[HISTORY: Adopted by the Mayor and Council of the Village
of Bosque Farms 3-16-2006 (Sec. 7-4 of the 1980 Code). Amendments noted where applicable.]
The governing body of the Village of Bosque Farms declares that
personal property used for or involved in criminal or illegal activity,
and real property located within the Village limits of Bosque Farms
which on more than one occasion within a one-year period has been
the site of illegal or criminal activity, is injurious to the safety
and welfare of the Village, and therefore constitutes a public nuisance
within the meaning of this Section 7-4.
A.
The purpose of this Section 7-4 is to:
(1)
Establish penalties for owners or persons with a legal interest in
property who allow the use of personal or real property to become
a public nuisance within the meaning of this Section 7-4.
(2)
Establish procedures for the disposition of personal property found
to be a public nuisance within the meaning of this Section 7-4.
(3)
Establish procedures for the disposition of real property located
within the Village that has been found to be a public nuisance within
the meaning of this Section 7-4.
B.
This Section 7-4 applies to:
(1)
All real property located within the municipal limits of the Village,
which, on more than one occasion within a period of one year, has
been the site of criminal or illegal activity;
(2)
Personal property, wherever located, which has been involved in criminal
or illegal activities committed in the Village; and
(3)
Owners or persons with a legal interest in such real or personal
property, as that term is defined in this Section 7-4, who have allowed,
negligently, recklessly or intentionally, such crimes or illegal activities
to occur.
C.
This Section
7-4 does not apply to property involved in or used for or the site
of the commission of misdemeanors except as otherwise specified with
respect to property made subject by law to the provisions of the New
Mexico Forfeiture Act (NMSA 1978, § 31-27-1 et seq.).
D.
This Section 7-4 does not supersede or replace any existing ordinance
or statute dealing with the confiscation, seizure, closure or disposal
of property involved in or used for criminal or illegal activity,
but is meant to supplement such existing law, and should be read in
conjunction with any such law.
As used in this Section 7-4, the following terms shall have
the meanings indicated:
With respect to property subject to this Section 7-4, to
seize that property, remove all owners, tenants, occupants and other
persons and animals from real property, motor vehicle, or personal
property, or any portion thereof, and to lock, board, bar and otherwise
prohibit all entry, access, and use thereof, except such access and
use as may be specifically ordered by a court order or competent authority,
for purposes as may be specified by such authority or order, and to
vest the sole right of possession and control of such property in
the Village for a limited period of time as set by court order or
by resolution of the governing body. For motor vehicles, "closure"
includes seizure and impoundment.
Any activity defined as such in the criminal ordinances of
the Village or Valencia County, as amended from time to time, or the
criminal statutes of the State of New Mexico.
NMSA 1978, § 31-27-1 et seq. Property made subject
to the Forfeiture Statute, as of the drafting of this Section 7-4,
includes the following:
Bows and arrows used in illegal hunting (NMSA 1978, § 17-2-20.1).[1]
Any instrument or vehicle used in violation of the Cultural
Properties Act (NMSA 1978, § 18-6-9.3).
Vehicles used or intended for use in shooting at or from a motor
vehicle (NMSA 1978, § 30-3-8.1).
Firearms used or in possession in violation of the Unauthorized
Possession of a Handgun Act (NMSA 1978, § 30-7-2.3).
Property used in violation of the Unauthorized Recording Act
(NMSA 1978, § 30-16B-1 et seq.).
Mistreated animals (NMSA 1978, § 30-18-1.1).
Property used in violation of the Gambling Act (NMSA 1978, § 30-19-10).
Substances and property used or possessed in violation of the
Controlled Substances Act (NMSA 1978, § 30-31-1 et seq.),
the Imitation Controlled Substances Act (NMSA 1978, § 30-31A-1
et seq.), and the Drug Precursor Act (NMSA 1978, § 30-31B-17).[2]
Any interest in property acquired in violation of the Racketeering
Act (NMSA 1978, § 30-42-1 et seq.).
Computer equipment and products used or possessed in violation
of the Computer Crimes Act (NMSA 1978, § 30-45-7).
The Village of Bosque Farms Council.
Any device of conveyance, whether or not currently operational,
capable of moving itself or of being moved from place to place upon
wheels or track or by water or air, whether or not intended for the
transport of persons or property, and includes any place therein adapted
for overnight accommodation of persons or animals or for the carrying
on of business.
Any person who has any interest in property, either legal
or equitable, which allows said person to control the use of said
property.
Negligently allowing the criminal or illegal use of one's
property is the failure to take such care to prevent the use being
made of said property as a reasonably prudent and careful person would
take under similar circumstances.
Recklessly allowing the criminal or illegal use of one's
property is a disregard of, or indifference to, the consequences of
such use of one's property, where the owner knows or reasonably
should know of the use being made of the property.
Of a criminal or illegal activity is a person who commits
such act or by whose agency such act is committed.
Includes tangible or intangible personal property.
The existence of facts and circumstances that warrant a person
of reasonable caution to believe that an offense was or is being committed.
Includes any legal or equitable interest in such property.
The Village of Bosque Farms.
A.
A rebuttable presumption arises that an owner of property, even though
not himself the perpetrator, who has been given notice under this
Section 7-4 that his personal property has been used for, or has been
involved in, or his real property located within the corporate limits
of the Village has been the site of, a crime or illegal activity,
is, for the purposes of this Section 7-4, for any such activity occurring
within one year of such notice, an owner who recklessly, negligently
or intentionally allows such activity.
B.
Any owner of property who, even though not the perpetrator of a crime
or illegal activity committed within the Village, recklessly, negligently
or intentionally allows his property to be used for, or involved in,
or the site of such crime or illegal activity, violates this Section
7-4. Every day on which such violation exists shall constitute a separate
violation of this Section 7-4.
A.
Personal property that is subject to the provisions of the New Mexico
Forfeiture Act, or which, from time to time, is made subject to said
Act, shall be disposed in accordance with that Act.
B.
Personal property not specifically made subject to the provisions
of the New Mexico Forfeiture Act shall be disposed of as follows:
(1)
Motor vehicles or other property found to be a public nuisance within
the meaning of this Section 7-4, and not made or adapted solely for
the commission of the criminal or illegal activity giving rise to
such finding, may, at the discretion of the Chief of Police or his
designee, be seized and impounded if not already in police custody
as a result of arrest. Within five business days of any such seizure,
the Chief of Police shall inform the Village Attorney of such seizure
and the grounds therefor. The Village Attorney shall, within 30 days
of such notice, either file an action in the appropriate court against
the perpetrators of said crime or illegal activity, retaining said
property for use in judicial proceedings as deemed necessary, or release
the property to the owner. Release of said property shall not of itself
bar any future filing of any action with respect to the crime or illegal
activity within any applicable statutory period of limitation. If
retained for use at trial or other legal proceeding, said property
shall remain in Village custody unless the owner posts a bond, effective
until judgment is rendered in such trial or otherwise ordered by the
court or agreed to by the Village Attorney:
(a)
Payable upon default to the Village.
(b)
In the sum of $15,000 or such amount as acceptable to the Village
Attorney to insure the property's availability for trial or proceeding.
(c)
With sureties acceptable to the Village Attorney.
(d)
Conditioned that the property be made available as necessary
for trial or other legal proceedings as required by the Village Attorney,
and that the property will not be used or permitted to be used for
any criminal or illegal activity that would violate this Section 7-4.
(2)
Personal property retained for use at trial or other legal proceeding
shall be disposed of in accordance with the judgment rendered or by
other order of the court. In any such trial or legal proceeding, the
Village Attorney may demand, as part of any judgment, that said personal
property be closed for a period of at least six months from the date
of judgment unless a bond be posted payable to the Village in an amount
equal to the estimated value of the property as determined by the
Village Attorney, or $15,000, whichever is greater, payable upon default
to the Village, effective for the period of closure, and conditioned
that the property not be used for or involved in any further activity
in violation of this Section 7-4.
(3)
Any personal property released to its owner or any holder of an interest
in the property, pursuant to the judgment of court, decision of the
Village Attorney, or agreement, shall require that all towing, storage
and maintenance fees incurred by the Village during the closure of
the property have been paid, that any judgment rendered in favor of
the Village for fees and costs associated with the legal proceedings
have been paid, and that a complete and unconditional release of the
Village and all its employees and agents for or associated with the
closure of said property be executed. In the event that the owners
and holders of legal or equitable interests, or any of them, fail,
neglect, or refuse to notify the Village of their intent to meet the
requirements of release herein stated within 30 days of receiving
notice of the final judgment of the court and the availability of
the property for release, and who fail to redeem the property within
90 days of such notice of intent to redeem, then the property shall
be declared abandoned and shall be disposed of in accordance with
the Village ordinances relating to abandoned property.
(4)
Personal property made, adapted or intended solely for use in the
commission of criminal or illegal activities, as determined by the
Chief of Police, although not covered by the New Mexico Forfeiture
Act, shall be closed and disposed of in accordance with the provisions
of that Act.
(5)
Nothing in this Section 7-4 shall require the Village to release
property lawfully obtained by the Village Police Department as part
of a pending criminal investigation or prosecution.
A.
Notice.
(1)
Owners
of real property within the corporate limits of the Village that is
the site of criminal or illegal activity other than prostitution,
if not the perpetrators of such activity, shall be given notice by
the Chief of Police that:
(a)
A crime or illegal activity has occurred on or at said property;
and that, if appropriate, a citation has been issued against the occupants
and perpetrators of said activity;
(b)
That the acts committed constitute grounds to declare the property
a public nuisance within the meaning of this Section 7-4 if any recurrence
of criminal or illegal activity occurs within one year of notice;
and
(c)
That declaration of public nuisance against the property may result
in penalties as provided by law against said owners and possible destruction
or closure of the property, as provided herein.
(2)
A copy of this Section 7-4 will be provided with any such notice.
A citation against owners of property who are perpetrators satisfies
the requirements of notice under this subsection.
B.
No action shall be taken against any real property located within
the municipal limits of the Village unless and until the Chief of
Police, in consultation with the Village Attorney, has established
that probable cause exists that the property has been the site, on
more than one occasion within a one-year period, of criminal or illegal
activity, except prostitution, and thus constitutes a public nuisance
within the meaning of this Section 7-4. The Chief of Police and the
Village Attorney may, without limitation, utilize citations issued
to the occupants of said property, verified complaints, reports of
other municipal agencies, information from other law enforcement agencies,
prior indictments or convictions of the occupants of said site, or
police surveillance, or any other lawful means to establish probable
cause, and shall, as a part of such procedure, determine the owners
of said property, as that term is defined herein, using any reasonable
means to establish same.
C.
Real property which has been established to be a public nuisance
within the meaning of this Section 7-4, other than a house of prostitution,
shall be disposed of as follows:
(1)
The residents and owners will be given notice by the Chief of Police that the named property is a public nuisance within the meaning of this Section 7-4. Such notice will require that the owners must immediately take steps voluntarily to abate such use and that the owners detail in writing within 30 days an abatement plan itemizing: (a) the actions taken and to be taken to abate and insure continued abatement of such public nuisance; (b) the time frame within which the abatement will occur; and (c) the name, address and telephone number of the person supplying the said information. In addition, any plan must include a provision for the posting of a performance bond in an amount equal to the estimated value of the property, but in no case less than $25,000, made payable upon default to the Village, with sureties acceptable to the Village, and conditioned upon the faithful performance of the abatement plan as finally accepted. The Chief of Police and the Village Attorney will determine jointly the suitability and reasonableness of any such abatement plan and inform the owner or his representative of such decision. If the proposed abatement plan is unsuitable, the Chief of Police and the Village Attorney jointly will detail actions that must be taken or time frames that must be observed, or both if appropriate, to make the plan acceptable and so notify the owner. A denial of suitability will require an immediate resubmission addressing the requirements outlined. A second denial or failure to resubmit will be treated as a nonresponse and dealt with under Subsection C(4) below.
(2)
If the plan is determined to be acceptable, the owner will be so
notified, and surveillance will continue to monitor adherence to the
accepted plan. Nonrecurrence of criminal or illegal activity at or
on the property for a period of one year following the completion
of an approved abatement plan will constitute fulfillment of the abatement
plan and remove the property from further obligation under this Section
7-4 and release the performance bond.
(3)
Failure to perform the plan as accepted during the period of the
plan and the one-year period following completion will constitute
a breach of the plan allowing forfeiture of the bond. In addition,
the property will be made subject to the provisions of Subsection
D(4) below.
(4)
Failure of the owner or his representative to respond within the
time allowed, or failure of the owner to address satisfactorily the
requirements of abatement provided to him following a notice of unsuitability
of a proposed abatement plan, or any breach of an approved abatement
plan prior to its fulfillment, following review and concurrence by
the Village Attorney, shall be reported to the governing body by the
Chief of Police, with a request that civil in-rem legal proceedings
against the property be initiated.
(5)
Civil in-rem legal proceedings shall be initiated, at the direction
of the governing body, by the Village Attorney in accordance with
the procedures contained in the New Mexico Statutes and Rules of Court
for proceedings against real property. The suit shall be against the
property and any owner seeking a judgment that the property is a criminal
public nuisance within the meaning of this Section 7-4 and shall include
a demand that the property be closed during the pendency of the suit,
subject to a release bond satisfactory to the Village. Upon judgment
by the court that the property is a criminal public nuisance, in addition
to any other remedy, the court shall either: (a) order the destruction
of buildings or other structures or appurtenances causing the property
to be a public nuisance, with any cost of destruction to be paid by
the owners of said property or be a lien against the property; or
(b) order the closure of the property for a period of not less than
one year or more than three years from the date of judgment, unless
a bond is posted effective for the period of closure:
(a)
Payable to the Village.
(b)
In a sum equal to the estimated value of the property, but not
less than $25,000.
(c)
With sureties acceptable to the court.
(d)
Conditioned that the property will not be used or permitted
to be used for any crime or illegal activity that would violate this
Section 7-4.
(e)
Further conditioned that any breach of the terms of the bond
will allow closure of the property, with no provision for bond, for
the remaining period of closure included in the judgment.
(6)
Any legal proceeding against the property subject to this subsection
shall include a requirement that the defendants, during any closure
imposed in said proceeding, whether before or after judgment, shall
provide for the full maintenance of said property, including any animals,
livestock, vegetation, sanitation, utilities, insurance, and security.
(7)
At the end of any such closure period, the real property shall be
released to the owners only upon the payment of all expenses incurred
by the Village for or associated with its closure, and the payment
of any civil judgments awarded to the Village for its legal fees and
costs. In addition, the property shall only be released upon the execution
by all holders of any interest in and to said property of an unconditional
release of the Village, its employees and agents for any liability
for or associated with the closure of the property.
(8)
In addition to the remedies provided in this subsection, the Village
shall have a lien against the real property involved for any civil
judgment awarded in favor of the Village, including any costs, fees,
and maintenance and upkeep expenses incurred during the period when
such property was under the control of the Village.
A.
Property that is found to be a house of prostitution, as that term
is denied in NMSA 1978, § 30-9-1 et seq., shall be disposed
of in accordance with the provisions of NMSA 1978, § 30-8-8.1.
B.
The owners of property which has been found to be a house of prostitution,
and who are not themselves the operators of said house, shall be made
aware of the provisions of NMSA 1978, § 30-9-9 regarding
the owners' remedies against lessees conducting such activities.
