The opinion of the court was delivered by: Opinion BY Judge Cohn Jubelirer
Argued: December 13, 2011
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
Mr. and Mrs. S. Durbin Wagner, Robert A. Hench (R.A. Hench), Robert I.
Hench (R.I. Hench) and Carol D. Hench (collectively, "Property
Owners") appeal from the December 27, 2010 Order of the Court of
Common Pleas of the 41st Judicial District (Perry County Branch)
(trial court) granting the Borough of New Bloomfield's (Borough)
Motion for Summary Judgment and declaring Ordinance No. 256 of the
Borough Council of Borough of New Bloomfield (Borough Council)
constitutionally valid as it relates to Property Owners.*fn1
raise the following issues in this appeal: (1) whether the trial court
erred in failing to find Ordinance No. 256 ultra vires; (2) whether
the trial court erred in finding Ordinance No. 256 constitutional as
applied to Property Owners; and (3) whether the trial court erred in
finding that the record evidence established the existence of a
nuisance in fact. We reverse and remand.
Ordinance No. 256, passed on September 5, 2006 by the Borough Council, prohibits nuisances on private or public property within the Borough, including, inter alia, the accumulation of abandoned vehicles, and provides for the removal thereof by the Borough.*fn2 Ordinance No. 256 became effective five days after its adoption and provides that anyone storing abandoned vehicles on their property shall, within eighteen months of the adoption of the Ordinance, remove all such vehicles so as to comply with the Ordinance. (Ordinance No. 256 Section VI, R.R. at 15a.) Property Owners all own and store a variety of unregistered or uninspected vehicles on their respective properties, which are within the Borough's limits. (Trial Ct. Op. at 1.) Property Owners' vehicles would be deemed abandoned under Ordinance No. 256. (Trial Ct. Op. at 1.)
The Borough filed a Declaratory Judgment Action with the trial court on August 17, 2009, requesting that the court: (1) "declare that the definition of abandoned vehicles" set forth in Ordinance No. 256 applies to Property Owners; and (2) direct Property Owners to remove the abandoned vehicles from their properties. (Declaratory Judgment Action ¶ 11, R.R. at 8a.) On September 4, 2009, Property Owners filed an Answer and New Matter seeking a declaration that Ordinance No. 256 was ultra vires and unconstitutional as applied to them. (Answer and New Matter, R.R. at 17a-26a.) The Borough filed an Answer to Property Owners' New Matter. (Answer to New Matter, R.R. at 27a-31a.) On July 20, 2010, the parties filed a Stipulation of Facts (Stipulation), which set forth the properties and vehicles at issue, the condition of the properties and vehicles, and the vehicles that were classified as abandoned under Ordinance No. 256. (Stipulation, R.R. at 32a-42a.)
On July 30, 2010, the Borough and Property Owners filed cross Motions for Summary Judgment. (Motion for Summary Judgment by Property Owners, R.R. at 44a-46a; Motion for Summary Judgment by the Borough, R.R. at 47a-49a.) The trial court heard argument on the cross motions on September 22, 2010 and, by Order dated December 27, 2010, granted the Borough's Motion for Summary Judgment and declared that Ordinance No. 256 was constitutionally valid as it related to Property Owners. The trial court did not specifically rule on Property Owners' Motion for Summary Judgment. In an opinion in support of its Order, the trial court found that: (1) Ordinance No. 256 does not declare the storage of vehicles a nuisance perse; therefore, the Ordinance is not ultra vires as it pertains to Property Owners; (2) there is evidence establishing the existence of a nuisance in fact because the properties at issue are bordered by residential homes and a business, and a variety of several unregistered and uninspected vehicles sit out in plain view on the properties; and (3) Ordinance No. 256 is constitutional as applied to Property Owners. (Trial Ct. Op. at 2-8.) This appeal followed.*fn3
Property Owners first argue that this Court should hold that Ordinance No. 256 is ultra vires on its face because the express language of the Ordinance declares that the storage of unregistered and uninspected vehicles on private property for more than forty-eight hours is a nuisance per se. Property Owners argue further that the trial court erred in finding Ordinance No. 256 constitutional as applied to Property Owners where no evidence of record established the existence of a nuisance in fact. Property Owners assert that Ordinance No. 256, as written, impermissibly extends the Borough's statutory power to protect the health, safety, and welfare of the community. Property Owners contend that an unregistered or uninspected vehicle has no more impact on the public welfare than a registered or inspected vehicle in the absence of facts that such vehicle creates a nuisance. Property Owners argue that this Court's holdings in Teal v. Township of Haverford, 578 A.2d 80 (Pa. Cmwlth. 1990) and Kadash v. City of Williamsport, 340 A.2d 617 (Pa. Cmwlth. 1975), require this Court to hold that Ordinance No. 256 is unconstitutionally unreasonable as applied to Property Owners.
The Borough responds that it lawfully enacted Ordinance No. 256 pursuant to Section 1202(5) of The Borough Code,*fn4 53 P.S. § 46202(5), and that Ordinance No. 256 is constitutionally valid. The Borough asserts that the instant matter is similar to this Court's decision in Groff v. Commonwealth, 514 A.2d 300 (Pa. Cmwlth. 1986), wherein the ordinance prohibited the "open storage of an unlicensed and unregistered motor vehicle on [private] property." The Borough states that this Court, in Groff, determined that the ordinance in question clearly stated that its direct purpose was "to safeguard and promote the health, safety and welfare of the public." Id. at 301. The Borough maintains that Ordinance No. 256 regulates the maintenance of certain vehicles and otherwise permits abandoned and junked vehicles to be maintained on private property under certain conditions. The Borough argues that Ordinance No. 256 is an appropriate regulation by the Borough to ensure that junked and/or abandoned vehicles are maintained and regulated in such a fashion as to promote the general welfare of the community.
As a political subdivision, the "Borough has only those powers specifically delegated to it by the" General Assembly. Commonwealth v. Creighton, 639 A.2d 1296, 1298 (Pa. Cmwlth. 1994). Section 1202(5) of The Borough Code authorizes a borough to enact an ordinance "[t]o prohibit and remove any nuisance, including but not limited to . . . the storage of abandoned or junked automobiles . . . on public or private grounds, or to require the removal of any such nuisance . . . by the owner or occupier of such grounds." 53 P.S. § 46202(5). A borough's ordinance seeking to abate the storage of abandoned vehicles "cannot declare the mere presence of such vehicles on any given piece of property to be a nuisance per se." Creighton, 639 A.2d at 1299 (quoting Talley v. Borough of Trainer, 394 A.2d 645, 646 (Pa. Cmwlth. 1978) (emphasis in original)); see also Commonwealth v. Hanzlik, 400 Pa. 134, 137, 161 A.2d 340, 342 (1960) (holding that former Section 702 of The Second Class Township Code,*fn5 now Section 1529, authorizes a second class township to prohibit nuisances, such as junked or abandoned automobiles, by ordinance so long as the township proves that the vehicle is a nuisance in fact.).*fn6
We further held in Creighton that "the ordinance must be phrased in such a way as to require the municipality to affirmatively establish that a nuisance in fact existed." Creighton, 639 A.2d at 1299 (quoting Talley, 394 A.2d at 646) (emphasis in original).
The trial court in this matter found that the Borough did not exceed its authority in enacting Ordinance No. 256. The trial court reasoned that, because Ordinance No. 256 lists certain exceptions or circumstances where a vehicle is not considered abandoned, the Ordinance does not declare the storage of unregistered or uninspected vehicles to be a nuisance per se. We disagree.
The Borough has the authority, pursuant to Section 1202(5) of The Borough Code, to enact an ordinance prohibiting public nuisances and providing for the removal thereof. Ordinance No. 256 declares that the Borough Council deemed:
[I]t to be in the best interests and general welfare of the citizens and the residents of the Borough to prohibit the unreasonable, unwarrantable or unlawful use of private or public property which causes injury, damage, hurt, inconvenience, annoyance, or discomfort, to others in the legitimate enjoyment of their rights of person or property[.]
(Ordinance No. 256 Preamble, R.R. at 10a.) Ordinance No. 256 defines "nuisance" as "[t]he unreasonable, unwarrantable or unlawful use of public or private property which has the potential to cause or causes injury, damage and hurt and/or abuses[,] inconvenience, annoyance or discomfort to any person in the legitimate enjoyment of his reasonable rights of persons or property." (Ordinance No. 256 Section I.G, R.R. at 12a.) Certain nuisances are declared illegal; specifically, "[i]t shall be unlawful to store, or deposit any abandoned . . . vehicle . . . in or on any highway or public or private property, vacant or occupied, within Bloomfield Borough." (Ordinance No. 256 Section II.B, R.R. at 12a.) Ordinance No. 256 defines an "abandoned vehicle" as, inter alia, a vehicle "[t]hat is without a valid registration plate or certificate of ...