Lansdale could look to outside companies to draft vacancy code
LANSDALE — Borough officials are calling in some outside help to draft a long-discussed code meant to address vacant properties.
Council's code committee voted earlier this month to recommend council seek proposals from outside firms that could help enforce that code.
"It's a motion to ask borough staff to seek third-party proposals, and a draft ordinance. This is just to ask," said code committee chairwoman Rafia Razzak.
Borough council and several of its committees have discussed vacancies on Main street for several years, particularly after the closures of the downtown Rite Aid and Wells Fargo branches in summer 2023 , the longtime Wilson's Hardware that closed in 2022 , and the former National Auto store at Main and Wood Streets that's been empty since 2017 .
In that time, the code committee has discussed a possible vacancy tax or fee meant to spur owners of vacancies to submit plans or sell, and several businesses have added new wayfinding signs on Main Street . In June council saw an updated color-coded map listing various vacancies and info on those properties, ahead of a vote in August to update the borough's codebook to add a new "downtown core" area with new development options.
During the code committee meeting on Oct. 2, Director of Community Development Jason Van Dame gave an update on his research in recent months, including talks with Lock Haven about an ordinance that municipality adopted in early September along similar lines.
"They barely have it on the books. They are working through a third party, which is different from the one I've been talking to, and they handle several municipalities throughout the state," he said.
In that town and several others, a third-party outside company helps develop the details of an ordinance, which the town then passes, and once in place that company will assist borough staff in trying to contact property owners, and/or then document how long the property has been vacant for a possible fee or fine. Those fees or fines could be flat or graduated, depending on what council decides, and proceeds split with the third party; the code could require the owner to provide a local representative who can be contacted by borough staff, which would do any inspections needed.
"They had some problem properties, longtime vacancies that they wanted to deal with, and that was essentially what led them down that path," Van Dame said.
Borough solicitor Patrick Hitchens presented to the committee on other municipalities he and his firm represents which have similar codes in place, including Norristown Borough which recently went to a similar third-party firm, and others he and his firm represents including Jenkintown and Abington which have had similar talks.
"We had a lot of Jenkintown residents come out to a public meeting and say 'Hey, we want you to penalize these people who have a vacant house next door to us.' To which, my general response was, it's not against the law to have a vacant house. It is against the law to have a property that is not maintained," he said.
"Meaning: if I'm not living there, that's fine. But that doesn't mean I can let the grass grow, it doesn't mean I can have broken windows," or other qualifications that could be listed in the code: "However, just the fact that no one is living there, you shouldn't necessarily approach it as that is a criminal act."
A draft code could specify a number of times that code staff try to contact an owner for reported issues, and could calibrate the fee or fine to "a reasonable cost" to cover that staff time, the attorney told the committee.
"There are services that are being expended by the borough, in having to address or deal with vacant properties," such as more visits by staff, fielding complaints, or enforcement issues. "There are actual costs that you can somehow document, or somehow put together, to explain how you got to that number," he said.
One factor to consider: If that fee is calibrated to cover the code department's staff spent on that site, it wouldn't include other expenses or foregone revenue from that site being empty.
"If you have a commercial property that's vacant, they're still paying property taxes. But they're probably not using any water or any sewer. Maybe they've even turned the water off, because it's vacant. So you're losing out on the revenue from the water or sewer bills. That's supposed to be paying for the water or sewer system. That is a cost; I'm not sure that is a cost you can consider in charging your fee," Hitchens said.
"In your sewer and electric (bills), you have a flat fee that everyone must pay, regardless of their usage. So even if the property is vacant, they are still paying that fee. So I would argue: you're already capturing that amount, the only thing you're not capturing is the additional amount they would pay if they were actually using the utility service," he said.
Mayor Garry Herbert asked if the attorney had seen towns implement a sliding scale of increased fees the longer a property is vacant, and Hitchens said he'd be careful doing so.
"I think that's where you are more likely to run into trouble," and possible court challenges, Hitchens said: "You'd have to explain to a judge why it is that after year one, it costs more money, to do what we were doing in year one for the same property? Those are the questions that would have to be explained to a judge."
Resident Jean Fritz said she has a friend who moves to Florida for winter, and asked if that was considered a vacancy. Hitchens answered that Jenkintown asked that same question, and Herbert said that situation could be addressed in the text, and he hasn't seen any drafts that penalize vacancies before a full year.
"It is not against the law to be a snowbird," Hitchens said, and Herbert added: "We would define it in the ordinance. We would say: 'A vacancy is defined as a full year of no residential use,' or whatever language we choose to use."
Resident Carole Farrell asked if any third-party services had been challenged, and Hitchens said he did not know of any in the towns he and his firm represents. Those towns also included requirements in their codes that a vacant house would have to be foreclosed on or taken over by a bank, or other "specific triggering events, that this is a property that is clearly distressed," and would qualify.
Farrell then asked how the third party's job would different from what Van Dame and town code staff do now, and Hitchens said the firm would be tasked with creating a list of properties that are currently foreclosed, and the code would obligate the owner or their local representative to provide contact info to present plans.
"This is forcing the owner to have to come forward and say 'This is the scenario, because I have an obligation to tell you,'" he said.
Councilman Mike Yetter asked if the attorney and his firm had noted any variations in the exceptions allowed by towns with those codes in place, and Hitchens said each have different definitions of vacancies, which the code committee can discuss and consider. Yetter added that he's seen drafts of similar codes that included penalties for "basically not meeting certain criteria: a lighted storefront, a clean appearance, and a few other things," which the code committee could also consider.
Based on his talks with other municipalities, Van Dame said, his recommendation to the code committee is that they seek proposals from the outside third parties, ask them to develop draft ordinances, then the solicitor and code committee could vet those responses before formally adopting any. The initial fees could be set in consultation with the third party, then adjusted annually as council adopts its fee schedules each year, he said.
Farrell said she preferred those fees be high, and increase with time if possible, citing a draft from Wilmington that carried fees in the thousands of dollars.
"When you look at these fees, and the graduated schedule of it, I can see somebody say 'I'm getting tired of paying this,'" she said. "What is this going to do to make National Auto move?"
Van Dame said the fee and registry would solve one major problem, when staff have trouble finding an owner of a vacant site who's not currently required to stay in contact.
"That's a struggle for us, and this would help us with that part, as far as the commercial buildings. It gives us cleaner contact information, so if we do have people come in and say 'Hey, what's available,' it's a lot easier for us to pass them on to the realtor," he said.
Herbert said he thought the committee should keep in mind the message that any draft sends to property owners.
"The expectation should be that your property is full, that it has people in it, and it's being used for the purpose it's designed. That should be the minimum expectation of anyone that invests in property in Lansdale, and I don't think that's unreasonable," he said.
Councilman Rich DiGregorio asked if the fee and ordinance would work with the town's economic development consultant or a possible Main Street manager , and Razzak said the two would ideally work together.
"We're not going to try to penalize people. We are going to try to set a standard, and try to help," Razzak said.
Fritz then asked if any of the drafts would apply to the National Auto property, vacant for several years now, and Herbert said that depends on the code: if it gives exemptions for owners trying to sell, a waiver could be granted, and some drafts allow the fee or fine to be waived.
"I do know that National Auto just put their property back on sale, so they could apply for a one-year, onetime waiver of this fee. And they would be alleviated of that burden – but in year two, or whenever, they would have burned their onetime waiver and they would have to pay," Herbert said.
