminal offense and provide a penalty for the violation of a sister ordinance which prohibits nuisances. In order to secure a conviction pursuant thereto, however, the township must show beyond a reasonable doubt that the defendant was in fact maintaining a nuisance.”
Borough draws the power to prohibit and remove nuisances from Section 1202 of the Borough Code. The Municipal Handbook 5th Edition pg. 78 states that “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.”
In Talley v the Borough of Trainer, 38 Pa. Commw. 441 (1978), the Courts found that “ordinances regulating nuisances must be phrased in such a way as to require the municipality to affirmatively establish that a nuisance in fact exists.” The Borough has failed to affirmatively show a nuisance in fact exists in this matter.
“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. Commw. 643, 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.", see Commonwealth v. Sterlace, 24 Pa. Commw. 62, 66, 354 A.2d 27, 29 (1976)).
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 handbook 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" … “Then 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.
In accordance with Borough’s Codes and Ordinances:
§2-113. Complaints of Nuisance. 1. Any person who observes an animal committing a nuisance upon the premises of a person other than its owner or on a public street on a public sidewalk may file with the magisterial district judge a signed complaint, upon oath, specifying the objectionable conduct of the animal and the name and residence of the owner or other person harboring said animal. lOrd. 145-07]
When I purchased the property, I repeatedly requested, at Borough Meetings, the proper paperwork required to apply for the Permit under Section 2-208 of Borough Codes. I was repeatedly told by the Board that wasn’t necessary because the Board was working on updating Section 2 to allow me to have my animals. Upon requesting the Application in Section 2-208, I was advised by the Borough secretary that she never heard of such an application. I have continued to engage the community, the Borough Board, Police Department as well as you, to ensure my actions were not resulting in any nuisance to the community.
Further, neither the Borough nor the Police Department has informed me of any complaints, nuisance or otherwise, about the property or animals being kept there. The number and types of animals on my property have been well known since before I purchased the property. The Borough has had ample time to address any violations and has declined to do so for more than two years.
Currently, all animals have been removed from my property under threat of fines to exceed $1,000 and/or jail time. I have engaged an attorney to handle this matter. Please be advised that you and/or Board Members of the Borough, specifically but not limited to, Ms. D, are DENIED access to my property.
Land, personal possessions, and self. Not necessarily in that order.
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