The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
PUBLIC NUISANCE
Includes, but shall not be limited to:
A.
Any building, structure or real property used for the purpose
of illegal use, possession or distribution of a controlled substance
or marijuana as defined by the state Penal Law.
B.
Any building, structure or real property used for the purposes
of prostitution as defined by the state Penal Law.
C.
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.
D.
Any building, structure or real property used for purposes of
illegal gambling activity as defined in the state Penal Law.
E.
Any building, structure or real property used for the purpose
of illegal sale, manufacture or consumption of alcohol beverages as
defined by the state Alcohol Beverage Control Law.
F.
Any building, structure or real property wherein there exists
or has occurred a criminal nuisance as defined by the state Penal
Law.
G.
Any building, structure or real property used for purposes of
loitering as defined by the state Penal Law.
H.
Any building, structure or real property wherein there exists
or has occurred any violation of the Village Code, including, but
not limited to, animal control, zoning (including but not limited
to historic district controls), 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 the Village Code by reference.
I.
Any building, structure or real property which has been damaged
by fire, wind, flooding or other similar occurrence and has not been
repaired to be in conformity with the New York State Fire and Building
Code within 90 days of such occurrence.
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 §
180-1 above 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 section, 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 §
180-1 above occurring on or near the property.
B. Arrest for any of the activities set forth in the definition of a public nuisance in §
180-1 above 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 §
180-1 above occurring on or near the property. For the purposes of this subsection, 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 Athens Code Enforcement Office, Police or Fire Departments and/or other authorized entity with jurisdiction in the Village of Athens and/or other authorized entity with jurisdiction in the Village of Athens and/or an order to abate issued by the administrative panel pursuant to §§
180-12 and
180-13 below.
D. Service of a search warrant on the building, structure or real property
where controlled substances, 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.
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 a motion or order to show cause from the Village Attorney
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
Athens, the Village Attorney 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 five members as follows:
a member of the Planning Board appointed by the Village Board, a member
appointed by the Mayor, a member appointed by the chief Code Enforcement
Officer, a member appointed by the Chief of Police and a member appointed
by the Fire Chief. Each appointing authority shall be authorized to
appoint himself/herself or any member of his/her staff to the hearing
panel, except the Planning Board member position.
D. Hearing. At the time and place designated in the notice, the Village
Attorney 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 Village Attorney 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 Village Attorney, 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.