[HISTORY: Adopted by the Board of Trustees of the Village
of Massena 6-18-2013 by L.L. No. 4-2013. Amendments noted where applicable.]
The purpose and intent of this chapter shall be to preserve
the public peace, health, public welfare and good order in the Village
of Massena by reducing the threat toward the quality of life of our
citizens and preventing the spread of blight and nuisance.
The following words, terms and phrases, when used in this chapter,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
Includes, but shall not be limited to:
Any building, structure or real property used for the purpose
of illegal use, possession or distribution of a controlled substance
or marihuana [marijuana] as defined by the state Penal Law.
Any building, structure or real property used for the purposes
of prostitution as defined by the state Penal Law.
Any building, structure or real property used for purposes of
indecency, obscene performances and/or promotion of obscene material
as defined by the state Penal Law and this Code.
Any building, structure or real property used for purposes of
illegal gambling activity as defined in the state Penal Law.
Any building, structure or real property used for the purpose
of the commission of illegal possession, use or sale of firearms or
weapons as defined by the state Penal Law.
Any building, structure or real property used for the purpose
of illegal sale, manufacture or consumption of alcohol beverages as
defined by the state Alcoholic Beverage Control Law.
Any building, structure or real property wherein there exists
or has occurred a criminal nuisance as defined by the state Penal
Law.
Any building, structure or real property used for purposes of
loitering as defined by the state Penal Law.
Any building, structure or real property wherein there exists or has occurred any violation of this Code, including, but not limited to, Chapter 92 (regarding animal control), Chapter 300, Zoning, and the New York State Uniform Fire Prevention and Building Code, including the Property Maintenance Code of New York State, and any subsequent amendments or superseding provisions thereto, all of which have been previously adopted and incorporated into this Code by reference.
Any building, structure or real property wherein an occupant,
guest or business invitee commits criminal activities involving assault,
gang assault, harassment or disorderly conduct, as said criminal activities
are defined by the state Penal Law.
No owner, operator, manager, tenant, lessee or other occupier
of a building, structure or real property shall knowingly conduct,
maintain, permit or allow the existence of a public nuisance at the
building, structure or real property.
Notice by first class mail or personal service of activities
entailing a public nuisance to the property owner, operator, manager,
tenant, lessee or other occupier of a building, structure or real
property shall be prima facie evidence of knowledge of the public
nuisance.
The existence of two or more criminal convictions for any of the activities set forth in the definition of a public nuisance in § 218-1 at any building, structure or real property within a two-year period prior to the commencement of a civil action and/or an administrative hearing shall be prima facie evidence of the existence of a public nuisance. For the purposes of this chapter, a criminal conviction shall be defined as the entry of a plea of guilty to, and/or a verdict of guilty for, one or more counts set forth in an accusatory instrument.
The existence of two or more incidents of the following activities
at any building, structure or real property within a one-year period
prior to the commencement of a civil action and/or an administrative
hearing shall be prima facie evidence of the existence of a public
nuisance:
A.
Conviction for any of the activities set forth in the definition of a public nuisance in § 218-1 occurring on or near the property.
B.
Arrest for any of the activities set forth in the definition of a public nuisance in § 218-1 occurring on or near the property.
C.
Service of an accusatory instrument charging any of the activities set forth in the definition of a public nuisance in § 218-1 occurring on or near the property. For the purposes of this chapter, an accusatory instrument shall include, but not be limited to, any criminal information, misdemeanor and/or felony complaint filed in a court of competent jurisdiction, and/or, with regard to unfit, unsafe and/or fire-damaged structures on or near the property, a notice of violation issued by the Village of Massena Code Enforcement Office, Police or Fire Departments and/or other authorized entity with jurisdiction in the Village of Massena and/or any order issued pursuant to Chapters 120, 142, or 216 of this Code.[1]
D.
Service of a search warrant on the building, structure or real property
where controlled substances, marihuana [marijuana], and/or weapons
are seized.
E.
Finding of illegal controlled substances or illegal firearms or weapons
on the building, structure or real property.
F.
Investigative purchases of illegal controlled substances on the building,
structure or real property by law enforcement agencies or their agents.
A.
The Corporation Counsel may bring and maintain a civil action in
the name of the Village to abate a public nuisance and shall commence
the civil action by the filing of a summons and complaint in the manner
required by state Civil Practice Laws and Rules.
B.
The summons and complaint shall name as defendants the building,
structure or real property by describing it by tax map number and/or
street address and shall name as defendants at least one of the owners
of some portion of or some interest in the property.
C.
The summons and complaint may also name as defendants any owner,
operator, manager, tenant, lessee or other occupier of the building,
structure or real property.
D.
The complaint shall allege the facts constituting the public nuisance.
E.
The complaint shall be accompanied by affidavits for purposes of
showing that the owner or his agent had notice of the nuisance and
had an opportunity to abate the nuisance.
F.
The venue of the action shall be in the county where the public nuisance
is being conducted, maintained, permitted or allowed.
G.
In rem jurisdiction over the building, structure or real property
shall be completed by affixing the summons to the building, structure
or real property and by mailing the summons and complaint by certified
or registered mail, return receipt requested, to the person in whose
name the real property is recorded at the office of the Village Assessor.
H.
Defendants other than the building, structure or real property shall
be served with the summons and complaint in the manner required by
the state Civil Practice Law and Rules.
I.
With respect to any action commenced or to be commenced, the corporation
counsel may file a notice of pendency pursuant to the state Civil
Practice Law and Rules.
If, upon the trial of an action for a public nuisance or upon
a motion for summary judgment, a finding is made that defendants have
conducted, maintained, permitted or allowed a public nuisance, a penalty
may be awarded in an amount not to exceed $1,000 for each day it is
found that defendants conducted, maintained, permitted or allowed
the public nuisance after notice to abate had been given by the Village.
Upon recovery, such penalty shall be paid into the general village
fund.
A.
If, upon the trial of an action for a public nuisance or upon a motion
for summary judgment, a finding is made that defendants have conducted,
maintained, permitted or allowed a public nuisance, a permanent injunction
may be granted.
B.
A permanent injunction may prohibit defendants from conducting, maintaining,
permitting or allowing the public nuisance.
C.
A permanent injunction may authorize agents of the Village to remove
and correct any conditions in violation of this Code. The judgment
may further order that the costs of removing and correcting the violations,
plus a charge of 50% as compensation to the Village for administering,
supervising and handling such work, shall be charged against defendants
and awarded to the Village. The judgment may further order that the
costs of removing and correcting the violations, plus a charge of
50% as compensation to the Village for administering, supervising
and handling such work, 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 within the Village.
D.
A judgment ordering a permanent injunction may direct the closing
of the building, structure or real property by the Village Police
Department, to the extent necessary to abate the nuisance.
E.
A judgment awarding a permanent injunction shall provide for all
costs and disbursements allowed by the state Civil Practice Law and
Rules and for the actual costs, expenses and disbursements of the
Village in investigating, bringing and maintaining the action.
A.
If the judgment directs the closing of the building, structure or
real property, the Village Police Department shall serve the judgment
upon defendants in the manner required by the state Civil Practice
Laws and Rules and shall post a copy of the judgment upon 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.
B.
In addition, the Village police department shall affix upon 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, a printed notice 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 notice while it
remains in force will be considered a separate violation under the
state Penal Law and shall be punishable by a fine of no less than
$100 but not exceeding $500, or by imprisonment not exceeding 15 days,
or both. Each day any violation of any provision of this Code or of
any such ordinance, local law or resolution shall continue shall constitute
a separate violation.
D.
The Village Police Department may then command all persons present
in the building, structure or real property to vacate the property
forthwith. After the building, structure or real property has been
vacated, the Village Police Department may secure the premises.
E.
The closing directed by the judgment shall be for such period as
the court may direct, but in no event shall the closing be for a period
of more than a year from the posting of the judgment.
F.
A closing by the Village Police Department shall not constitute an
act of possession, ownership or control by the Village.
Upon a motion or order to show cause from the Corporation Counsel
and pending an action for a permanent injunction, a preliminary injunction
enjoining the public nuisance may be granted for any of the relief
obtainable by a permanent injunction.
Pending a motion or order to show cause for a preliminary injunction,
a temporary restraining order or a temporary closing order may be
granted, without notice to defendants, for any of the relief obtainable
by a permanent injunction.
Whenever there is prima facie evidence of a public nuisance
at any building, structure or real property within the Village of
Massena, the Corporation Counsel may initiate an administrative hearing.
A.
Service of notice. A notice of the hearing shall be served on all
owners of the building, structure or real property and may also be
served on any known tenants or lessees or other occupiers of the building.
The notice shall be served in the manner required by New York State
Civil Practice Law and Rules.
B.
Content of notice. The notice shall allege the facts constituting
the public nuisance. The notice shall further contain a time and place
for a hearing to be held before a panel.
C.
Hearing panel. The panel shall consist of a member to be appointed
by the Chief Code Enforcement Officer, a member to be appointed by
the Chief of Police and a member to be appointed by the Foreman of
the Fire Department. Each appointing authority shall be authorized
to appoint himself/herself or any member of his/her staff to the hearing
panel.
D.
Hearing. At the time and place designated in the notice, the Corporation
Counsel or his/her designee shall present all relevant evidence and/or
witnesses demonstrating the existence of a public nuisance at the
building, structure or real property, and as to appropriate remedies.
The owners of the building, structure or real property, or their representatives,
shall have the right to examine such evidence and cross-examine any
witnesses presented by the Corporation Counsel or his/her designee.
The owners of the building, structure or real property, or their representatives,
may present any relevant evidence and/or witnesses in their defense.
The Corporation Counsel, or his/her designee, shall have the right
to examine such evidence and cross-examine any witnesses presented
by the owners of the building, structure or real property, or their
representatives.
E.
Panel's finding and recommendation. Within five business days
of the hearing, the panel shall provide a finding of fact to the Mayor
or the mayor's designee. The finding of fact shall state whether
there is prima facie evidence of the existence of a public nuisance
at the building, structure or real property. The panel shall further
provide a written recommendation of remedies to abate the public nuisance.
A.
The Mayor or the Mayor's designee, upon receipt of a finding
of fact and recommendation from the panel, shall have the following
powers in furtherance of the abatement of public nuisances:
(1)
To issue a decision and order suspending or revoking, for a period
not to exceed one year, the certificate of occupancy for the building,
structure or real property.
(2)
To issue a decision and order directing the closing of the building, structure or real property by the Massena Police Department, to the extent necessary to abate the nuisance, pursuant to the procedures set forth above in § 218-9.
(3)
In conjunction with, or in lieu of, the foregoing powers, to issue
a decision and order that various measures be taken by the owner,
tenant and/or lessee of the property 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 owner to modify and improve the
usage and features of the premises to deter further and future public
nuisance activity; mandating compliance will all applicable building,
housing and property maintenance codes and regulations pursuant to
this Code and/or State law; and/or directing subsequent purchasers
to comply with the provisions of any issued order of revocation or
suspension for the certificate of occupancy unless or until the subsequent
purchaser appears before the hearing panel to provide an appropriate
plan for the panel to review and make recommendations, wherein said
plan will set forth measures to avoid further incidents of public
nuisance.
B.
The decision and order shall be served upon the owner, tenant and/or lessee of the property in a manner similar to that described in § 218-12A herein.
C.
Nothing within this section shall limit the authority of the Mayor
or Mayor's designee to take such other and further actions deemed
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, word, section or part of
this chapter shall be adjudged by any court of competent jurisdiction
to be unconstitutional, illegal or invalid, such judgment shall not
affect, impair or invalidate the remainder thereof, but shall be confined
in its operation to the clause, sentence, paragraph, word, section
or part thereof, directly involved in the controversy in which said
judgment shall have been rendered.
If a provision of this chapter is found to be in conflict with
a provision of any zoning, building, fire, safety or health ordinance
or code of the Village, the provision which establishes the higher
standard for the promotion and protection of the health and safety
of the people shall prevail. If a provision of this chapter is found
to be in conflict with the provisions of any other ordinance or code
of the Village which establishes a lower standard for the promotion
and protection of the health and safety of the people, the provisions
of this chapter shall prevail, and such other ordinances or codes
are repealed to the extent that they may be in conflict with this
chapter.
