This chapter shall be known as the "Village of New Hartford
Public Nuisance Abatement Law."
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:
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 marihuana (marijuana) as defined by the New York State Penal Law.
B.
Any building, structure or real property used for the purposes
of prostitution as defined by the New York 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 New York State Penal Law and this Code.
D.
Any building, structure or real property used for purposes of
illegal gambling activity as defined in the New York State Penal Law.
E.
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 New York State Penal Law.
F.
Any building, structure or real property used for the purpose
of illegal sale, manufacture or consumption of alcohol beverages as
defined by the New York State Alcohol Beverage Control Law.
G.
Any building, structure or real property wherein there exists
or has occurred a criminal nuisance as defined by the New York State
Penal Law.
H.
Any building, structure or real property used for purposes of
loitering as defined by the New York State Penal Law.
I.
Any building, structure or real property wherein there exists
or has occurred any violation of the Code of the Village of New Hartford,
including, but not limited to, zoning, New York State Uniform Fire
Prevention and Building Code, 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 said Code of the Village of New Hartford by reference.
J.
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 New York State Penal Law.
K.
Any building, structure or real property wherein an occupant,
guest or business invitee conducts or performs activities or behaves
in a manner that detrimentally effects the quiet and reasonable use
and enjoyment of adjacent or neighboring property as such conduct
and activities are defined by the New York 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.
Whenever there is prima facie evidence of a public nuisance
at any building, structure or real property within the Village of
New Hartford, the Village Attorney shall initiate an administrative
review hearing before bringing a civil action as described herein.
A. Service of notice. A notice of the review hearing shall be served
on one or more 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 be accompanied by affidavit(s)
for purposes of showing that the owner of his agent had notice of
the nuisance, had an opportunity to abate the nuisance and failed
to do so. The notice shall further contain a time, date and place
for the review 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 Village Board.
Each appointing authority shall be authorized to appoint himself/herself
or any member of his/her staff or department to the hearing panel.
D. Hearing. At the time, date 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, the presumption of knowledge
of the subject nuisance(s), proper service of sufficient notice on
one or more owners, the failure or refusal of the owner(s) of the
building, structure or real property to fully and properly abate said
nuisance, despite notice and opportunity to do so. 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.
(1) Within five business days of the review hearing, the panel shall
provide a written decision to the Village Mayor for presentment to
the Village of New Hartford at or before the next regularly scheduled
Village Board meeting.
(2) Within five business days of the review hearing, the panel shall
provide a copy of its decision to the Village Board, Village Attorney,
the Code Enforcement Officer, the Police Chief and to the owner(s)
of the subject building, structure or real property. The written decision
shall state whether or not the panel determined there is prima facie
evidence of the existence of a public nuisance at the building, structure
or real property. If a public nuisance is found to exist, the panel
shall further state in its decision the remedial measures the owner(s)
of the subject building, structure or real property are to perform
or undertake to abate the public nuisance, along with a specified
time frame within which the nuisance is to be abated.
(3) Responsibility for monitoring the abatement of the identified nuisance
shall rest with the Police Department and/or the Code Enforcement
Office. Upon satisfactory abatement of the subject nuisance within
the designated time frame, the Police Chief and/or the Code Enforcement
Officer shall provide written notification of compliance to the panel,
the Village Board, the Village Attorney and the owner(s) of the building,
structure or real property.
(4) In the event of noncompliance with the decision of the panel, the
Police Chief and/or the Code Enforcement Officer shall provide written
notification of noncompliance to the panel, Village Board, Village
Attorney and owner(s) of the building, structure or real property
and expressly request the Village Attorney to seek Village Board authority
to bring a civil action as described herein.
If, upon the trial of an action in Supreme Court for a public
nuisance or upon a motion for summary judgment, a finding is made
that the 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 first notice to abate
had been given by the Village. Upon recovery, such penalty shall be
paid into the General Village Fund.
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.
Injunctive action taken by the Police Department or Code Office
in accordance with any court order shall not constitute an act of
possession, ownership or control by the Village, and shall not relieve
the owner(s) of his/her/their duties, responsibilities and legal obligations
as relate to the building, structure or real property.
Nothing within this chapter of the Code of the Village of New
Hartford shall preclude the New Hartford Police and/or the New Hartford
Code Enforcement Officers from prosecuting and/or enforcing the very
same acts of public nuisance against the same owner(s), occupiers,
tenants or lessees of the subject building, structure or real property
under any other applicable section of the Village Code or laws of
the State of New York.