Village of Kiryas Joel, NY Chapter 127 Swimming Pools

[HISTORY: Adopted by the Board of Trustees of the Village of Kiryas Joel 7-29-1993 as L.L. No. 11-1993.[1] Amendments noted where applicable.]

[1] Editor's Note: This local law also provides that it shall supersede § 4-414 of the Village Law to the extent any provision of this law is adjudged inconsistent or in conflict therewith.

§ 127-1 Legislative intent.

The Board of Trustees of the Village of Kiryas Joel finds, due to the densely compacted residential development and the very high population of small children in the village, that outdoor swimming pools pose a hazard to the safety, health and welfare of village residents. This Board finds that 62.9% of the total population of the village consists of children 17 years old and under, compared to 27.6% in the rest of Orange County. The residential density of the village is 1,332 dwelling units per 850 acres. The Board finds that due to the close proximity of residential buildings and small yards, swimming pools, even if enclosed with fences, cannot be properly and safely monitored to safeguard the children of the village. This Board finds that a private outdoor swimming pool is not an inalienable property right and that the privilege of owning an outdoor pool must give way to the overriding concern of child safety. This Board further finds that swimming pools in lawful existence and in regular use on the effective date of this chapter may remain; however, all such pools must be fully and securely enclosed to prevent entry to the pool.

§ 127-2 Prohibition.

No outdoor swimming pool, whether above or below ground, shall be permitted, except wading pools no larger than eight feet in diameter or similar size and 18 inches deep.

§ 127-3 Special circumstances.

Upon petition to the Board of Trustees and upon a showing of special circumstances, the Board of Trustees may allow a private outdoor swimming pool, on a case-by-case basis, subject to terms and conditions imposed by the Board and subject to compliance with the State Uniform Fire Prevention and Building Code and other applicable state codes.

§ 127-4 Existing swimming pools.

Any swimming pool lawfully in existence and in regular use on the effective date of this chapter may remain in use. Any such pool must be fully and securely enclosed by an eight-foot-high stockade fence. Further, all such pools must comply with the State Uniform Fire Prevention and Building Code and other applicable state codes.

§ 127-5 Enforcement; penalties for offenses; remedies.

A. This chapter shall be enforced by the Code Enforcement Officer and any other person authorized by resolution of the Board of Trustees.

B. Any violation of any provision of this chapter or of any lawful order of an enforcement officer shall be deemed a violation of this chapter. The owner, occupant and/or tenant of the premises shall be jointly and severally liable for any violation.

C. Upon determination that a violation of this chapter exists, the Code Enforcement Officer shall serve a written notice of violation which orders the remedying of the violation. Such order shall state the nature of the violation and the provision or term violated and shall set a date as may be reasonably necessary for achieving compliance before proceedings to compel compliance or assess penalties shall be instituted. Such order shall be served personally or by certified mail to the last known address of the property owner and/or occupant. If service is by certified mail, then a copy of the notice of violation shall be posted at the premises where the violation exists.

D. Any person, firm or corporation who or which violates this chapter shall be liable to the village for a civil penalty of not more than $200 for each day or part thereof during which such violation continues. Said civil penalties shall be recoverable in an administrative proceeding held by and before the Board of Trustees pursuant to the following procedure:

(1) Whenever a violation has not been remedied within the time specified in the notice of violation, an enforcement officer may issue an order to show cause before the Board of Trustees why such penalties should not be imposed.

(2) Service of order to show cause.

(a) Such order to show cause shall be served personally or by mailing a copy of such order by certified mail to the property owner and occupant, to their last known addresses as shown by the records of the village, and by posting a copy of such order on said premises.

(b) A copy of said order may be filed in the County Clerk's office, which order shall be filed in the same manner as a notice of pendency pursuant to Article 65 of the Civil Practice Law and Rules and shall have the same effect as a notice of pendency as therein provided. An order so filed shall be effective for a period of one year from the date of filing. It may be terminated upon an order of a Judge or Justice of a court of record or upon the written consent of the attorney for the village. The County Clerk shall mark the order to show cause and any record or docket thereof as canceled of record upon the presentation and filing of a certified copy of such judicial order of such consent.

(3) Content of order. Said order to show cause shall state the nature of the violation; the provision or term violated; and the date, time and place for a hearing before the Board of Trustees. The hearing shall be set for a date not less than seven days after the date of the order to show cause is mailed.

(4) Conduct of hearing.

(a) The Board of Trustees shall conduct a hearing at the date, time and place specified in the order to show cause. The hearing may be adjourned from time to time and shall continue until interested persons subject to the order to show cause are heard. No formal rules of evidence shall apply nor shall a stenographic transcript be required.

(b) The property owner, occupant and any others subject to the order to show cause may be represented by an attorney and shall have the right to present evidence and examine witnesses to show why penalties should not be assessed and/or why an order to remove an emergency condition should be modified or withdrawn.

(c) After the hearing is closed, the Board of Trustees shall make findings and make a determination. Such determination shall indicate the basis and reason for the decision, shall state the dollar amount of any fine(s) imposed and shall be supported by substantial evidence.

(d) Any fines imposed plus, if any fine is imposed, the costs to the village of the proceeding, including but not limited to attorneys' fees and administrative costs, shall be immediately due and payable. Administrative costs shall be determined from time to time by resolution of the Board of Trustees.

(e) The determination of the Board of Trustees may be reviewed in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules, provided that such proceeding is commenced within 30 days of such determination. Judicial review shall not stay any stop-work order or stay payment of any fine and costs imposed.

(5) Assessment of fines and costs. All fines and all costs incurred by the village in connection with the administrative proceeding, if unpaid, shall be a lien on the real property and shall be assessed against such property, together with nine-percent interest per annum, and shall be levied and collected in the same manner as real property taxes.

E. Correction of violation by village.

(1) Compliance with this chapter is required in the interest of the public safety, health and welfare. Notwithstanding any other provision herein, if a property owner fails to correct a violation after notice of the same, the village and its agents shall have the right to enter upon the property and perform the work necessary to correct the violation. The property owner shall be responsible and liable for all costs incurred by the village in connection therewith. If not paid, said costs shall be a lien on the real property and shall be assessed against such property, together with nine-percent interest per annum, and shall be levied and collected in the same manner as real property taxes.

(2) The abatement, removal or repair of any nuisance, hazard or other such condition by the Village of Kiryas Joel or its agents shall not operate to excuse the owner, tenant or occupant from properly maintaining any premises as required by this chapter, and such owner, tenant or occupant shall, notwithstanding such action, be subject to any penalties provided for herein.

F. Alternatively or in addition to the remedies provided by Subsections D and E, the Board of Trustees or Code Enforcement Officer may institute any appropriate action or proceeding to prevent, restrain, enjoin, correct or abate any violation or enforce any provision of this chapter.