This article shall be applicable to the public nuisances defined in Article I of this chapter.
A.
In addition to and as an alternative to the enforcement procedures established elsewhere, the Mayor or the Mayor's designee, after notice and opportunity for a hearing, may, pursuant to Article I, § 166-3, deem the existence of a public nuisance, as such is defined thereunder, and shall thereafter be authorized:
(1)
To order the closing of the building, erection, place or place of
business to the extent necessary to abate the nuisance;
(2)
To suspend for a period not to exceed six months or revoke for a
period of one year a certificate of use issued for such premises,
and to prevent the operator from obtaining a new certificate of use
for another location for the period of suspension or revocation;
(3)
To suspend for a period not to exceed six months or revoke for a
period of one year any occupational license or permit issued by the
Village Attorney related to the conduct of a business or trade at
the premises, which suspension or revocation shall also apply to any
other locations operated by the holder for which the license or permit
is required;
(4)
To suspend for a period not to exceed six months or revoke for a
period of one year eligibility to secure grants or loans from the
Village of Hillburn; or
(5)
Any combination of the above.
B.
Service of notice.
(1)
Prior to the issuance of orders by the Mayor or the Mayor's
designee pursuant to this section, the Mayor or the Mayor's designee
shall give notice and opportunity for a hearing to the owner, lessor,
lessee and mortgagee of a building, erection or place wherein the
public nuisance is being conducted, maintained or permitted. Such
notice shall be served upon an owner pursuant to Article 3 of the
Civil Practice Law and Rules, upon a lessor/lessee pursuant to Real
Property Actions and Proceedings Law § 735, 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. The
person in whose name the real estate affected by the orders of the
Mayor or the Mayor's designee is recorded in the office of the
County Clerk shall be presumed to be the owner thereof. Proceedings
shall be commenced by service of the notice and opportunity for a
hearing within 60 days after the occurrence of the most recent violation
cited in the notice.
(2)
The lack of knowledge of acquiescence or participation in or responsibility
for a public nuisance on the part of the owners, lessors, lessees,
mortgagees and all those persons in possession or having charge of
as agent or otherwise, or having any interest in the property, real
or personal, used in conducting or maintaining the public nuisance,
shall not be a defense by such owners, lessors and lessees, mortgagees
and such other persons.
(3)
Every certificate of occupancy, certificate of zoning compliance
and real property tax bill issued by any Village department shall
state the number of nuisance points, if any, assessed against the
premises as of the date of the record being issued.
C.
Orders of the Mayor or the Mayor's designee issued pursuant
to this section shall be posted at the building, erection or place
where a public nuisance exists or is occurring in violation of law
and shall be mailed to the owner or record thereof within one business
day of the posting.
D.
Five business days after the posting of an order issued pursuant
to this section and upon the written directive of the Mayor or the
Mayor's designee, officers of the Village of Hillburn, Sheriff
of Rockland County, and the Ramapo Police Department are authorized
to act upon and enforce such orders.
E.
Where the Mayor or the Mayor's designee closes a building, erection
or place pursuant to this section, such closing shall be for such
period as the Mayor or the Mayor's designee may direct, but in
no event shall the closing be for a period of more than one year from
the posting of the order pursuant to this section. If the owner, lessor
or lessee shall file a bond in an amount determined by the Mayor or
the Mayor's designee, but which may not exceed the value of the
property ordered to be closed, and submit proof satisfactory to the
Mayor or the Mayor's designee that the nuisance has been abated
and will not be created, maintained or permitted for such period of
time as the building, erection or place has been directed to be closed
by the order of the Mayor or the Mayor's designee, then the Mayor
or the Mayor's designee may vacate the provisions of the order
that directs the closing of the building, erection or place.
F.
Intentional disobedience or resistance to any provision of a judgment
awarding a permanent injunction pursuant to this chapter, in addition
to any other punishment prescribed by law, shall be punishable by
a fine of not more than $1,000 or by imprisonment not exceeding six
months, or by both.
G.
Upon the request of the Village of Hillburn Village Attorney or the
Mayor of the Village of Hillburn, the Town of Ramapo Police Department
shall assist in the enforcement of a judgment awarding a permanent
injunction entered in an action brought pursuant to this chapter.
H.
A judgment rendered awarding a permanent injunction pursuant to this
chapter shall be and become a lien upon the building, structure or
place named in the complaint in such action, such lien to date from
the time of filing a notice of liens pending in the office of the
clerk of the county wherein the building, structure or place is located.
Every such nuisance abatement lien shall have priority before any
mortgage or other lien that exists prior to such filing, except tax
and assessment liens.
I.
A judgment awarding a permanent injunction pursuant to this chapter
shall provide, in addition to the costs and disbursements allowed
by the Civil Practice Law and Rules, upon satisfactory proof by affidavit
or such other evidence as may be submitted, the actual costs, expenses
and disbursements of the Village in investigating, bringing and maintaining
the action.
A.
Generally.
(1)
Pending an action for a permanent injunction as provided for in this
article, the Court may grant a preliminary injunction enjoining a
public nuisance within the scope of this chapter and the person or
persons conducting, maintaining or permitting the public nuisance
from further conducting, maintaining or permitting the public nuisance.
An order granting the preliminary injunction shall direct a trial
of the issues at the earliest possible time. Where preliminary injunction
has been granted, the Court shall render a decision with respect to
a permanent injunction at its earliest convenience after the conclusion
of the trial. A temporary closing order may be granted pending a hearing
for a preliminary injunction where it appears by clear and convincing
evidence that a nuisance within the scope of this chapter is being
conducted, maintained or permitted and that the public health, safety
or welfare immediately requires the granting of a temporary closing
order. A temporary restraining order may be granted pending a hearing
for a preliminary injunction where it appears by clear and convincing
evidence that a nuisance within the scope of this chapter is being
conducted, maintained or permitted.
(2)
Enforcement of preliminary injunction. A preliminary injunction shall
be enforced by the Village Attorney of the Village of Hillburn and
the Sheriff of Rockland County.
(3)
Preliminary injunctions, directing closing of premises, posting of
orders and notices of offenses. If the Court grants a preliminary
injunction, the provisions of this article shall be applicable.
B.
Motion papers for preliminary injunction. The Village Attorney shall
show, by affidavit and such other evidence as may be submitted, that
there is a cause of action for a permanent injunction abating a nuisance
within the scope of this chapter.
C.
Temporary closing order.
(1)
If, on a motion for a preliminary injunction pursuant to § 166-11 of this article, the Village Attorney shall show by clear and convincing evidence that a nuisance within the scope of this chapter is being conducted, maintained or permitted and that the public health, safety or welfare immediately requires a temporary closing order, a temporary order closing such part of the building, structure or place wherein the nuisance is being conducted, maintained or permitted may be granted without notice, pending order of the Court granting or refusing the preliminary injunction and until further order to the Court. Upon granting a temporary closing order, the Court shall direct the holding of a hearing for the preliminary injunction at the earliest possible time; a decision on the motion for a preliminary injunction shall be rendered by the Court at the earliest possible time.
(2)
Service of temporary closing order. Unless the Court orders otherwise,
a temporary closing order, together with the papers upon which it
was based and a notice of hearing for the preliminary injunction,
shall be personally served in the same manner as a summons as provided
in the Civil Practice Law and Rules.
D.
Temporary restraining order.
(1)
A temporary restraining order may be granted pending a hearing for
preliminary injunction where it appears by clear and convincing evidence
that a public nuisance within the scope of this chapter is being conducted,
maintained or permitted and that the public health, safety or welfare
immediately requires the granting of a temporary restraining order.
This order shall restrain the defendants and all persons from removing
or transferring off the property or in any manner interfering with
the fixtures and movable property used in conducting, maintaining
or permitting the public nuisance and from further conducting, maintaining
or permitting the public nuisance. A temporary restraining order may
be granted without notice, pending order of the Court granting or
refusing the preliminary injunction and until further order of the
Court. Upon granting a temporary restraining order, the Court shall
direct the holding of a hearing for the preliminary injunction.
(2)
Service of temporary restraining order. Unless the Court orders otherwise,
a temporary restraining order and the papers upon which it was based
and a notice of hearing for the preliminary injunction shall be personally
served in the same manner as a summons as provided in the Civil Practice
Law and Rules.
E.
Temporary closing order; temporary restraining order.
(1)
If on motion for a preliminary injunction the Village Attorney submits
evidence warranting both a temporary closing order and a temporary
restraining order, the Court shall grant both orders.
(2)
Enforcement of temporary closing orders and temporary restraining
orders. Temporary closing orders and temporary restraining orders
shall be enforced by the Village Attorney of the Village of Hillburn
and the Sheriff of Rockland County.
F.
Inventory upon service of temporary closing orders and temporary
restraining orders. The officers serving a temporary restraining order
shall forthwith make and return to the Court an inventory of personal
property situated in and used in conducting, maintaining or permitting
a public nuisance within the scope of this chapter and shall enter
upon the building, structure or place for such purpose. Such inventory
shall be taken in any manner which is deemed likely to evidence a
true and accurate representation of the personal property subject
to such inventory, including, but not limited to, photographing such
personal property.
G.
Closing of premises pursuant to temporary closing orders and temporary
restraining orders. The officers serving a temporary restraining order
shall, upon service of the order, command all persons present in the
building, structure or place to vacate the premises forthwith. Upon
the building, structure or place being vacated, the premises shall
be securely locked and all keys delivered to the officers serving
the order, who thereafter shall deliver the keys to the fee owner,
lessor or lessee of the building, structure or place involved. If
the fee owner, lessor or lessee is not at the building, structure
or place when the order is being executed, the officers shall securely
padlock the premises and retain the keys until the fee owner, lessor
or lessee of the building is ascertained, at which time the officers
shall deliver the keys to such owner, lessor or lessee, if such individual
resides within Rockland County.
H.
Posting of temporary closing orders and temporary restraining orders.
Upon service of a temporary restraining order, the officer shall post
a copy thereof in a conspicuous place or upon one or more of the principal
door at entrances of such premises where the public nuisance is being
conducted, maintained or permitted. In addition, where a temporary
restraining order has been granted, the officers shall affix, in a
conspicuous place or upon one or more of the principal doors at entrances
of such premises, a printed notice that shall state that certain described
activity is prohibited by court order and that removal of property
is prohibited by court order. If the temporary restraining order directs
that the premises are to be closed by court order, the notice shall
contain the legend "Closed by Court Order" in block lettering of sufficient
size to be observed by anyone intending or likely to enter the premises,
the date of the order, the Court from which issued and the name of
the office or agency posting the notice. Mutilation or removal of
such a posted order or such a posted notice while it remains in force,
in addition to any other punishment prescribed by law, shall be punishable,
on conviction, by a fine of not more than $1,000 or by imprisonment
not exceeding 90 days, or by both, provided such order or notice contains
therein a notice of such penalty. The Police Department shall, upon
the request of the office of the Village Attorney or upon the direction
of the Mayor, assist in the enforcement of this section.
I.
Intentional disobedience of or resistance to a temporary restraining
order and permanent injunction. Intentional disobedience of or resistance
to a temporary restraining order, in addition to any other punishment
prescribed by law, shall be punishable, on conviction, by a fine of
not more than $1,000 or by imprisonment not exceeding six months,
or by both.
J.
Temporary restraining order or preliminary injunction bond required.
A temporary restraining order or preliminary injunction shall not
issue under this chapter, except upon the giving of a bond or security
by the applicant, in the amount of $1,000, for the payment of such
costs and damages as may be incurred or suffered by any party who
is found to be wrongfully restrained or enjoined. A bond or security
shall not be required of the State of New York, municipal corporations,
or political subdivisions of the State of New York.
A.
Temporary restraining order to be vacated; inspection provision.
(1)
A temporary restraining order shall be vacated, upon notice to the
Village Attorney, if the defendant shows by affidavit and such other
proof as may be submitted that the public nuisance within the scope
of this chapter has been abated. An order vacating a temporary closing
order or a temporary restraining order shall include a provision authorizing
agencies of the Village to inspect the building, structure or place
which is the subject of an action pursuant to this chapter periodically
without notice during the pendency of the action for the purpose of
ascertaining whether or not the public nuisance has been resumed.
Intentional disobedience of, or resistance to, an inspection provision
of an order vacating a temporary restraining order, in addition to
any other punishment prescribed by law, shall be punishable, on conviction,
by a fine of not more than $1,000 or by imprisonment not exceeding
six months, or by both. The Police Department shall, upon the request
of the office of the Village Attorney or upon the direction of the
Mayor, assist in the enforcement of an inspection provision of an
order vacating a temporary restraining order.
(2)
A temporary restraining order may be vacated by the Court, upon notice
to the Village Attorney, when the defendant gives an undertaking and
the Court is satisfied that the public health, safety or welfare will
be protected adequately during the pendency of the action. The undertaking
shall be in an amount equal to the assessed valuation of the building,
structure or place where the public nuisance is being conducted, maintained
or permitted, or in such other amount as may be fixed by the Court.
The defendant shall pay to the Village, in the event a judgment of
permanent injunction is obtained, its actual costs, expenses and disbursements
in investigating, bringing and maintaining the action.
B.
Vacating a temporary injunction or a temporary restraining order.
When the defendant gives an undertaking in the amount of the civil
penalty demanded in the complaint, together with costs, disbursements
and the projected annual costs of the prosecution of the action to
be determined by the Court, upon a motion on notice to the Village
Attorney, a temporary injunction or a temporary restraining order
shall be vacated by the Court. The provisions of the Civil Practice
Law and Rules governing undertakings shall be applicable to this article.
A.
Generally, pending an action pursuant to this article, the Court
may grant a preliminary injunction enjoining a defendant from making
a bulk transfer, as defined in this section.
B.
If, on a motion for a preliminary injunction of a bulk transfer, the Village Attorney shall show by clear and convincing evidence that a public nuisance within the scope of this chapter is being conducted, maintained or permitted, a temporary restraining order may be granted, without notice, restraining the defendants and all persons from making or permitting a "bulk transfer," as defined in this article, pending order of the Court granting or refusing the preliminary injunction and until further order of the Court. Application for a temporary restraining order shall be made pursuant to § 166-11 of this article.
C.
"Bulk transfer" defined. A bulk transfer is any transfer of a major
part of the materials, supplies, merchandise or other inventory or
equipment of the transferor in the building, structure or place where
the public nuisance is being conducted, maintained or permitted that
is not in the ordinary course of the transferor's business.
D.
Enforcement of preliminary injunction. A preliminary injunction shall
be enforced for the office of the Village Attorney by the Sheriff
of Rockland County.
A.
Appointment, duration and removal. In any action wherein the complaint
alleges that the nuisance is being conducted or maintained in the
residential portions of any building or structure or portion thereof
which are occupied in whole or in part as the home, residence or sleeping
place of one or more human beings, the Court may, upon motion on notice
by the plaintiff, appoint a temporary receiver to manage and operate
the property during the pendency of the action, in lieu of a temporary
closing order. A temporary receivership shall not continue after final
judgment unless otherwise directed by the Court. Upon the motion of
any party, including the temporary receiver, or on its own initiative,
the appointing court may remove a temporary receiver at any time.
B.
Powers and duties. The temporary receiver shall have such powers
and duties as the Court shall direct, including but not limited to
collecting and holding all rents due from all tenants; leasing or
renting portions of the building or structure; making or authorizing
other persons to make necessary repairs or to maintain the property;
hiring security or other personnel necessary for the safe and proper
operation of a dwelling; prosecuting or defending suits flowing from
his or her management of the property and retaining counsel therefor;
and expending funds from the collected rents in furtherance of the
foregoing powers.
C.
Oath. A temporary receiver, before entering upon his or her duties,
shall be sworn or shall affirm faithfully and fairly to discharge
the trust committed to such receiver. The oath or affirmation may
be waived upon consent of all parties.
D.
A closing directed by the Mayor or the Mayor's designee pursuant to this section shall not constitute an act of possession, ownership or control by the Village of the closed premises, nor will it constitute a closure caused by a government for purpose of nonconformity under Chapter 250, Zoning, Article IX, Nonconforming Buildings and Uses, of the Code of the Village of Hillburn.
E.
It shall be a misdemeanor for any person to use or occupy or to permit
any other person to use or occupy any building, erection or place,
or portion thereof, ordered closed by the Mayor or the Mayor's
designee. Mutilation or removal of a posted order of the Mayor or
the Mayor's designee 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.
F.
Intentional disobedience or resistance to any provision of the orders
issued by the Mayor or Mayor's designee pursuant to this section,
in addition to any other punishment prescribed by law, shall be punishable
by a fine or not more than $1,000 or by imprisonment not to exceed
six months, or both.
G.
The Mayor or the Mayor's designee may promulgate rules and regulations
to carry out and give full effect to the provisions of this section.
H.
If any provision of this section or the application thereof to any
person or circumstances is held invalid, the remainder of this section
and the application of such provisions to other persons and circumstances
shall not be rendered invalid thereby.
A.
Any owner who, having been served with a notice or order to remove
any violation of this chapter or any nuisance, fails to comply therewith
within the time fixed by law shall be guilty of an offense punishable,
for each offense, by a fine or penalty not exceeding those set forth
in the Code of the Village of Hillburn.[1] Every day of such violation may be held to constitute
a separate offense.
B.
The term "owner," as used in this section, shall include any person
or persons deemed to be an owner or owners of property as set forth
in the Code of the Village of Hillburn.
C.
Violations of this chapter may also be referred to the Code Enforcement
Department or any other appropriate municipal department and be prosecuted
pursuant to the housing maintenance code or any other provision of
the Code of the Village of Hillburn.
