[HISTORY: Adopted by the Town Board of the Town of Greece 8-17-2010 by L.L. No.
8-2010. Amendments noted where applicable.]
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:
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:
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;
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
