Town of Greece, NY
Monroe County
By using eCode360 you agree to be legally bound by the Terms of Use. If you do not agree to the Terms of Use, please do not use eCode360.
Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Greece 8-17-2010 by L.L. No. 8-2010. Amendments noted where applicable.]
GENERAL REFERENCES
Excavations — See Ch. 103.
Historic preservation — See Ch. 135.
Property maintenance — See Ch. 157.
Solid waste management — See Ch. 174.
Stormwater management — See Ch. 176.
Trailers — See Ch. 192.
Junked vehicles — See Ch. 203.
Zoning — See Ch. 211.

§ 144-1 Purpose and intent.

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.

§ 144-2 Definitions.

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.

§ 144-3 Public nuisances prohibited.

A. 
No owner, operator, manager, tenant, lessee, occupant, or user of a building, structure or real property shall conduct, maintain, permit or allow a public nuisance at the building, structure or real property.
B. 
No building, structure or real property shall be used in any manner that constitutes a public nuisance.

§ 144-4 Notice of public nuisance.

A. 
Notice that a public nuisance, as defined in the definition of "public nuisance" in § 144-2, Subsections A, B or C, of this chapter, has occurred at any building, structure, or real property, or any portion thereof, shall be served by personal service upon the owner, operator, manager, tenant, lessee, occupant, or user of a building, structure or real property; or if no such person can be reasonably found, by mailing said owner, operator, manager, tenant, lessee, occupant, or user of the affected building, structure or real property such notice by means of certified mail, return receipt requested, to the last known address as shown on the records of the Town Assessor, and by securely affixing a copy of such notice upon the door of the affected building, structure, or real property.
B. 
The notice must contain a statement of the date or dates upon which the public nuisance took place on the affected building, structure, or real property, or any portion thereof, the nature of the public nuisance, as defined in § 144-2A, B, or C of this chapter, a copy of this chapter, and a warning that if a second occurrence of any public nuisance, as defined in § 144-2A, B, or C of this chapter, takes place within one year of the first occurrence of a public nuisance, then the Town may seek action pursuant to § 144-8 and 144-14 of this chapter.

§ 144-5 Presumption of knowledge.

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.

§ 144-6 Burden of proof of violation.

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.

§ 144-7 Convictions as presumption of public nuisance.

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.

§ 144-8 Summons and complaint for civil action.

A. 
The Town Board may authorize the Town Attorney to bring and maintain a civil action in the name of the Town to abate a public nuisance.
B. 
The summons and complaint in such action may name as defendants the building, structure or real property by describing it by Tax Map number and/or street address, and also shall name as defendants at least one of the record owners of some portion of or some interest in the property where the public nuisance is alleged to have occurred.
C. 
The summons and complaint in such action may also name as a defendant any owner, operator, manager, tenant, lessee, occupant, or user of a building, structure or real property.
D. 
The complaint in such action shall allege facts constituting the public nuisance.
E. 
The complaint in such action may be accompanied by affidavits alleging that the owner, operator, manager, tenant, lessee, occupant, or user of the building, structure or real property had notice of the nuisance and had an opportunity to abate the nuisance.
F. 
In rem jurisdiction over the building, structure or real property may be obtained and completed by affixing a copy of the summons to the building, structure or real property, and by mailing a copy of the summons and complaint by certified or registered mail, return receipt requested, to the record owner(s) of the real property and to each person or entity listed in the Town records as the person or entity to whom such tax bills should be sent.
G. 
Defendants other than the building, structure or real property shall be served with the summons and complaint in the manner required by state law.
H. 
With respect to any action commenced or to be commenced pursuant to this chapter, the Town Attorney may file a notice of pendency as authorized pursuant to state law.

§ 144-9 Civil penalty.

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.

§ 144-10 Permanent injunction.

A. 
A permanent injunction may be granted against any defendant(s) found liable under this chapter.
B. 
Any such permanent injunction may prohibit such defendant(s) from conducting, maintaining, permitting or allowing the public nuisance, and may include such other relief as the issuing court may deem appropriate under the circumstances.
C. 
Any such permanent injunction may also authorize agents of the Town to remove and correct any conditions in violation of the Code of the Town of Greece, and direct that the costs of removing and correcting the violations shall be charged against such property and defendant(s) and awarded to the Town. The amount so awarded shall constitute a lien against the real property and shall be collected in the same manner provided by law for the collection of real property taxes with respect to real property within the Town.
D. 
A judgment or order granting a permanent injunction may also direct the closing of the building, structure or real property by the Town Code Enforcement Officer, to the extent necessary to abate the nuisance.
E. 
A judgment or order granting a permanent injunction may also provide for all costs and disbursements allowed by state law, and for the actual costs, expenses and disbursements of the Town in investigating, bringing and maintaining the action, including, but not limited to, reasonable attorney’s fees.

§ 144-11 Closing of building, structure or real property.

A. 
If the judgment or order in any such action directs the closing of the building, structure or real property, notice of entry of the judgment or order shall be given to any defendant(s) in the manner required by state law, and a copy of such judgment or order, shall be posted at one or more of the entrances to the building, structure or real property or in another conspicuous place on the building, structure or real property.
B. 
In addition, a printed notice shall be affixed to one or more of the doors at entrances of the building, structure or real property or in another conspicuous place on the building, structure or real property, stating "CLOSED BY COURT ORDER" in block lettering of sufficient size to be observed by anyone intending to enter the premises.
C. 
Mutilation or removal of such posted judgment or order or notice while it remains in force will be considered a separate violation of the Code of the Town of Greece and shall be punishable by a fine of not more than $250 or by imprisonment not exceeding 15 days, or both, provided such judgment or order or notice contains therein a notice of such penalty.
D. 
On or after the posting of such judgment or order or notice, the Town Code Enforcement Officer may command any and all persons present in the building, structure or real property, or any portion thereof, which has been determined to be a public nuisance to vacate such property or portion thereof forthwith and may secure the premises after it is vacated.
E. 
The closing of a building, structure or property, or portion thereof, as directed by the judgment or order, shall be for such period as the court may direct, but in no event shall the closing be for a period of more than one year from the posting of the judgment or order.
F. 
A closing of a building, structure or premises, or any part thereof, pursuant to any such judgment or order shall not constitute an act of possession, ownership or control by the Town.

§ 144-12 Preliminary injunction.

A preliminary injunction enjoining the public nuisance may be granted in such action pursuant to state law.

§ 144-13 Temporary restraining order.

A temporary restraining order may be granted in such action, without notice to the defendant(s), pursuant to state law.

§ 144-14 Administrative hearing.

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.

§ 144-15 Administrative remedies.

A. 
Upon receipt of the findings of fact from the hearing examiner concluding that a public nuisance exists and the recommendation of remedies, the Town Board shall consider the same at a public meeting to be held within 60 days of the receipt of the findings of fact and the recommendation of remedies. During the public meeting, the named respondents, or their legal counsel, shall have the right to be heard, but no additional evidence may be presented. Upon due deliberation, the Town Board may:
(1) 
Issue a decision and order suspending or revoking the certificate of occupancy for the building, structure or property, or portion thereof, for a period of time not to exceed one year;
(2) 
Issue a decision and order directing the closing of the building, structure or real property to the extent necessary to abate the nuisance, pursuant to the procedures set forth in this chapter; and/or
(3) 
Issue a decision and order that various measures be taken by the respondent(s) to the extent necessary to both abate the existing nuisance and ensure the prevention of future nuisance actions from occurring at or near the property, which shall include, but not be limited to: requiring the respondent(s) to modify and improve the usage and features of the premises to deter further and future public nuisance activity; mandating compliance with all applicable building, housing and property maintenance codes and regulations pursuant to the Code of the Town of Greece and/or state law; and/or directing successors-in-interest to comply with the provisions of any issued order of revocation or suspension for the certificate of occupancy unless or until the successors-in-interest appear before the Town Board to provide an appropriate plan for the Town Board to review and make recommendations, wherein said plan will set forth measures to avoid further incidents of public nuisance; and/or
(4) 
Issue a decision and order setting forth such other remedies as the Town Board deems just and proper.
B. 
The decision and order shall be served upon the respondent(s) in any manner permitted for service of a summons in a civil action, or by certified mail, return receipt requested, or by posting in a conspicuous place on the property which is the subject of the decision and order. Where legal counsel has appeared for any respondent with respect to the administrative hearing authorized by § 144-14, service of the decision and order on legal counsel for such respondent by authorized means under the New York Civil Practice Law and Rules shall be sufficient.
C. 
Any decision or order of the Town Board shall be subject to review under Article 78 of the Civil Practice Law and Rules.
D. 
Nothing in this chapter shall limit the authority of the Town Board to take such other or further actions which it may deem necessary to abate any existing public nuisance to the extent necessary to ensure the protection of the health, safety and welfare of the general public.

§ 144-16 Severability.

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.

§ 144-17 When effective.

This chapter shall take effect immediately.