[Added 11-16-1995 by L.L. No. 8-1995]
A.
Declaration of legislative findings. The Board of
Trustees finds that public nuisances exist in the Village of Clyde
in the operation of certain establishments and the use of property,
including residential premises, in flagrant violation of the Penal
Law of the State of New York, and the laws of the Village of Clyde
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 Village of Clyde, property values and
the public health, safety, peace, comfort or convenience and welfare.
The Board of Trustees further finds that the continued occurrence
of such activities and violations is detrimental to the health, safety
and welfare of the Village of Clyde and of the business thereof and
the visitors thereto. It is the purpose of this article to authorize
and empower the Village 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 Board of Trustees further finds that the sanctions and penalties
imposed by the Village pursuant to this article constitute an additional
and appropriate method of law enforcement in response to the sanctions
and penalties are reasonable and necessary in order to protect the
health and safety of the people of the Village and to promote the
general welfare.
B.
Public nuisance defined. For purposes of this article,
a public nuisance is declared to exist where:
(1)
Behavior in the use of or on premises which unreasonably
interferes with the health, safety, peace, comfort or convenience
of the general community within the past six months of such frequency
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 Village of Clyde Municipal Code;
or
(2)
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
(3)
Either one of the following:
(a)
A violation of Article 220 or 221 of the Penal
Law which has resulted in a criminal conviction to 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
(b)
Discovery by any law enforcement agency, or
duly authorized agent thereof, of a quantity and quality of drug or
substance on the premises, the amount of which would subject an individual,
if prosecuted, to a conviction of Article 220 or 221 of the Penal
Law, which discovery has not lead to an arrest or conviction within
the past twenty-four-month period of time.
C.
BOARD
CHIEF OF POLICE
CODE ENFORCEMENT OFFICER
CONVICTION
HEARING OFFICER
MORTGAGEE
OWNER
PREMISES
Other definitions. As used in this article, the following
terms shall have the meanings indicated:
The Board of Trustees of the Village of Clyde.
The Chief of Police of the Village of Clyde.
The Code Enforcement Officer of the Village of Clyde or his
or her designee.
Shall be defined and applied in accordance with the provisions
of § 1.20 of the Criminal Procedure Law.
The Village officer or other person designated or appointed
by the Village Board, subject to approval by the Board of Trustees,
to act as the Hearing Officer under this article.
The person who is listed as the mortgagee in any unsatisfied
or otherwise open mortgage recorded in the Wayne 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 Wayne County Clerk.
The building, place, or property whereon the public nuisance
is being conducted or exists.
A.
The Code Enforcement Officer 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
Village.
B.
Where the public nuisance continues after service
of the order or orders to discontinue, the Code Enforcement Officer
or Chief of Police may refer same to the Hearing Officer for a hearing
as hereinafter provided.
C.
The Hearing Officer, after notice of hearing and an
opportunity to be heard, shall be authorized:
A.
Prior to the issuance of an order by the Hearing Officer,
pursuant to this article, the Hearing Officer 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 be also given
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.
B.
Contents of notice. Such notice shall:
(1)
Specify the activity or activities creating the nuisance;
(2)
Provide 30 days for elimination of the nuisance;
(3)
Inform the person to whom it is directed of his/her
right to apply within 10 days for a hearing, before the Hearing Officer;
(4)
Inform the owner/landlord that upon the expiration
of 30 days after service with no hearing, or upon noncompliance with
any written agreement reached at the hearing before the Hearing Officer,
the Hearing Officer may issue an order, and the Code Enforcement Officer
or the Chief of Police shall act to obtain compliance as provided
by this article.
(5)
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 Code Enforcement Officer 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.
C.
Lack of actual knowledge is not a defense. The lack
of knowledge of, acquiescence or participation in or responsibility
for a public nuisance on the part of the owner, lessor, lessee, mortgagee
and all those persons in possession or having charge of 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 and lessee, mortgagee and such other
persons.
D.
Issuance of orders.
(1)
The Code Enforcement Officer or Chief of Police shall
issue the initial order provided for in this article 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 posing of said order on the premises to the last known
address of the owner as listed in the office of the Village Assessor
or as designated by the owner.
(2)
The Hearing Officer shall have authority to issue
an order following the same procedure after the hearing has been completed.
A.
Five business days after the issuance of a final order
of the Hearing Officer pursuant to § 133-D and upon the
request of the Code Enforcement Officer or the Chief of Police, officers
of the Village of Clyde Police Department are authorized to act upon
and enforce such orders.
B.
Where the Hearing Officer closes premises pursuant
to this article, such closing shall be for a period as the Hearing
Officer 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 article. If the owner, lessor, or lessee shall file a bond in
the amount determined by the Hearing Officer, but which may not exceed
the value of the premises ordered to be closed, and submit proof satisfactory
to the Hearing Officer 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
Hearing Officer, then the Hearing Officer may vacate the provisions
of the order that direct the closing of the premises.
A closing directed by the Hearing Officer pursuant
to this article shall not constitute an act or possession, ownership
or control by the Village of the closed premises.
A.
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 Hearing Officer.
B.
Mutilation or removal of a posted order of the Code
Enforcement Officer, Chief of Police or Hearing Officer shall be punishable
by a fine of not more than $250 or by imprisonment not exceeding 15
days, or both, provided such order contains therein a notice of such
penalty.
C.
Intentional disobedience or resistance to any provision
of the orders issued by the Hearing Officer pursuant to this article,
in addition to any other punishment prescribed by law, shall be punishable
by a fine or not more than $500 or by imprisonment not to exceed six
months, or both.
The Code Enforcement Officer or Chief of Police
may promulgate rules and regulations to carry out and give full effect
to the provision of this article.
No officers, agent or employee of the Village
of Clyde, New York, 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 article.
