The Town Board of the Town of Greece hereby finds and concludes
that it is necessary and appropriate for the Town to enact legislation
which will facilitate and encourage the discontinuance of public nuisances.
This chapter is intended to provide the Town with additional enforcement
tools to accomplish the goal of abating and eliminating the public
nuisances described in this chapter. This chapter is not intended
to limit any rights, remedies, or actions that may exist under common
law nuisance.
As used in this chapter, the following terms shall have the
meanings indicated:
PUBLIC NUISANCE
Includes, but shall not be limited to, the use of any building,
structure or real property for any one or more of the following purposes
or subject to the following circumstances:
A.
Illegal use, possession or distribution of a controlled substance
or marijuana; prostitution; sexual performance by a child; unlawfully
dealing with a child; illegal gambling activity; illegal possession,
use or sale of firearms or weapons; criminal nuisance; loitering;
criminal possession of stolen property; falsifying business records;
forgery of and illegal possession of a vehicle identification number;
and welfare fraud, as all such offenses are defined by the New York
State Penal Law, and any subsequent amendments or superseding provisions
thereto;
B.
Illegal sale, manufacture or consumption of alcoholic beverages
as defined by the New York State Alcoholic Beverage Control Law, and
any subsequent amendments or superseding provisions thereto; or the
possession, use, sale or offer for sale of any cigarette or tobacco
products in violation of the New York State Tax Law, and any subsequent
amendments or superseding provisions thereto; and
C.
Any violation of the Code of the Town of Greece, the New York
State Uniform Fire Prevention and Building Code, including the New
York State Property Maintenance Code, and any subsequent amendments
or superseding provisions to these codes.
Notice of public nuisance given in accordance with §
144-4 of this chapter shall be prima facie evidence of knowledge of the public nuisance by each and every property owner, operator, manager, tenant, lessee, occupant, or user of the building, structure or real property or any portion thereof.
Any of the activities set forth in the definition of "public
nuisance" in § 144-2A, B, or C of this chapter must be established
by a preponderance of the evidence in any civil action or administrative
proceeding brought pursuant to this chapter.
Two or more convictions for any of the activities set forth
in § 144-2A, B or C of this chapter at any building, structure
or real property, within a two-year period prior to the commencement
of a civil action and/or the service of notice of an administrative
hearing pursuant to this chapter, shall be prima facie evidence of
the existence of a public nuisance. For the purpose of this section,
a "conviction" means the entry of a plea of guilty and/or a verdict
of guilty upon an accusatory instrument other than a felony complaint
to one or more counts of such instrument.
A civil penalty may be assessed against any defendant(s) found liable under this chapter in an amount not to exceed $1,000 for each day it is determined that a public nuisance existed after notice of public nuisance has been served upon such defendant(s) pursuant to §
144-4 of this chapter. Upon recovery, such penalty shall be paid into the Town general fund.
A preliminary injunction enjoining the public nuisance may be
granted in such action pursuant to state law.
A temporary restraining order may be granted in such action,
without notice to the defendant(s), pursuant to state law.
Whenever there is evidence of a public nuisance at any building,
structure or real property within the Town, the Town Attorney, or
his/her designee, may initiate an administrative hearing pursuant
to this section.
A. Notice
of such hearing shall be served on any record owner of the building,
structure or real property, and may also be served on any known operator,
manager, tenant, lessee, occupant, or user of the building, in any
manner authorized for the service of a summons in a civil action.
B. The notice
of hearing shall allege facts constituting a public nuisance and shall
set forth the time and place of the hearing. The Town Supervisor shall
appoint the hearing examiner, who shall not be an elected official
of the Town, to conduct the hearing.
C. At such
hearing, the Town Attorney, or his/her designee, shall present evidence
and/or witnesses demonstrating the existence of a public nuisance
at the building, structure or real property and as to appropriate
remedies. The named respondents, or their legal counsel, shall have
the right to examine such evidence and cross-examine any witnesses
presented by the Town Attorney, or his/her designee. The named respondents,
or their legal counsel, may present any evidence and/or witnesses
in their defense, and the Town Attorney, or his/her designee, shall
have the right to examine such evidence and cross-examine any witnesses
presented by the named respondents, or their legal counsel.
D. Within
five business days after the conclusion of the hearing, the hearing
examiner shall provide findings of fact to the Town Board. The findings
of fact shall state whether it has been established by a preponderance
of the evidence that a public nuisance exists at the building, structure
or real property. In the event a public nuisance is found, the hearing
examiner shall also provide a written recommendation of remedies to
abate the public nuisance.
If any clause, sentence, paragraph, section, article or part
of this chapter shall be adjudged by any court of competent jurisdiction
to be invalid, such judgment shall not affect, impair or invalidate
the remainder thereof but shall be confined in its operation to the
clause, sentence, paragraph, section, article or part thereof directly
involved in the controversy in which such judgment shall have been
rendered.
This chapter shall take effect immediately.