North Cornwall Township, v. George D. Konevitch and Margaret M. Konevitch

North Cornwall Township, v. George D. Konevitch and Margaret M. Konevitch

 

Civil Action-Municipal Law-Nuisance-Bamboo Migration-Neighboring Property-Stream-Municipal Lien-Writ of Scire Facias-Summary Criminal Charges-Notice Requirements

 

North Cornwall Township (“Plaintiff”) filed a Municipal Claim for Delinquent Municipal Charges against George D. and Margaret M. Konevitch (“Defendants”) for expenses incurred for removal of bamboo that migrated from their property and obstructed a stream running along their property.  A Writ of Scire Facias subsequently was issued upon request by Plaintiff.  Defendants challenged the validity of the Municipal Claim and Lien via a Motion to Vacate and/or Strike for Fraud upon the Court, asserting that Plaintiff’s failure to file summary criminal charges obviated the ability to pursue a municipal lien.

 

1. A municipal lien is a charge, claim or encumbrance upon real property that is placed to secure payment of a debt while not affecting the property owner’s right to possess or to control the property.

 

2. A municipal lien arises by operation of law whenever a municipal claim lawfully is assessed or imposed upon a property.

 

3. The Municipal Claims and Tax Liens Act (“MCTLA”), 53 P.S. § 1701 et seq., provides that after a municipal claim is filed, the parties have three (3) procedural alternatives: (1) the owner may contest the municipal claim or the amount of the assessment to force a hearing on the claim; (2) the municipality may pursue a writ of scire facias without the owner’s action; or (3) the owner and municipality may choose to do nothing and to allow the municipal lien to be recorded indefinitely subject to revival.

 

4. A property owner must comply with the specific procedures set forth in the MCTLA.

 

5. The issuance of a writ of scire facias is an original process and serves as a warning to the property owner of the existence of the claim so that the owner may challenge the lien.

 

6. A property owner who is aggrieved by a municipal lien that is not defective upon its face may obtain an adjudication as to the validity of the lien by serving notice upon the municipality to issue a writ of scire facias upon the claim.

 

7. The property owner as the defendant in a scire facias proceeding bears the burden of overcoming the prima facia case established by the municipality that the claim is erroneous.

 

8. Although violations of ordinances relating to nuisances may be enforced through summary criminal proceedings under municipal codes, a municipality is not limited to summary criminal enforcement proceedings and may pursue other forms of relief.

 

9. While Plaintiff failed to comply strictly with the notice requirements of the Township Ordinance by failing to address the issue regarding the bamboo migration with Defendants via telephone or personal visit before mailing of violation letters, the record suggests that Defendants also were at fault for failing to contact Plaintiff by telephone or otherwise to make some effort to speak with Plaintiff when violation letters had been received and Defendants had filed responses indicating that they were not taking responsibility for the condition and would not be acting to remediate the issue.

 

10. Where the evidence presented establishes that Plaintiff proved the existence of a nuisance as defined by the applicable Township Ordinance that originated upon Defendants’ property, the Township followed the appropriate procedure in response to the situation and Defendants received ample notice of the violation and Plaintiff’s plan to correct the condition if Defendants failed to do so, the burden shifted to Defendants to prove that the claim was erroneous, a burden that they failed to sustain.

 

L.C.C.C.P. No. 2020-00272, Opinion by John C. Tylwalk, President Judge, December 7, 2021.

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

NORTH CORNWALL TOWNSHIP, :         NO. 2020-00272

Plaintiff/Claimant                    :

:

1. :

:

GEORGE D. KONEVITCH and                  :

MARGARET M. KONEVITCH                  :

Defendants/Registered Owners:

 

ORDER OF COURT

 

AND NOW, this 7^th day of December 2021, upon consideration of Defendants’ Motion to Vacate and/or Strike a Municipal Claim/Lien for Fraud Upon the Court, the response of North Cornwall Township, the evidence adduced at the hearings conducted on January 11, 2021 and March 31, 2021, and the Briefs submitted by the parties, it is hereby Ordered that said Motion is DENIED.  The municipal claim and lien of North Cornwall Township is AFFIRMED.

BY THE COURT:

 

                                                          _____________________________, P.J.

                                                          JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Amy B. Leonard, Esquire

       George D. Konevitch

       Margaret M. Konevitch

       Judith Huber, Esquire/Law Clerk

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

NORTH CORNWALL TOWNSHIP, :         NO. 2020-00272

Plaintiff/Claimant                    :

:

1. :

:

GEORGE D. KONEVITCH and                  :

MARGARET M. KONEVITCH                  :

Defendants/Registered Owners:

 

APPEARANCES:

 

AMY B. LEONARD, ESQUIRE               FOR NORTH CORNWALL TOWNSHIP

HENRY & BEAVER LLP

 

GEORGE D. KONEVITCH                     SRL

 

MARGARET M. KONEVITCH               SRL

 

OPINION, TYLWALK, P.J., DECEMBER 7, 2021.

 

On January 31, 2020, Plaintiff North Cornwall Township (“Township”) filed a Municipal Claim for Delinquent Municipal Charges against Defendants/Registered Owners George D. Konevitch and Margaret M. Konevitch (“Owners”) in the amount of $4,981.80 against the Owners’ property located at 2130 Colebrook Road in North Cornwall Township for expenses incurred in the removal of bamboo which had migrated from Owners’ property and had fallen into and obstructed a stream which ran along Owner’s land.   A Writ of Scire Facias was issued pursuant to the Township’s request on June 2, 2020.

Owners have challenged the validity of the Municipal Claim and Lien and the issuance of the Writ of Scire Facias by filing a Motion to Vacate and/or Strike a Municipal Claim/Lien for Fraud Upon the Court.  We conducted hearings on Owners’ Motion on January 11, 2021 and March 31, 2021.[1]  The parties have filed post-hearing Briefs in support of their positions and the Motion to Vacate and/or Strike is now before us for disposition.

At the January 11, 2021 hearing, the Township first presented the testimony of Thomas J. Long, Sr.  Long is currently the Township Manager and Code Enforcement Officer and was previously the Township’s Public Works Director.  Long testified that the Township had sent out educational letters to all property owners whose properties bordered streams and waterways within the Township on May 21, 2014 and that a copy was sent to Owners on that date.  (Exhibit “2”) This letter referenced Township Ordinance #196, which prohibited the obstruction of streams and waterways by the accumulation of materials from private properties and informed Owners that they were responsible for cleaning out any vegetation, trees or debris which originated on their property and which fell into the Township waterways in order to maintain the flow of waters and prevent flooding.  The mailing enclosed a stormwater management educational brochure (Exhibit “3”) which reiterated this information and included pictures of how fallen trees and branches would dam up a stream.

Long explained that at the time of this mailing, Owner’s property was already on the Township’s radar as Owners’ northern neighbor, Mr. Ebersole, had complained that bamboo from Owners’ property was migrating onto his property and onto the stream banks.  As a result of this complaint, Long visited the site on July 25, 2014 and took photos of bamboo which was matted down and projecting over the stream from Owners’ property.  (Exhibit “4”)

Long testified that in January 2018, he received another complaint from Owners’ adjacent neighbor, Robert Ridinger, about dead and decayed bamboo which had originated on Owners’ property.  The bamboo had fallen into the stream and blocked the inlet to Ridinger’s pond.  After consulting aerial photographs, Long noted that the bamboo which was located on Owners’ property extended toward the stream.

Based on his observations, Long concluded that Owners were in violation of the Township’s current Nuisance Ordinance, No.  297,[2] and sent a Notice of Violation of Property Maintenance Code and/or Nuisance Ordinance to Owners (Exhibit “8”) dated February 28, 2018.  This Notice provided, in part:

You are hereby notified that you, as the property owner, are violating certain provisions of the 2009 Property Maintenance Code as adopted by Ordinance No. 263 dated November 9, 2010 and more specifically by the sections of the 2009 Property Maintenance Code; or the North Cornwall Township Nuisance Ordinance No. 297 dated April 18, 2017, as indicated below:

 

VIOLATION:  Bamboo is over-grown and spreading.

 

Ordinance #297, Article III – NUISANCES, Section 3.01 Nuisances Declared Illegal. 12.c. Noxious Weeds.

 

It shall be unlawful to refuse or fail to cut and/or destroy noxious weeds or other vegetation that has grown to an average height of ten (10”) inches or more.

 

1. Planting Beds. It shall be unlawful to refuse or fail to maintain planting beds to the point where ornamental plants, shrubs, or bushes are permitted to grow in an unkempt fashion extending into streets, alley ways, right-of-way, private or public property, or areas where pedestrians are permitted to pass; or to permit noxious weeds or other vegetation to grow without restriction to an average height exceedingten (10”) inches within such designated planting beds.

 

2009 International Property Maintenance Code, Section 302.8, as adopted by North Cornwall Township Ordinance #263.

 

302.4 Weeds.  All premises and exterior property shall be maintained free from weeds or plant grown in excess of 10”.  All noxious weeds shall be prohibited.  Weeds shall be defined as all grasses, annual plants and vegetation, other than trees or shrubs provided; however, this term shall not include cultivated flowers and gardens.

 

You are hereby notified as the owner, … , that you are in violation of the North Cornwall Township Ordinances, specified above.  You must contact the Township Manager within three (3) days of receipt of this notice and the violation must be resolved and in compliance by:  March 29, 2018 or have made arrangements with the Township on a compliant completion date.

 

          …

 

It is your responsibility to notify North Cornwall Township, when all corrections have been made to be compliant and have been completed so that a re-inspection of the property or violation can be made;  OTHERWISE, the Township will act on the basis that the work has not bee completed, AND IF NECESSARY, BASED ON THE PUBLIC SAFETY AND WELFARE OF RESIDENTS AND NEIGHBORS, THE TOWNSHIP WILL TAKE THE STEPS REQUIRED TO HAVE THE VIOLATION RESOLVED BY TAKING ACTION TO ENTER THE PROPERTY AND COMPLETE THE NECESSARY WORK TO HAVE THE PROPERTY IN COMPLIANCE.

 

…

 

The Property Owner will be billed for the costs the Township will incur for this action.  If any outstanding Administration/Enforcement Fees or other fine costs are not paid within thirty (30) days, the Township’s Solicitor will take action to place a lien on the property.

 

(Exhibit “8”) (emphasis in original).

Owners failed to contact the Township or take action to correct the violation by that March 29, 2018.  Instead, they returned the Notice to the Township along with a “Neutral Response Letter” dated March 17, 2018 in which they challenged the Township’s jurisdiction and denied the violation.  (Exhibit “19”)

When the problem was not corrected by Owners, the Township sent a follow-up letter dated June 13, 2018  which informed Owners that the Township planned to take action to remove the obstructions in the stream and clean up the debris caused by the fallen bamboo in accordance with the process outlined in the Township Ordinance within thirty (30) days after June 22, 2018.  (Exhibit “10”) Long explained that the Township had arranged with Mr. Ridinger to access the stream from his property and had hired a subcontractor to remove the debris in order to prevent flooding to neighboring properties and to bring the area into compliance for stream studies which were being conducted that summer.  The letter notified Owners of their responsibility for the removal of fallen trees from the watercourse, advised that the Township would remove the fallen bamboo to unblock the stream, that Owners would be invoiced for the cost, and that a lien could be placed on the property if the charges were not paid.  (Exhibit “10”)  Long explained that Owners did not call the Township to discuss the matter after this letter was sent, but did send correspondence which indicated that Owners did not plan to take any action to remedy the situation.

As a result of Owners’ inaction, the Township contracted with Penn Turf Landscaping (“Penn Turf”) to remove the bamboo from the stream.  Penn Turf performed the work on June 25, 26, and 28 of 2018 and was paid $4,400 by the Township for bamboo removal, dumping, backhoe and labor.  (Exhibit “11”)  Long  verified that the charges were related solely to the removal of the bamboo which had originated on Owners’ property.  The township forwarded Penn Turf’s bill along with its own invoice for reimbursement to Owners on August 28, 2018, giving Owners thirty days to make payment.  (Exhibit “12”)

When Owners failed to reimburse the Township, the matter was turned over to the Township solicitor for collection of the $4,400.00.  By letters dated November 26, 2019 and December 5, 2019, the Township solicitor notified Owners that it was attempting to collect the debt owed to the Township and that they had ten days to make payment.  (Exhibits “12” and “13”)   Upon Owners’ request for a debt collector disclosure statement, the Township solicitor sent additional information and documents verifying the debt on January 2, 2020. (Exhibit “14”)  When Owners failed to pay the bill, the Municipal Claim for Delinquent Municipal Charges was filed with the Prothonotary on January 31, 2020 and a Municipal Lien was entered.   At the time of the hearings, the bill remained unpaid.

At both the January  11, 2021 and March 31, 2021 hearings, Mr. Konevitch conducted questioning on behalf of Owners.  He questioned Long as to why the Township did not proceed with a criminal summary complaint in the magisterial district court rather than pursuing a municipal lien and questioned him as to why Owners were responsible for removing bamboo from property that was not within his property line.  Long explained that the Township had followed the procedure outlined in Ordinance 297 and that this action was necessary to correct the situation and protect the rights of neighboring landowners.  Long also explained that Owners were responsible for the condition of the stream because the bamboo had originated on their property, had extended onto neighboring properties, and fallen into the stream due to Owners’ failure to maintain the bamboo.

Richard Royer, the Township’s highway foreman, also testified on behalf of the Township at the January 11, 2021 hearing.  Royer visited the site in January or February of 2018 and observed that there was bamboo on Owners’ property which was extending between ten and fifteen feet across the creek bed.  He also noticed that a large amount of dead and decayed bamboo had fallen over and into the creek.  Royer was on-site for part of each day when Penn Turf was conducting the removal work in June of 2018.   During the time period between his visit in January or February and when he returned to the site in June, the bamboo had increased to approximately twenty feet tall and none of it had been cut back or removed from the area where it was blocking the stream.  At that point, the creek was about ten to twelve feet wide.  He observed dead bamboo at a depth of twenty-four inches in the water which extended the whole way over the creek’s width for about fifty feet of the creek’s length.  Royer commented that the blockage resembled a beaver’s dam.  Royer also observed that the bamboo blocked the inlet to the neighbor’s pond.  Royer confirmed that it took three Penn Turf employees three days to remove the bamboo from the stream.  In order to do so, the Penn Turf employees used chain saws to cut it off from the one side so that it could be pulled out and dragged away from the stream and loaded into a trailer.  Multiple trailer loads were taken away on each of the three days.

A second hearing was conducted on March 31, 2021.  At that hearing, Mr. Konevitch called Long as on cross-examination.  Mr. Konevitch again questioned Long as to why the Township elected not to pursue a summary charge before the magisterial district justice.  Long explained that the Township proceeded in the way it did because the safety and welfare of other property owners in the area were at stake and the Township elected to rectify the problem on its own since Owners had not personally communicated with the Township, had not requested that Long come out to show them what was wrong, and had taken no action to correct the problem.

Owners also called Aaron Lee Tyson, a Penn Turf employee, at the March 31, 2021 hearing.  Tyson confirmed that he was not hired by and had no contract with Owners to do any work on their property.  Tyson explained that he and the other workers from Penn Turf had been hired by the Township and that they had removed 30-foot tall bamboo which had fallen into the creek along owners’ property and was clogging and backing up the creek.  Tyson explained that it took himself and four other men to perform the work which involved the use of a backhoe and chainsaws.

Tyson also confirmed a series of photographs taken at the time of the work which showed that the bamboo was between twenty and thirty feet tall and growing from the edge of the stream about thirty feet back into the property.  (Exhibit “20”) He also confirmed that the bamboo was blocking a concrete inlet (Exhibit “21”) and that the workers removed 22 loads of bamboo over the course of the time they were on the site.

Mr. Konevitch next called Linda Ridinger as a witness.  The Ridinger property abuts Owners’ property and is the location from which Penn Turf accessed the creek to remove the bamboo.  Mrs. Ridinger confirmed that the bamboo was mostly on Owners’ property and that there was a small strip of it on her own property.    She explained that she and her husband had lodged a complaint about the fallen bamboo to the Township because it was blocking the inflow to their pond and they were unable to get to the pond to clean it out.  She estimated the fallen bamboo to be approximately thirty to forty feet long and laying across the entire creek.  She further explained that she and her husband had been cleaning it out previously, but that the situation worsened to the point to where they were unable to keep up with it.

Mr. Konevitch next called Linda Ridinger’s husband, Robert Ridinger, as a witness.  Mr. Ridinger confirmed that the bamboo from Owners’ property had encroached onto his property.  He explained that Owners never took any action to prevent the bamboo from encroaching onto the Ridinger’s stream bank and that he had complained to the Township because the fallen bamboo was completely blocking the stream and the inlet to his pond.  He had given Penn Turf and the Township permission to access the stream from his property so that the situation could be rectified.

Margaret Konevitch also testified at the hearing.  Mrs. Konevitch confirmed that Owners received the letters in the mail notifying them that the situation with the bamboo needed to be remedied and that Mr. Konevitch had handled their responses.  She explained that Owners were never approached about the problem in person and that they were under the belief that it is impossible to control bamboo.  She complained that no one ever tried to help them or tell them how to handle the problem.  She explained that they did cut, dig out, and apply poison to the bamboo, but that it is extremely hard to eradicate.

On cross-examination, Mrs. Konevitch testified that she and her Husband had taken the Township’s notification letters as a threat and that they started to treat the bamboo after receiving the letters in an attempt to prevent it from spreading onto the neighbors’ properties.  She also voiced her belief that the neighbors had a vendetta against herself and her husband.

Mr. Konevitch also testified, complaining that the Township overstepped its authority, caused undue financial burden to Owners, and that his neighbors’ complaints were unjustified.  He explained that Owners had attempted to take care of the problem by cutting down the bamboo and applying a black plastic covering on it and had drilled into the rhizome of the plants and applied poison. He claimed that his action took care of 99 percent of the bamboo.  He also claimed that Owners had been following the Township’s directive that bamboo should not be cut back on the creek banks so that the banks would not wash away and that the bamboo which had fallen into the creek came from a neighboring property.

Mr. Konevitch explained that he had asked Mr. Ridinger if there was still bamboo on his side of the creek and that Mr. Ridinger confirmed that some was still present but that he would take care of it.  Mr. Konevitch commented that if the Ridingers had been cleaning up the problem incrementally, it would not have reached the point where they could no longer manage it.  He argued that if he had gone into the creek to resolve the issue, he would have been trespassing onto their property.  He also complained that the Township never called him to explain the problem and try to resolve it with him personally and that the Township did not proceed through a summary criminal hearing which would have been less costly for Owners.

On cross-examination, Mr. Konevitch admitted that he had received a number of notices from the Township and that his written replies had denied responsibility.  He acknowledged that he had never personally contacted the Township to ask what needed to be done to bring his property into compliance; however, he also claimed that his property was always in compliance as he had stated in his letters.

A municipal lien is a charge, claim or encumbrance on real property which is placed to secure payment of a debt but does not affect the property owner’s right to possess or control the property.  Borough of Ambler v. Ragenbogen, 713 A.2d 145 (Pa. Commw. 1998).  A municipal lien does not rest on any agreement or specific assent of the owner of the land charged with the burden.  Township of Summit v. Property Located at Vacant Land in Summit Tp., 92 A.3d 121 (Pa. Commw. 2014).  A municipal lien arises by operation of law whenever a municipal claim is lawfully assessed or imposed upon the property.  Shapiro v. Center Township, 632 A.2d 994 (Pa. Commw. 1993).  Section 3(a) of the Municipal Claims and Tax Liens Act (“MCTLA”), 53 P.S. §1701 et seq provides:

“[a]ll municipal claims, municipal liens, taxes, tax claims and tax liens which may hereafter be lawfully imposed or assessed on any property in this Commonwealth … shall be and they are hereby declared to be a lien on said property, together with all charges, expenses, and fees incurred in the collection of any delinquent account, including reasonable attorney fees.”

 

53 P.S. §7106(a).

[A]fter a municipal claim is filed, three procedural alternatives are available to the parties: (1) the owner may contest the municipal claim or the amount of assessment by filing and serving a notice on the claimant municipality to issue a writ of scire facias, thereby forcing a hearing on the municipal claim; (2) the municipality may pursue a writ of scire facias without the owner’s action; or (3) the owner and the municipality may choose not to do anything, thereby letting the municipal lien remain recorded indefinitely subject to revival of the lien in every twenty years upon the issuance of a suggestion of nonpayment and an averment of default.

 

Penn Township v. Hanover Foods Corp., 847 A.2d 219, 224 (Pa. Commw. 2004), citing Sections 14-16 of the Act, 53 P.S. §§7182-7184.  Jurisdiction is vested in the court of common pleas.  Shapiro v. Center Tp., Butler County, 159 Pa. Commw. 82, 632 A.2d 994 (1993); 20 Standard Pennsylvania Practice 2d §106:27.

A property owner must comply with the specific procedures set forth in the MCTLA.  Section 16 of the MCTLA provides:

• 7184. Notice to issue scire facias; failure to issue; claimant not permitted to discontinue after issuance

Any party named as defendant in the claim filed, or admitted to defend there against, may file, as of course, and serve a notice upon the claimant or upon the counsel of record to issue a scire facias thereon, within fifteen days after notice so to do. If no scire facias be issued within fifteen days after the affidavit of service of notice is filed of record, the claim shall be stricken off by the court, upon motion. If a scire facias be issued in accordance with such notice, the claimant shall not be permitted to discontinue the same, or suffer a nonsuit upon the trial thereof, but a compulsory nonsuit shall be entered by the court if the claimant does not appear, or withdraws, or for reason fails to maintain his claim.

 

53 P.S. §7184.

 

A scire facias proceeding is an action in rem.  Borough of Walnutport v. Dennis, 13 A.3d 541 (Pa. Commw. 2010).  The issuance of a writ of scire facias is an original process and serves the dual purposes of a writ of summons and a complaint.  North Coventry Tp. V. Tripodi, 64 A.3d 1128 (Pa. Commw. 2013).  A scire facias proceeding serves as a warning to the owner of the existence of a claim so that the owner may raise any defenses and establish that the property should not be subject to a municipal lien.  Id.

A property owner aggrieved by a municipal lien that is not defective on its face may obtain an adjudication as to the validity of the lien by serving notice upon the municipality to issue a writ of scire facias on the claim.  Warwick Township Water and Sewer Authority v. Warwick Realty Co., L.P., 176 A.3d 387 (Pa. Commw. 2017).  The property owner, as the defendant in a scire facias proceeding, bears the burden of overcoming the municipality’s prima facie case by presenting sufficient evidence that the claim is erroneous.  Id.

When a proceeding is commenced by writ of scire facias, the owner must file an affidavit of defense raising all defenses against the municipal claim or a municipality may pursue a writ of scire facias without waiting for action by the owner.   Shapiro v. Center Tp., supra.        

The Township is an incorporated Second-Class Township and political subdivision of the Commonwealth of Pennsylvania and is a “municipality” pursuant to Section 7101 of the MCTLA:  “any county, city, borough, incorporated town, township, school district, or a body politic and corporate created as a municipal authority pursuant to law and any assignees thereof.”  53 P.S. §7101.  Pursuant to the Second Class Township Code, the board of supervisors of the township may enact an ordinance prohibiting nuisances within a township.  53 P.S. §66529.  If a municipality has enacted a nuisance ordinance pursuant to the Second-Class Township Code, it is permitted to remove a nuisance if the owner of the property refuses to correct the condition.  See, Commonwealth v. Hanzlik, 400 Pa. 134 (Pa. 160); McClellan v. Commonwealth, 499 A.2d 1150 (Pa. Commw. 1985).

 

The Township’s Board of Supervisors lawfully exercised the authority granted by the Second Class Township Code in enacting its Ordinances regarding nuisances.  On April 18, 2017, the Township adopted a new Nuisance Ordinance, No. 297, which repealed and replaced the prior Nuisance Ordinance, No. 196, which was referred to in the Township’s 2014 correspondence to owners of township properties which bordered waterways.  Ordinance No. 297 defines a nuisance as

“the unreasonable, unwarrantable, or unlawful use of public or private property which causes injury, damage, hurt, annoyance or discomfort to any person in the legitimate enjoyment of his reasonable rights of person or property; doing an act, omitting to perform any act or duty, or permitting or allowing any act or omission which annoys, injuries, or endangers the comfort, repost, health or safety of others, or is unreasonably offensive to the senses, or which obstructs, disrupts, or interferes with the free use of public or private property by any lawful owner or occupant.”

 

(Exhibit “9,” Ordinance No. 297, Article 2, Section 2.01.23)   The person “responsible for the violation” is “any person who has an interest in or resides on the public or private property, whether as owner, tenant occupant, or who otherwise cases the violation.”  (Exhibit “9,” Ordinance No. 297, Article 2, Sections 2.01.30 and 2.01.31)   This Ordinance provides, in part:

It shall be unlawful to throw, deposit, or dump any … materials, … of any kind upon the banks, channels, beds or bars of any waterway, which would interfere with the flow of the waterway.  Property owners are responsible to maintain and prevent the felling of any tree or trees, so that the same shall in whole or in part project within the high-water bank of a waterway or watercourse, or the casting, placing, depositing or leaving of any logs, roots, snags, stumps or brush upon the banks or in the bed or channel of any waterway of watercourse. It is unlawful to remove or alter the embankment of the stream, channel, or swale that would alter the natural or designed flow of the waterway.

 

It shall be unlawful to accumulate, dump, or store dead vegetation, such as tree trimmings, brush, leaves, grass clippings, mulch, fruits, holiday trees, and other materials which involved slow decay or decomposition resulting in obnoxious odors and serve as a breeding ground for vermin, rodents, insects, and other animals.

 

(Exhibit “9”)

 

Article IV of Ordinance 297, entitled “Notice,” provides, in part:

Section 4.01.  Notice to Violators

 

1. Upon receipt of a complaint from any Township resident under this Ordinance and prior to the filing of a criminal complaint for violation of this Ordinance, a Township Official shall first investigate the complaint to determine its veracity and to make an initial determination of a possible violation of this Ordinance.

 

2. Upon such determination of a violation of this Ordinance, Township shall give notice of such alleged violation in the following manner:

 

1. By initiating and attempting to give notice by telephone or personal visit to the property, and providing a description of the violation, the methods for remedy of the violation and the time frame for such remedies to be accomplished, and the possible fines incurred if the violation is not corrected.

 

…

 

3. In the event the alleged violation is not corrected and/or steps are not taken to facilitate the correction of the violation following the initial notification outlines in Section 4.01.2.a., Township shall take further action as follows:

 

1. By mailing a copy of the notice of violation to the property owner by any form of mail requiring  receipt signed by the property owner or their agent; …

 

(Exhibit “9”, Ordinance No. 297, Sections 4.01.1, 2.a., 3.a)

 

Article VII of Ordinance 297, entitled “Penalties for Violation,” provides:

Section 7.01.  Violations and Penalities

1. Any person violating any of the Sections of this Ordinance shall, upon conviction thereof before any District Justice, be sentenced to pay a fine of not less than $50.00 and not more than $1,000.00, together with costs of prosecution, and in default of payment thereof, may be sentenced and committed to imprisonment for a period not to exceed thirty (30) days. Said fines and costs may be collected by suit or summary proceedings brought in the name of North Cornwall Township.

 

Ordinance 297, Article VII, Section 7.01.

Article VIII of the Ordinance, entitled “Township Remedies,” provides, in part:

Section 7.01.  Remedies

 

1. Should any person who has received a notice of violation which complies with this Ordinance and fail, neglect or refuse to make such condition safe, or to correct or removed such condition to the satisfaction of the Board of Supervisors, on its own behalf or on behalf of an aggrieved party, may abate or cause to be abated said nuisance and the expense and costs of such abatement shall be paid by the responsible person.

 

2. In addition to the other remedies available under this Ordinance, the Board of Supervisors for the Township may charge the costs of pursuing Ordinance compliance and abatement incurred to correct a violation to the person responsible for the Ordinance violation, including legal and incidental expenses to the extent these costs exceed the amount of the penalty paid. Such costs are due and payable 30 days from mailing of the invoice.

 

(Exhibit “9,” Ordinance No. 297, Article VIII, Section 7.01)  Section 7.01.2(b) provides that “incidental expenses” includes “hauling, storage and disposal expenses.” Section 7.01.4 provides that “[t]he Township may take a lien for the value of the costs of pursuing Ordinance compliance against the real public or private property of the person responsible for Ordinance compliance. “

We first address Owners’ complaint that the Township did not proceed with the filing of summary criminal charges instead of proceeding with the work to remove the obstruction from the stream.  There is no requirement that a municipality proceed in this manner and obtain a conviction by initiating a proceeding in a magisterial district court.  Although violations of ordinances relating to nuisances may be enforced through summary criminal proceedings under municipal codes, a municipality is not limited to summary criminal enforcement proceedings and may pursue other forms of relief.  23 Summary Pennsylvania Jurisprudence 2d, Municipal and Local Law §19:23 (2d ed.).  Ordinance No. 297 specifically provides that the Township may proceed with abatement of a nuisance if an owner has been given notice and has failed to take action to remedy the nuisance and it properly did so in order to protect the properties of the neighboring landowners.

 

          We further find that the Township has proven the existence of a nuisance which originated on Owners’ property.  The bamboo from Owners’ property had fallen and was completely blocking the stream and the inlet to the Ridingers’ pond.  The bamboo, which had originated on Owners’ property, had also encroached several feet onto the Ridinger’s land.   The Ridingers had been forced to clean the bamboo out of the stream until it accumulated to the point where they were unable to do so.  The bamboo in the stream was two to three feet high and affected the water levels of the pond and the Ridingers were unable to get to the inflow of their pond due to the blockage.

This situation falls squarely within the definition of nuisance as set forth in Township Ordinance 297:  the Ridingers were subjected to annoyance and the disruption of the legitimate enjoyment of their own property due to the uncontrolled spread of the bamboo from Owners’ property and the blockage of the stream and the inlet to their pond by the dead and decayed bamboo falling over and into the stream.  This condition was caused by Owners’ failure to maintain and control the spread of the bamboo on their property onto the land of their neighbors , the stream bed, and the stream.  The obstruction of the stream endangered the health and safety of others as it posed the danger of flooding of neighboring properties.  Despite these conditions being clearly obvious and the notice given to Owners by the Township, Owners denied any responsibility for the problem and failed to take any remedial action.

We further find that the Township followed the appropriate procedure in response to this situation.  Once the existence and cause of the nuisance was ascertained, the Township issued a Notice of Violation in accordance with Section 4.01 of Ordinance No. 297 and informed Owners of the violation and provided sufficient time in which the violation could be corrected.  Owners were also informed of the potential penalties and the possibility of abatement by the Township if the problem was not corrected.  Despite several such notices being sent to Owners, they took no action to remedy the problem and the Township was forced to take appropriate measures to correct the problem itself.  Owners were informed that this would occur if the problem was not abated and that they would be responsible for any expense incurred as a result.  Owners were given notice of the amount due for the remediation of the problem, failed to satisfy the debt, and a municipal claim and lien were properly put in place.  Long explained that this was necessary in order to protect the neighboring properties from potential flooding.

With regard to the issue of notice to owners, we note that the Township did not strictly comply with the requirements of Section 4.01.2.a by addressing the problem via telephone or a personal visit to Owners.  Long testified that he did visit the site several times after receiving complaints from the Mr. Ebersole and Mr. Ridinger, but there was no indication that he or any other Township representative attempted to contact Owners by telephone or a personal visit before the mailing of the violation letters.  It appears that Long anticipated personal contact with Owners to be arranged after Owners received the mailed Notices and contacted the Township within the three-day period to discuss the nuisance and the process of abatement as required by the Notices.

At the hearings, Owners complained that there was no personal contact or offer of help from anyone from the Township.  Although it appears that they were also at fault for failing to phone or otherwise make some effort to speak with a Township representative once the violation letters were received, this raises the question of whether the parties could have resolved this matter amicably had either one reached out to the other.  However, once proper notice is given to the responsible parties, a municipality may proceed with abatement of a nuisance.  23 Summary Pennsylvania Jurisprudence 2d Municipal and Local Law §19:25 (2d ed.).  Owners did receive ample notice of the violation and of the Township’s plan to correct the condition if Owners did not do so.  Owners’ responses also placed the Township on notice that they did not take responsibility for the condition and that they did not intend to take any action to correct the problem by the written replies to the violation letters.  Thus, it appears that the Township had no alternative but to correct the problem itself before damage was incurred by neighboring landowners.

Having established a prima facie case that the municipal claim and lien were filed in accordance with the applicable law, the burden shifted to Owners to prove that the claims were erroneous.  Owners failed to sustain that burden.

We therefore affirm the municipal lien placed on Owners’ property and will issue an Order to that effect.

[1]  On May 18, 2021, Owners filed Objections to the transcripts of these hearings.  We conducted a hearing on the Objections on June 3, 2021.  Upon conclusion of that hearing, the Objections were overruled.

[2] Long explained that the Township’s Nuisance Ordinance had been revised after 2014 and the new Nuisance Ordinance, No. 297, became effective in 2017.