Opinion
No. 1694 C.D. 2012
08-09-2013
Commonwealth of Pennsylvania v. Ralph L. Douros, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
This opinion was reassigned to the authoring judge on July 12, 2013.
Ralph L. Douros (Douros) appeals pro se from an order of the Court of Common Pleas of Delaware County (trial court) finding him guilty of a non-traffic summary offense for violating Section 107-4 of the Codified Ordinances of Newtown Township (Codified Ordinances) and assessing a $1,000 fine plus court costs against him for the violation. For the reasons that follow, we affirm the trial court.
Douros is the owner of property located at 120 Brookside Road (Property) in Newtown Township (Township) which used to be occupied by a one- story residence until October 28, 2009, when it was destroyed by fire. On June 27, 2011, the Township Manager issued an enforcement notice to Douros notifying him that he was in violation of Section 107-4(B)-(D), (F) and (H) of the Codified Ordinances because he had not remediated conditions remaining on the Property caused by the fire. The enforcement notice instructed him to take the following corrective measures by July 29, 2011:
Section 107-4 of the Codified Ordinances provides, in relevant part:
§107-4. Designation of nuisances.
Whenever any of the following conditions are brought to the attention of the [Township] Manager, he shall, in his discretion, proceed to see whether the order of abatement provided for in this chapter shall be made. ...
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B. Dangerous buildings or structures.
C. Buildings damaged by fire or other cause.
D. Improper or unsafe construction, repair or alteration.
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F. Improper accumulation of debris, refuse, trash, garbage or manure.
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H. Dumping, storage or accumulation of junk.
• Remove remainder of the dwelling down to the foundation;(Reproduced Record (R.R.) at 34a-35a). The enforcement notice also warned Douros that the Township would take legal action against him for failure to take those corrective measures within the specified period of time.
• Remove all fire damaged materials from the property;
• Disassemble chimneys to delete safety hazards;
• Remove all improper accumulation of debris, refuse, trash, garbage or manure.
Because Douros failed to comply with the enforcement notice, Harry Robinson (Robinson), the Township's Code Enforcement Officer, issued a non-traffic citation to Douros for violating Section 107-4 of the Codified Ordinances on August 3, 2011. After a Magisterial District Judge found him guilty of the cited violation, Douros then filed a summary appeal of the conviction with the trial court.
Douros had previously received a citation on May 9, 2011, for violating Section 107-4 of the Codified Ordinances. The trial court found Douros guilty of that violation on September 7, 2011.
Before the trial court initially, the Township and Douros entered into a stipulation which provided that Douros would undertake certain efforts to clean up the Property and that compliance would be reviewed on April 4, 2012. On that date, the Township Solicitor represented to the trial court that Douros had not complied with the terms of the stipulation, and the trial court held a de novo hearing on the matter that day.
Enforcement Officer Robinson testified that the Township started enforcement proceedings regarding the cleanup of the Property in April 2011 and that he took photographs of the property at that time. He indicated that he took more photographs of the Property in June 2011 showing that it was still in violation of Section 107-4 of the Codified Ordinances due to the accumulation of debris from the fire damage that still remained on the premises. Robinson stated that he also took photographs of the Property in February 2012 and the day before the April 4, 2012 de novo hearing. Robinson explained that while those photographs showed some improvement of the Property's condition, the Property remained in violation. All of the photographs were admitted into the record over Douros' objection.
Robinson testified that Douros' failure to correct the violations could impact the community, expressing concerns about the possibility of water collecting in the basement, as well as the potential presence of West Nile Disease-carrying mosquitoes, rodents and trespassers on the Property. He further testified regarding his concerns about the integrity of the chimneys remaining on the Property and the possibility of them falling over and injuring someone. Robinson explained that although the chimneys were stand-alone chimneys, the Township's building code required them to be secured to a structure both vertically and horizontally.
Kenneth Holt (Holt), a registered engineer and architect, testified on behalf of Douros. He stated that when he visited the Property in August 2011, he did not perform any tests on the chimneys, but determined that they looked like they would stand until another building was put in place. Holt explained that the chimneys should be designed to stand alone and that tying them into a structure, while required for compliance with the Township's building code, would not prevent them from falling over. Nevertheless, Holt testified that the chimneys should be tied into a new structure or torn down within a couple of years because they will eventually deteriorate.
Cheryl Zerbe (Zerbe), a neighbor with a direct view of the Property, stated that, in her opinion, Douros had been making substantial progress in cleaning up the Property. She testified that Douros is at the Property every day working for hours to clean up the Property. She described the work he had done, including installing a fence around the Property, taking one chimney down, wrapping the other two chimneys, hauling dumpsters full of debris from the Property, removing storage drums and starting to remove fire-damaged trees from the yard.
Douros also testified as to his efforts to clean the Property and the costliness of doing so. He also presented his positions regarding the amount of actual damage done to the Property and the Township's actions in enforcing Section 107-4 of the Codified Ordinances against him.
The trial court ultimately issued an order finding Douros guilty of violating Section 107-4 of the Codified Ordinances and assessing a $1,000 fine plus court costs. In its subsequent Opinion, the trial court explained:
The photographs of the property as it existed on April 3, 2012, two and [one-] half years after the fire and more than two years after the first dumpster appeared at the property establish a violation of Section 107-4 of the Newtown Code. Mr. Douros' pace to rid the property of the fire damaged debris combined with the unsafe condition of the property required Newtown Township to proceed in this matter. The condition of the property is a
nuisance in the residential neighborhood of Newtown Township, Pennsylvania.(R.R. at 41a). This appeal by Douros followed in which he argues that there was a lack of evidence to support his conviction and that the trial court erred in refusing to allow him to present relevant evidence.
Our review of a trial court's determination on appeal from a summary conviction is limited to whether there has been an error of law or whether competent evidence supports the trial court's findings. Commonwealth v. Nicely, 988 A.2d 799, 803 n.3 (Pa. Cmwlth. 2010). In considering whether the evidence is sufficient to convict, the Court must view all of the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth. Id.
Douros raised numerous other issues in his statement of matters complained of on appeal, but failed to raise those arguments in the Statement of Questions Involved section of his brief to this Court. Under Pennsylvania Rule of Appellate Procedure (Pa. R.A.P.) 2116(a), points not set forth or suggested in the Statement of Questions Involved are not to be considered. Coraluzzi v. Commonwealth, 524 A.2d 540 (Pa. Cmwlth. 1987).
The following are photographs relied on by the trial court:
Image materials not available for display.
Image materials not available for display.
Based on the above photographs and the other evidence submitted by the Township, we agree with the well-reasoned opinion of the trial court that Douros was in violation of Section 107-4 of the Codified Ordinances.
Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 9th day of August, 2013, the order of the Court of Common Pleas of Delaware County, dated April 4, 2012, at No. SA-1029-11, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE BROBSON
Because I conclude that Newtown Township (Township) failed to meet its burden to prove that Ralph L. Douros' (Douros) property (Property) constituted a nuisance in fact, I respectfully dissent.
As noted by the Court of Common Pleas of Delaware County (trial court) in this matter, a second class township may enact ordinances prohibiting nuisances. See Act of May 1, 1933, P.L. 103, as amended, added by the Act of November 9, 1995, P.L. 350, 53 P.S. § 66529. 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).
The Township is a second class township.
Here, based on the evidence submitted by the Township, the majority "agree[s] with the well-reasoned opinion of the trial court that Douros was in violation of Section 107-4 of the Codified Ordinances" of the Township (Codified Ordinances). (Maj. Op. at 9.) Given that, in establishing such a violation, the Township must prove the existence of a nuisance in fact, I respectfully disagree. The evidence submitted by the Township included the testimony of the Township's Code Enforcement Officer, Harry Robinson (Robinson), and photographs of the Property. As summarized by the majority:
Robinson testified that Douros' failure to correct the violations could impact the community, expressing concerns about the possibility of water collecting in the basement, as well as the potential presence of West Nile Disease-carrying mosquitoes, rodents and trespassers on the Property. He further testified regarding his concerns about the integrity of the chimneys remaining on the Property and the possibility of them falling over and injuring someone. Robinson explained that although the chimneys were stand-alone chimneys, the Township's building code required them to be secured to a structure both vertically and horizontally.(Maj. Op. at 4 (emphasis added.).) Robinson also testified that the photographs showed that the Property was in violation of Section 107-4 of the Codified Ordinances.
Notably, however, the Township presented no evidence establishing that the Property was, in fact, impacting the community or presenting a danger to the public or that there was any actual water collection, insect or rodent infestation, or trespassers on the Property. Moreover, the Township failed to produce any evidence demonstrating that the structural integrity of the remaining chimneys, which were designed to stand alone, was actually compromised, such that they posed a danger to the public. Instead, the Township presented its Code Enforcement Officer's speculative testimony regarding conditions that could possibly exist on the Property with photographs depicting nothing more than an unsightly property.
Additionally, although Robinson stated that the chimneys were not attached horizontally and vertically to a structure as required under the Township's building code, it is not clear why, absent a showing that the building code violation poses a danger to the public or otherwise constitutes a nuisance in fact, such a circumstance would support a violation of Section 107-4 of the Codified Ordinances. --------
Moreover, in concluding that the Property constituted a nuisance in fact, the trial court explained that the photographs introduced into the record established a violation of Section 107-4 of the Codified Ordinances, in that they vividly depict the deplorable condition of the Property. Nuisance in fact, however, cannot be based upon the public's view of the property alone. See Borough of New Bloomfield, 35 A.3d at 848. The trial court also indicated that the potential presence of rodents, pests, insects, and trespassers on the Property and the concern for the structural integrity of the chimneys caused the Township to issue the citation. Yet, as binding precedent clearly provides, a township cannot rest on potentialities to meet its burden to prove a nuisance in fact.
Furthermore, the trial court observed that the pace at which Douros was progressing to rid the Property of the fire-damaged debris, combined with the unsafe condition of the Property, required the Township to proceed in this matter. Nevertheless, the trial court failed to reference any evidence establishing that the Property was, in fact, unsafe. Additionally, I fail to see how the pace at which Douros was progressing to clean the Property is relevant for purposes of determining whether the Property itself is a nuisance in fact.
In summary, I agree that the photographs and testimony submitted by the Township establish that the Property is unsightly. Nevertheless, unsightly properties, in and of themselves, are not nuisances. There is no evidence of record demonstrating that the state of the Property presented any danger to the public or resulted in conditions such as loud noises, offensive odors, or infestations. Rather, the Township's and trial court's bases for finding Douros in violation of Section 107-4 of the Codified Ordinances are rooted in the Property's aesthetics and concerns about conditions that could potentially, rather than actually, exist on the Property and that, if present, would constitute a nuisance in fact. In light of applicable precedent requiring that a municipality meet a strict burden to prove that a nuisance in fact exists in order to enforce its ordinance prohibiting nuisances, I conclude that, on the facts of this case, the Township simply failed to meet that burden here.
For the foregoing reasons, I would reverse the order of the trial court.
/s/_________
P. KEVIN BROBSON, Judge