Back in December 2014 – on the same day as it gave its Opinion on EU accession to the European Convention on Human Rights which we noted up here – the Court of Justice handed down an interesting judgment in Case C-562/13 Moussa Abdida, EU:C:2014:2453, on what sort of judicial remedies should be available to a third-country immigrant who has been declared to be staying illegally to challenge that declaration when he claims he needs to stay to get medical treatment.
The Court held that such an immigrant must be able to challenge the decision to send him back to his country of origin with suspensive effect and must also, in the meantime, get social assistance to cover his basic needs pending his appeal.
The judgment shows how the Court is willing to interpret the provisions of EU law in such a way that they comply with the Charter of Fundamental Rights and with the European Convention on Human Rights.
A few facts first. Mr Moussa Abdida applied to the Belgian authorities to remain in Belgium on medical grounds, stating he needed medical treatment there for a serious illness. His request to remain in Belgium was turned down and his social assistance was then withdrawn. He appealed against those decisions. The Belgian court to which he appealed found that, under Belgian law, Mr Abdida had no judicial remedy providing for suspension of the decision refusing him permission to remain in Belgium and he was not entitled to any form of social assistance other than emergency medical assistance. The Belgian court thus asked the Court of Justice whether as a matter of EU law he should have available a remedy with suspensive effect and whether he should receive basic social assistance other then the emergency medical care pending his appeal.
The Court of Justice answered yes to both.
Before doing so, the Court pointed out that the three directives specifically mentioned in the national court’s questions were not applicable to the case. A fourth directive, not mentioned – Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) – was applicable.
The Court dealt with that procedural point. It recalled that the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. The Court can provide the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject-matter of the dispute (see, judgments in Fuß, C‑243/09, EU:C:2010:609, paragraphs 39 and 40, and Hadj Ahmed, C‑45/12, EU:C:2013:390, paragraph 42).
As to the substance of the case, the Court pointed out that Directive 2008/115 provides that a third country national must be afforded an effective remedy to appeal against or seek review of a decision ordering his return, the wording of the Directive does not require that the remedy should necessarily have suspensive effect.
The Court did not stop there, however. It continued to the effect that the characteristics of such a remedy must be determined in a manner consistent with Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection (see, judgments in Unibet, C‑432/05, EU:C:2007:163, paragraph 37, and Agrokonsulting-04, C‑93/12, EU:C:2013:432, paragraph 59), and provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.
The Court also noted that Article 19(2) of the Charter states, inter alia, that no one may be removed to a State where there is a serious risk that he or she would be subjected to inhuman or degrading treatment.
It pointed out that the case-law of the European Court of Human Rights, which, in accordance with Article 52(3) of the Charter, must be taken into account in interpreting Article 19(2) of the Charter, states that, while non-nationals subject to a decision authorising their removal cannot, in principle, claim any entitlement to remain in the territory of a State in order to continue to benefit from medical, social or other forms of assistance and services provided by that State, a decision to remove a foreign national suffering from a serious physical or mental illness to a country where the facilities for the treatment of the illness are inferior to those available in that State may raise an issue under Article 3 ECHR in very exceptional cases, where the humanitarian grounds against removal are compelling (see, inter alia, European Court of Human Rights, judgment in N. v. the United Kingdom [GC], no. 26565/05, § 42, ECHR 2008).
In the very exceptional cases in which the removal of a third country national suffering a serious illness to a country where appropriate treatment is not available would infringe the principle of non-refoulement, Member States cannot therefore, as provided for in Article 5 of Directive 2008/115, taken in conjunction with Article 19(2) of the Charter, proceed with such removal.
The enforcement of a return decision entailing the removal of a third country national suffering from a serious illness to a country in which appropriate treatment is not available may therefore constitute, in certain cases, an infringement of Article 5 of Directive 2008/115.
Those very exceptional cases are characterised by the seriousness and irreparable nature of the harm that may be caused by the removal of a third country national to a country in which there is a serious risk that he will be subjected to inhuman or degrading treatment. In order for the appeal to be effective in respect of a return decision whose enforcement may expose the third country national concerned to a serious risk of grave and irreversible deterioration in his state of health, that third country national must be able to avail himself, in such circumstances, of a remedy with suspensive effect, in order to ensure that the return decision is not enforced before a competent authority has had the opportunity to examine an objection alleging infringement of Article 5 of Directive 2008/115, taken in conjunction with Article 19(2) of the Charter.
The Court continued that such an interpretation is supported by the explanations relating to Article 47 of the Charter, to the effect that the first paragraph of that article is based on Article 13 ECHR (review judgment in Arango Jaramillo and Others v EIB, C‑334/12 RX II, EU:C:2013:134, paragraph 42).
Indeed, the European Court of Human Rights has held that, when a State decides to return a foreign national to a country where, there are substantial grounds for believing, he will be exposed to a real risk of ill-treatment contrary to Article 3 ECHR, the right to an effective remedy provided for in Article 13 ECHR requires that a remedy enabling suspension of enforcement of the measure authorising removal should, ipso jure, be available to the persons concerned (see, inter alia, European Court of Human Rights, judgments in Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 67, ECHR 2007-II, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012).
Accordingly, Directive 2008/115, taken in conjunction with Articles 19(2) and 47 of the Charter, must be interpreted as precluding national legislation which does not make provision for a remedy with suspensive effect in respect of a return decision whose enforcement may expose the third country national concerned to a serious risk of grave and irreversible deterioration in his state of health.
As for the provision of basic needs pending the appeal, the Court held that it is apparent from the general scheme of Directive 2008/115, which must be taken into account when interpreting its provisions (see, judgment in Abdullahi, C‑394/12, EU:C:2013:813, paragraph 51), that it must cover all situations in which a Member State is required to suspend enforcement of a return decision following the lodging of an appeal against the decision.
Consequently, Member States are required to provide for the basic needs of a third country national suffering from a serious illness who has appealed against a return decision whose enforcement may expose him to a serious risk of grave and irreversible deterioration in his state of health.
This entry was posted in Charter of Fundamental Rights, Effective judicial protection, European Convention on Human Rights, Preliminary reference and tagged Basic needs, Explanations to the Charter, Interpretation, Return of third-country nationals, Suspensive effect on March 1, 2015 by Xavier.


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HENRY B. SCHNEIDER vs. FRANK DeCHRISTOPHER. FRANCIS R. SCHNEIDER vs. SAME.
Evidence warranted a finding that the operator of a motor truck upon a street where he knew children were playing on the sidewalk was negligent in not seeing one of them start to run across the road in plain view in front of him when he could have avoided striking him, and in unnecessarily turning to the left side of the road and running into him. The mere fact that, when struck by a motor vehicle, a boy was engaged in playing on a public highway did not make him a trespasser there. A ruling was not required that a boy six years of age, accustomed to cross streets alone in going to and from school, was not of sufficient age to be allowed upon the street unattended.
A ruling was not required that a boy six years of age was guilty of contributory negligence when, engaged in play, he ran across a public street and was struck by a motor truck, where there was evidence that before he started he looked and did not see the truck, that while running he saw it turn a nearby corner, and that he was more than half way across the street when the truck, turning to its left, struck him.
TWO ACTIONS OF TORT. Writs in the Superior Court dated January 16, 1934.
The actions were tried together before Sheehan, J., and there were verdicts for the plaintiffs, respectively, in the sums of $791.19 and $3,408. The defendant alleged exceptions.
A. D. Ginstina, for the defendant.
R. W. King & M. Holstein, for the plaintiffs.
of his employer, which was located on the northerly side of George Street, about seven hundred feet from the corner. When he had gone about two hundred feet from the corner there was a collision between the plaintiff in the second case, a boy six years old, and the right side of the defendant's truck. The defendant testified that upon hearing a scream and feeling a jar in his truck he applied his brakes, brought the truck to a stop within a distance of about fifteen feet, and then for the first time saw the boy, who was lying in the road. The second of these actions was brought on behalf of the boy and he hereinafter will be referred to as the plaintiff. His father brought the first action to recover consequential damages.
The defendant testified that he was familiar with George Street and knew that children were accustomed to play there. He saw after he had turned the corner that there were children on the piazza and on the sidewalk in front of a house on the northerly side of George Street about two hundred feet from the corner. He paid no attention to the children beyond glancing at them and glancing away. He had increased his speed from ten to fifteen miles an hour after leaving the corner. He testified that he was watching the road, that he would have seen any child running out upon the street before the truck arrived at a point opposite the house where he had seen the children, and that no child thus ran upon the road before the truck reached that point. There was, however, contradictory testimony warranting findings that the plaintiff was leaving the sidewalk and running on a course which would take him across the road, at a time when the truck was one hundred feet away, and that the plaintiff was running across the northerly half of the road before the truck arrived at the house. There were no other vehicles in the vicinity, and there was nothing to obstruct the defendant's view of the road ahead of him or to divert his attention from the road.
he stopped the truck after the collision. This was contradicted by other evidence. There was testimony which, if believed, warranted the findings that before the collision the truck went entirely off the northerly half of the paved road and upon the southerly half, and that there the collision took place after the plaintiff had entirely crossed the northerly half of the road and was then out of the path of the truck, if it had continued on its original course.
There was evidence to warrant finding the defendant negligent in not seeing the plaintiff as he ran across the road when the truck was far enough away so that the defendant could have avoided injury to the plaintiff by the application of his brakes or merely by continuing on his course, and negligent in unnecessarily permitting the truck to go upon the southerly half of the road and there come into collision with the plaintiff. Boni v. Goldstein, 276 Mass. 372, 375. Dirsa v. Hamilton, 280 Mass. 482, 486. Stacy v. Dorchester Awning Co. Inc. 290 Mass. 356, 359.
The plaintiff with other children had for some time been playing in front of the house earlier mentioned. They were playing a game in which at times one of the children would pursue and attempt to catch another child. The plaintiff while being thus pursued was running across the street at the time of the accident. He testified that while still on the sidewalk he looked down the street to see if anything was coming, saw nothing and started running, and that later, looking up, just where he then was not appearing, he saw the truck turning the corner into George Street. He continued to run across the road. There was testimony that between the sidewalk and the paved road there was an area of dirt seven and one half feet wide. It could have been found he had crossed that area and more than twelve feet of the paved road at the instant of the collision.
he was playing on the highway. O'Brien v. Hudner, 182 Mass. 381, 383. Slattery v. Lawrence Ice Co. 190 Mass. 79, 82. Dowd v. Tighe, 209 Mass. 464, 466. Patrick v. Deziel, 223 Mass. 505, 508. Coope v. Scannell, 238 Mass. 288, 289. Boni v. Goldstein, 276 Mass. 372, 376. There was no evidence of any ordinance forbidding him to do what he was doing at the time of the collision. See Jaehnig v. J. G. & B. S. Ferguson Co. 197 Mass. 364; Patrick v. Deziel, 223 Mass. 505. If, as might have been found by the jury, negligence of the defendant caused his injury, he was entitled to recover therefor unless there was a failure in the exercise of such care for his safety as was required by law.
The plaintiff was six years old and accustomed to crossing streets alone going to and from school. It could not have been ruled as matter of law that he was not of sufficient age to be allowed by his parents to be upon the streets unattended. The requirements of the law as to care for the plaintiff's safety would be satisfied if he used such care for his own safety as a child of his age ordinarily would be expected to exercise under similar conditions. The evidence as to existing conditions was conflicting. Viewed in its aspects most favorable to the plaintiff the evidence warranted the conclusion that his conduct conformed to the standard of care set by the law for a child of his age.
exercise a proper degree of care for the plaintiff's safety. Davicki v. Flanagan, 250 Mass. 379, 381. It could not have been ruled as matter of law that the defendant had sustained the statutory burden of proving that the plaintiff failed to exercise the care which the law required. Stacy v. Dorchester Awning Co. Inc. 290 Mass. 356, 360. G. L. (Ter. Ed.) c. 231, Section 85.
The defendant took exception to a small portion of the charge, near its end, where the judge instructed the jury that evidence, which he recited, most favorable to the defendant's contention as to the facts, justified a finding that the defendant exercised proper care, and went on to say in another sentence that the same evidence warranted a conclusion that the plaintiff was contributorily negligent and could not recover. The exception was general without specification. The defendant now contends that the second sentence was error in that the judge did not say that the evidence in question required as matter of law a finding of contributory negligence. It does not appear that the defendant requested such a ruling. Earlier in the charge the judge gave instructions to the jury, to which no exceptions were taken, as to the care required of the plaintiff and his inability to recover if he failed to exercise the care which, in the circumstances as found by the jury, was required. Viewing the charge as a whole there was no error in the portion to which objection is now made. Partridge v. United Elastic Corp. 288 Mass. 138, 145-146.

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JOSEPH AMAYA, Plaintiff-Appellant, v. CITY OF SAN ANTONIO, Defendant-Appellee.
The City of San Antonio demolished Joseph Amaya's structure after it deteriorated from fire damage. Amaya sued the city for an unconstitutional taking based on both the state and federal constitutions and for violation of the Fourth and Fourteenth Amendment.
In dismissing Amaya's suit, the district court opinion is well reasoned and has ample support. First, under Texas law, the abatement of a public nuisance is not a taking. Public nuisance includes a building that is an imminent danger to life or property. Similarly, under federal law, destroying property that threatens the public does not infringe the Fourth or Fourteenth Amendment. The evidence relied on to order demolition showed that Amaya's structure suffered significant fire damage and deteriorated after promised repairs were not made. Moreover, Amaya produced no evidence to refute this condition of the property. As such, because of the damage, deterioration, and lack of repair, his structure posed a threat to the public and no taking or constitutional violation occurred.
City of Dallas v. Stewart, 361 S.W.3d 562, 569 (Tex. 2012).
San Antonio, Tex., Code § 6-175 (2015); Patel v. City of Everman, 179 S.W.3d 1, 11 (Tex. 2004).
See RBIII, L.P. v. City of San Antonio, 713 F.3d 840, 844-47 (5th Cir. 2013) ("[T]he City['s]...decision to demolish the structure on an emergency basis was entitled to deference and did not violate [plaintiff's] right to procedural due process unless it was arbitrary or an abuse of discretion."); Kinnison v. City of San Antonio, 480 F. App'x 271, 277, 281 (5th Cir. 2012).
Finally, for a Fifth Amendment claim to exist, a plaintiff must be denied just compensation. No denial of compensation occurs if a plaintiff fails to exhaust state remedies. In Texas, an inverse condemnation proceeding is available for a plaintiff whose property is taken by the government. Here Amaya does not allege that he invoked the condemnation proceeding, and thus, lacks a federal takings claim.
Horton v. City of Smithville, 117 F. App'x 345, 347 (5th Cir. 2004) (per curiam).
Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 195 (1985).
For these reasons and those expressed in the careful opinion of the district court, we AFFIRM.

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Thornton v. Puget Sound Power Light Co.
Thorntonv.Puget Sound Power Light Co.
Douglas T. Ballinger, of Seattle, Wash., for plaintiff.
Bullitt, Kennedy Schramm, of Seattle, Wash., for defendant.
Suit by Gretchen Thornton, administratrix of the estate of William G. Thornton, deceased, against the Puget Sound Power Light Company. On defendant's motions to state two causes of action in the complaint separately and strike part of one paragraph thereof and demurrer to the complaint.
Motions denied, and demurrer sustained.
The plaintiff, as administratrix, alleges her appointment, the corporate relation of the defendant, and the employment of deceased by defendant; that on August 11, 1929, while employed as master of the yacht Olive, acting under the direction of the managing agent of the defendant, an explosion occurred which totally destroyed the vessel, and deceased suffered painful injuries from which he died August 21 following; that during deceased's employment as master, he was in close and continuous contact with the managing agent and became friendly and had a feeling of loyalty and admiration which was reciprocated by the managing agent; that succeeding the death, plaintiff was depressed and suffering from bereavement and was without funds, dependent upon the bounty of the managing agent, who procured from the company her husband's wages; that she appreciated the managing agent's counsel; had full confidence in him, and that he represented to her that the cause of the explosion was wholly unknown, and advised and promised to use his influence with the company to procure a sum of money for her as a donation; that there was no liability on the part of the company, and that said statements were not true, and that she relied upon such advice, being unskilled, and was advised by him not to consult an attorney and "threatened that no payment of any kind would be made if she took any steps to enforce collection"; that she was unacquainted with the liability of a vessel owner for damage in the case of the death of a seaman by wrongful act, and believed the $1,500, the amount offered, was a donation from the defendant; and that thereafter such steps were taken by and through the suggestion and agency of the defendant that $1,500 was paid to her and she executed a release of all claims and demands of every kind for the death of her husband while on board and operating as master of the gasoline launch Olive, owned by the defendant company.
Plaintiff alleges that the explosion was caused solely by the defective, unsafe, and unseaworthy condition of the vessel, and enumerates the acts of omission and commission, and that his death was caused solely by and through the negligence of the defendant company; that deceased was 35 years of age, healthy, able-bodied and capable of earning $150 a month; and that by his death his estate was damaged in the sum of $50,000; and prays that the compromise and settlement entered into be set aside, and that she have judgment for $50,000.
The defendant moves to separately state the two causes of action in the complaint, and also to strike "by reason of said pain and suffering of the deceased" in paragraph X.
Without waiving the motions, defendant demurs to the complaint on the ground that not sufficient facts are stated to constitute a cause of action.
The motions may be considered together.
Pain and suffering introduces no new cause of action. It is but an elaboration of the statement of the injury. Washington Railway Electric Co. v. Scala, Adm'x, 244 U.S. 630, 37 S. Ct. 654, 61 L. Ed. 1360. See, also, Luckenbach S.S. Co. v. Campbell (C.C.A.) 8 F.2d 223; St. Louis, Iron Mountain S. Ry. Co. v. Craft, 237 U.S. 648, 35 S. Ct. 704, 59 L. Ed. 1160. Nor is Lewis v. Texas Pacific Railway Co., 146 La. 227, 83 So. 535, to the contrary.
The Merchant Marine Act (section 688, title 46, USCA) gives the right of action for death of any seaman, as a result of personal injury, to the personal representative of such seaman, and gives to such seaman the right of railway employees, by the Federal Employers' Liability Act (section 51, title 45, US CA), or to his personal representatives, for the benefit of his surviving widow and children, etc. The estate does not benefit, but the representative acts solely as trustee for the designated beneficiaries. Lindgren v. United States, 281 U.S. 38, 50 S. Ct. 207, 74 L. Ed. 686.
May the plaintiff prosecute this action without repayment or tendering repayment and bringing into court the amount received?
The plaintiff relies upon Bjorklund v. Seattle Electric Co., 35 Wn. 439, 77 P. 727, 1 Ann. Cas. 443.
"`Here is a situation which seems to demand remedial legislation; for, while the courts of the United States will follow the decisions of the courts of the state in which they are held when, in construing the state law, those decisions establish a rule of property, they must ignore them when they establish no more than a rule of liability for personal injuries.'"
Since the creation of the Ninth Circuit in March, 1891, and beginning with Hill v. N.P. Railway Co. (C.C.A.) 113 F. 914, McKenna, later Justice McKenna, Gilbert, and Ross, Circuit Judges, it has been the rule that, to avoid a release for personal injury for fraud, the money received must be returned or tendered and brought into court. While the release agreement may not be a contract under seal and would not require a proceeding in equity to set it aside, and could be presented in the trial of this issue if the consideration was returned or tendered and brought into court, as said by Judge Gilbert in Great Northern Ry. Co. v. Fowler (C.C.A.) 136 F. 118, where it was held that misrepresentation or fraud on the part of the releasee may be effective to avoid a release induced thereby. In that case the appellee brought into court the tendered repayment of the money received, with interest thereon.
In Price et al. v. Conners (C.C.A.) 146 F. 503, 504, the trial court had instructed the jury that, if they believed that the plaintiff received $500 and found that the release was fraudulently obtained, it would not be necessary for the plaintiff to tender back the money or repay the same, but the jury, in case they returned a verdict for the plaintiff, should deduct the money from the damages assessed. The jury found for the plaintiff and deducted the amount. The case was appealed. Judge Ross (with whom sat Gilbert, C.J., and Hawley, D.J.) said: "* * * The court below ruled that it was not necessary that the plaintiff should have repaid or tendered the money received by him, as a condition precedent to avoiding the release. That such is not the law upon such a state of facts was distinctly held by this court in the case of Hill v. Northern Pacific Railway Co., 113 F. 914, 51 C.C.A. 544" — and reversed the judgment.
In Mahr v. Union Pac. R. Co. (C.C.A.) 170 F. 699, the court (Gilbert, Morrow, and Ross) again expressly held that, to annul a previous settlement and release obtained by mistake or fraud, the money received must be returned or tendered before an action can be maintained at law. In Miles v. Lavender (C.C.A.) 10 F.2d 450, at page 454, the court (Hunt, Rudkin, and Morrow) again referred with approval to the decided cases. This court in the Thomas P. Beal, 298 F. 121, followed these decisions and held that a party seeking relief from a fraudulent release must first offer to return the money received as a consideration for the release. These decisions are binding on this court.
The demurrer must therefore be sustained.

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Over the last decade, Congress has invested a lot of time and political energy into finding a way to allow undocumented immigrants who arrived as youths to stay in the United States and eventually gain a path to citizenship or permanent residency. Unfortunately, despite the numerous possibilities floated in Congress over the years, a comprehensive immigration law remains elusive. In an effort to find a temporary solution, President Obama created the Deferred Action for Childhood Arrivals (DACA) immigration policy in June 2012. DACA allows eligible individuals brought into the United States illegally as children a reprieve from prosecution and deportation for a period of two years.
In September 2017, President Trump initiated a plan to phase out the DACA policy. Extensive litigation has followed, allowing most current DACA recipients the ability to renew their DACA status. However, as of this writing, new DACA applications are not being accepted. Many of the lawsuits disputing the legality of DACA and the legality of Trump’s motion to rescind DACA are moving through the court system in a series of appeals, meaning that the future for DACA students is yet unclear. This guide aims to provide current information about the changes to DACA policy and an explanation of student rights and resources.
What Does DACA Do for Students?
Given the political divisiveness and complexity of immigration policy in the United States, there is often confusion about DACA. Below is a list of what DACA does and does not do for eligible individuals.
Grant temporary administrative safety from deportation.
Allow recipients the ability to obtain a work permit.
Make it possible to apply for a social security number.
Provide an opportunity to get a valid driver’s license.
Have detailed eligibility requirements. DACA applies only to current students, high school graduates, GED holders and honorably discharged veterans who meet all other requirements.
Last forever. An individual’s DACA status expires after two years and must be renewed.
Provide a direct path to citizenship or permanent residency in the United States.
Create an opportunity to temporarily avoid deportation. Only individuals who meet strict eligibility requirements anyone may receive DACA status.
Make a student eligible for federal financial aid, although some private and state-based financial aid is available for undocumented students.
Offer protections to individuals who have committed felonies, serious misdemeanors or pose a threat to public safety.
Expert Q&A: What Are the Rights of DACA Students?
Susan Cohen is a nationally recognized immigration lawyer. As Founding Chair of Mintz’s Immigration Practice, she works with corporate clients to address their immigration challenges. Susan is very active in the American Immigration Lawyers Association (AILA) and has contributed to federal and state immigration regulations.
Darwin Velasquez was born in La Union, El Salvador. At 12 years old, Darwin left for the United States with one set of clothes, his 11-year-old brother, and $250 between the two them. Once enrolled in Washington George High School, Darwin joined College Track San Francisco in the hopes of achieving his dream of going to college. In 2013, Darwin became the first in his family to graduate from high school and pursue a higher education. That same year, he also applied to and was granted Deferred Action for Childhood Arrivals (DACA).
In today’s political climate, sometimes there is conflicting information on DACA. How can students get the most up-to-date information?
Velasquez: Students have a variety of options. First, I recommend they visit the United States Citizenship and Immigration Services website. If there are any updates or changes on DACA, the government will post these announcements on the USCIS website. This website is also useful to check students’ DACA renewal status.
Second, sometimes it’s a bit difficult to understand legal language provided by the government. For this reason, I like to check the Immigration Legal Resource Center website. The ILRC provides comprehensive FAQ’s about DACA immediately after each announcement. Finally, the American Civil Liberties Union is also a fantastic resource, not only to understand the latest on DACA, but to understand our rights with or without DACA.
Many DACA students are scared of what comes next. How likely is it that Immigration and Customs Enforcement (ICE) agents will show up at the door? What might prompt a visit from them?
Cohen: There is always a chance that ICE officers could show up at the door. Possible reasons why ICE could show up include: if the DACA recipient has been arrested or involved in a criminal incident or even a traffic incident; if the DACA recipient lives in the household of someone who does not have immigration status; if ICE suspects that the DACA recipient has abused public benefits; if ICE suspects that the DACA recipient has broken a U.S. law.
Let’s talk about the rights of students under DACA. Do institutions have to cooperate if ICE asks them for information on the students enrolled there? If yes, how far must they go?
Velasquez: I could write a dissertation on this question! It depends on the type of organization or institution. For non-profit organizations, they are not obligated to share any information with ICE unless agents have a warrant. In other words, no warrant, no access. ICE officers can enter the facilities with a warrant or with voluntary permission given to the officer by an employee of the company. I strongly advise companies hold a training with their employees to know how to respond in the event ICE shows up to their organization.
Institutions are also not obligated to provide information about any particular student’s immigration status. Sometimes, ICE may try to intimidate their way to confidential information about a student. Staff at colleges and universities should be familiar with a real warrant signed by an immigration judge and a fake warrant.
What are a student’s rights if they are visited by ICE agents?
Cohen: If the DACA student is concerned about other people in the household, or about another vulnerability, the student could choose not to open the door unless ICE has a warrant signed by a judge. If he/she chooses not to open the door, the DACA recipient should slide a card under the door or hold it up to a window indicating that they are exercising their right to remain silent and request to see an arrest warrant that has been signed by a judge. They should place a call to their immigration attorney and if they do not have an immigration attorney, they should call a U.S. citizen friend or family member to inform them of what is happening.
A DACA student may choose to open the door and share his or her DACA-related documents and identity documents with the ICE officer. It is best to succinctly answer questions and not to volunteer any additional information.
Velasquez: It’s a harsh reality, but I highly recommend that students and their families have a family preparedness plan in the event of an ICE visit. If ICE visits a student, they should know that they and their family have rights.
First, they have the right to remain silent. Second, ICE agents cannot make the student sign any documents without their full understanding of such documents or without their will. They also have the right to contact an attorney. A good family preparedness plan should have the contact information of an attorney they trust. Preparing for a situation like this is not easy. However, we are living in difficult times for the undocumented community.
What are some basic rights under DACA that students need to know inside and out?
Cohen: DACA recipients with still-valid DACA status are legally authorized to be in the U.S. If they have received an Employment Authorization Document (EAD), they are entitled to use that document to work throughout the validity period of the EAD.
Everyone in the U.S., whether documented or not, has certain rights under the U.S. Constitution. These include the right to remain silent and not answer questions; the right to see an arrest warrant; the right to make a phone call; and the right to speak to a lawyer. Everyone has the right not to sign any documents before consulting with a lawyer.
Velasquez: If a student has DACA, they have a work permit to legally gain employment in the United States. They also have the right to obtain a driver’s license. Additionally, with a state ID or driver’s license, they can travel within the United States and Puerto Rico. As a DACA recipient, they can also apply to open a bank account, and in some backs, they may qualify for a secure credit card to start building a line of credit. Please note students are not eligible to have a regular credit card without first having a secure credit card for at least one year. DACA recipients can obtain a regular credit card without first having a secure credit card, but only if the student has a U.S. Permanent Resident or U.S. Citizen cosigner.
What are the best things students can do for themselves, right now, before DACA faces even more challenges?
Cohen: DACA students should meet with an experienced, qualified immigration attorney to understand what their legal immigration options are now, and in the future if the program is terminated. It is important to meet only with highly qualified attorneys, who have been recommended, and not with notarios, or non-attorneys. As part of the meeting with the immigration attorney, the DACA student should review exactly what to do if they are confronted or arrested by an ICE officer and ask permission to contact the immigration attorney in an emergency, even if it is not during regular business hours. They should secure a “Know Your Rights” card or document from the attorney or from a non-profit organization, that provides legal assistance to DACA recipients, and they should keep a copy of the card in their home, and a copy in their wallet.
Velasquez: The best step students can take is to renew their DACA one year in advance of the expiration date. In the past, 120 days before expiration was ok, and while it still is, the sooner students renew the better. Don’t risk it and renew one year in advance instead. Students should also consult with an attorney to see if they are eligible to obtain other immigration remedies. There are many ways to become s U.S. Permanent Residents. On a case by case scenario, one may be eligible for something the student didn’t know about.
What are some basic legal points students need to remember if they find themselves faced with a warrant, arrested or detained?
Cohen: Students should ask to see identification, or ask the officer to identify himself or herself. The student should also ensure that any warrant presented is valid, as not all of them are. Ask the officer to slip the document under the door. To be valid it must contain the recipient’s name, address, and a signature. If it appears valid, look to see if it was issued by a court or by ICE. If it was issued by a court, and authorizes a search of your house, then you must allow the officer into the house. If it was issued by ICE, then it does not authorize a search of the house. In this case the DACA student could choose to go outside and meet with the officers there, especially if there are other people living in the house who are vulnerable. If the officer does not have a warrant to enter the house, and the officer asks for permission to enter the house, the student is absolutely not required to give permission to enter.
Students should have a pre-arranged plan with an immigration attorney and with a trusted friend or family member in the event the student is arrested or detained. This should include keeping their passport and other identity documents (birth certificate) in a safe place; having a contact list so the trusted friend or family member can contact others (lawyer, friends, family, employer etc.), and having a bag packed with essentials to take if being detained.
Many students are scared, as you might imagine. What’s the most realistic scenario they might face?
Velasquez: A scenario not many of us like to think about is unemployment. For the time being, students can renew DACA, but the U.S. Supreme Court will ultimately decide what happens with this policy. If the Supreme Court rules that DACA is unconstitutional, the government will likely cancel all DACA work authorizations. In terms of deportation as a DACA-holding student, it is very unlikely that they would be deported unless he or she commits a crime. The government granted DACA to young people who wanted to live and work in the U.S. and were not considered a “threat” to this country – all DACA recipients passed an extensive background check. In other words, deportation is a possibility, but only if you commit a crime or if you leave the country voluntarily.
Anything else you’d like to add about DACA and college students?
Cohen: DACA students should be careful to obey the law to avoid any risk to their DACA status. For example, if they have a driver’s license, they should make sure not to drive if their license expires. They should carefully follow all traffic rules, as sometimes even what seems like a minor traffic infraction could be serious enough to jeopardize one’s DACA status. In general, they should keep a low profile.
While some DACA students may have applied for Advance Parole travel permission, they should not consider leaving the United States without carefully vetting the risks of doing so with a competent immigration lawyer. A DACA recipient should not file applications for any other immigration benefits without the advice and assistance of a qualified immigration lawyer.
The legal landscape regarding DACA is in flux. Several courts have stopped the Trump administration from ending the program and for now, DACA renewal applications are still being accepted by USCIS. However, the current status is subject to change. It is imperative that DACA students remain up to date regarding the very fluid legal situation. In particular, DACA students should meet with an immigration lawyer to discuss what their next steps should be if the DACA program is terminated.
Velasquez: I would like to emphasize that there are plenty of college students without DACA, many of whom arrived after June 15th, 2007. These students matter. This is why a comprehensive immigration reform is needed. Parents who lived [in the United States] for over 10 years are also in this category without hope of one day adjusting their status.
The current and future status of DACA is in limbo, so it can be difficult to understand what actions students should take right now. This uncertainty is a major reason as to why those who wish to renew DACA may need to act sooner rather than later. If Congress or the courts eventually rule to eliminate DACA, it would be more difficult (although not impossible) to deport someone who has already renewed their DACA status than to deport someone who has let their DACA status lapse or failed to apply for a DACA renewal before deadline.
Given that it may take several months to process and approve a DACA renewal application, anyone wishing to apply for a renewal should do so at least five months before their current DACA status expires.
It may also be helpful for applicants to seek legal assistance from an attorney, a local immigration organization or student services department at school.
Have no significant criminal history. This means none of the following convictions: a felony, a significant misdemeanor or more than two minor misdemeanors.
Form I-821D: Consideration of Deferred Action for Childhood Arrivals.
Form I-765: Application for Employment Authorization.
Form G-28: Notice of Entry of Appearance as Attorney or Accredited Representative.
Form G-1145: E-Notification of Application/Petition Acceptance.
The basic DACA renewal application fee is $495. In a few extreme cases, the applicant may receive exemption from paying this fee.
Applicants who have a criminal record or have been involved in any removal procedures not previously brought to the attention of US Citizenship and Immigration Services (USCIS) in a prior DACA application will need to provide the necessary documentation concerning the nature of the criminal or removal proceedings.
Those whose DACA status expired before September 5, 2016 will have to apply as if they are applying for the first time. This means they may need to submit documentation to confirm their identity, such as a passport or state-issued ID showing date of birth.
Work permit or other form of EAD (Employment Authorization Document). The applicant should submit a copy of this document and keep the original.
The DACA renewal application must be sent to the appropriate USCIS location based on where the applicant lives.
After the USCIS receives the application, they will request that the applicant provide fingerprints to complete a background check.
In certain instances, the USCIS may request more information from the applicant. If this happens, the applicant must comply with the information request before their DACA renewal can be approved.
It hasn’t always been smooth sailing for DACA, which should come as no surprise: political disagreement over the DREAM Act and similar proposed laws is the reason DACA was created in the first place. Like many other things that come out of Washington, DACA represents a variety of compromises. As a result, many attempts have been made to change or eliminate the DACA policy. Many of these legal challenges are still pending a final court decision or are on appeal.
The Obama administration announces the creation of DACA in response to Congress’ inability to pass an immigration law, such as the DREAM Act, that provides comparable benefits to those brought into the United States illegally when they were only children.
The U.S. Citizenship and Immigration Service begins receiving and accepting DACA applications.
President Obama announces his desire to expand DACA to include individuals who entered the United States outside the prescribed time window. This attempt at DACA expansion never went into effect.
Batalla Vidal v. Nielsen is initially filed in New York federal district court concerning the reversal of employment authorization, but later modified in 2018 to challenge the reversal of DACA. Many subsequent cases concerning DACA have been consolidated or merged into this case.
President Trump’s administration announces the termination of DACA. Under the terms of the termination, individuals who filed a first-time or a renewal application by September 5, 2017 would have their applications processed normally. Those whose had their DACA status ending between September 5, 2017 and March 5, 2018 would be allowed to apply for a DACA renewal.
New York v. Trump, et al. is filed in New York federal district court challenging the legality of terminating DACA. This case has been consolidated into the Batalla Vidal v. Nielsen court case.
Regents of the University of California v. Dept. of Homeland Security is filed in California federal district court alleging the termination of DACA is improper.
The National Association for the Advancement of Colored People v. Trump case is filed in federal district court in Washington, D.C. on the basis that the DACA termination is unlawful.
CASA de Maryland v. Trump is filed in federal district court in Maryland concerning the legality of ending DACA. The district court ruled termination of DACA was legal, but that the federal government cannot use information from DACA applications for deportation or other immigration enforcement reasons. Both sides have appealed; this case is currently pending before a federal appeals court.
Court grants preliminary injunction in Batalla Vidal v. Nielsen allowing DACA renewals to continue. This case is on appeal to a federal appeals court, but there has also been a request for the case to be heard before the U.S. Supreme Court before the federal appeals court issues a decision.
The court in NAACP v. Trump concludes that DACA should be reinstated. This would allow not only DACA renewals to take place, but would also provide opportunities for first-time applications as well. However, the portion of the court’s decision concerning DACA first-time applicants is not currently in effect. This case is on appeal to a federal appeals court, although the federal government has requested the U.S. Supreme Court to decide before the federal appeals court does.
The Texas, et al v. Nielsen, et al. case begins in federal district court in Texas. Unlike other court cases where the plaintiffs have challenged whether DACA can be rescinded, this case looks at whether DACA was even legal to begin with.
The court in Texas, et al v. Nielsen, et al. denies a request to stop DACA, allowing DACA renewals to continue. The case is scheduled to proceed at the district court level.
Federal appeals court in Regents of the University of California v. DHS upholds trial court’s granting of preliminary injunction that allows DACA renewals to take place. The federal government has filed an appeal.
Individuals who take advantage of the DACA program may not always have the same opportunities as other students, especially those with citizenship. Fortunately, a variety of organizations exist to help DACA students in many ways, from becoming citizens to paying for college.
American Immigration Council: A nonprofit organization devoted to promoting and supporting immigration in the United States by using the court system, advocating for policy changes and sponsoring cultural exchange programs. This organization’s website also has a variety of articles that explain immigration procedures and laws.
American Immigration Lawyers Association (AILA): The AILA is a professional organization for US attorneys and professors that practice and teach immigration law, but it also has immigration resources, including a lawyer locator and a legal research section.
Immigration Advocates Network: Serves both immigration professionals and immigrants who need more information about the immigration process. Its website also has nationwide directory of free and low-cost legal services.
Immigration Equality: As the primary LGBTQ immigrant rights organization, Immigration Equality offers a plethora of legal and information resources for undocumented immigrants as well as opportunities to get involved by volunteering.
ImmigrationLawHelp.org: An online database to help low-income immigrants find legal assistance in their local area.
Immigrants Rising: Advocates on behalf of undocumented youth to create policy changes; also provides financial resources and a legal intake service.
National Immigration Law Center (NILC): Low-income immigrants are the focus of the NILC. Its services include advocacy and immigration litigation.
TheDream.us: This organization’s mission is to help DREAMers obtain a college degree, largely through the granting of scholarships. Its website also contains valuable tools, including where to get legal help.
United We Dream: Works to help undocumented youth in the United States by empowering them and allowing their voice to be heard. This organization also offers information about obtaining scholarships for college.
U.S. Citizenship and Immigration Services (USCIS): USCIS is the federal government agency that oversees and administers immigration into the United States.
U.S. Department of Education – Resource Guide: Supporting Undocumented Youth: The U.S. Department of Education provides a comprehensive guide to help undocumented students make the most of their primary and secondary education.
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§ 320-24 Erection of more than one principal structure on lot.
§ 320-25 Required street access.
§ 320-26 Exceptions to height regulations.
§ 320-28 General lot and yard requirements.
§ 320-29 Minimum habitable floor area.
§ 320-30 Visibility at intersections.
§ 320-31 Landscaping and screening.
§ 320-33 Temporary structures for dwelling purposes.
§ 320-35 Accessory buildings and structures.
§ 320-36 Fences, walls or hedges.
§ 320-37 Landscaping (retaining) walls.
§ 320-38 Private outdoor swimming pools, spas and whirlpools.
§ 320-39 Ornamental ponds and wading pools.
§ 320-40 Man-made ponds, dams and impoundments.
§ 320-41 Tennis courts and other recreational accessory structures.
§ 320-43 Phone booths, automatic bank teller machines and similar structures.
§ 320-44 Satellite dish antennas.
§ 320-45 Personal ham/amateur radio antennas and towers.
§ 320-46 Refuse collection (dumpster) stations.
§ 320-47 Animals and animal shelters.
§ 320-48 Water supply and sewerage facilities required.
§ 320-49 Nuisances prohibited (general).
§ 320-50 Slope control regulations.
§ 320-51 Public utility corporations.
§ 320-54 Demolition of historic resources.
The provisions of this article shall apply to all uses, development and structures in the Borough, regardless of district, and shall be considered as additional conditions or restrictions to any other provisions in this chapter. To the extent anything contained in this article conflicts with any other provision of this chapter, the most stringent and restrictive provision shall apply.
In any district more than one structure housing a permitted or permissible principal use may be erected on a single lot, provided that yard and other requirements of this chapter shall be met for each structure as though it were on an individual lot. In addition, such proposals shall gain approval for a land development plan and provide individually approved methods of water supply and sewage disposal.
Each principal use hereafter established which involves buildings or structures for human occupancy shall be located and maintained upon a lot which abuts a public or private street or road for a distance of not less than is required in the applicable district.
The height limitations of this chapter shall not apply to church spires; farm structures when permitted by other provisions of this chapter (e.g., silos, barns, etc.); belfries, cupolas, penthouses and domes not used for human occupancy; chimneys, ventilators, skylights, water tanks, bulkhead and similar features; utility poles and standards; and necessary mechanical appurtenances usually carried above the roof level. Such features, however, shall be erected only to such height as is necessary to accomplish the purpose they are to serve and then only in accordance with any other governmental regulations.
In any district any building may be erected to a height in excess of that specified for the district only by a special exception granted by the Zoning Hearing Board.
In all zoning districts other than the R-3 and MU Districts, where an unimproved lot of record is situated between two improved lots the front-yard requirements for the district may be modified so that the front yard may be an average of the adjacent existing front yards. Where an unimproved lot of record is adjacent to one improved lot which was developed prior to the enactment of this chapter the front yard requirements of the unimproved lot may be reduced to be compatible to the existing improved lot setback and required front yard.
Front yards are required on both street frontages, and one yard other than the front yards shall be deemed to be a rear yard, and the other (or others) side yard(s).
The rear yard shall be that yard which is opposite and most distant from the front lot line on the street of address.
Through lots. Where a lot extends through from street to street, the applicable front-yard regulations shall apply on both street frontages. However, in the event of a complete system of through lots which are designed for reversed frontage, the front yard need only be along the more minor street of the subdivision.
Flag lots. Flag lots shall not be created when lots can be designed to provide full frontage along a street. Flag lots shall conform to the requirements of Chapter 265, Subdivision and Land Development.
Irregularly shaped lots. In the case of irregularly shaped lots, the minimum lot width specified in the district shall be measured at the minimum required front building setback line, provided that in no case shall the lot frontage measured at the street right-of-way line be less than 70% of the minimum lot width – except in the following situations: on culs-de-sac or courts or street center-line curves of less than 300 feet radius, where the lot frontage measured at the street right-of-way line shall not be less than 40% of the minimum lot width.
Cornices, canopies, eaves or other architectural features may project into side yards a distance not exceeding 1 1/2 feet in those districts where the minimum required side yard is three feet; and three feet in those districts where the minimum required side yard is greater than three feet.
Bay windows, balconies, fireplaces, uncovered stairways and necessary landings, and chimneys may project a distance not exceeding three feet.
Patios, decks, paved terraces and open porches may be located in side and rear yards, provided that they do not extend closer than three feet from any property line, and may project into front yards not closer than 10 feet to the street right-of-way line. If located closer than 10 feet to any adjacent property line, they shall be screened in accordance with the provisions of this chapter. In case of a corner lot, no such structures shall extend into the required yard adjoining each street closer than 10 feet to the street right-of-way line.
Such structure shall be permitted only when no other feasible location on the lot exists.
Application for approval shall include a sketch of the proposed construction and location of the structure.
Minimum clearance of four feet in width shall be maintained on the sidewalk.
Bus shelters and telephone booths.
Articles of ornamentation or decoration.
All dwelling units must conform to the minimum habitable floor area as required by the applicable codes in effect in the Borough, as they may be enacted and/or amended from time to time.
No obstructions to vision exceeding 30 inches in height above curb level shall be erected or maintained within a seventy-five-foot clear sight triangle formed by the center line of intersecting streets.
Any part or portion of a site disturbed by development activity, which is not used for buildings or other structures, loading and parking spaces and aisles, sidewalks and designated storage areas, shall be planted and maintained with landscaping.
Except for single-family detached, single-family semidetached and two-family detached dwellings, any part or portion of a site, which is not used for buildings or other structures, loading and parking spaces and aisles, sidewalks and designated storage areas, shall be landscaped according to an overall plan, prepared and approved as part of a land development plan required under Chapter 265, Subdivision and Land Development.
In all districts except the R-3 Main Street Residential District, the planting strip shall be 10 feet wide, measured from the property line or street right-of-way line. In the R-3 Main Street Residential District, the planting strip abutting side property lines shall be five feet wide and abutting rear property lines shall be 10 feet wide. Said planting strip shall be planted in grass, shrubbery, trees, or other plant material, or decorative stone, but in no case shall these areas be paved or covered by an impervious surface. Said planting strip shall only be broken by approved entrances or exits.
Accessory buildings or structure shall be permitted within a planting strip, provided they conform to the specific district requirements of this chapter.
Exception. No planting strip is required along a side or rear property line when the side or rear property line abuts a public alley.
Where a proposed commercial, industrial or institutional use abuts an existing residential use or residential district.
Where any proposed multifamily residential use abuts an existing single-family detached, single-family semidetached or two-family dwelling.
Any other instance where screening is required by this chapter.
Screening shall comply with the design requirements of Chapter 265, Subdivision and Land Development.
Exception. No screening is required along a side or rear property line when the side or rear property line abuts a public alley.
Wherever a parking area of over five spaces abuts or is within 15 feet of the side or rear lot line of a lot in any residential district, the parking area shall be screened from such adjoining lot by a substantial wall, fence or thick hedge.
Whenever a parking area of over five spaces is located across the street from other land in any residential district, it shall be screened from the view of such land by a thick hedge, wall or fence, located along a line drawn parallel to the street and a distance of 20 feet therefrom; such screening to be interrupted only at points of ingress and egress.
Service, loading and trash disposal areas.
All service, delivery, loading and outdoor storage and trash disposal areas shall be screened from all residential districts, public streets, parking lots and pedestrian walkways.
These areas shall be totally screened from the above-listed places by the use of fences, walls, berms, evergreen plant material, or a combination of these, not less than six feet in height.
All mechanical equipment not enclosed in a structure shall be fully and completely screened in a matter compatible with the architectural and landscaping style of the remainder of the lot, in accordance with the requirements of Chapter 265, Subdivision and Land Development.
Outdoor storage of raw materials and finished products shall be completely screened from view of any adjacent residential use. Screening shall consist of evergreen plantings, architectural screen, or approved safety fence, in accordance with the requirements of § 320-31.
Outside storage of raw materials and/or finished products shall be permitted only within the buildable area of the lot to the rear of the front building wall of the principal building and shall not exceed 20 feet in height.
All organic refuse or garbage shall be stored in tight, verminproof containers. In multiple-family, commercial, industrial and other nonresidential developments, garbage storage shall be centralized to expedite collection and enclosed on three sides by architectural screen or plantings.
No cabin, mobile home, garage, basement or other temporary structure, whether of a fixed or mobile nature, may hereafter be erected or established for any dwelling purpose for any length of time unless approval for temporary use is granted as a special exception by the Zoning Hearing Board.
However, temporary occupancy of a tent, travel trailer, camper or motor home shall be permitted within an approved campground or for periods of up to 14 days in any calendar year on the property of a friend or relative.
Nothing in this article shall be construed to limit other uses not mentioned so long as they are clearly accessory to the principal permitted use of the land and do not create a threat to the public health, safety and/or welfare of the community.
An accessory building attached to a principal building shall comply in all respects with the yard requirements of this chapter for the principal building.
Detached accessory buildings shall be located to the rear of the front building line of the principal building and shall conform to the side-yard requirements in respect to the principal building.
Detached accessory buildings constructed at the same time may be located in pairs or groups on contiguous lots in the required rear yards along the common side lot line or rear lot line.
Accessory buildings for principal uses other than residential shall be located not closer than 20 feet to any side or rear property line abutting a residential district or lot used for residential purposes.
Detached private garages and carports shall be permitted in any zoning district, provided the following requirements are met.
Maximum height: 20 feet. This maximum height can be increased by a special exception granted by the Zoning Hearing Board.
No temporary structures shall be permitted.
No structure shall be permitted between the building setback line and the street right-of-way line.
No structure shall be located within the minimum side yard of the prevailing district.
No structure shall be located within 10 feet of the rear property line.
Other detached accessory buildings. Other accessory buildings shall be permitted in any zoning district, provided the following requirements are met.
No structure shall be within 10 feet of any property line.
No structure shall be permitted between the building setback line and the street right-of-way.
Detached accessory buildings for permitted attached and semidetached dwellings shall be located no closer than five feet from any side lot line formed by a building party wall.
An accessory building on that portion of a lot not included in any required yard shall conform to the height regulations for principal buildings.
Accessory buildings located in a rear-yard area shall not exceed 20 feet in height and shall be a minimum of 10 feet from the rear property line. This maximum height can be increased by a special exception granted by the Zoning Hearing Board.
Flagpoles shall be limited to 30 feet in height. Zoning permit applications for flagpoles shall include engineering calculations to verify the structural integrity of the base and the capability of the pole to withstand a sustained wind speed of 65 miles per hour without any flag(s) attached.
The structure shall be set back a minimum of 10 feet from all front, side and rear property lines.
The minimum required setback shall be equal to 10 feet plus a distance at least equal to the additional height of the structure above 30 feet.
For example, a forty-foot-high flagpole would require a minimum setback from all property lines of at least 20 feet.
In the R-1, R-2, R-3 and INS Districts, no fence or wall shall exceed four feet in height in any front or side yard or six feet in height in any rear yard. A front fence shall be behind the sidewalk. Fences of wood, metal or masonry may be erected to a height not exceeding eight feet within the side and rear buildable areas of any lot.
No fence shall exceed six feet in height along any side lot line between the front property line and the front setback line, nor across the front of any property in commercial or industrial use forward of the abutting property's front setback line.
Where such lots abut upon property zoned residential, the fences may not exceed six feet in height along lot lines where so abutting without a special exception being granted by the Zoning Hearing Board and, in no case, shall such a special exception permit a fence of greater than eight feet in height.
Fences surrounding tennis courts and other recreational accessory structures (i.e., basketball courts, etc.) may be erected to a height not exceeding 10 feet, subject to the further requirements of § 320-41.
Except for fences surrounding a tennis court or recreational accessory structure under § 320-36C above, no fence shall be erected to exceed eight feet anywhere on any lot in the Borough.
Electric fences are prohibited within the Borough limits.
Barbed/razor wire fences are permitted only when required for security at a utility/essential services facility and only upon approval of the Borough Council as a conditional use.
Unless otherwise regulated, hedges may be permitted in any required yard or along the edge of any yard. However, no hedge along the sides or front edge of any front yard shall be over 30 inches in height and shall not obstruct visibility.
Any hedge placed for the purposes of screening shall be set back off the property line.
No fences, walls or hedges shall be located in the clear sight triangle of any street or public roadway.
Common fences or walls between properties may be installed on the property line, provided the permit application is accompanied by a written agreement between the affected property owners.
In all zoning districts, walls for landscaping purposes may be erected in required yard setbacks but shall not be located closer than two feet from property lines, street and utility rights-of-way, or in clear sight triangles. Landscaping walls shall only be constructed of masonry or landscape timbers and shall be maintained in good condition. Retaining walls up to four feet in height are permitted by right without the requirement for a zoning permit; however, retaining walls in excess of four feet in height do require a zoning permit.
The word "pool" shall have the same meaning as swimming pool, spa or whirlpool and shall be classified as an accessory use. No private swimming pool, spa or whirlpool shall be erected or constructed in the Borough except in accordance with a permit therefor previously obtained from the Zoning Officer upon written application accompanied by a plan showing the size, shape and location of the swimming pool and its enclosure and such other information as may be necessary for the Zoning Officer to determine whether the pool complies with this chapter. Private swimming pools, spas or whirlpools shall be subject to the following conditions in this section.
For the purpose of this section, a private swimming pool, spa or whirlpool shall mean any reasonably permanent pool or open tank not located within a completely enclosed building, whether or not affixed to the land, and containing or normally capable of containing water to a depth at any point greater than two feet. Ponds and/or lakes are not included, provided that swimming was not the primary purpose for their construction.
Such pool may be erected or installed in any required side yard or rear yard, but not in the required front yard.
The pool shall not be located closer to the front of the lot than the front wall of the principal building.
A private swimming pool may not be located, including any walks or paved areas or accessory structures adjacent thereto, closer than 10 feet to any property line of the property on which it is located.
The swimming pool area or the entire property on which it is located shall be so walled or fenced as to prevent uncontrolled access by children and stray animals. Said barrier shall be at least four feet in height, but not in excess of six feet in height, and shall have a self-locking-type gate. Pool cages are also permitted.
An approved temporary construction fence shall be erected around the excavation site during the construction of an in-ground pool and shall remain in place until the permanent fence is installed.
Spas and whirlpools may have alternate means other than fences to prevent unauthorized use.
All swimming pools must be properly filtered and treated with approved treatment during the time they are in use according to the manufacturer's or installer's recommended specifications.
Water shall not be placed into a swimming pool until a certificate of use and occupancy has been issued.
The draining of any pool shall not affect other properties, water or sewerage facilities, or streets.
Open private swimming pools and related bathhouses are considered "structures" for the purpose of this chapter and shall be counted as building area in computing the lot coverage.
All dams, ponds and impoundments may be permitted in the CONS and W Districts, subject to the following.
The dam, pond or impoundment shall be used to impound the water from a watershed of at least 100 acres.
All dams, ponds and impoundments not contiguous to a stream that have an intake, outlet, or both, and/or have an embankment within 50 feet of a stream shall require the obtainment or waiver of a permit from the PADEP Bureau of Dams and Waterways Division of Waterways and Stormwater Management.
All dams, ponds and impoundments shall be located at least 75 feet from any subsurface sewage disposal system or well.
All other dams, ponds and impoundments require the submission of a statement by a qualified engineer that the proposed use is properly constructed and will not pose a threat to the public safety nor the environment during normal flow conditions and those associated with the base flood. All dams shall be constructed to a height of one foot above the water surface elevation occurring during the base flood.
Requirements for fencing. All ponds constructed within areas subject to livestock shall be enclosed by fencing that prevents livestock from trampling the pond's shores and polluting the waters.
Maintenance. All ponds shall be regularly maintained and floating debris shall be removed from all pipes and spillways. All ground cover shall be trimmed. Weeds, brush and trees shall not be permitted to grow on the dam or spillway.
No facility shall be permitted unless it is protected by an open-mesh permanent fence 10 feet in height behind each baseline, extending 10 feet beyond the playing area in each direction.
No facility, including fence, shall be permitted to be located within 10 feet of any property line, nor exceed 10 feet in height, unless approved by special exception from the Zoning Hearing Board.
No facility, including fence, shall be located closer to the front of the lot than the front wall of the principal building.
If lighting is provided, it shall be arranged so that there is no objectionable glare on adjoining properties.
In any residential area, hitching posts may be installed, provided that no part of animal or conveyance is permitted to stand on streets or in the public right-of-way. In all other nonagricultural areas, except as provided for elsewhere in this chapter, animals and conveyances shall be parked only in properly designated areas or at hitching posts installed for such purpose.
Public phone booths, freestanding bank teller machines, and similar structures are be permitted in the R-3 Main Street Residential; MU Mixed Use; HC Highway Commercial and I Industrial Zoning Districts.
Such structures shall not interfere with motor vehicle or pedestrian traffic in any manner.
All applicable federal and state regulations, if any, are observed.
The following types of satellite dish antennas shall be allowed in all districts and shall not require a permit for same, but shall observe setback regulations if applicable.
Dishes that are one meter (39.37 inches) or less in diameter for private TV reception or Internet access.
Dishes used for credit card or other business transactions, usually placed on rooftops.
The location of all satellite dish antenna must comply with the setback restrictions for the principal use and shall not be located in front of the principal building, unless applicable provisions of the Federal Communications Commission would be violated.
All ground-mounted satellite dish antennas located within the Industrial or Highway Commercial District that are used to transmit video-format data shall be completely enclosed by an eight-foot-high nonclimbable fence that includes signage warning of dangerous radiation levels. Any gates within the fence shall be locked when unattended. Satellite dish antennas within the Industrial or Highway Commercial District shall comply with all principal use standards.
Such devices are permitted in any zone as an accessory use to a principal residence, provided that freestanding towers are not located within the front yard and that all towers are set back a horizontal distance from each property line at least equal to their height.
All facilities shall be screened or landscaped and shall be fully enclosed to limit animal access and wind-blown waste.
No required parking areas may be occupied by any refuse collection facility.
No facilities shall be located in any front yard.
In any zoning district, it is permitted to maintain up to three each of the following over 12 months of age: dogs, cats, rabbits and similar small nonfarm animals as domestic pets, provided that it is on a noncommercial basis and the area on which a shelter and/or exercise pen is maintained is suitably enclosed and is located in the rear yard at least 10 feet from any lot line.
In any zoning district, it is permitted to maintain pigeons and fowl up to a total of 12, provided it is in the rear yard; it is on a noncommercial basis and is strictly as an incidental use,; the area in which the fowl or pigeons are kept is enclosed by a fence that will contain them, all parts of which are at least 10 feet from any lot line, and it is not closer than 100 feet to the nearest dwelling other than that of the owner.
A three-acre minimum lot area is required.
The number of such animals shall not exceed the equivalent of one animal unit per acre.
The building or area within which such animals are kept shall be enclosed by a fence or other form of enclosure designed for containment.
Such fence or other form of enclosure shall be at least 50 feet from any lot line and not closer than 100 feet to the nearest dwelling other than that of the owner, unless documentation in the form of a written agreement with the adjoining property owner(s) is provided.
Said animals shall be maintained only within the rear-yard area.
The total area of all shelters and/or enclosures shall not exceed 20% of the total lot area.
All such animals shall be maintained in accordance with the regulations and/or permit requirements of the Pennsylvania Game Commission and other applicable agencies.
The maximum building area occupied by an animal shelter in any zoning district shall not exceed 10% of the combined building areas occupied by all other principal and accessory buildings on the lot.
In the interest of protecting the public health, safety and welfare, every new building or structure hereafter erected upon any premises and used in whole or in part for dwelling, commercial or recreational business or industrial purposes shall be connected to both the public water and the public sewer systems.
No building may be erected, altered or used, and no lot or premises may be used for any activity that is continuously noxious, injurious or offensive by reason of dust, smoke, refuse matter, odor, gas, fumes, noise, vibration, illumination or similar substances or conditions.
The areas to be regulated by these controls are shown generally on the topographic map which is on file in the Borough office; however, these controls shall apply to all areas of the Borough where the conditions are applicable to all zoning districts. It is the purpose of these regulations is to protect slopes, to limit the amount of the removal of natural resources, protect the watershed areas, and to minimize erosion of the soil.
Upon the receipt of an application for a building permit, the Zoning Officer may require that a registered surveyor or professional engineer prepare a site plan, which shall show the degree of slope.
Slope controls. If more than 50% of the minimum required lot area is composed of slopes which exceed 25%, a minimum lot area of one acre is required for each principal building to be constructed.
The provisions of this chapter shall not apply to any existing or proposed building, or extension thereof, used or to be used by a public utility corporation if, upon petition of the corporation, the Pennsylvania Public Utility Commission shall, after a public hearing, decide that the present or proposed situation of the building in question is reasonably necessary for the convenience or welfare of the public. It shall be the responsibility of the Pennsylvania Public Utility Commission to ensure that both the corporation and the Borough have notice of the hearing and are granted an opportunity to appear, present witnesses, cross-examine witnesses presented by other parties and otherwise exercise the rights of a party to the proceedings.
All mobile homes shall be set upon and securely fastened to a permanent foundation of block or concrete, with concrete footings extending at least 36 inches below finished grade that will not heave, shift, settle or move due to frost action, inadequate drainage, or other forces acting on the superstructure. In addition to the foregoing, the mobile home foundation will be provided with devices for anchoring the mobile home to the foundation to prevent overturning or uplift of the mobile home. The anchoring device should be in the form of anchor bolts, fastened securely to the base frame of the mobile home and anchored to the concrete footing with adequate anchor plates or hooks.
All wheels and any removable hitch shall be removed from the mobile home and either removed from the lot or placed within a building.
The construction of all mobile homes shall conform to the requirements of Act No. 69 of the General Assembly of the Commonwealth of Pennsylvania, enacted May 11, 1972, and any other state or federal laws or regulations, and no mobile homes shall be modified or improved without strict compliance with this Act and all other provisions.
An enclosure of compatible design and materials shall be erected around the entire base of the mobile home. Such enclosures shall provide sufficient ventilation to inhibit decay and deterioration of the structure.
In accordance with the requirements of Section 603(f) of the MPC, as amended by Act 68 of 2000, forestry, including the harvesting of timber, is permitted as of right in all zoning districts within the Borough, subject to the provisions generally applicable to all uses in the district in which such land is located. If in the future the General Assembly amends the MPC to repeal Section 603(f) or to remove the requirement that forestry be permitted in all zoning districts in every municipality, this section will be of no further force or effect.
Editor's Note: Former Section 632, Floodplain regulations, which immediately followed this section, was repealed 3-1-2016 by Ord. No. 385. See now Ch. 140, Floodplain Management, for regulations.
That it is not feasible to continue the current use.
That other uses permitted within the underlying zoning district, either as permitted uses, special exception uses, or conditional uses, have been denied or are not feasible due to constraints on the building or structure.
That adaptive-use opportunities do not exist due to constraints related to the building, structure or property.
That the building, its permitted uses, and adaptive-use potential does not provide a reasonable rate of return, based on a reasonable initial investment.
That the applicant has not contributed to the existing conditions, either through neglect or prior renovation, conversion, alteration or similar physical action.
That the demolition will not adversely affect the character of the neighborhood or community.
That any proposed new building(s), structures(s) or use(s) of the property will not adversely affect the character of the neighborhood or community.
That the building is structurally unsound.
No permit for the demolition or moving of a historic feature from its original foundations shall be issued until the Borough Council has reviewed the request and approved the request as a conditional use.
Any historic resource that has been approved for demolition shall be photo-documented to provide a permanent historical record of what existed on that property. Photos shall include all exterior elevations and architectural features as well as a sufficient number of interior photos to convey the interior layout of the building. A photo key should also be provided. In addition, the applicant is encouraged to have the building dismantled and salvaged for reusable building materials and architectural features.


Facts: Mother, with one child already, gave birth to twins in 2005. At that time, mother and children tested positive for cocaine. Court appointed TDFPS as SMC of all three children. TDFPS created a service plan that parents did not adequately follow. In 2/07, case proceeded to bench trial. Trial court terminated both parents’ rights to the twins and appointed mother’s mother as SMC of older child. On 2/21/27, mother’s counsel filed notice of appeal and motion to withdraw. On 2/22/07 father’s counsel did same. Neither filed a statement of points as required by TFC § 263.405. Trial court appointed replacement counsel after the fifteen day deadline set out in TFC § 263.405(b). Parents appealed, claiming ineffective assistance of counsel and insufficiency of the evidence. Appellate court reversed and remanded on the termination of father’s parental rights, declaring TFC § 263.405 unconstitutional for blocking consideration of parent’s ineffective assistance claims. TDFPS appealed appellate court’s ruling.
Held: Modified and remanded to trial court.
Texas Supreme Court Opinion: TEXAS FAMILY CODE § 107.013(a)(1) grants a right to counsel in parental termination cases. The right to counsel is the right to effective counsel. Trial counsel’s failure to preserve error is examined under the procedural due process standard. Matthews v. Eldridge, 424 US 319, 335 (1976). The court weighs 1) private interests; 2) governmental interests and; 3) the risk of erroneous deprivation of parental rights. The court then balances the result against a presumption of constitutionality. Pursuant to In re M.S., 115 S.W.3d 534, this analysis heavily favors allowing review in parental termination cases. Due process consideration prohibit waiver of a complaint due to error by counsel. Since father’s counsel’s failure to file a statement of points fell below an objective standard of reasonableness, and since TEXAS FAMILY CODE § 263.405(i) requires waiver as a result of counsel’s error, TEXAS FAMILY CODE § 263.405(i) is unconstitutional.
Concurrence (Willett, J.): Trial courts should take steps to prevent intentional ineffective assistance of counsel. Possible steps include 1) issuing unambiguous instructions after trial setting out steps to preserve appeal; 2) reminding trial counsel that they still have duties after trial and; 3) punishing attorneys who commit ineffective assistance of counsel.
Dallas family lawyer are aware that the constitutionality of the statement of points requirement in government termination cases has been questioned thoroughly over the past couple of years. The courts of appeals have conflicting determinations on the issue. The Texas Supreme Court has multiple cases pending on the issue as well. JOA does nothing to resolve the issue with any permanency. JOA declares the statement of points statute unconstitutional as applied in this case. Here father’s trial attorney failed to timely file the statement of points and since father actually had a meritorious appellate issue on insufficiency of the evidence to support termination of his rights, the trial attorney was found to be ineffective for the failure, thus causing reversal of the termination. An ineffective assistance of counsel claim has two prongs, not only that the attorney failed in some duty owed, but also that the underlying claim would have been meritorious but for the attorney’s failure.
Texas Lawyer reporter John Council interviews Michelle May O’Neil regarding the Texas Supreme Court’s recent opinion in J.O.A. case.