[HISTORY: Adopted by the City Council of the City of Canandaigua 12-7-2017 by Ord. No. 2017-002.[1]. Amendments noted where applicable.]
GENERAL REFERENCES
Unsafe buildings — See Ch. 300.
Noise — See Ch. 494.
Housing standards — See Ch. 748.
[1]
Editor's Note: This ordinance also repealed former Ch. 496,
Nuisance Properties, adopted 10-6-2016 by Ord. No. 2016-010.
Nuisance properties negatively impact the general health, safety,
and welfare of the community. The negative impacts of nuisance properties
are exacerbated when the persons responsible for such properties fail
to take timely corrective action to abate a nuisance condition. Repeated
service calls to properties with unabated nuisance conditions create
a significant financial burden for the City. This chapter is enacted
to provide a process for ensuring the abatement of nuisance conditions
on properties within the City. This chapter is not the exclusive remedy
of the City, and the City may avail itself of any other remedy available
under state or local law.
For purposes of this chapter, the following words or phrases
shall have the meanings prescribed below.
To repair, replace, remove, destroy, or otherwise remedy
a condition that constitutes a violation of this chapter by such means,
and in such a manner and to such an extent, as the applicable City
department head or designee determines is necessary in the interest
of the general health, safety and welfare of the community.
For purposes of this chapter only, the City Manager for the
City of Canandaigua and/or his/her designee(s).
The ability to regulate, restrain, dominate, counteract,
or govern property or conduct that occurs on a property.
Any violation of state or local law occurring on a property
that results in a ticket, citation, or arrest, except where the responsible
party, as defined herein, is the victim of a crime that was committed
on the property, or within 200 feet of the property, and would otherwise
qualify as a nuisance activity.
A property on which, or within 200 feet of which, three or more
nuisance activities, as defined herein, occur within any consecutive
ninety-day period; and/or
A property on which, or within 200 feet of which, six or more
nuisance activities, as defined herein, occur within any consecutive
twelve-month period.
Any natural person, joint venture, partnership, association,
club, company, corporation, business trust, organization, or entity,
including any manager, lessee, agent, officer, or employee of any
of them.
Any person(s), as defined herein, who owns, occupies, or
controls the property, including any developer, builder, or operator
of the property.
Any public or private building, structure, lot, parcel, dwelling,
rental unit, real estate, or land or portion thereof, including property
used as residential or commercial property.
Any property within the City that qualifies as a nuisance property
under the terms of this chapter shall be in violation of this chapter
and subject to its remedies. In addition, any person responsible for
a nuisance property under the terms of this chapter shall be in violation
of this chapter and subject to its remedies.
A.
When the City Manager receives documentation from a police agency
or City official indicating that a property is a nuisance property,
the City Manager shall review such documentation and determine whether
the property qualifies as a nuisance property. Upon such a determination,
the City Manager shall provide the person responsible with a written
warning that the property is in danger of being declared a nuisance
property. The warning shall contain each of the following items:
(1)
The street address of the property or a legal description sufficient
for identification of the property.
(2)
A concise description of the nuisance activities that exist, or that
have occurred, on the property.
(3)
A demand that the nuisance activities be abated within 30 days of
the date of the warning.
(4)
An offer to discuss with the City Manager alternative plans to abate
the nuisance activities on the property, subject to the sole discretion
of the City Manager to approve any such alternative abatement plan.
(5)
Notice that failure to abate the nuisance activities within 30 days
of the date of the warning, or agree on an alternative abatement plan
approved by the City Manager within 30 days of the date of the warning,
may result in fines under this chapter and/or the commencement of
legal action that may, among other things, seek the closure of the
property.
B.
The City Manager shall post on the property a copy of any warning
and/or notice of violation and/or notice of fine issued under this
chapter and shall send the same via United States Mail to the person
responsible and the owner(s) of the property at the address indicated
for the owner(s) on the most recent tax assessment roll.
C.
If the person responsible fails to timely respond to the warning or receive additional time from the City Manager to abate the nuisance activities on the property, the City Manager shall issue a notice of violation declaring the property to be a nuisance property and imposing on the person responsible a civil infraction fine in an amount not to exceed $1,000, but in no event shall the fine be less than $750. Such notice of violation shall be provided to the person responsible as set forth above in § 496-4B.
D.
If the person responsible fails to abate the nuisance activities
within 30 days of the date of the notice of violation, the City Manager
shall:
(1)
Impose an additional civil infraction fine in the amount of $100 per day until the nuisance activities on the property are abated and provide notice of the fine to the person responsible as set forth above in § 496-4B; and
(2)
Refer the matter to the Office of Corporation Counsel for further
action, including the commencement of legal action against the person
responsible.
E.
If at any point during the procedure for declaring a nuisance property
the person responsible agrees with the City on a plan to abate the
nuisance activities on the property, subject to the sole discretion
of the City Manager to approve any such abatement plan, any accruing
daily fines shall be tolled. Notwithstanding the foregoing, all accrued
fines shall be due and owing by the person responsible, regardless
of any plan accepted by the City Manager to abate the nuisance activities
on the property.
F.
It is a defense to an action or fine under this chapter that the
person responsible, at all material times, could not, in the exercise
of reasonable care or diligence, determine that the property had become
a nuisance property, or could not, in spite of the exercise of reasonable
care and diligence, control the conduct leading to the determination
that the property is a nuisance property.
A.
Once the City Manager refers a nuisance property to the Office of
Corporation Counsel, the Corporation Counsel shall promptly review
the matter and make a determination whether to initiate legal action
against the property and/or the person responsible.
B.
The Corporation Counsel may initiate legal action against a nuisance
property and/or the person responsible in any court of competent jurisdiction,
and seek civil penalties and costs for the abatement of the nuisance,
including injunctive relief, whether temporary, preliminary, or permanent,
via a court order closing the property during the pendency of the
action and/or until the nuisance activities are abated, but in no
event for longer than one year after a final judgment in any such
action.
C.
In determining whether a property shall be deemed a nuisance property
and subject to the court's jurisdiction, the City shall have
the initial burden of proof to show by a preponderance of the evidence
that the property is a nuisance property.
D.
Once the court determines that the property is a nuisance property
under this chapter, the court may impose a civil penalty, in addition
to any civil infraction fines previously imposed by the City Manager,
against any person responsible, and may order any other relief deemed
appropriate. In assessing the civil penalty, the court may consider
the following factors, citing to those found applicable:
E.
The court that determined the property to be a nuisance property
shall also assess costs against the person responsible in an amount
equal to the cost to the City to abate, or attempt to abate, the nuisance
activities on the property.
F.
If the court determines the property to be a nuisance property, the
court shall order the property closed and secured against all unauthorized
access, use, and occupancy for a period up to one year after a final
judgment in the action and shall also assess costs against the person
responsible in an amount equal to the cost to the City to secure and
close the property. Once a determination has been made by the court
that the nuisance property shall be subject to closure, the court
may authorize the City to physically secure the premises and initiate
such closure.
G.
Any civil judgment awarding monetary relief to the City may be filed
with the City Treasurer, who shall cause the same to be filed as a
lien on the subject property. The City shall file a formal lis pendens
notice on the subject property when any legal action is commenced
under this chapter.
H.
The court shall retain jurisdiction during any period of closure
or abatement of the property.
Nothing in this chapter prohibits the City from taking any emergency
action for the summary closure of property when it is necessary to
avoid an immediate and substantial threat to the general health, safety,
and welfare of the community. The City may take summary action to
close property without complying with the notification provisions
of this chapter, but shall provide such notice as is reasonable under
the circumstances.
