[HISTORY: Adopted by the Board of Trustees of the Village
of Athens 8-13-2014 by L.L. No. 3-2014. Amendments noted where applicable.]
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:
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 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 illegal sale, manufacture or consumption of alcohol beverages as
defined by the state Alcohol 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 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.[1]
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.
A.
The Village Attorney or retained special 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 may be the Athens Town Justice Court or the
Greene County Supreme Court based upon the allegation that 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 Town or 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 New York State Civil Practice Laws and Rules (CPLR)
I.
With respect to any action commenced or to be commenced, the Village
Attorney may file a notice of pendency pursuant to the state Civil
Practice Laws 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.
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 Laws 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 as a misdemeanor.
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 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.
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 Athens Police Department, to the
extent necessary to abate the nuisance, pursuant to the procedures
set forth above.
(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 with all applicable building,
housing and property maintenance codes and regulations pursuant to
the Village of Athens Code or local law enacted by the Village 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 § 180-12 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.
