[HISTORY: Adopted by the Common Council of the City of North Tonawanda 2-3-1998 by L.L. No. 1-1998. Amendments noted where applicable.]
Declaration of legislative findings. The Common Council finds that public nuisances exist in the City of North Tonawanda in the operation of certain establishments and the use of property, including residential premises, in flagrant violation of the penal laws of the State of New York, and the laws of the City of North Tonawanda Municipal Code, which substantially and seriously interfere with the interest of the public in the quality of life and total community environment, commerce in the City of North Tonawanda, property values and the public health, safety, peace, comfort or convenience and welfare. The Common Council further finds that the continued occurrence of such activities and violations is detrimental to the health, safety and welfare of the City of North Tonawanda and of the business thereof and the visitors thereto. It is the purpose of this chapter to authorize and empower the city to impose sanctions and penalties for such public nuisances and such powers may be exercised either in conjunction with or apart from the powers contained in other laws without prejudice to the use of procedures and remedies available under such other laws. The Common Council further finds that the sanctions and penalties imposed by the city pursuant to this chapter constitute an additional and appropriate method of law enforcement and are reasonable and necessary in order to protect the health and safety of the people of the city and to promote the general welfare.
"Public nuisance" defined. For purposes of this chapter, a public nuisance is declared to exist where:
Behavior in the use of or on premises which unreasonably interferes with the health, safety, peace, comfort or convenience of the general community occurring within the past six months and continuing with such frequency and/or duration that the continued occupancy of the premises will presume to continue such unreasonable interference and regardless of whether or not a person has been convicted for violation of the Penal Law of the State of New York or of the City of North Tonawanda Municipal Code; or
A violation of Article 220 or 221 of the Penal Law which has resulted in a criminal conviction pursuant to Article 220 or 221 of the Penal Law within the prior twenty-four-month period of time where said conviction has been predicated on events, circumstances or activities occurring on the premises; and
Either one of the following:
A violation of Article 220 or 221 of the Penal Law which has resulted in a criminal conviction under Article 220 or 221 of the Penal Law within the past twenty-four-month period of time where said conviction has been predicated on events, circumstances or activities occurring on the premises; or
Discovery by any law enforcement agency or duly authorized agent thereof of a quantity and quality of drug or controlled substance on the premises, the amount of which would subject an individual, if prosecuted, to a conviction under Article 220 or 221 of the Penal Law, which discovery has not led to an arrest or conviction, within the past twenty-four-month period of time.
Other definitions. As used in this chapter, the following terms shall have the meanings indicated:
- BUILDING INSPECTOR
- The Building Inspector or Code Enforcement Officer of the City of North Tonawanda or his or her designee.
- CHIEF OF POLICE
- The Chief of Police of the City of North Tonawanda.
- Defined and applied in accordance with the provisions of § 1.20 of the Criminal Procedure Law.
- The Common Council of the City of North Tonawanda.
- The person who is listed as the mortgagee in any unsatisfied or otherwise open mortgage recorded in the Niagara County Clerk's Office.
- The person in whose name the real estate affected by the order is recorded as the owner in the office of the Niagara County Clerk.
- The building, place or property whereon the public nuisance is being conducted or exists.
- TRIAL COURT
- The City Court for the City of North Tonawanda which shall be deemed to have jurisdiction over all matters brought pursuant to this chapter.
The Building Inspector or the Chief of Police shall have the authority to order the discontinuance of any activity which constitutes a public nuisance on or in any premises within the City of North Tonawanda.
Where the public nuisance continues after service of the order or orders to discontinue, the Building Inspector or Chief of Police may refer same to the Trial Court for a hearing as hereinafter provided.
The trial court, after notice of hearing and an opportunity to be heard, shall be authorized to:
Order the discontinuance of such activity at the premises where such public nuisance exists;
Order the closing of the premises to the extent necessary to abate the nuisance;
Order that said individual or individuals vacate the premises; and/or
Prior to the issuance of an order by the trial court, pursuant to this chapter, the trial court shall give notice and opportunity for a hearing to the owner, lessor, lessee, agent and all the persons in possession or having charge of the premises wherein the public nuisance has been or is being conducted, maintained or permitted. Such notice and opportunity to be heard shall also be given to the mortgagee of the premises. Such notice shall be served upon an owner, lessor, lessee, agent and all the persons in possession or having charge of the premises pursuant to § 735 of the Real Property Actions and Proceeding Law and upon a mortgagee by means of certified mail, return receipt requested, sent to the mortgagee's last known address, provided that any service other than delivery to the person to be served shall be complete immediately upon delivery, mailing or posting without the necessity of filing proof of service with the Clerk of any court before the hearing. This notice and all such court notices and orders under this law shall be served by the City of North Tonawanda Police Department.
Contents of notice. Such notice shall:
Specify the activity or activities creating the nuisance;
Provide 30 days for elimination of the nuisance;
Inform the person to whom it is directed of his/her right to apply within 10 days for a hearing, before the trial court;
Inform the owner, lessor, lessee, agent and all other persons in possession or having charge of the premises that upon the expiration of 30 days after service with no request for a hearing or upon noncompliance with any written agreement reached at the hearing before the trial court, the trial court may issue an order and the Building Inspector or the Chief of Police shall act to obtain compliance as provided by this chapter; and
Inform the owner/landlord of his/her obligation to post a copy of the notice within five days, in a conspicuous place so that all persons or occupants entering the premises shall have notice that the public nuisance is being conducted, maintained or permitted on the premises and that upon 30 days after service of the notice, the Building Inspector or Chief of Police shall act to obtain compliance as provided, including but not limited to the closing of the premises for a period not to exceed one year.
Lack of actual knowledge is not a defense. The lack of knowledge of, acquiescence or participation in or responsibility for public nuisance on the part of the owner, lessor, lessee, mortgagee and all those persons in possession or having charge of a premises as agent or otherwise or having any interest in the premises or personal property, used in conducting or maintaining the public nuisance, shall not be a defense by such owner, lessor, lessee, mortgagee and other such persons.
Issuance of orders.
The Building Inspector or Chief of Police shall issue the initial order provided for in this chapter by posting said order on the premises wherein the public nuisance is or has been occurring in violation of law and mailing a copy of said order within one business day of the posting of said order on the premises to the last known address of the owner as listed in the office of the City Assessor or as designated by the owner.
Five business days after the issuance of a final order of the trial court pursuant to Subsection D of § 62A-43 and upon the request of the Building Inspector or the Chief of Police, officers of the City of North Tonawanda Police Department are authorized to act upon and enforce such orders.
Where the trial court closes premises pursuant to this chapter, such closing shall be for a period of time as the trial court may direct, but in no event shall the closing be for a period of more than one year from such issuance of the order pursuant to this chapter. If the owner, lessor or lessee shall file a bond in the amount determined by the trial court, but which may not exceed the value of the premises ordered to be closed, and submit proof satisfactory to the trial court that the nuisance has been abated and will not be created, maintained or permitted during such period of time as the premises have been directed to be closed by the order of the trial court, then the trial court may suspend or vacate the provisions of the order that direct the closing of the premises.
A closing directed by the trial court pursuant to this chapter shall not constitute an act of possession, ownership or control by the City of North Tonawanda of the closed premises.
It shall be a misdemeanor for any person to use or occupy or to permit any other person to use or occupy any premises or portion thereof ordered closed by the trial court.
Mutilation or removal of a posted order of the Building Inspector, Chief of Police or trial court shall be punishable by a fine of not more than $250, or by imprisonment not exceeding 15 days, or both, provided that such order contains therein a notice of such penalty.
Intentional disobedience or resistance to any provision of the orders issued by the trial court pursuant to this chapter, in addition to any other punishment prescribed by law, shall be punishable by a fine of not more than $500 or by imprisonment not to exceed six months, or both.
The Building Inspector or Chief of Police may promulgate rules and regulations to carry out and give full effect to the provision of this chapter.
No officers, agent or employee of the City of North Tonawanda, New York, the County of Niagara or the Niagara County Drug Task Force shall be personally liable for any damage resulting from any official determination, order or action required or permitted in the discharge of his or her duties under this chapter.