Don’t Let Your Ordinance Become a Nuisance

Sometimes, it takes one question to reveal a deeper issue.

That was the case in recent township supervisors meeting, where the board was debating a proposed “nuisance ordinance.” The community is somewhat rural in nature, and typically few residents attend the supervisors meetings. But during this ordinance vote, it only took one question from one constituent to show that there was more to the “nuisance ordinance” issue than originally thought.

“Just what constitutes a nuisance?” asked the resident.

“Whatever we deem to be a problem,” responded one of the township supervisors.

Of course, that response didn’t go over very well with the residents in attendance, and some lashed out accordingly. So, I decided to look into the situation a little deeper to satisfy my own curiosity, and this is what I learned:

When a Pennsylvania municipality considers adopting or updating a nuisance ordinance, several legal, practical, and community-specific factors should be evaluated to ensure the ordinance is enforceable, fair, and aligned with public interests. Of course, any action by a municipality should be coordinated with its solicitor to ensure full compliance with the law, as the legal framework and authority set the stage for taking action.

Here are some questions you should ask before adopting a nuisance ordinance:

Do you have statutory authority to enact such an ordinance? 

Most nuisance ordinances are enacted under either the Pennsylvania Borough Code, First/Second Class Township Code, or the Municipalities Planning Code (MPC). It is essential that an ordinance does not infringe upon constitutional rights, such as due process, equal protection, and freedom of speech, and be consistent with state and/or federal laws.

Is the ordinance clearly defined?

A nuisance is defined as any act, condition, or thing that unreasonably interferes with a person's right to use and enjoy their property, or that affects the rights of the public at large. So, it is imperative that the nuisance is clearly defined in the ordinance. Things like abandoned buildings, pollution, noise, tall grass, junk vehicles, illegal dumping, barking dogs, and exotic pets fall into this category. Remember that the type of community, whether rural or urban, can make decisions very difficult, as each type may not universally accept them if you have a mix of the two. For example, an ordinance that prohibits the burning of brush may not be too popular with the rural farming community in comparison to those living in a subdivision. Your community may very well contain both—all the more reason to keep the community as a whole engaged in the process.

Who will enforce the ordinance?

Do you have a zoning officer, police, or code enforcement officer? Is there a straightforward procedure for issuing violations, along with a reasonable time for compliance? In addition, penalties, abatement procedures, and appeal processes must be included.

Is the ordinance consistent with your zoning and other ordinances?

You’ll want to cross-reference all definitions and penalties to ensure compliance and compatibility. Ensure the ordinance is not used selectively or punitively. By doing so, you avoid ordinances that disproportionately impact specific groups like low-income residents and renters. Of course, those communities with farms in areas must consider the Pennsylvania Right to Farm Act, which protects agricultural operations from nuisance claims under certain conditions. Again, your solicitor can guide you safely through this process, but it’s your elected duty to fully understand your obligations to get it right. Use clear, specific, and enforceable language, avoiding vague or overly broad terms like “unsightly” without defining them. Remember that what you consider unsightly may very well be pleasing to others. It is very difficult to regulate aesthetics.

So, when you hold your public meeting for the adoption of a nuisance ordinance, the language, conditions, and enforcement should be clearly understood and not “whatever we deem a problem.” The last thing you want to do is “fire this thing up” when the community isn’t sure just what you're doing.

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About the Author

David L. Anthony is a member of the Keystone Municipal Solutions team of experts. He is a veteran of municipal government, having served more than 33 years in various positions of public service. Contact him at david@keystonemunicipalsolutions.com. To learn more about David and the Keystone Municipal Solutions team, click here.