[HISTORY: Adopted by the Board of Trustees of the Village of Phoenix as indicated in article histories. Amendments noted where applicable.]
[Adopted 8-8-2007 by L.L. No. 5-2007]
The purpose of this article is to provide for the health, safety, and general welfare of the citizens of the Village of Phoenix through the regulation of nonstormwater discharges to the municipal separate storm sewer system (MS4) to the maximum extent practicable as required by federal and state law. This article establishes methods for controlling the introduction of pollutants into the MS4 in order to comply with requirements of the SPEDES General Permit for Municipal Separate Storm Sewer Systems. The objectives of this article are as follows:
To meet the requirements of the SPDES General Permit for Stormwater Discharges from MS4s, Permit No. GP-02-02, as amended or revised;
To regulate the contribution of pollutants to the MS4 since such systems are not designed to accept, process or discharge nonstormwater wastes;
To prohibit illicit connections, activities and discharges to the MS4;
To establish legal authority to carry out all inspection, surveillance and monitoring procedures necessary to ensure compliance with this article;
To promote public awareness of the hazards involved in the improper discharge of trash, yard waste, lawn chemicals, pet waste, wastewater, grease, oil, petroleum products, cleaning products, paint products, hazardous waste, sediment and other pollutants into the MS4.
As used in this article, the following terms shall have the meanings indicated:
- BEST MANAGEMENT PRACTICES (BMPs)
- Schedules of activities, prohibitions of practices, general good housekeeping practices, pollution prevention and educational practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants directly or indirectly to stormwater, receiving waters, or stormwater conveyance systems. BMPs also include treatment practices, operating procedures, and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials storage.
- CLEAN WATER ACT
- The Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), and any subsequent amendments thereto.
- CODE ENFORCEMENT OFFICER
- The designated Code Enforcement Officer of the Village of Phoenix or any other officer of the Village of Phoenix duly appointed for the purpose of enforcement of these provisions.
- CONSTRUCTION ACTIVITY
- Activities requiring authorization under the SPDES Permit for Stormwater Discharges from Construction Activity, GP-02-02, as amended or revised. These activities include construction projects resulting in land disturbance of one or more acres. Such activities include but are not limited to clearing and grubbing, grading, excavating, and demolition.
- The New York State Department of Environmental Conservation.
- DESIGN PROFESSIONAL
- A New York State-licensed professional engineer or licensed architect.
- HAZARDOUS MATERIALS
- Any material, including any substance, waste, or combination thereof, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause, or significantly contribute to, a substantial present or potential hazard to human health, safety, property, or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.
- ILLICIT CONNECTION
- Any drain or conveyance, whether on the surface or subsurface, which allows an illegal discharge to enter the MS4, including but not limited to:
- A. Any conveyances which allow any nonstormwater discharge, including treated or untreated sewage, process wastewater, and wash water, to enter the MS4 and any connections to the storm drain system from indoor drains and sinks, regardless of whether said drain or connection had been previously allowed, permitted, or approved by an authorized enforcement agency; or
- B. Any drain or conveyance connected from a commercial or industrial land use to the MS4 which has not been documented in plans, maps, or equivalent records and approved by an authorized enforcement agency.
- ILLICIT DISCHARGE
- Any direct or indirect nonstormwater discharge to the MS4, except as exempted in § 163-9 of this article.
- INDIVIDUAL SEWAGE TREATMENT SYSTEM
- A facility serving one or more parcels of land or residential households, or a private, commercial or institutional facility, that treats sewage or other liquid wastes for discharge into the groundwaters of New York State, except where a permit for such a facility is required under the applicable provisions of Article 17 of the Environmental Conservation Law.
- INDUSTRIAL ACTIVITY
- Activities requiring the SPDES Permit for Discharge from Industrial Activities Except Construction, GP-98-03, as amended or revised.
- Municipal separate storm sewer system, a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains):
- NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) STORMWATER DISCHARGE PERMIT
- A permit issued by EPA (or by a state under authority delegated pursuant to 33 USC § 1342(b) — SPDES) that authorizes the discharge of pollutants to waters of the United States, whether the permit is applicable on an individual, group, or general area-wide basis.
- NONSTORMWATER DISCHARGE
- Any discharge to the MS4 that is not composed entirely of stormwater.
- Any individual, association, organization, partnership, firm, corporation, or other entity recognized by law and acting as either the owner or as the owner's agent.
- Dredged spoil, filter backwash, solid waste, incinerator residue, treated or untreated sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat wrecked or discarded equipment, rock, sand and industrial, municipal, and agricultural waste and ballast discharged into water which may cause or might reasonably be expected to cause pollution of the waters of the state in contravention of the standards.
- Any building, lot, parcel of land, or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips.
- A. Discharge compliance with water quality standards. The condition that applies where a municipality has been notified that the discharge of stormwater authorized under its MS4 permit may have caused or has the reasonable potential to cause or contribute to the violation of an applicable water quality standard. Under this condition, the municipality must take all necessary actions to ensure future discharges do not cause or contribute to a violation of water quality standards.
- B. 303(d) listed waters. The condition in the municipality's MS4 permit that applies where the MS4 discharges to a 303(d) listed water. Under this condition, the stormwater management program must ensure no increase of the listed pollutant of concern to the 303(d) listed water.
- C. Total maximum daily load (TMDL) strategy. The condition in the municipality's MS4 permit where a TMDL, including requirements for control of stormwater discharges, has been approved by EPA for a water body or watershed into which the MS4 discharges. If the discharge from the MS4 did not meet the TMDL stormwater allocations prior to September 10, 2003, the municipality was required to modify its stormwater management program to ensure that reduction of the pollutant of concern specified in the TMDL is achieved.
- D. The condition in the municipality's MS4 permit that applies if a TMDL is approved in the future by EPA for any water body or watershed into which an MS4 discharges. Under this condition, the municipality must review the applicable TMDL to see if it includes requirements for control of stormwater discharges. If an MS4 is not meeting the TMDL stormwater allocations, the municipality must, within six months of the TMDL's approval, modify its stormwater management program to ensure that reduction of the pollutant of concern specified in the TMDL is achieved.
- STATE POLLUTANT DISCHARGE ELIMINATION SYSTEM (SPDES) STORMWATER DISCHARGE PERMIT
- A permit issued by the Department that authorizes the discharge of pollutants to waters of the state.
- Rainwater, surface runoff, snowmelt and drainage.
- 303(d) LIST
- A list of all surface waters in the state for which beneficial uses of the water (drinking, recreation, aquatic habitat, and industrial use) are impaired by pollutants, prepared periodically by the Department as required by Section 303(d) of the Clean Water Act. 303(d) listed waters are estuaries, lakes and streams that fall short of state surface water quality standards and are not expected to improve within the next two years.
- Total maximum daily load, the maximum amount of a pollutant to be allowed to be released into a water body so as not to impair uses of the water, allocated among the sources of that pollutant.
- Water that is not stormwater, is contaminated with pollutants and is or will be discarded.
This article shall apply to all water entering the MS4 generated on any developed and undeveloped land unless explicitly exempted by an authorized enforcement agency.
The Code Enforcement Officer of the Village of Phoenix shall administer, implement, and enforce the provisions of this article. Such powers or duties imposed upon the authorized enforcement official may be delegated in writing by the Code Enforcement Officer as may be authorized by the municipality.
This article is not intended to modify or repeal any other ordinance, rule, regulation, or other provision of law. The requirements of this article are in addition to the requirements of any other ordinance, rule, regulation, or other provision of law, and where any provision of this article imposes restrictions different from those imposed by any other ordinance, rule, regulation, or other provision of law, whichever provision is more restrictive or imposes higher protective standards for human health or the environment shall control.
The standards set forth herein and promulgated pursuant to this article are minimum standards; therefore this article does not intend or imply that compliance by any person will ensure that there will be no contamination, pollution, or unauthorized discharge of pollutants.
The provisions of this article are hereby declared to be severable. If any provision, clause, sentence, or paragraph of this article or the application thereof to any person, establishment, or circumstances shall be held invalid, such invalidity shall not affect the other provisions or application of this article.
Prohibition of illegal discharges. No person shall discharge or cause to be discharged into the MS4 any materials other than stormwater except as provided in § 163-9A(1) below. The commencement, conduct or continuance of any illegal discharge to the MS4 is prohibited except as described as follows:
The following discharges are exempt from discharge prohibitions established by this article, unless the Department or the Village of Phoenix has determined them to be substantial contributors of pollutants:
Water line flushing or other potable water sources.
Landscape irrigation or lawn watering.
Existing diverted stream flows.
Uncontaminated groundwater infiltration to storm drains.
Uncontaminated pumped groundwater.
Foundation or footing drains.
Crawl space or basement sump pumps.
Water from individual residential car washing.
Natural riparian habitat or wetland flows.
Dechlorinated swimming pool discharges.
Residential street wash water.
Water from fire-fighting activities.
Discharges approved in writing by the Code Enforcement Officer to protect life or property from imminent harm or damage, provided that such approval shall not be construed to constitute compliance with other applicable laws and requirements, and further provided that such discharges may be permitted for a specified time period and under such conditions as the Code Enforcement Officer may deem appropriate to protect such life and property while reasonably maintaining the purpose and intent of this article.
Dye testing in compliance with applicable state and local laws is an allowable discharge, but requires a verbal notification to the Code Enforcement Officer prior to the time of the test.
The prohibition shall not apply to any discharge permitted under an SPDES permit, waiver, or waste discharge order issued to the discharger and administered under the authority of the Department, provided that the discharger is in full compliance with all requirements of the permit, waiver, or order and other applicable laws and regulations, and provided that written approval has been granted for any discharge to the MS4.
Prohibition of illicit connections.
The construction, use, maintenance or continued existence of illicit connections to the MS4 is prohibited.
This prohibition expressly includes, without limitation, illicit connections made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection.
A person is considered to be in violation of this article if the person connects a line conveying sewage to the Village of Phoenix's MS4, or allows such a connection to continue.
Improper connections in violation of this article must be connected and redirected, if necessary, to an approved on-site wastewater management system or the sanitary sewer system upon approval of the Code Enforcement Officer of the Village of Phoenix.
Any drain or conveyance that has not been documented in plans, maps or equivalent and which may be connected to the storm sewer system shall be located by the owner or occupant of that property upon receipt of written notice of violation from the Code Enforcement Officer of the Village of Phoenix requiring that such locating be completed. Such notice will specify a reasonable time period within which the location of the drain or conveyance is to be determined, that the drain or conveyance be identified as storm sewer, sanitary sewer or other and that the outfall location or point of connection to the storm sewer system, sanitary sewer system or other discharge point be identified. Results of these investigations are to be documented and provided to the Code Enforcement Officer of the Village of Phoenix.
No persons shall operate a failing individual sewage treatment system in areas tributary to the Village of Phoenix's MS4. A failing individual sewage treatment system is one which has one or more of the following conditions:
The backup of sewage into a structure;
Discharges of treated or untreated sewage onto the ground surface;
A connection or connections to a separate stormwater sewer system;
Liquid level in the septic tank above the outlet invert;
Structural failure of any component of the individual sewage treatment system that could lead to any of the other failure conditions as noted in this section; and
Contamination of off-site groundwater.
Upon notification to a person that he or she is engaged in one or more of activities listed in Subsection B which cause or contribute to violations of the Village of Phoenix's MS4 SPDES permit authorization, that person shall take all reasonable actions to correct such activities such that he or she no longer causes or contributes to violations of the Village of Phoenix's MS4 SPDES permit authorization.
The following activities are subject to the requirements of Subsection A:
Activities that cause or contribute to a violation of the Village of Phoenix's MS4 SPDES permit;
Activities that cause or contribute to the Village of Phoenix being subject to the special conditions as defined in § 163-3 (Definitions) of this article.
Every person owning property through which a watercourse passes, or such person's lessee, shall keep and maintain that part of the watercourse within the property free of trash, debris, excessive vegetation and other obstacles that would pollute, contaminate or significantly retard the flow of water through the watercourse. In addition, the owner or lessee shall maintain existing privately owned structures within or adjacent to a watercourse, so that such structures will not become a hazard to the use, function or physical integrity of the watercourse.
Any person subject to an industrial or construction activity NPDES or SPDES stormwater discharge permit shall comply with all provisions of such permit. Proof of compliance with said permit may be required in a form acceptable to the Code Enforcement Officer prior to the allowing of discharges to the MS4.
The operator of a facility, including construction sites, required to have an NPDES or SPDES permit to discharge stormwater associated with industrial activity shall submit a copy of the notice of intent (NOI) to the Code Enforcement Officer at the same time the operator submits the original NOI to the EPA or state DEC as applicable.
The copy of the NOI may be delivered to the Code Enforcement Officer either in person or by mailing it to:
A person commits an offense if the person operates a facility that is discharging stormwater associated with industrial activity without having submitted a copy of the NOI to do so to the Code Enforcement Officer.
Best management practices. Where the Code Enforcement Officer has identified illicit discharges as defined in § 163-3 (Definitions) or activities contaminating stormwater as defined § 163-11, the Village of Phoenix may require implementation of best management practices (BMPs) to control those illicit discharges and activities.
The owner or operator of a commercial or industrial establishment shall provide, at his or her own expense, reasonable protection from accidental discharge of prohibited materials or other wastes into the MS4 through the use of structural and nonstructural BMPs.
Any person responsible for a property or premises which is, or may be, the source of an illicit discharge as defined in § 163-3 (Definitions) or an activity contaminating stormwater as defined in § 163-11 may be required to implement, at said person's expense, additional structural and nonstructural BMPs to reduce or eliminate the source of pollutant(s) to the MS4.
Compliance with all terms and conditions of a valid SPDES permit authorizing the discharge of stormwater associated with industrial activity, to the extent practicable, shall be deemed compliance with the provisions of this section.
Individual sewage treatment systems. Where individual sewage treatment systems are contributing to the Village of Phoenix being subject to the special conditions as defined in § 163-3 (Definitions) of this article, the owner or operator of such individual sewage treatment systems shall be required to:
Maintain and operate individual sewage treatment systems as follows:
Inspect the septic tank annually to determine scum and sludge accumulation. Septic tanks must be pumped out whenever the bottom of the scum layer is within three inches of the bottom of the outlet baffle or sanitary tee, or the top of the sludge is within 10 inches of the bottom of the outlet baffle or sanitary tee;
Avoid the use of septic tank additives;
Avoid the disposal of excessive quantities of detergents, kitchen wastes, laundry wastes, and household chemicals; and
Avoid the disposal of cigarette butts, disposable diapers, sanitary napkins, trash and other such items.
Repair or replace individual sewage treatment systems as follows:
In accordance with 10 NYCRR, Appendix 75A, to the maximum extent practicable;
A design professional licensed to practice in New York State shall prepare design plans for any type of absorption field that involves:
A written certificate of compliance shall be submitted by the design professional to the Village of Phoenix at the completion of construction of the repair or replacement system.
Right of entry; inspection and sampling. The Village Code Enforcement Officer or his designee shall be permitted to enter and inspect facilities subject to regulation under this article as often as may be necessary to determine compliance with this article.
If a discharger has security measures in force which require proper identification and clearance before entry into its premises, the discharger shall make the necessary arrangements to allow access to representatives of the Village Code Enforcement Officer.
Facility operators shall allow the Code Enforcement Officer ready access to all parts of the premises for the purposes of inspection, sampling, examination and copying of records that must be kept under the conditions of an NPDES or SPDES permit to discharge stormwater, and the performance of any additional duties as defined by state and federal law.
The Code Enforcement Officer or his designee shall have the right to set up on any permitted facility such devices as are necessary, in the opinion of the Code Enforcement Officer, to conduct monitoring and/or sampling of the facility's stormwater discharge.
The Code Enforcement Officer or his designee has the right to require the discharger to install monitoring equipment as necessary. The facility's sampling and monitoring equipment shall be maintained at all times in a safe and proper operating condition by the discharger at its own expense. All devices used to measure stormwater flow and quality shall be calibrated to ensure their accuracy.
Any temporary or permanent obstruction to safe and easy access to the facility to be inspected and/or sampled shall be promptly removed by the operator at the written or oral request of the Code Enforcement Officer or his designee and shall not be replaced. The costs of clearing such access shall be borne by the operator.
Unreasonable delays in allowing the Code Enforcement Officer or his designee access to a permitted facility is in violation of a stormwater discharge permit and of this article. A person who is the operator of a facility with an NPDES or SPDES permit to discharge stormwater associated with industrial activity commits an offense if the person denies the Village Code Enforcement Officer or his designee reasonable access to the permitted facility for the purpose of conducting any activity authorized or required by this article.
Search warrants. If the Code Enforcement Officer or his designee has been refused access to any part of the premises from which stormwater is discharged, and he/she is able to demonstrate probable cause to believe that there may be a violation of this article, or that there is a need to inspect and/or sample as part of a routine inspection and sampling program designed to verify compliance with this article or any order issued hereunder, or to protect the overall public health, safety, and welfare of the community, then the Code Enforcement Officer may seek issuance of a search warrant from any court of competent jurisdiction.
Notwithstanding other requirements of law, as soon as any person responsible for a facility or operation, or responsible for emergency response for a facility or operation, has information of any known or suspected release of materials which are resulting or may result in illegal discharges or pollutants discharging into the MS4, said person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release. In the event of such release of hazardous materials, said person shall immediately notify emergency response agencies of the occurrence via emergency dispatch services. In the event of a release of nonhazardous materials, said person shall notify the Village of Phoenix in person or by telephone or facsimile no later than the next business day. Notifications in person or by telephone shall be confirmed by written notice addressed and mailed to the Village of Phoenix within three business days of the telephone notice. If the discharge of prohibited materials emanates from a commercial or industrial establishment, the owner or operator of such establishment shall also retain an on-site written record of the discharge and the actions taken to prevent its recurrence. Such records shall be retained for at least three years.
It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this article. Any person who has violated or continues to violate the provisions of this article may be subject to the enforcement actions outlined in this section or may be restrained by injunction or otherwise abated in a manner provided by law.
In the event the violation constitutes an immediate danger to public health or public safety, the Code Enforcement Officer or his designee is authorized to enter upon the subject private property, without giving prior notice, to take any and all measures necessary to abate the violation and/or restore the property. The Code Enforcement Officer is authorized to seek costs of the abatement as outlined § 163-20.
Warning notice. When the Code Enforcement Officer or his designee finds that any person has violated, or continues to violate, any provisions of this article, or any order issued hereunder, the Code Enforcement Officer or his designee may serve upon that person a written warning notice, specifying the particular violation believed to have occurred and requesting the discharger to immediately investigate the matter and to seek a resolution whereby any offending discharge will cease. Investigation and/or resolution of the matter in response to the warning notice in no way relieves the alleged violator of liability for any violations occurring before or after receipt of the warning notice. Nothing in this subsection shall limit the authority of the Village Code Enforcement Officer or his designee to take any action, including emergency action or any other enforcement action, without first issuing a warning notice.
Notice of violation.
Whenever the Code Enforcement Officer or his designee finds that a person has violated a prohibition or failed to meet a requirement of this article, the Code Enforcement Officer or his designee may order compliance by written notice of violation to the responsible person. The notice shall contain:
The name and address of the alleged violator;
The address, when available, or a description of the building, structure or land upon which the violation is occurring or has occurred;
A statement specifying the nature of the violation;
A description of the remedial measures necessary to restore compliance with this article and a time schedule for the completion of such remedial action;
A statement of the penalty or penalties that shall or may be assessed against the person to whom the notice of violation is directed;
A statement specifying that, should the violator fail to restore compliance within the established time schedule, the work will be done by a designated governmental agency or a contractor, and the expense thereof shall be charged to the violator.
Such notice may require without limitation:
The performance of monitoring, analysis, and reporting;
The elimination of illicit connections or discharges;
That violating discharges, practices, or operations shall cease and desist;
The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;
Payment of a fine to cover administrative and remediation costs; and
The implementation of source control or treatment BMPs.
Compensatory action. In lieu of enforcement proceedings, penalties, and remedies authorized by this article, the Code Enforcement Officer or his designee may impose upon a violator alternative compensatory actions, such as (without limitation) storm drain stenciling, attendance at compliance workshops, creek cleanup, etc.
Suspension of MS4 access.
Emergency cease and desist orders. When the Code Enforcement Officer or his designee finds that any person has violated or continues to violate any provision of this article, or any order issued hereunder, or that the person's past violations are likely to recur, and that the person's violation(s) has (have) caused or contributed to an actual or threatened discharge to the MS4 or waters of the United States which reasonably appears to present an imminent or substantial endangerment to the health or welfare of persons or to the environment, the Code Enforcement Officer or his designee may issue an order to the violator directing them immediately to cease and desist all such violations and directing the violator to immediately comply with all law requirements; and take such appropriate preventative action as may be needed to properly address a continuing or threatened violation, including immediately halting operations and/or terminating the discharge. Any person notified of an emergency order directed to it under this subsection shall immediately comply and stop or eliminate its endangering discharge. In the event of a discharger's failure to immediately comply voluntarily with the emergency order, the Code Enforcement Officer or his designee may take such steps as deemed necessary to prevent or minimize harm to the MS4 or waters of the United States, and/or endangerment to persons or to the environment, including immediate termination of a facility's water supply, sewer connection, or other municipal utility services. The Code Enforcement Officer or his designee may allow the person to recommence its discharge when it has demonstrated to the satisfaction of the Code Enforcement Officer that the period of endangerment has passed, unless further termination proceedings are initiated against the discharger under this article. A person that is responsible, in whole or in part, for any discharge presenting imminent endangerment shall submit a detailed written statement describing the causes of the harmful discharge and the measures taken to prevent any future occurrence to the Code Enforcement Officer or his designee within 10 days of receipt of the emergency order. Issuance of an emergency cease and desist order shall not be a bar against or a prerequisite for taking any other action against the violator.
Suspension due to illicit discharges in emergency situations. The Code Enforcement Officer or his designee may, without prior notice, suspend MS4 discharge access to a person when such suspension is necessary to stop an actual or threatened discharge which presents or may present imminent and substantial danger to the environment, or to the health or welfare of persons, or to the MS4 or waters of the United States. If the violator fails to comply with a suspension order issued in an emergency, the Code Enforcement Officer or his designee may take such steps as deemed necessary to prevent or minimize damage to the MS4 or waters of the United States, or to minimize danger to persons.
Suspension due to the detection of illicit discharge.
Any person discharging to the MS4 in violation of this article may have his or her MS4 access terminated if such termination would abate or reduce an illicit discharge. The Code Enforcement Officer or his designee will notify a violator of the proposed termination of its MS4 access.
A person commits an offense if the person reinstates MS4 access to premises terminated pursuant to this section without the prior approval of the Code Enforcement Officer or his designee.
Civil penalties. In the event the alleged violator fails to take the remedial measures set forth in the notice of violation or otherwise fails to cure the violations described therein within 20 days, or such greater period as the Code Enforcement Officer or his designee shall deem appropriate, the Code Enforcement Officer or his designee may impose a penalty not to exceed $500 (depending on the severity of the violation) for each day the violation remains unremedied after receipt of the notice of violation.
Criminal prosecution. Any person that has violated or continues to violate this article shall be liable to criminal prosecution to the fullest extent of the law, and shall be subject to a criminal penalty of $500 per violation per day and/or imprisonment for a period of time not to exceed 60 days. Each act of violation and each day upon which any violation shall occur shall constitute a separate offense.
Any person receiving a notice of violation may appeal the determination of the Code Enforcement Officer or his designee to the Village of Phoenix within 15 days of its issuance, which shall hear the appeal within 30 days after the filing of the appeal, and within five days of making its decision, file its decision in the office of the Village Clerk and mail a copy of its decision by certified mail to the discharger.
If the violation has not been corrected pursuant to the requirements set forth in the notice of violation, or, in the event of an appeal, within five business days of the decision of the Village of Phoenix authority upholding the decision of the Code Enforcement Officer or his designee, then the Code Enforcement Officer or his designee shall request the owner's permission for access to the subject private property to take any and all measures reasonably necessary to abate the violation and/or restore the property.
If refused access to the subject private property, the Code Enforcement Officer or his designee may seek a warrant in a court of competent jurisdiction to be authorized to enter upon the property to determine whether a violation has occurred. Upon determination that a violation has occurred, the Code Enforcement Officer or his designee may seek a court order to take any and all measures reasonably necessary to abate the violation and/or restore the property. The cost of implementing and maintaining such measures shall be the sole responsibility of the discharger.
Not later than 90 days after abatement of the violation, the owner of the property will be notified of the cost of abatement, including administrative costs. The property owner may file a written objection to the assessment within 10 days after notification with the Board. If the amount due is not paid within the later of 30 days from such notification or the date of the Village Board's decision or the objection, the charges shall become a special assessment against the property and shall constitute a lien on the property for the amount of the assessment. Such assessment shall be binding upon any purchaser or transferee taking title after the abatement but before the assessment is filed.
Any person violating any of the provisions of this article shall become liable to the Village of Phoenix by reason of such violation.
[Added 4-16-2019 by L.L. No. 1-2019]
In the event the Village Board, in its sole discretion, determines to establish and offers to and for the mutual benefit of the Village generally, and to all or certain specified Village residents, property owners, and/or other persons having similar legal rights and responsibilities as property owners under this Chapter 163 (and where not so specified as applicable to all such persons or Village residents), then based only upon common characteristics such as the nature or location of violate conditions or property locations, such class' contributions to and/or effect upon the system or infrastructure of such residents' or customers' use of their private or connecting and transmitting components on the system affected thereby needing to be addressed, a capital repair or replacement public works project addressing in whole or part of its public infrastructure relating to or affecting its stormwater management, and which may include addressing violations due to deficient, illegally connected, operated, inflowing or infiltrating private owner infrastructure, including from public or private sanitary sewer infrastructure under ownership, control or for which the owner is legally or contractually liable or responsible adversely affecting private or public storm sewer infrastructure or systems otherwise, a Village-sponsored finance program, a publicly or agency financed or subsidized scope of work, including, in part, the abatement of private owner violations whereby the work shall be performed as a public works project, paid in full by such financing or subsidy and with the expense of abatement of a private owner violation(s), are to be assessed as annual levies in the same manner as Village taxes to the owner(s), based upon a proportionate share of the total project or subproject cost, interest rate imposed upon financing, and the applicable useful life of the abatement measures performed per the New York State Local Finance Law or agency finance program requirements.
For purposes hereof:
The selection of a certain class of eligible owners may be set by the Village Board, provided that the criteria for selection is made public and articulated in a Village Board resolution duly adopted in open session not less than 20 days prior to the first date when actions other than the preliminary acts required for seeking agency funding or the issuance of a bond resolution and anticipation notes for payment or reimbursement to the Village for preliminary reports and studies and concept designs are to commence; and
The selection of a class of owners that are required or are eligible for inclusion in the program may be based upon any criteria or grounds that are not an illegal basis for selection under local, state or federal law, including those requirements as may be applicable as a result of the source of any agency funding assistance; accordingly, selection based upon owners with private infrastructure issues that significantly or more significantly and adversely affect the Village storm or sanitary collection systems or stormwater management; same may also, however, without limitation, include addressing violations that exist due to deficient, illegally connected, operated, inflowing or infiltrating private owner infrastructure, or from public or private sanitary sewer infrastructure under ownership, control or for which an owner is otherwise legally or contractually liable or responsible adversely.
A material condition precedent to eligibility for any such program shall be that an owner voluntarily allows inspection of the premises by the Village and any retained professional consultants or contractors, such that the Village is not required to expend time and monies to obtain and execute a search warrant or to execute other enforcement measures; likewise, the owner shall disclose in full any violate conditions, patent or latent, which are or should be or have been evident to the owner. Any other dilatory tactics causing undue expense or delay, however expressly not including the appeal an owner may be entitled to under § 163-19 hereof, may, in the Village Board's sole discretion, disqualify an owner from eligibility for the program.
Such owner shall, as a condition precedent to eligibility, grant to the Village such temporary and/or permanent easement(s) as are determined to be reasonably necessary by the Village, if any, so as to permit:
The Village to perform, install and/or construct, or have performed, installed and/or constructed to completion, the applicable abatement measures, including to permit access to the owner's property during any punch list or warranty/guaranty periods; and
The Village, its contractors and equipment such access and use as necessary to maintain, repair or replace that portion of the abatement measures located within the right-of-way, and/or to determine if any blockage, leak or similar problem is located within, arises from, or is otherwise related to that portion of the infrastructure located within the right-of-way, or arises from the owner's premises or that part of the infrastructure which the owner is responsible for.
Any owner seeking to exercise or enforce any rights hereunder as against the Village or otherwise opposing, objecting to or contesting the Village's easement rights as required to be granted hereunder may not sustain such claim if having neglected or refused, after mandatory Village selection or voluntary election by such owner, acceptance by the Village into the program and in reliance thereon the Village having performed, paid for, or authorized any work which the Village shall be legally responsible for the payment of, or having any other expense incidental or relating to such owner's violation, including, without limitation, incurring of expenses and/or performance of work on a project that, due in significant part to the owner's failure or refusal to grant such easement, shall suffer significant time delay, increase in project costs or be no longer an effective project relative to its projected effect in mitigating violation conditions, and as a result requiring suspension, cancellation or material modification of the project and work required; by the acceptance of project benefits, regardless of whether by selection or Village mandate, any such owner shall be deemed to have granted the required easement notwithstanding its failure to execute or deliver the required easement instrument(s) or to otherwise perform and abide by the provisions hereof or under the standard easement instrument proposed for execution.
Notwithstanding the provisions hereof related to the easement granted for access onto privately owned premises, the Village's obligation for repair, replacement and abatement of its public system, including and in addition, in this case, such portion of the related infrastructure on private premises or otherwise the responsibility of the private owner, aside from the performance and construction/installation of the capital abatement measures, the Village shall otherwise not be so obligated, and the same shall be and remain the sole obligation and duty of the owner, for and to the extent any such need or request for eligibility, abatement or warranty/guarantee work arises, and has arisen or first been complained of within the period(s) when any Village property taxes, sewer, water or refuse charges or rents are outstanding, or interests/penalties and/or assessments for the capital improvements contemplated herein are delinquent; provided, however, that the payment of such delinquencies in full, together with all interest and penalties shall effect a resumption of the Village's obligations from such date of delivery through expiration of the warranty period.
Each owner/violator subjecting itself to the provisions hereof acknowledges by its signature on the agreement contemplated hereby that it has read and fully understands this section and the agreement based hereby. Further, such person has requested and accordingly has, where felt necessary, sought assistance of legal counsel for explanation/ interpretation of any provisions or parts thereof which the owner/violator does not completely and clearly understand. The owner expressly acknowledges that, whilel of benefit to the owner this agreement also benefits the Village of Phoenix and taxpayers generally by imposing a uniformity in construction materials beautified and quality of construction and as such he tends to one's undertaking the project to replace all laterals and related infrastructure regardless of the existing infrastructure's lack of visible defects, it being deemed more important to have the work completed using like materials, the same contractors and having the same or cheaper versions available in the event of a defective design or construction.
In addition to the enforcement processes and penalties provided, any condition caused or permitted to exist in violation of any of the provisions of this article is a threat to public health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored at the violator's expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken.
The remedies listed in this article are not exclusive of any other remedies available under any applicable federal, state or local law, and it is within the discretion of the authorized enforcement agency to seek cumulative remedies.
This article shall take effect upon its filing in the office of the Secretary of State.