[HISTORY: Adopted by the Governing Body of
the Town/Village of East Rochester 2-13-1995 by L.L. No. 3-1995 (Ch.
144 of the 1983 Code). Amendments noted where applicable.]
The Board of Trustees has determined that there
exists in the Town/Village of East Rochester serious conditions arising
from the rental of dwelling units that are substandard or in violation
of the New York State Uniform Fire Prevention and Building Code and
other codes and ordinances of the Town/Village, that are inadequate
in size, overcrowded and dangerous, that pose hazards to life, limb
and property of residents of the Town/Village and others, that tend
to promote or encourage deterioration of the housing stock of the
Town/Village, create blight, excessive vehicle traffic and parking
problems and that tend to overburden municipal services. The Board
finds that current Code provisions are inadequate to halt the proliferation
of such conditions and that the public health, safety, welfare, good
order and governance of the Town/Village will be enhanced by enactment
of the regulations set forth in this chapter, which regulations are
remedial in nature and effect.
As used in this chapter, the following terms
shall have the meanings indicated:
The New York State Uniform Fire Prevention and Building Code.
The Building Inspector, Fire Marshal or Fire Inspector of
the Town/Village of East Rochester or his or her delegates or assistants.
A structure or building or part thereof or an area, room
or rooms therein, occupied or to be occupied by one or more persons
as a home or residence.
The owner or any other person having the right to control
the possession of a dwelling unit.
A violation of New York State law or this Code as follows: § 144-13 of this chapter; New York Penal Law Article 20, assault and related offenses; Penal Law §§ 165.40 to 165.65, criminal possession of stolen property; Penal Law Article 220, controlled substances offenses; Penal Law Article 221, offenses involving marihuana; Penal Law Article 240, offenses against public order; Penal Law §§ 260.20 and 260.21, unlawfully dealing with a child; Alcoholic Beverage Control Law § 90, Special permits, § 100, alcoholic beverages generally; provided, however, that the grounds for determining a substantial risk to public safety or a repeated public nuisance violation for the purposes of § 144-13A(4) or (5) of this chapter does not include any request for police protection or any police intervention in the face of a threat or a perceived threat to person or property, or any request for the assistance of the police to enforce a court order, including, but not limited to, circumstances in which the conviction, request for assistance or other police intervention arises from an incident relating to domestic violence, dating violence, sexual assault or stalking against any person at or near the premises.
[Added 11-9-2009 by L.L. No. 2-2010; amended at time of
adoption of Code (see Ch. 1, General Provisions, Art. I)]
A return, in money, property or other valuable consideration
(including payment in kind or for services of other thing of value),
for use and occupancy or the right to use and occupancy of a dwelling
unit, whether or not a legal relationship of landlord and tenant exists
between the owner and the occupant or occupants thereof.
The occupancy or use of a dwelling unit by one or more persons
as a home or residence under an arrangement whereby the occupant or
occupants thereof pay rent for such occupancy and use.
A.
Scope. This chapter shall apply to all rental dwelling
units located within the Town/Village other than one located at premises
where such owner resides and bearing the same tax account number,
whether or not the use and occupancy thereof shall be permitted under
the currently applicable use regulations for the zoning district in
which such rental dwelling unit is located, as in this chapter provided.
B.
Applicability. The provisions of this chapter shall
be deemed to supplement applicable state and local laws, ordinances,
codes or regulations, and nothing in this chapter shall be deemed
to abolish, impair, supersede or replace existing remedies of the
Town/Village, county or state or existing requirements of any other
applicable state or local laws, ordinances, codes or regulations.
In case of conflict between any provision of this chapter and any
applicable state or local laws, ordinances, codes or regulations,
the more restrictive or stringent provision or requirement shall prevail.
It shall be unlawful and a violation of this
chapter for any person who owns a dwelling unit in the Town/Village,
other than one located at premises where such owner resides and bearing
the same tax account number, to establish, maintain, use, let, lease,
rent or suffer or permit the occupancy and use thereof as a rental
occupancy without having first obtained a permit for such rental occupancy
from the Building Department of the Town/Village as hereinafter provided.
A.
Application for a rental occupancy permit for a rental
dwelling unit shall be made, in writing, to the Building Department
on a form provided by the Building Department for that purpose.
B.
Such application shall be filed, in duplicate, and
shall contain:
(1)
The name, address and telephone number of the owner
of the dwelling unit intended for rental occupancy.
(2)
The street address and tax account number of the premises
intended for rental occupancy or the premises in which the rental
dwelling units intended for occupancy are located.
(3)
The number of rooms in the structure and in each proposed
rental dwelling unit therein and a description of the present use
or uses thereof.
(4)
A description of each dwelling unit intended to be
established, used or occupied for rental occupancy in the premises,
including the number of dwelling units and the number of persons intended
to be accommodated by and to reside in each such dwelling unit.
(5)
The name, address and telephone number, if any, of
the managing agent or operator of each such intended rental dwelling
unit.
C.
Such application shall be signed by the owner of the
premises or his designee and shall be affirmed or verified under oath.
D.
Such application shall be accompanied by the following:
(1)
A property survey or tape location map or other drawing
acceptable to the Code Enforcement Officer.
(2)
If not shown on the survey, a site plan, which may
be hand drawn approximately to scale, showing all buildings, structures,
walks, drives and other physical features of the premises and the
number, location and access of existing and proposed on-site vehicle
parking facilities.
The Code Enforcement Officer shall review each
application for completeness and accuracy and shall make an on-site
inspection of the proposed rental dwelling unit or units. If satisfied
that the proposed rental dwelling unit or units, as well as the premises
in which the same are located, comply substantially with all applicable
laws of the state and local laws, ordinances, rules and regulations
of the county and the Town/Village and that such rental dwelling unit
or units would not create an unsafe or dangerous condition or create
an unsafe or substandard structure as defined in the Building Code
or create a nuisance to adjoining or nearby property, the Code Enforcement
Officer shall issue the permit or permits applied for.
All permits issued pursuant to this chapter
shall continue to be valid unless revoked or terminated.
It shall be the duty of the Code Enforcement
Officer to maintain a register of permits issued pursuant to this
chapter.
A.
On-site parking. The premises shall provide a minimum
of one on-site parking space for the structure in which the rental
dwelling units are to be located and one additional on-site parking
space for each proposed rental dwelling unit therein. Such parking
spaces shall be paved with asphalt, concrete, stone or other similar
materials. The applicant for a rental dwelling unit permit may be
excused from complying with the requirement to provide such minimum
number of on-site parking spaces to the extent that compliance therewith
shall not be possible due to the size, configuration, topography or
structure coverage of the plot on which such building or structure
is located. However, where partial compliance with such on-site parking
requirements shall be possible, the applicant shall make such partial
compliance with such on-site parking requirements as is possible,
given the size, configuration, topography or structure coverage of
the plot.
B.
No rental permit shall be issued for a rental dwelling
unit consisting of one room only unless such room shall provide a
minimum clear floor area of 100 square feet.
A.
The Code Enforcement Officer is authorized to make
or cause to be made inspections, from time to time, to determine the
condition of rental dwelling units and to safeguard the health, safety,
morals and welfare of the public. The Code Enforcement Officer is
authorized to enter, upon consent of the owner or occupant and upon
notice to the owner, any rental dwelling unit and the premises in
which the same is located, for the purpose of performing his duties
under this chapter, at any reasonable time during daylight hours or
at such other time as may be necessary in an emergency and only for
the purposes of that emergency without the consent of the owner or
occupant. It shall be a condition of each rental occupancy permit,
expressly stated therein, that the Code Enforcement Officer shall
have the right to inspect each permitted rental dwelling unit during
the term of the permit, in accordance herewith, for the purpose of
performing his duties under this chapter.
B.
No rental permit shall be issued or continued where
an inspection discloses that the dwelling is unfit for human habitation
or where conditions exist therein which are dangerous to the health,
safety or welfare of the occupant thereof or of the residents of the
municipality. Such conditions may include but are not limited to those
which create a fire hazard, danger of accident or casualty, lack of
adequate ventilation, lack of light or sanitary facilities, dilapidation,
disrepair or structural defects, uncleanliness and the like.
The Code Enforcement Officer is authorized,
on sworn affidavit stating the factual bases therefor, to make application
to the Court of the Town/Village of East Rochester or to such other
court as may be deemed appropriate for the issuance of a search warrant
to be executed by a police officer, in order to conduct an inspection
of any premises covered by this chapter where the owner or occupant
refuses or fails, after due notice by certified mail, to allow an
inspection of the rental dwelling unit or premises and where there
is reasonable cause to believe that a violation of this chapter or
a violation of the Multiple Residence Law, the New York State Uniform
Fire Prevention and Building Code or the Code of the Town/Village
of East Rochester exists. The application for a search warrant shall,
in all respects, comply with applicable laws of the State of New York.
[Amended 3-11-1996 by L.L. No. 1-1996; 12-12-2005 by L.L. No.
5-2005; 11-13-2006 by L.L. No. 2-2006; 11-9-2009 by L.L. No.
2-2010]
A.
The Code Enforcement Officer may revoke a rental dwelling permit
upon the following grounds and subject to the following safeguards:
(1)
Current violations of applicable codes. The rental dwelling permit
may be revoked when the permit holder has caused, permitted, suffered
or allowed to exist and remain upon the premises for which such permit
has been issued, for a period of 10 days or more after written notice
to the permit holder or the managing agent of such rental dwelling
unit, a health or safety violation of the Multiple Residence Law,
New York State Uniform Fire Prevention and Building Code or the Code
of the Town/Village of East Rochester.
(2)
Refusal to permit authorized entry. The rental dwelling permit may
be revoked when the permit holder has refused permission to the Code
Enforcement Officer, after written request, to make an inspection,
at a reasonable time, or in an emergency at any time, of the premises
in which such rental dwelling unit has been permitted, in order to
determine the condition of the same or otherwise to discharge the
duties of such Code Enforcement Officer under this chapter; provided,
however, that, absent an emergency, no occupant demanding production
of a judicial warrant requiring the inspection of the premises shall
be required to grant permission for a Code Enforcement Officer to
enter the premises without such warrant.
(3)
Fire, electrical and heating hazards. The rental dwelling permit
may be revoked when the permit holder has failed to correct a serious
fire hazard or electrical violation or failed to provide heat for
an apartment unit in accordance with code requirements following reasonable
notice and an adequate opportunity to correct the same.
(4)
Substantial risks to public safety. The rental dwelling permit may be revoked when the permit holder has been found pursuant to an adjudication by the Town Court or other court of competent jurisdiction to have caused, permitted, suffered or allowed to exist and remain upon the premises conditions or behavior that constitutes a substantial risk to public safety or the safety of individuals, including, but not limited to, the use or attempted use of weapons; the use, possession, manufacture, sale or distribution of controlled substances; criminal activity. An action in court seeking revocation pursuant to this subsection shall be based upon the recommendation of the Chief of Police, and no such action shall be maintained against any person who has been the victim or target of the alleged violence or other unlawful or threatening behavior or pursuant to the definition of "public nuisance violation" contained in § 144-2.
(5)
Repeated public nuisance violations. The rental dwelling permit may
be revoked when:
(a)
The permit holder has been determined by a court of competent jurisdiction to have committed a "repeated public nuisance violation," as described in this subsection, which shall be a civil violation of this code. A repeated public nuisance violation exists when an owner has caused, permitted, suffered or allowed to exist and remain upon the premises conditions or circumstances such that any police agency has, or combination of police agencies have, responded to the premises for a matter involving an alleged public nuisance violation, as defined in § 144-2, three times or more within a twelve-month period, with at least one of those public nuisance violations having resulted in a conviction by a court of competent jurisdiction.
(b)
No rental dwelling permit shall be revoked by the Code Enforcement Officer under this Subsection A(5) unless recommended by the Chief of Police of the Town/Village of East Rochester.
(c)
In order for any matter to be considered as a public nuisance violation for the purposes of establishing a repeated public nuisance violation under this Subsection A(5), the Code Enforcement Officer must have first provided a written notice of intent to the occupant(s) and the permit holder(s) regarding each such matter, advising of the possible consequences of a determination of a repeated public nuisance violation as defined in Subsection A(5)(a), including the possible revocation of the rental permit as provided for in this section.
(d)
No rental dwelling permit shall be revoked by the Code Enforcement Officer under this Subsection A(5) unless the opportunity has been provided for informal reviews or appeals as follows:
[1]
Informal review. When an incident has occurred in which the
police were summoned to the premises for a matter possibly constituting
a public nuisance violation, and which the Code Enforcement Officer
intends to consider in connection with any future determination as
to the existence of grounds for the possible withdrawal of a rental
dwelling permit, the Code Enforcement Officer shall send a notice
of intent to the occupants of the premises. The notice of intent shall
advise the occupant and permit holder of the right to request an informal
review of the proposed action and that such request shall be submitted
within 15 days of the receipt of the notice of intent and sent directly
to the Code Enforcement Officer. Within 15 days of the receipt of
that request, and after investigation of all pertinent facts, the
Code Enforcement Officer shall respond in writing to the occupant
or permit holder, either confirming that he or she believes there
is a sufficient basis to proceed or, alternatively, withdrawing the
notice of intent.
[2]
Appeal to Board. In the event the Code Enforcement Officer confirms
that there is sufficient basis to believe that a public nuisance violation
or violations have occurred, the occupant(s) and/or permit holder(s)
shall have the right to file a request for a formal review of the
alleged public nuisance violation(s) to the Board of Trustees by submitting
a written request to the Board within 15 days of receipt of the determination
of the informal review by the Code Enforcement Officer. The Board
shall review the matter within 30 days at a duly convened meeting
of the Board at which the occupant(s) and/or permit holder(s) shall
have a right to explain the events or any mitigating circumstances
surrounding the alleged violation(s), and, if necessary, to call witnesses,
and submit any documents or additional evidence for the Board's consideration.
Within 30 days of the Board's review, the Board shall issue a written
decision determining whether, for the purposes of the further consideration
of the revocation of the rental dwelling permit, a public nuisance
violation or violations have occurred.
B.
Prior to the revocation of a rental dwelling permit under this section, the Town/Village shall bring an enforcement action in the Town Court or other court of competent jurisdiction to determine whether the conduct complained of constitutes a violation sufficient to serve as the basis for such revocation. All non-owner occupants who would be affected by the revocation of the rental dwelling permit shall be given notice and the opportunity to appear in such action. In the event the court determines that a sufficient violation of this section has occurred, the Code Enforcement officer shall revoke the rental permit for the unit(s) in question and the owner shall be required to remove the residents as provided for in Subsection D.
C.
Notwithstanding the determination of a court of competent jurisdiction
that a violation of this code has occurred authorizing the revocation
of the rental dwelling permit by the Code Enforcement Officer, the
Board of Trustees, for good cause shown, may stay or vacate the enforcement
of any revocation for such period as it deems appropriate, or permit
the occupants to continue to reside on the premises upon such terms
and conditions as the Board deems just.
D.
In the event of a revocation of a permit under this section, within
30 days the owner shall institute a legal action or proceeding in
a court of competent jurisdiction seeking the removal of the occupant(s)
from the premises and, in the event the court orders the removal of
the occupant(s), shall be prohibited from renting the premises or
any other apartment within the dwelling or on the premises to the
occupants so removed. In the event the court determines not to order
the removal of the occupants, the Town/Village shall take no further
action to encourage or require the owner to terminate the tenancy
or vacate the premises, and the Town/Village shall take no further
action to require those occupants to vacate the premises based upon
the incidents reviewed by that court.
E.
Subsequent to any rental unit having been vacated based on revocation
of a rental dwelling permit, such unit shall not be reoccupied until
the unit has been inspected and a new permit has been issued.
[Amended 11-9-2009 by L.L. No. 2-2010]
Any permit holder, whether a person, firm or corporation, who
or which shall violate any of the provisions of this chapter shall,
upon conviction, be punished by a fine not to exceed $250 or by imprisonment
for a term not exceeding 15 days, or both. A separate offense shall
be deemed committed on each day during or on which a violation occurs
and continues.
