Kent County, DE Property Maintenance

[1]

Editor's Note: This ordinance superseded former Ch, 175, Property Maintenance, adopted 6-11-1996 by Ord. No. 96-12, as amended.

Certain sections and subsections of the International Property Maintenance Code, 2018 edition, adopted in § 175-1, are hereby added, deleted, amended, changed and clarified as follows.

Chapter 1, Administration.

(1)

Section 101, General.

(a)

Section 101.1, Title, is amended by deleting the subsection in its entirety and substituting the following:

Section 101.1, Title. These regulations shall be known as the "Kent County Property Maintenance Code," hereinafter referred to as "this chapter."

(b)

Section 101.1.1, Jurisdiction, is added as a new subsection to read as follows:

Section 101.1.1. Jurisdiction. This chapter shall regulate all housing and property maintenance on properties located in unincorporated Kent County and in any of the incorporated municipalities that elect to have Kent County provide code enforcement services. Municipalities must make a formal request from their elected body in order for Kent County to assume enforcement of these property maintenance standards. Kent County Levy Court must take official action consenting to provide code enforcement services and may develop a fee schedule to offset additional costs. Kent County shall not be responsible for any costs related to legal action as part of municipal code enforcement.

(c)

Section 101.4, Severability, is amended by deleting the subsection in its entirety and substituting the following:

Section 101.4. Severability. The provisions of this chapter shall be severable. If any provision of this chapter is found by a court of competent jurisdiction to be unconstitutional or void, such decision shall not affect the validity of the remaining portions of this chapter.

(d)

Section 101.5, Conflict, is added as a new subsection to read as follows:

Section 101.5. Conflict. Where there is a conflict between a provision in this chapter and another chapter of the Kent County Code, the most-restrictive provision shall apply.

(e)

Section 101.6, No liability created, is added as a new subsection to read as follows:

Section 101.6. No liability created. Nothing in this chapter shall create any liability for loss or damage resulting from the failure of the County to perform any responsibility set forth in this chapter or obligate the County to make any appropriation or expend any money not appropriated for any purpose set forth in this chapter.

(f)

Section 101.7, Effect upon suits, proceedings, rights, liabilities, is added as a new subsection to read as follows:

Section 101.7. Effect upon suits, proceedings, rights, liabilities. Nothing in this chapter or in any of the codes hereby adopted shall be construed to affect any suit or proceeding pending in any court or any rights acquired or liability incurred or any causes of action acquired or existing under any act or ordinance hereby repealed, nor shall any just or legal right or remedy of any character be lost, impaired, or affected by this chapter.

(2)

Section 106, Violations.

(a)

Section 106.1, Unlawful acts, is amended by deleting the subsection in its entirety and substituting the following:

Section 106.1. Violations; generally. Any person who shall violate any provision(s) of this chapter or shall fail to comply with any of the requirements hereof shall be subject to any of the enforcement mechanisms and penalties outlined in this chapter.

(b)

Section 106.3, Prosecution of violation, is amended by deleting the subsection in its entirety and substituting the following:

Section 106.3. Enforcement.
Section 106.3.1. Administrative enforcement. Any person violating the provisions of this chapter may be subject to administrative proceedings instituted by the Code Enforcement Officer. Violations subject to administrative enforcement shall be commenced within three years as provided in 10 Del. C. § 8106 (Actions subject to 3-year limitation).
Section 106.3.1.1. Notice to owner or person responsible. Whenever the Code Official determines that there has been a violation of this chapter or has reasonable grounds to believe that a violation has occurred, notice shall be given to the owner or persons responsible for the property. The person(s) noticed shall be responsible for correcting such violation(s).
Section 106.3.1.1.1. Form. The form of such notice prescribed in Section 106.3.1.1, shall be in accordance with Section 107.2.
Section 106.3.1.1.2. Method of service. Notice required by Section 106.3.1.1 shall be satisfied where a copy of the decision, or violation notice is: (a) delivered personally to the owner or person responsible for the property; or (b) mailed by certified United States mail and addressed to the owner or person responsible for the property at their last known address; or (c) posted in a conspicuous place on the property. Service of such notice in the foregoing manner upon an owner's agent or upon the person responsible for the structure shall constitute service of notice upon the owner.
Section 106.3.1.1.3. Exceptions. In no case shall the Code Official be required by Section 106.3.1.1 to provide a violation notice to:
a.	Any owner or person previously provided notice pursuant to Section 106.3.1.1 or under any former provision of this chapter, where the same violation is alleged by the Code Official to exist; or
b.	In the event that a violation exists or is reasonably believed to exist, because work is being done in an unsafe or dangerous manner, jeopardizes the health, safety or welfare of the public, or is being done (or was done) in the absence of necessary permit(s), license(s) or registration(s).
Section 106.3.1.2. Ticketing. Pursuant to 9 Del. C. Ch. 56 ("Kent County Property Maintenance"), and 25 Del. C. Ch. 29 ("Liens of the State and/or its Political Subdivisions"), the Code Official shall have the authority to issue ticket(s) to the owner of a property, regardless of whether the owner actually resides upon the property, including any vacant lots, for violations of Sections 302.1, Sanitation; 302.4, Prohibited growth of weeds and grass; 302.7, Accessory structures; 302.8.3, Inoperable or unregistered vehicles; 302.8.4, Oversized vehicle parking; 302.8.6, Parking of vehicles; 302.10, Outside storage of household items; 302.11, Outside storage of debris; 302.12, Responsibility to keep shrubs and trees trimmed; 302.16, Portable temporary storage units; 303.1, Swimming pools; 308.1, Accumulation of rubbish or garbage; and 308.2, Disposal of rubbish.
Section 106.3.1.2.1. Procedure. Whenever the Department of Planning Services receives a complaint that there has been a violation(s) of the above-referenced sections, a notice of alleged violation(s) shall be given to the owner of the property. The owner shall be responsible for correcting such violation(s) within the applicable time frame as enumerated by Chapter 90, Violations and Complaints. If the Code Official determines that the violation(s) remain after the applicable calendar day, the owner of the property on which such noncompliance exists shall be subject to, and liable for, a civil penalty in the amount of $50. If a ticketed violation is not corrected after issuance of a first ticket, then the owner of the property will be subject to, and liable for, additional civil penalties in the amounts of $75 for a second ticket for the same infraction issued within one year of the date of the notice of violation, and $100 for subsequent tickets issued for the same infraction within one year of the date of the notice of violation. Civil penalties shall double if not paid within 30 calendar days from the date of the citation. In no case shall the Code Official be required by this section to provide notice within a twelve-month period to any owner previously provided notice pursuant to this section where the same code violation exists.
Section 106.3.1.2.2. Citation. Any citation issued for failure to comply with any provision identified in Section 106.3.1.2 shall be mailed to the owner of the property that is the subject of the citation. Pursuant to 9 Del. C. § 5607 and 25 Del. C. § 2901, civil penalties may be added to the County property tax billings for the property which was the subject of the citation. Additional civil penalties shall also double if not paid within 30 calendar days from the date of the respective citation.
Section 106.3.1.2.2.1. Continuing violations. After the recipient of a ticket(s) has an opportunity to appeal the ticket(s) as permitted by Section 106.3.1.2.4, the violation shall constitute a continuing violation; a ticket for the same violation may be issued each day the violation continues, and a separate penalty for each day may be imposed.
Section 106.3.1.2.3. State of mind. It shall be unnecessary to prove the violator's state of mind with regard to the failure to comply with any provision of this section, as the legislative purpose is to impose strict liability for such noncompliance.
Section 106.3.1.2.4. Appeals. The owner of a property aggrieved by any civil penalty imposed pursuant to Section 106.3.1.2 may follow any one of the following methods to appeal the ticket:
Section 106.3.1.2.4.1. Request a hearing before an administrative hearing officer. Within 10 business days of the date of the citation, the recipient of the ticket may request a pre-deprivation hearing from the Department of Land Use Code Official as described in Section 106.3.1.3 below.
Section 106.3.1.2.4.2. Submit a detailed written explanation. In lieu of personally appearing before an administrative hearing officer as provided for in Section 106.3.1.2.4.1 above, the recipient of the ticket, at their sole discretion, may, within 10 business days of the date of the citation, file a detailed written explanation of the grounds for the appeal to the Code Official. The Code Official shall issue a written decision affirming, modifying, reversing, revoking or vacating the civil penalty within 10 calendar days of receipt of the written explanation of the grounds for the appeal.
Section 106.3.1.2.4.3. Fee. A fee for filing an appeal under this section may be established by the Levy Court. Such fee shall not be charged if the applicant prevails on all issues presented to the Code Official or at any level of appeal.
Section 106.3.1.2.4.4. Stay. Except as provided for in Section 108 of this chapter, an appeal of a violation under this section shall act as an automatic stay of the action being appealed.
Section 106.3.1.2.4.5. Appeal. The decision of the Code Official made pursuant to this section must be appealed in accordance with Section 106.3.1.6, Administrative appeal.
Section 106.3.1.3. Show-cause or pre-deprivation hearing. Except as provided in Section 106.3.1.2.1 and Section 109.6, if such violations are not remedied within the time specified, the Code Official shall schedule a show-cause or pre-deprivation hearing and provide the person an opportunity to defend his, her, or its conduct prior to any penalty being imposed. After such show-cause or pre-deprivation hearing, the Code Official shall render a decision within 20 days and send a written letter to the person informing them of his or her decision and detailing the reasons for any adverse action taken. Any decision made by the Code Official is appealable pursuant to Section 106.3.1.5.
Section 106.3.1.4. Costs. The owner of the property or person responsible for the building, structure, premises, or equipment shall be responsible for all costs associated with the enforcement of this code and the investigation, removal, remediation, or abatement of code violations, including the costs of reports, studies, and opinions prepared by design professionals, the institution and maintenance of temporary safeguards, restoration of unsafe buildings, structures or equipment, demolition, and reasonable attorney fees associated with the above. The costs shall be liens on the property to the extent permitted by law.
Section 106.3.1.5. Administrative penalty provisions. The following administrative penalties may be imposed by the Code Official:
Section 106.3.1.5.1. Administrative fines. Notwithstanding any other section of this code, any person who is found during a show-cause or pre-deprivation hearing to have violated any provision of this Code or directive of the Code Official may be subject to the penalties specified in Section 106.3.2.3, as if that person were convicted in a court of law, for each day that the violation continues in addition to any expense incurred by the County for the removal or abatement of the violation. Administrative fines imposed pursuant to this section shall be a lien on the parcel of real property that the expense is incurred upon or which is the subject of the violation. Upon certification of the lien by the Department of Planning Services, the amount of such lien shall be recorded and collected in the same manner as other county real estate taxes, and paid to Kent County, when collected. 9 Del. C. § 5607 et seq. (Abatement; Creation of Tax Lien).
Section 106.3.1.5.2. Institution of remedial action. The County may initiate action to remedy the violation. Upon completion of such remedial work, the violator shall be provided the opportunity to reimburse the County for the cost incurred. A $50 administrative fee for processing vendor requests and providing vendor services shall be charged for each instance such service is provided. If the violator fails to reimburse the County within the time period specified, the County may:
(i)	Call or collect on any bond or insurance established for this purpose;
(ii)	Place a lien on any property within the County held by the person as permitted by state law; or
(iii)	Institute a civil action for the recovery of such expenses, together with any penalty and/or interest, against the person, and the County shall be awarded reasonable attorney fees.
This section shall not be construed to limit any other actions or remedies at law or equity.
Section 106.3.1.5.3. Voluntary assessment. A code enforcement officer may issue a summons to a person the officer has reasonable grounds to believe has committed an offense against any ordinance pertaining to building, housing, sanitation, zoning or public health codes of the County. Any summons issued by a code enforcement officer may provide that, in lieu of appearing in court, the offender may correct the offense(s) and remit a voluntary assessment of up to $200 for each offense cited. The summons may provide that each day such violation continues shall constitute a separate offense.
State Law reference — Similar provisions, 10 Del. C. § 2902(f).
Section 106.3.1.6. Administrative appeal.
Section 106.3.1.6.1. Appeal to the Board of Appeals. Any person aggrieved by any administrative enforcement action taken pursuant to this chapter, or any person who in good faith claims that the true intent of this chapter or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of this chapter do not fully apply, or an equally good or better form of construction is proposed shall have the right to appeal to the Board of Appeals. The Board shall not have the authority to waive any requirement of this chapter.
Section 106.3.1.6.2. Time. All appeals shall be filed with the Department of Planning Services within 20 days of the date the written decision is issued by the Department. A public hearing will then be afforded to the appellant within 45 days of the filing of the appeal.
Section 106.3.1.6.3. Standard of review. On appeal, the Board shall hear any evidence which the aggrieved party or the County may desire to offer.
Section 106.3.1.6.4. Written decision. The Board of Appeals shall make findings of fact and shall render a decision in writing based upon the record created at the public hearing within 20 days.
Section 106.3.1.6.5. Actions that can be taken. The Board of Appeals may affirm, modify, reverse, vacate, or revoke the action appealed, provided that such action shall be affirmed by the Board if it was neither arbitrary and capricious nor contrary to law.
Section 106.3.1.6.6. Stay. If a stay of the action being appealed is desired, a written request must be submitted in writing to the Director of the Department of Planning Services. The stay will be granted unless the Code Official can demonstrate that the granting of the stay would jeopardize the health, safety or welfare of the public.
Section 106.3.1.6.7. Fee. The fee for filing of an appeal under this section is set forth in Chapter 128 of the Kent County Code. Such fee shall be refunded to the applicant if it prevails on all issues presented to the Board after any right(s) to appeal have expired or have been exhausted.
Section 106.3.1.6.8. Writ of certiorari. An aggrieved party may appeal the decision of the Board of Appeals by filing a petition for a writ of certiorari in the Delaware Superior Court.
Section 106.3.2. Criminal enforcement. Any person violating the provisions of this code may be subject to a criminal proceeding instituted by the Code Official or the County Attorney, or his or her designee. It is unnecessary to prove the defendant's state of mind with regard to offenses which constitute violations as the legislative purpose is to impose strict liability for such offenses.
Section 106.3.2.1. Dismissal of charges. Any person subject to criminal prosecution under this chapter may avoid the same upon presenting sufficient evidence to establish that the alleged violation has been remedied. At the discretion of the County Attorney, or his or her designee, and if sufficient evidence is presented prior to trial, the County may enter a nolle prosequi with or without prejudice.
Section 106.3.2.2. Criminal proceedings. Justices of the peace shall have jurisdiction throughout the state to hear, try and finally determine any violation or violations of any ordinance. Only upon conviction shall the defendant have the right to appeal to the Court of Common Pleas.
State Law reference — Similar provisions, 11 Del. C. § 5917.
Section 106.3.2.3. Penalties. Violations of this chapter shall be deemed misdemeanor offenses. The sentence for any person convicted of such a misdemeanor offense shall include the following fines and may include restitution or such other conditions as the court deems appropriate:
a.	For the first conviction, the penalty shall be a fine of not less than $250 nor more than $1,000.
b.	For the second conviction for the same offense, the penalty shall be a fine of not less than $500 nor more than $2,500.
c.	For all subsequent convictions for the same offense, the penalty shall be a fine of no less than $1,000 nor more than $5,000.
The unpaid fine amounts may be considered a tax lien and collected in the same manner as other County real estate taxes. "Fines," as used in this section, shall also include any civil judgment awarded to the County thereof entered pursuant to 11 Del. C. § 4101 (Payment of Fines, Costs and Restitution upon Conviction), 25 Del. C. § 2901 et seq. (Liens of the State and/or Its Political Subdivisions) or 9 Del. C. § 5607 et seq. (Abatement; Creation of Tax Lien).
State Law reference — Similar provisions, 11 Del. C. § 5917(a).
Section 106.3.2.4. Continuing violations. Each day any violation of this chapter shall continue shall constitute a continuing violation for which a separate conviction may be obtained and a separate penalty for each day shall be imposed and shall be considered a single conviction for the purposes of Section 106.3.2.3.
Section 106.3.3. Civil enforcement. Any person violating the provisions of this chapter may be subject to a civil proceeding instituted by the County Attorney or his or her designee. The County may apply to the Court of Chancery for injunctive relief against the person, to prevent, restrain, correct, abate, remove, or enjoin any violation of the provisions of this chapter.

(c)

Section 106.4, Violation penalties, is amended by deleting the subsection in its entirety.

(d)

Section 106.5, Abatement of violation, is amended by deleting the subsection in its entirety and substituting the following:

Section 106.5, Abatement of violation. The imposition of the penalties and remedies herein prescribed shall not preclude the Code Official or his or her designee from instituting the appropriate action to restrain, correct or abate a violation, or to prevent illegal occupancy of a building, structure or premises, or to stop an illegal act, conduct, business or utilization of a building, structure or premises when such person fails to correct the violation after due notice, either actual or constructive, has been given to the person responsible, and where such person has had the opportunity to be heard by an administrative tribunal or court of competent jurisdiction on the issue of the violation.
Section 106.5.1. Reimbursement. Upon completion of any action taken by the County to correct or abate a violation, the violator shall be provided the opportunity to reimburse the County for any costs incurred. An administrative fee of $50 for processing vendor requests and providing vendor services shall be charged for each instance such service is provided.
Section 106.5.2. Remedies. Upon failure to reimburse the County within the time period specified, the County may:
a.	Call or collect on any bond or insurance established for this purpose;
b.	Place a lien upon the parcel of real property which is the subject of the abatement or after a notice of lien is filed on any property within the County which is held by the responsible person. Upon certification of the lien by the Department of Planning Services, the amount of such lien shall be recorded and collected in the same manner as other county real estate taxes and paid to Kent County when collected. There shall be a right to appeal the abatement cost to the Board of Appeals; or
c.	Institute a civil action for the recovery of such expense, together and with penalty and/or interest, against the person, and the County shall be awarded reasonable attorney fees. This section shall not be construed to limit any other actions or remedies at law or equity.
State Law reference — Similar provisions, 9 Del. C. § 1315.

(e)

Section 106.6, Extensions, is added as a new subsection to read as follows:

Section 106.6, Extensions. The Code Official is authorized to grant one or more extensions of time. The applicant must demonstrate justifiable cause, including reasons for the delay, plans for completion, and what actions the applicant has taken to correct the problem. The Code Official may set conditions regarding the time frame to rectify any violation as well as any other conditions such as, but not limited to, those prescribed by a court of law or the Board of License, Inspection, and Review.

(3)

Section 107, Notices and Orders.

(a)

Section 107.1, Notice to person responsible, is amended by deleting the subsection in its entirety and substituting the following:

Section 107.1. Notice to owner or person responsible. Whenever the Code Official determines that there has been a violation of this chapter, or has reasonable grounds to believe that a violation has occurred, notice shall be given in the manner prescribed in Section 107.2 and Section 107.3 to the owner or person responsible for the violation as specified in this chapter. Notices for condemnation procedures shall also comply with Section 108.3.

(b)

Section 107.2, Form, is amended by deleting the subsection in its entirety and substituting the following:

Section 107.2. Form. Such notice prescribed in Section 107.1 shall be in accordance with all of the following:
a.	Be in writing;
b.	Include a description of the real estate sufficient for identification;
c.	Include a statement of the violation or violations and why the notice is being issued; and
d.	Include a directive indicating the time to make the repairs and improvements required to bring the premises into compliance with the provisions of this chapter.

(c)

Section 107.3, Method of service, is amended by deleting the subsection in its entirety and substituting the following:

Section 107.3. Method of service. Such notice shall be deemed to be properly served if a copy thereof is:
a.	Delivered personally to the owner or person responsible for the property; or
b.	Sent by certified or first-class mail addressed to the last known address; or
c.	Posting a copy of the notice in a conspicuous place in or about the structure or equipment affected by such notice.

(d)

Section 107.3.1, Method of service exception, is added as a new subsection to read as follows:

Section 107.3.1, Method of service exception. In no case shall the Code Official be required by this section to provide a violation notice within a twelve-month period to any owner or person responsible previously provided notice pursuant to this section or under any former code provision where the same code violation is alleged by the Code Official to exist.

(e)

Section 107.4, Penalties, is amended by deleting this subsection in its entirety.

Chapter 3, General Requirements.

(1)

Section PM 302, Exterior Property Areas.

(a)

Section 302.4, Weeds, is amended by deleting the subsection in its entirety and substituting the following:

Section 302.4. Prohibited growth of weeds and grass.

Weeds and grass shall be no greater than 12 inches high on any parcel except as provided below.

Section 302.4.1. Exception, Weeds do not include: (a) ornamental shrubs and trees, (b) a wildflower meadow maintained and located no less than 10 feet from any property line.

Section 302.4.2. Application to agricultural parcels. This section shall not apply to any parcel that is a farm or property used exclusively for agricultural purposes.

Section 302.4.3. Natural resource area plan. This section shall not apply to any parcel or portion thereof to the extent that it conflicts with a County- or state-approved plan, including, but not limited to, a landscape plan, record plan, reforestation plan or natural resource area management plan.

Section 302.4.4. Trees. Outside of wooded areas, all trees shall be free from dead limbs or branches and dead trees shall be removed.

Section 302.4.5. Shrubbery. All shrubbery shall be maintained so as not to encroach upon or extend beyond the line of any walkway or driveway. All shrubbery shall be trimmed from blocking any doors or hatchways.

Section 302.4.6. Application to wooded areas. The provisions on high weeds and grass shall not apply to wooded areas, including, but not limited to, young and mature forest and critical natural areas.