The Common Council of the City of Oneonta finds that public nuisances
exist in the City of Oneonta in the operation of certain residential premises
and commercial establishments and the use and alteration of residential and
commercial property, in violation of the building code, zoning regulations,
health laws, multiple dwelling law, penal laws regulating obscenity, prostitution
and related conduct, gambling, controlled substances and dangerous drugs,
possession of stolen property and licensing laws. All of these interfere with
the interest of the public in property values, public health, safety and welfare,
and the quality of life and community environment. The Common Council further
finds that the continued occurrence of such activities and violations is detrimental
to the health, safety and welfare of the people of the City of Oneonta and
of the businesses thereof and visitors thereto. It is the purpose of the Common
Council to create one standardized procedure for securing legal and equitable
remedies relating to the subject matter encompassed by this chapter, without
prejudice to the use of procedures available under existing and subsequently
enacted laws, and to strengthen existing laws on the subject.
This chapter shall be known as the "Property and Building Nuisance Reform
Law."
As used in this chapter, the following terms shall have the meanings
indicated:
ADVERSE IMPACT
Includes, but is not limited to, the following:
A.
Any search warrants served on the property where the illegal sale of
alcohol or controlled substances, cash used in the sale of a controlled substance
to any person or of alcohol to a minor and/or weapons were seized.
B.
Investigative purchases of alcohol or controlled substances on or near
the property by law enforcement agencies or their agents.
C.
Arrests for violations relating to the illegal sale or use of alcohol
or any arrests for violation of the Controlled Substance Law and/or possession
of weapons.
D.
Loitering for the purposes of engaging in illegal activity.
E.
An increase in the volume of traffic associated with property.
F.
Complaints made to law enforcement officials of illegal activity associated
with the property.
G.
Finding of illegal weapons, as defined in § 265 of the Penal
Law, or controlled substances, as defined in Articles 220 and 221 of the Penal
Law, on or near property by law enforcement officials and their agents.
BUILDING
A structure where space is covered or enclosed for the use, shelter,
storage or protection of persons, animals, chattel or property of any kind,
and which is permanently affixed to the land.
BUILDING, ACCESSORY
A building subordinate to the principal building on the lot and used for purposes which are clearly related but incidental to that of said principal building. (See §
300-4 of the Zoning Code of the City of Oneonta.)
BUSINESS
An activity, occupation, employment or enterprise which requires
time, attention, labor and material and wherein merchandise is exhibited or
sold, or services offered.
BUSINESS OFFICE
A building or portion thereof utilized to accommodate the activities
of a business.
CONVICTION
The entry of a plea of guilty to, or a verdict of guilty upon, an
accusatory instrument or to one or more counts of such instrument.
KNOWLEDGE OF PUBLIC NUISANCE
The presumption of knowledge provided by Subdivision 1 of § 235.10
of the Penal Law shall be applicable to this chapter. Notice, by mail or personal
services, of activities entailing a public nuisance, to the property owner
of record shall be evidence of knowledge of the public nuisance.
LOT
A parcel of land with or without buildings or structures, delineated
by lot line and having access to a street as defined in this chapter.
PUBLIC NUISANCE
Includes, but is not limited to:
A.
Any building, accessory building, business office, lot or yard used
for the purpose of illegal drug or alcohol use, possession or distribution,
and/or loitering for the purpose of unlawfully using or possessing controlled
substances as defined in Articles 220, 221 and § 240.36 of the Penal
Law.
B.
Any building, accessory building, business office, lot or yard used
for the purposes of prostitution, as defined in § 230.00 of the
Penal Law, and loitering for the purposes set forth in § 240.37
of the Penal Law.
C.
Any building, accessory building, business office, lot or yard used
for the purposes of loitering, as defined in § 240.35 of the Penal
Law.
D.
Any building, accessory building, business office, lot or yard used
for the purposes of obscene performances and/or promotion of obscene material
as defined in Article 235 of the Penal Law.
E.
Any building, accessory building, business office, lot or yard used
for purposes of a business, activity or enterprise which is not licensed as
required by federal, state or local law and/or ordinance.
F.
Any building, accessory building, business office, lot or yard used
for the purpose of unlawful activities described in § 106.6 and/or
§ 123 of the Alcohol Beverage Control Law (Unlawful sale, manufacture
or consumption).
[Amended 3-20-2001 by Ord. No. 6-2001]
G.
Any building, accessory building, business office, lot or yard used
for the purpose of gambling activities described in Article 225 of the Penal
Law.
H.
Any building, accessory building, business office, lot or yard wherein
there exists or is occurring a violation of the Zoning Code of the City of
Oneonta.
I.
Any building, accessory building, business office, lot or yard wherein
there is or has occurred a criminal nuisance as defined in §§ 240.45
and 240.46 of the Penal Law.
J.
Any building, accessory building, business office, lot or yard wherein
there is or has occurred a violation of the provisions of §§ 165.40,
165.45 and 165.50 (Criminal possession of stolen property), 170.65 (Forgery
of vehicle identification number), 170.70 (Illegal possession vehicle identification
number) or 175.10 (Falsifying business receipts) of the Penal Law or § 415-a
(Vehicle dismantlers) of the Vehicle and Traffic Law.
K.
Any building, accessory building, business office, lot or yard used
for the purpose of, or to aid in, the commission of a violation of Article
265 of the Penal Law (Firearms and Other Dangerous Weapons).
L.
Any building, structure or place which is in violation of the Code of City of Oneonta, Chapter
158 (Housing Code).
M.
Any building, accessory building, business office, lot or yard used
for the purpose of animal fighting, as defined in § 351 of the Agriculture
and Markets Law of the State of New York.
TESTIMONY
Oral, written or other documented evidence tending to show or prove
the truth of the matter asserted.
VIOLATION
Conduct, or evidence of conduct, prohibited under this chapter. A
violation does not require criminal prosecution and conviction but only a
preponderance of evidence that the prohibited conduct is occurring or has
occurred. Evidence of prohibited conduct may include, but is not limited to,
police reports, investigative reports, execution of search warrants, results
of police surveillance, arrest and/or conviction of local and state and federal
laws, activities associated with trafficking of controlled substances, finding
of weapons and/or controlled substances on or near the property, and an increase
in the volume of traffic associated with the property.
YARD
An open area on a lot which is open to the sky that is unoccupied
by any land use or activity except as may otherwise be provided in the zoning
regulations for the City of Oneonta.
This article shall be applicable to the public nuisances defined in Article
I of this chapter.
The City Attorney shall bring and maintain a civil proceeding in the
name of the city for the following types of relief:
C. Temporary restraining order.
The City Attorney shall name as defendants the building, structure or
place wherein the public nuisance is being conducted, maintained or permitted,
by describing it by Tax Map number and/or street address and at least one
of the owners of some part of or interest in the property.
In rem jurisdiction shall be complete over the building, structure or
place wherein the public nuisance is being conducted, maintained or permitted
by affixing the summons to the door of the building, structure or place and
by mailing the summons by certified or registered mail, return receipt requested,
to one of the owners who possesses some part of or an interest in the property.
Proof of service shall be filed within two days thereafter with the clerk
of the court designated in the summons. Service shall be complete upon such
filing.
Defendant(s), other than the building, structure or place wherein the
public nuisance is being conducted, maintained or permitted, shall be served
with the summons as provided in the Civil Practice Law and Rules.
With respect to any action commenced or to be commenced pursuant to
this chapter, the City Attorney may file a notice of pendency pursuant to
the provisions of Article 65 of the Civil Practice Law and Rules.
The owner of the real estate affected by the action shall be presumed
to be the person in whose name the real estate is recorded in the office of
the City of Oneonta Assessor and/or the office of the Clerk of the County
of Otsego.
Whenever there is testimony that a person was the manager, operator,
supervisor or in any other way in charge of the premises at the time a public
nuisance was being conducted, maintained or permitted, such evidence shall
be presumptive that he or she was an agent or employee of the owner or lessee
of the building, structure or place considered to be a nuisance.
If, upon the trial of an action under this chapter, or upon a motion
for summary judgment in an action under this chapter, a finding is made that
the defendant has conducted, maintained or permitted a public nuisance defined
in this chapter, a penalty may be awarded in an amount not to exceed $1,000
for each day it is found that the defendant conducted, maintained or permitted
the public nuisance after notice to abate has been given by the city. Upon
recovery, such penalty shall be paid into the general fund of the city.
A judgment pursuant to this chapter shall be enforced by the City of
Oneonta Police Department and the office of City Attorney.
This chapter shall not be construed to exclude any other remedy provided
by law for the protection of the health, safety and welfare of the people
of the City of Oneonta.